If you are pulled over for OUI/DUI in Massachusetts, It is more than likely the police officer will ask you to step out of the car, perform some field tests, and take a breathalyzer test.
Without fully knowing all of your rights, you may comply with the officer’s orders without question. However, the results of the breathalyzer test, given without your express consent, may not be used against you and should be excluded in court.
Prior to an officer administering a breathalyzer test to you, he must inform you of three conditions in order for the breathalyzer test to be considered legally valid, which would include;
- The officer must advise you of the penalties for refusing to take the test (the RMV suspends your license for at least 180 days). The reason for the stiff penalty is that, when you acquired your Massachusetts license, you gave an implied consent to breathalyzer testing.
- The police officer must advise you of your right to an independent medical examination (to establish your blood alcohol content).
- During the booking process after your arrest, the police officer must immediately advise you that you have a right to a telephone call for the purpose of arranging your release on bail (to seek that independent medical examination if you so desire).
When you take the test, the officer should have you sign a form indicating your decision to take the test or refuse it. You do have that choice. Giving your consent would still result in a DMV administrative suspension of your license for 30 days if your blood alcohol is above a .08. However, the report is evidence of your decision, either way.
If the officer tries to convince you to take the test even though you are unwilling, this can be interpreted as coercion. An experienced attorney would address that and possibly get the evidence excluded in court.
Even if the breathalyzer test results are admitted in court, there are many potential defenses which challenge the reliability of the machine and the validity of the testing procedures used.
In order for the Commonwealth to admit your breathalyzer test results as evidence at trial, the Commonwealth must prove the test complied with the statutory required 15-minute observation period. This is the period where the officer is mandated to observe your behavior for 15 minutes prior to administering the test to ensure there was not a contaminating event such as hiccupping, stomach indigestion, burping, or regurgitation.
The Commonwealth will also have to produce documents showing the machine’s annual certification, periodic testing, and demonstrate that the machine is reliable and has been properly maintained.
There are other defense strategies an attorney can utilize, including calling medical or science expert witnesses to give testimonies related to breath test science. An attorney may be able to show a disconnect between the breathalyzer results and other observed characteristics like normal balance, coordination, and communication skills.
After the breathalyzer test has concluded, you should be informed of the test results.
If the Commonwealth’s burden of proof for valid and reliable testing is missing, or the results are inconclusive or inconsistent with other evidence, the breath test results may be excluded from evidence and not shown to the jury when deciding the case.
If you have been forced to take a breathalyzer test without your consent or have any questions related to OUI/DUI, call the offices of Eden Rafferty to talk with one of our attorneys experienced in Massachusetts OUI/DUI laws. We can help.