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Can you be charged with drunk driving in Massachusetts if your breathalyzer test results are under .08?


Breath test .07: can I be charged with OUI in Massachusetts?

Under Massachusetts DUI law, a Drunk Driving charge can be brought even if your breathalyzer test results are below .08. The District Attorney’s office in Massachusetts will still prosecute a case even if your test results are .06 or .07. If your test results are .05 and under, you should not be charged with DUI in Massachusetts, though a police officer may attempt to allege that you were driving under the influence of drugs.

DUI charges with .06 and .07 breathalyzer test results are difficult cases for the Commonwealth:

The Commonwealth will proceed on the theory that although you were under .08 of the per se prong of Massachusetts DUI law, you were still impaired by alcohol such that you could not operate a motor vehicle safely. In other words, the Commonwealth has two ways to prove an OUI charge:

  1. If you are over .08, the law presumes you are impaired by alcohol;

  2. Showing that alcohol impaired your ability to drive safely; this is the theory the Commonwealth proceeds on in cases where a breathalyzer test was refused or when the result is under .08, of .06 or .07.

The Commonwealth will attempt to rely on your performance on field sobriety tests, observations of the officers, the evidence regarding how you drove to prove that alcohol impaired your ability to drive safely.

In cases where breath test results are below .08, these cases are difficult to prove at trial. Often, a case involving a .07 or .06 breathalyzer test result will be heard by a judge as most judges would not find someone guilty of OUI with a breathalyzer below .08 in the typical case. If you face a Massachusetts OUI charge with a breathalyzer test result under. 08, you should consult with an attorney as many of these cases result in verdicts of not guilty at trial.

For further Reading see our recent cases results and Client Reviews.

You can reach Attorney DelSignore at 781-686-5924 or 508-455-4755 to discuss your case.