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No Right to Lawyer Before Taking Breathalyzer

Massachusetts Registry News

Sometimes, a person arrested for drunk driving in Massachusetts will refuse to submit to a chemical breath test unless he or she has an opportunity to speak with an attorney. A request by a police officer for a Massachusetts DUI suspect to take a breathalyzer does not trigger constitutional or statutory right to consult with a DUI lawyer prior to submitting to the breath test. In Massachusetts, unlike in some other states, refusing to take a chemical test in a DUI case is not a crime. Your license may be suspended for 6 months up to life. However, you will not face criminal prosecution for refusing to take a breathalyzer test.

Under the Massachusetts breathalyzer refusal law, G.L. c. 90 § 24(1)(f)(1), a simple request to consult an attorney cannot be interpreted as a breathalyzer refusal. However, repeatedly insisting on speaking with a lawyer prior to taking the test, or agreeing to take a breath test only after prior consultation with an attorney, will likely constitute a breathalyzer refusal which will trigger a license suspension ranging from 180 days to life. It may also trigger a CDL disqualification.

The Mass. implied consent law does not require that an attorney be consulted as a pre-condition to a breath test. A breathalyzer test is exactly the type of physical or real evidence to which the fifth amendment privilege against self-incrimination does not apply. This is because the breathalyzer test is not testimonial in nature. Also, the request for a breath sample is not the initiation of adversarial judicial proceedings sufficient to invoke the 6th amendment right to counsel.

Sometimes a person arrested for OUI will simply ignore requests to take a breathalyzer. Refusal suspensions have been upheld when the person arrested remained silent in response to questions from the police about whether he understood his rights and wanted to take the test. Uncooperative behavior which obstructs the breath testing process can be construed as a “constructive refusal.” Even if a driver verbally agrees to taking the breathalyzer sample, his or her subsequent defiant conduct can be construed as a refusal.

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