Massachusetts Driving Laws

Breath Test at Police Station do not necessarily reflect BAC when driving.

You get pulled over, you take some field sobriety tests and consent to a breath test.  (NOTE: in Massachusetts you are not required to take a breathalyzer or any field sobriety tests.)  You take the Breathalyzer and you blow a .10.    You had a few drinks, and your last drink was right before you left the bar.  At the time you get pulled over, your blood alcohol content (BAC) could actually be lower than it was when you were driving.

The funny (not in a laugh out loud sort of way, but in an ironic sort of way) is that it is totally legal to have a blood alcohol of .08% when you are standing in the police station blowing into a breathalyzer.   Just because the machine says you have a .10 or .11 does not mean that an hour or so earlier, when you got pulled over, that you had a blood alcohol of .10 or .11, in fact it is possible that your BAC when you were driving was in fact below the legal 'per se' limit of .08.

Truth be told, if you are taking a breathalyzer at a police station, your blood alcohol when you were driving could actually have been higher then when you are standing at the station blowing into the tube.   When you are drinking your body is absorbing and eliminating alcohol simultaneous, and therefore your blood alcohol is always changing. 

If you tried to play it safe and wait a few hours after your last drink, and you consent to a blood alcohol test, your BAC when you were driving and got stopped was higher, and this argument won't help.  (There are other arguments and evidence that can be used to challenge the legitimacy of a breathalyzer so if you took one, it does not mean you will automatically be convicted). 

If you had a couple of drinks with friends and finished your last one just as you were leaving and you got pulled over on the way home (and felt relatively fine), and you take a breath test, there is a possibility that your BAC was higher at the police station than it was when you were operating your car.

If you took a breathalyzer you should contact an experienced defense attorney like me, Jessica A. Foley, you can email me at jessica@jessicafoleylaw.com or call me at 617-934-0272.

But I will automatically lose my license if I refuse!

This is a common statement regarding the current state of the law regarding breath test (or other chemical test) refusal in Massachusetts.  It is true; if you don't take a breathalyzer your license WILL be suspended.  The length of the suspension depends on your age and whether or not you have previously been convicted of a operating under the influence. 

The most important thing to remember about breath tests is that if they are administered properly, they can be used against you as evidence by the Prosecutor and the Police. 

Currently, in Massachusetts, if you are under 21 and your blood alcohol comes back at a .02 or above,  you are considered to be intoxicated, and all the Prosecutor has to do is prove that you were operating a motor vehicle, on a public way, and under the influence of intoxicating liquor.  It doesn't matter if you have a high tolerance for alcohol or that you feel fine...all that matters is the number. If you are over 21 and your blood alcohol comes back at .08 or above you are considered to be intoxicated.  A properly administered breath test significantly increases your chances of being convicted of OUI.

Another thing to think about, is that if you have been drinking, it is likely that your judgment regarding how well you are going to perform on the breathalyzer, might be impaired.

You have the right to refuse a breath test!  It is one less thing that the Police and Prosecutor can use against you at trial!  If you have been charged with OUI please call me at 617-934-0272 or email me to set up a consultation!   

A new tool to help avoid drunk driving charges - in the form of an iPhone application.

In my practice, the subject of how much someone can safely drink to legally drive comes up a lot.  Some clients have only had a few drinks and thought that they had spread them out far enough so that they could legally drive.  They are shocked when they take a breathalyzer (which is usually not a good idea) and their blood alcohol is over the legal limit.  Getting arrested for drunk driving is aggravating (at the very least).  If you can avoid it, why not give it a shot?  

There have always been tools on the web, and charts on walls regarding how much someone can drink before they can drive.  I have never before seen a cell phone with a blood alcohol calculator.  That is until now.  AVVO, has come out with an iPhone application that does just that!  It's called the ALC (Avvo Last Call)

If you don't have access to an iPhone, you can check out this post from April which discusses some online sources for evaluating your potential blood alcohol content.

If you are wondering about AVVO, it is a newer company that provides information on licensed attorneys and has a forum where people can ask legal questions.  You can check out my AVVO profile here.

The application is pretty fun, but as always you should rely on your own judgment not on an iPhone application to determine whether or not you should drive.

IF YOU HAVE BEEN ARRESTED, PLEASE FEEL FREE TO CONTACT ME VIA THIS WEBFORM OR CALL ME AT 617-934-0272.

Driving laws and celebrities.

I have a blog about Massachusetts Driving Law (as you know if you are reading this), and it is not very often that there are celebrities involved in driving related issues in Massachusetts. 

This past week in Gloucester, Massachusetts Sandra Bullock and Jesse James were involved in a car accident with an alleged drunk driver.  Sandra and Jesse are at the other end of the celebrity drunk driving spectrum, they are allegedly victims of a drunk driver. Luckily no one was injured in the accident. 

Boston.com reported on April 20, 2008 that Lucile Gatchell of Gloucester, swerved and hit the vehicle that was carrying Sandra Bullock and her husband.  According to Matt Viser, of the Boston Globe, Ms. Gatchell took a breathalyzer, and it came back a .20 (.08 is the per se legal limit in Massachusetts), she also was overheard stating "My first drunk driving incident and I hit Sandra Bullock."

According to the reports, Ms. Gatchell has no prior history of drunk driving, therefore she will be eligible for the first offenders program. Ms. Gatchell made a few mistakes (in my opinion) after the accident, first she took a breathalyzer, and second, she made a statement "My first drunk driving accident." Of course I do not have all of the details, and there may be some suppression issues so the statements and/or the breathlyzer may not be admitted as evidence in court in the event that there is a trial.  Perhaps she can try the "I was in shock because I hit a famous person", defense. 

Check out Boston Channel for a video of the arraignment.  Also for more stories related to the accident you can check out:

Driver charged in crash with actor, by Matt Viser, Globe Staff

Bullock crash draws worldwide attention, by Richard Gaines, Gloucester Daily Times

There are some great celebrity blogs, that regularly report on celebrities, one I like (because it combines celebrities and drunk driving) is Popsquire. 

Can you test your blood alcohol at home?

How much can you drink and then safely operate a motor vehicle?  How much can you drink and be legally drunk in Massachusetts? (Legally intoxicated in Massachusetts is .08 if you are over 21 and .02 if you are under 21.)  How much alcohol you can safely drink depends on many different factors.

I came across an interesting online breath test (obviously you don't blow into the computer...at least not yet).  You can have a little fun comparing body types and blood alchol content by checking out this website:

Cops Online Breath Test

This post is purely for informational/fun purposes, it is not a license to have 5 drinks and go drive because the Cops test told you your blood alcohol would only be .075 if you had 5 drinks in 4.5 hours.  The test does not take into account anything except the information you punch in.  DO NOT USE IT TO ASSESS WHETHER OR NOT YOU CAN SAFELY DRIVE!

There are many factors that effect your blood alcohol, including but not limited to:

• your build
• medical conditions
• health
• how much you eat
• genetics
• your tolerance for alcohol
• medications

If you have taken a breath test and have been charged with drunk driving, call me at 617-934-0272 or email me to set up a consultation.

But I haven't had anything to drink - I'm not impaired!

A question that I get a lot from people (usually after I say not to take a breathalyzer) is what if I'm not drunk?  Now, the first thing you have to remember, is that you don't have to be drunk to get convicted of drunk driving (OUI).  You simply have had to consume enough intoxicating beverage (i.e. alcohol) to impair your ability to operate a motor vehicle safely.  If your blood alcohol level is a .08 or above, you are per se intoxicated.  Even worse, if you are under 21, and you have a .02 or above you are per se intoxicated.  Pretty scary? Careful, you could feel fine and still be legally intoxicated. If you drink a lot often, or even a few glasses of wine or a few beers on a regular basis, you could have a higher level of blood alcohol then you feel. I have met people who exist on a daily basis, legally intoxicated, it just depends on how much you drink.

That being said, now what if you really haven't been drinking?  You're nervous, cold, tired or simply lost, and you get pulled over by the police.  They ask you to take a breathalyzer and do field sobriety tests. A voice in your head tells you not to take any tests, but at the same time, you know that you are sober.  You also have a right to an actual blood test.  (A blood test is also a chemical test under the statute).  So tell the officer you want a blood test (politely).  The officer will take you to the station and give you the information to arrange for a blood test.  If you really haven't been drinking, the worst thing that might happen is that your car will get towed and you'll be out a few bucks.  The officer has probably conducted a legitimate stop - and has to cover him or herself and bring you in if he or she believes you to be under the influence.  So if you take a blood test - you both win!  Remember - be polite!

Did you ask for a blood test?  Did you not get one?  Have you been arrested for OUI? Call me to set up a consultation at 617-934-0272 or email me.  

Penalties for Breathalyzer Refusal under 21

Drivers who are under 21 faced enhanced penalties for operating a motor vehicle while consuming alcohol.  One of the areas where the penalty is increased if you are under 21, is for chemical test refusals.  Usually, but not always, chemical tests are breath tests.

First, if you are under 21 and your breath tests registers .06 or higher you will be charged with OUI.  You face additional suspensions if you take the breath test and it registers .02 or higher, even if you are not 'legally drunk'. 

If you are UNDER 18, you face a one year license loss for refusing a chemical test, if you have no prior record of an OUI conviction.

If you are UNDER 18 and have two prior OUI convictions AND refuse the a chemical test, then your license will be suspended for 18 months. 

If you are UNDER 18 you also face an additional 1 year suspension of your license for refusing a chemical test, simply because you are under 18.  This additional 1 year suspension can be reduced to 180 days if you voluntarily enter into and complete a Youth Alcohol Program that is recognized by the Department of Public Health.  (This additional year is not affected at all by the outcome of your criminal case - even if you are found not guilty.)

If you refuse a chemical test and are convicted of OUI, you will receive a license suspension of an additional 210 days. 

A breath test or other form of chemical test is evidence that will be used against you by the police and prosecutors.  You don't have to take it or any field sobriety tests offered by the police.      

Should you or shouldn't you take the Breathalyzer?  Have you taken a Breathalyzer and now need legal help?  Are you at the police station and being offered a breath or other chemical test? Have you refused a Breathalyzer and need advice?  Call me at 617-934-0272 or email me for a consultation.  Phone calls are accepted 24 hours a day!