Breathalyzer/Field Sobriety Test

Protecting Your Rights After a Sobriety or Breathalyzer Test

When you have been stopped for suspicion of drunk driving, you are not required to submit to field sobriety tests. You have the right to refuse and you cannot be penalized for refusal, nor can the fact that you refused be used against you in court. Field sobriety tests are often the basis used by law enforcement officers to establish probable cause to arrest.  Upon arrest, the police will bring you to the police station where you will be asked to submit to a Breathalyzer test.

Though you can refuse to submit to a Breathalyzer test at the police station, and your refusal cannot be used against you in court, your refusal of the Breathalyzer test at the police station will lead to an automatic suspension of driving privileges. Under the implied consent laws of Massachusetts, you agree to submit to chemical tests in exchange for the right to drive. Please note that because the portable Breathalyzer is considered part of the field sobriety test, you can refuse to take a portable blood alcohol test without automatic license suspension.

Types of Field Sobriety Tests

Eye movement: “The pen test”, or horizontal gaze nystagmus (HGN), that tracks your eye movement while you are asked to follow with your eyes a pen or other stimulus that is waved in front of you in order to test your concentration and control, as well as to detect involuntary eye movements that the police believe are evidence of alcohol impairment.  The HGN test is considered scientific in nature and thus requires a proper foundation before it is admissible at trial.

Balancing: “Walking the line,” “Nine Step Walk and Turn,” or “One Legged Stand,” involves an analysis of balance, coordination, muscle control, memory and concentration.  During these test the officers are looking for not only completion of the requested test, but how you listen to instruction, memory of those instructions and performance during the test.

Recitation: Saying the alphabet or counting (either forwards or backwards) in order to demonstrate mental functionality and clarity of speech.

Manual dexterity tests: Using your fingers and hands in patterns to test your fine motor skills, control, coordination and concentration.

Challenging Field Sobriety Tests

If you have been charged with drinking and driving based on the results of a field sobriety or Breathalyzer test, you may mistakenly believe that it is in your best interest to simply plead guilty. You may also erroneously believe that you will get a reduced sentence by pleading guilty rather than defending the charges in court. You want an experienced lawyer to protect your interests, one who has worked extensively with sobriety and Breathalyzer tests, who knows how to effectively challenge the results of these tests.

Criminal Attorney Bonavita has extensive experience challenging field sobriety tests in DUI, DWI and OUI cases. She will carefully examine the facts and evidence surrounding the administration of field sobriety or Breathalyzer tests to determine whether they were properly conducted. Criminal Attorney Bonavita will also review the chain of custody of any evidence to verify that it was not compromised. She will use her experience to examine all the possible defenses to reduce or dismiss the charges against you.  The best defense often focuses on what is not written in the police report.  Criminal Attorney Bonavita understands what the police are looking for in determining impairment and is able to then extract the portions of the stop that were done without fault.

Refusal of Field Sobriety Tests

You have very little to gain from complying with a request to conduct a field sobriety test. It is unlikely that you will be let go, even if you pass the tests. It is your right to politely refuse to submit to the field sobriety tests, but be aware that an officer is going to be scrutinizing your every move for evidence that supports his theory that you have been driving under the influence.

Implied Consent

In Massachusetts, when you obtain a driver’s license, you essentially enter into a contract that obligates you to provide a breath or blood sample to determine if you are operating a vehicle while under the influence of alcohol or other controlled substances. Failure to comply with the terms of this contract – your implied consent – will result in a driver’s license suspension of at least 180 days and much longer depending on how many prior offenses there are or whether you are under age 21.

Even though your blood alcohol content (BAC) may have been .08 or above, this does not mean that your case is over. Criminal Attorney Bonavita takes pride in challenging the results of all tests – field sobriety, Breathalyzer and blood – in order to ensure that all potential mistakes are exposed. She can review how the samples were analyzed, how the Breathalyzer was calibrated and challenge how the field sobriety tests were conducted. Criminal Attorney Bonavita can also challenge the motor vehicle violation, reasonable suspicion or probable cause that the police officer used to form the basis of your traffic stop.

Massachusetts OUI penalties can differ depending on the facts of your individual case, as well as the nature of the charges you’re facing. License suspension penalties for breath test refusals may apply in Massachusetts drunk driving law cases.

View the Massachusetts state brochure on DUI/OUI

If you are facing charges for a DUI or OUI in Newburyport, Salem, Boston, Amesbury, Salisbury, Lawrence, Ipswich, or any town in the Essex, Suffolk, or Middlesex counties in Massachusetts, call Criminal Attorney Bonavita immediately at 978-376-6746 or email her with your case information!