When prompted by a Police Officer to take a Breathalyzer test after you have been arrested for DUI/OUI, it is very important to understand your options. Most people assume that they have no choice but to take the Breathalyzer test, however, this is not the case. There are several things to keep in mind when you find yourself in this situation.
You need to know that you are not required to take a Breathalyzer test. If you refuse to take this test, you will have your license suspended for a period of time but the prosecutor will not be able to use this test against you in court. However, if you choose to take the test and fail, the results will definitely be used against you at your trial. Please keep in mind that we live in an era where most of your potential jurors are of the CSI mindset. Meaning if they hear evidence that you were over the legal limit in Massachusetts, which is .08%, it will be very hard to convince them that you were not impaired at the time of your DUI/OUI arrest. Although you face a license loss (described below in more detail) if you choose not to take the breathalyzer and are found over the legal limit, at the time of trial, the prosecutor will have less evidence to work with.
If you are over 21 the time of your arrest without any prior OUI/DUI driving offenses on your record and you refuse the Breathalyzer, your driver’s license will be suspended for 180 days. In the instance that you have 1 previous offense and refuse the test, your license will be suspended for 3 years. In the situation that you have 2 prior offenses and refuse, your license can be suspended for 5 years. If you have had 3 or more previous OUI/DUI offenses and refuse to take the Breathalyzer test, you may face a lifetime suspension.
The amount of time for a license suspension varies for people under the age of 21 and even under 18. If you are under 21 and refuse to take the Breathalyzer test, your license will be suspended for at least 3.5 years up to 4 years if you are under the age of 18; even if there are no previous offenses for OUI/DUI. If there is one or more prior offenses, your license will be suspended for even longer.
Even if you take the Breathalyzer and the result is over the legal limit, all is not lost, as far as defending your case. A successful Motion to Suppress can be brought on your behalf, by a seasoned attorney, who knows the ins and outs of the Breath Test Procedure. Sometimes, Law Enforcement Officers do not follow the correct breath test procedure or the breath test machine is not properly maintained. An experienced DUI/OUI Attorney will be able to request all of these records in the discovery process to determine whether or not you have a good opportunity to suppress the Breathalyzer Results. Additionally, these records may show that the particular Breathalyzer Machine used at the Police Station had been giving inaccurate Breath Test Results for a period of time, before and after, your particular case. If any of these issues are raised at the Motion to Suppress and a trial Judge finds that there is no indicia of reliability for the Breath Test Results, the Breathalyzer will be suppressed, leaving you with less evidence against you.
It is imperative that you understand your options in this scenario because it can make all the difference in your DUI/OUI trial. Whether you have taken the Breathalyzer or not, you still need to contact a Criminal Defense Attorney with extensive knowledge and experience handling these types of cases. If you find yourself on the receiving end of a DUI/OUI Charge, please contact Attorney Paul R. Moraski at 1-978-744-1200.
The Law Office of Paul R. Moraski
221 Essex Street, Suite 51
Salem, Massachusetts 01970
Tel: 978.744.1200
Cell: 978.397.0011
Fax: 978.825.1370
attorneymoraski@yahoo.com
www.northofbostonlaw.com
www.massdefense.com
www.massdrugdefense.com
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