What happens if I am forced to take a breathalyzer test in Massachusetts?

Were you forced to take a breath test after your arrest for drunk driving in Massachusetts? If so, you may be wondering whether or not the breath test results can be excluded from being used as evidence in court. The answer to this question is yes, it can be excluded in court.

A breathalyzer test is only admissible in a Massachusetts OUI case if you CONSENT to the test. What Proves Whether or Not I Consented?

In order to have a valid consent to the breathalyzer test, three things have to have happened prior to the administration of the breathalyzer test:

  1. Advise of Breath Test Refusal Penalties. The police of cer must advise you of the penalties for refusing a breath test. This means you have to be told the potential license loss for refusing a breath test.
  2. Advise of your Right to an Independent Medical Exam. The police of cer must advise you of your right to an independent medical examination, meaning he/she must inform you that you have a right to an independent medical exam if you take a breath test offered by the police of cer.
  3. Advise of your Right to a Call. The police of cer must advise you immediately upon being booked that you have a right to a telephone call and to be released on bail so that you can exercise your right to an independent medical examination.

Often a police of cer will say it is better if you take a breathalyzer test, that you should take it or will try and encourage you. This type of encouragement could be seen as coercing you into taking the test and could result in a judge excluding the test from evidence.

Since a breathalyzer test is supposed to be something that you voluntarily consent to and your consent was not forced or coerced, if you did not consent to the test your motion to exclude could be successful.

Questions or Concerns About Consent?

If you have any questions about what it means to consent to a breathalyzer test and what defenses you may have if you failed the breathalyzer test after being arrested for an OUI in Massachusetts, feel free to call Attorney DelSignore at 781-686-5924 to discuss your questions about breath test evidence.

For further reading on breathalyzers, we recommend visiting the following pages: