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

What happens if you were forced to take a breath test after you arrest for OUI in Massachusetts. Can the breath test results be excluded from evidence? The answer to this question is that it can be excluded in court.

A breathalyzer test is only admissible in a Massachusetts OUI case if you consent to the test. This means that in order to have a valid consent to the breathalyzer test, three things have to have happened.

  1. The police officer has to 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. The police officer must advise you of your right to an independent medical examination. This means that the police officer must inform you that you have a right to an independent medical exam if you take a breath test offered by the police officer.
  3. The police officer 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 officer 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.

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 or 508-455-4755 to discuss your question about breath test evidence or you can download my free book for more information.