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Breath Test consent for Spanish speaking motorist charged with OUI in Massachusetts

The Massachusetts Supreme Judicial Court will decide whether evidence of an unsuccessful attempt to take a breath test was properly admitted into evidence, given the language barrier between the defendant andarresting officer. A non-English speaking woman is arrested for DUI and fails to pass the Breathalyzer – but is the language barrier a valid defense?

                                                                What happened in the case

  • A Spanish speaking woman is brought to a police station in Massachusetts after being pulled over for suspicion of driving under the influence of alcohol.
  • Once at the station, the arresting officer followed the protocol normally used when dealing with non-English speaking individuals.
  • This protocol involves calling a hotline and reaching an interpreter. With an interpreter on the line, the officer will say what his instructions to the defendant. The interpreter then relayed the instruction. The conversation included the right to refuse a breath test and then the instruction regarding how to take the Breathalyzer test.


After indicating that she understood what was expected of her, the defendant attempted to perform the breath test but because she was not correctly sealing her lips around the machine, the machine would not register a result. After three attempts with the defendant doing the same thing over and over, the officer wrote that the defendant refused the breath test. You can read the filings of the case by following this link to the Massachusetts Supreme Judicial Court website.

What is the Court looking at here?
The Appeals Court is examining whether or not the defendant should be found not guilty based on the fact that the Commonwealth failed to prove beyond a reasonable doubt that she was impaired by alcohol. Her defense had brought forth a required finding of not guilty.


To prove that a person is guilty, the Commonwealth must prove that Adensoto’s driving decreased her ability to drive to be substaintially diminished. The defense argues the fact that the causes of mishaps that the officer observed in Ms. Adensoto’s driving could have be caused by a number of things; these factors including the fact that she was driving home (unplanned) late at night or that she is a young, relatively inexperienced driver. Additionally, it is argued that the fact that the officer testified that Adensoto slurred her speech is not a strong argument considering she was not speaking in English.

Finally, the defense argues that the breath test is not relevant here. This is because there is a high probability that the defendant did not completely understand what was expected of her, or that there may have been a mistake in the relay of information considering it was delivered through an interpreter, and the officer had no way of knowing what the interpreter was actually saying.

Relying on the case of Commonwealth v. Curley, 78 Mass. App. Ct. 163 (2010), the Commonwealth argued that an attempt to fool or game the breath test machine is not a refusal; the defense argued that given the language barrier the trial judge improperly interpreted this case because the defendant was not trying to deceive the machine, but simply did not understand the instructions on how to take the test due to the language barrier.

What will the Court decide?
It is likely that the Court will rule in favor for the defendant. The officer was not right in labeling her breath test submission as a refusal, as she agreed to the test. Additionally, her mistakes in attempting to take the test were likely attributed to the language barrier between her and the officer. It is unclear as to exactly what the interpreter said  – it is likely that there was a communication problem.


Breathalyzers can be harmful or beneficial to a person’s case, depending on the circumstances. Although this case presents a special situation, you can read about defenses I commonly use when I am dealing with breath tests.  In my experience, when the Commonwealth relies on Curley and other cases to admit a failed attempt to take a breath test, the defense has a strong argument that the attempt to take the test shows that the defendant did not believe he or she was under the influence.  Given that most defendant would have no knowledge of how a breath test works, it would be extremely difficult for a person to understand how to deceive a breath test machine.  In a case I had in March 2013, also in Dedham Court, the district attorney admitted this evidence of a unsuccessful attempt to take a breath test and our client was found not guilty.  I think the jury credited my argument that his attempt was an honest attempt to take the test and the Commonwealth merely assumed he was trying to deceive the machine.  Given the officers know very little about how a breath test works, I think the Curley argument is often a bad strategy for the Commonwealth.


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