Breathalyzer implications – Should I take the breath test?

The breathalyzer or breath test machine attempts to measure your blood alcohol content by measuring the alcohol molecules contained within your breath. In order to measure your blood alcohol content through a breath test sample, the breathalyzer or machine used by the police has to assume certain mathematical constants for purposes of that conversion. As we all know, people are all very different and so those mathematical constants which are based upon the human body are taken from the “average person.”

Ask yourself, why could my sample be different? What are these constants they choose and how could they possibly affect the veracity of my individual breath test sample? Variations may include your individual breathing pattern, breath and body core temperature, alcohol remaining in your mouth v. in your lungs, your hematocrit level (red blood cell count), your individual partition ratio (alcohol in the breath to alcohol in the blood) and various other factors. The variations in these factors in conjunction with inherent breathalyzer machine error can be used to sway a jury that a reading may not be as it first appears. Despite these variations, the Commonwealth still considers the breath test machine to be a sound indicator of the blood alcohol content and thus can rely on any reading above .08 to convict on for operating under the influence or OUI.

So you may be thinking – GREAT – as long as I can convince a jury that the sample is below a .08, I am in the clear. That is not accurate. In Massachusetts, you can be convicted for OUI on two different and distinct bases. The first, and most commonly understood, is driving with a per se blood alcohol content or breathalyzer reading above .08. The second, and often misunderstood, is that your consumption of alcohol (at any level) impaired your ability to drive safely. The Commonwealth need not show that you actually drove in an unsafe manner, but that based upon your performance on field sobriety tests or your interaction with the police generally showed that your ability to drive was impaired by your consumption of an alcoholic beverage. The Commonwealth can convict on OUI under this second theory at any breath test reading. In Essex County, where I most commonly practice, you will likely be arrest for OUI for any reading above .05 on the breathalyzer.

So, what do you stand to lose from refusing the breathalyzer? If you refuse the breathalyzer, then the Commonwealth must prove their case based solely on the officers observations or independent witness observations. Without a breathalyzer and/or blood test, the Commonwealth does not likely have any tangible physical evidence to support a conviction and may proceed simply on testimony of the officers alone. Certainly, without a breath test, the case is much stronger for the defense. However, you must understand the associated license losses that accompany any breathalyzer or breath test refusal. For a first offense you would lose your license for 180 for refusing the breath test, 3 years on a second offense, 5 years on a third offense, and a lifetime loss of license on anything Fourth offense or more. These license suspensions for refusal would be added to any license loss associated with a later conviction.

So you have already refused the test and have a pending matter in the District, Superior or Boston Municipal Court. What should you do? How should you proceed? Please contact Criminal Defense Attorney Kristen Bonavita for a free consultation at 978-376-6746.