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 OUI law, a Drunk Driving charge can be brought against you 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.

I passed the breath test. Why am I still being charged with OUI?

If you blow a .06 or .07 the arresting police officer has discretion whether or not to continue with your arrest. Because you legally passed the breath test, the officer must have additional evidence against you to prove that your driving was impaired. If your test results are .05 and under, you should not be charged with OUI in Massachusetts, though a police officer may attempt to allege that you were driving under the influence of drugs.

OUI charges with .06 and .07 breathalyzer test results are difficult cases for the Commonwealth to prove in court

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.

Is my case winnable because I passed the breathalyzer test?

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 after trial. Contact our office today - we would be happy to discuss your case with you and can explain the laws in greater detail.

If you still have questions about the breath test you took after being arrested and charged with OUI, visit our website here to learn more.

For further reading about the court process and what you can expect as your case progresses read here.

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A careless decision on my part left me facing charges which would have severely hampered my ability to stay employed and support myself. But attorney DelSignore's skillful analysis and challenging of the evidence against me resulted in a conviction on a lesser charge. Now I'll be able to go on with my life, having learned a lesson I'll never forget. Thank you, Michael. Scott
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