The moment a police officer asks you to take a breath test after an OUI stop, you’re facing an impossible decision with no good options. Whatever you choose has serious consequences that will affect the next several months or years of your life.
The Refusal Route
Refuse the breath test, and your license gets suspended immediately—180 days minimum for a first offense. That’s six months without driving privileges. For a second offense, it jumps to three years. Third offense is Five years. Fourth offense, you lose your license for life.
These aren’t penalties from a court conviction. This is the Registry of Motor Vehicles punishing you simply for refusing the test. The theory is that by having a Massachusetts license, you’ve given “implied consent” to chemical testing. Refuse, and you face automatic administrative consequences.
Many defense attorneys actually recommend refusing the test. Why? Because breath test results can be powerful evidence against you at trial. A reading above .08% gives the prosecution concrete numbers to point to. Without that evidence, they’re left with the officer’s subjective observations and field sobriety test results—both of which are easier to challenge.
The Testing Route
Take the breath test, and you might blow under .08%, but to be released without charges you need a result of .05% or lower. Any test at a .08% or higher will result in a 30-day license suspension instead of 180 for a first offense.
But what if you blow .08% or higher? Now the prosecution has powerful evidence against you. That number—your exact blood alcohol content—becomes the centerpiece of their case. It’s objective, scientific, and compelling to juries.
However, breath test results aren’t infallible. Numerous factors can create false positives: mouth alcohol from recent drinks or mouthwash, improper calibration of the device, biological processes during the absorption phase, software glitches, and human error in administering or interpreting the test.
The Math Changes with Prior Offenses
For first-time offenders, the difference seems stark: 30-day suspension if you blow versus 180 days if you refuse. But remember, if you’re later convicted or take a plea deal, you’ll face an additional suspension. These run consecutively, not concurrently.
For a first offense with a refusal, you’re looking at 180 days plus 45-90 days (conviction suspension), totaling 225-270 days. But here’s the critical detail: first-time offenders who take a plea deal become eligible for a hardship license, a 12-hour daily license that works for any purpose, but you need to jump through the RMV hoops in order to obtain the hardship license.
With a second offense, refusing a breath test costs you three years immediately. Take the test and blow over .08%, and it’s just 30 days initially, but a conviction adds another two years. The suspension periods stack up quickly, and the eligibility rules for hardship licenses become increasingly complex.
There’s No Right Answer
This is why you can’t get a straight answer about whether to refuse or submit to testing. It genuinely depends on your specific situation: how much you actually drank, your weight and metabolism, when you had your last drink, whether you have prior offenses, whether you need to drive for work, and dozens of other factors. This a difficult decision to make in a stressful situation with not a lot of time to make it and you do not have the right to speak with an attorney at the police station or barracks prior to making the decision.
What you can control is what happens after the arrest. Whether you refused or submitted to testing, you need experienced legal representation immediately. An attorney specializing in OUI defense can analyze your specific situation and build the strongest possible defense based on the choice you made at that impossible moment.
Contact Milligan & Higgins for a free consultation or second opinion. Please send us an email: Intake@milliganhiggins.com or call 781-878-1231.
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