Massachusetts OUI/DWI: Refusal to Take a Blood, Breath or Urine Test

In Massachusetts, if you get pulled over for a DWI (driving under the influence) and the officer asks you to take a blood, breath, or urine test, do you have to take one? What happens if you refuse?

Implied Consent

Massachusetts law requires you to take a breath or blood test if you are arrested for a DWI. Massachusetts’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving while intoxicated, then you consent to taking a chemical test of your blood or breath for the purpose of determining your blood alcohol content (BAC).   The test must be taken as soon as possible from when you were last driving. The officer gets to choose which test you take, although he or she must take you to a medical facility to have your blood drawn. The law also gives a special exemption for diabetics, hemophiliacs, or anyone taking anticoagulants – they don’t have to take the blood test.

Once you are arrested, the officer should tell you that if you refuse to take the test, then your license will be suspended for at least180 days and up to a life-time loss. At that point, if you decide to refuse the test then the officer can’t force you to take one. He or she will, however, take your license, give you notice that your suspension is now in effect, and will send your car to impound. Your car will be stuck in impound for 12 hours after your refusal and you will have to pay for the towing service and storage costs.  

You can find the implied consent law at Massachusetts General Laws 90-24(f).

Refusing to Take the Test

 

1st  Offense

2d Offense

3rd  Offense

Refusal to take test

180 day license suspension

3 year license suspension

5 year license suspension

In Massachusetts, the suspension lasts for 180 days if this is your first refusal, you are 21 or older, and if you do not have any prior DWI convictions. If you are under 21 or have had a prior DWI conviction, then your suspension is for three years. The penalty is also a three-year suspension for your second refusal. For your third refusal, you lose your license for five years. You will lose your license for life if you have been arrested and refused to take a chemical test three times before.

You may request a hearing within 15 days of when the officer took your license. At the hearing, you would have to prove that it was not reasonable for the officer to think you were intoxicated, or that you were never placed under arrest, or that you actually consented to the test. If you can convince the court on any one of those points, then you can have your license back.

The penalties are much more severe if you are involved in an accident that caused serious injury or death. If you cause a serious injury, refuse to take a test, and later are convicted of a DWI, then your license will be suspended for ten years. If you cause a death, refuse to take a test, and later are convicted of a DWI, then your license will be suspended for life.

To read more about the penalties for refusing a test, see Massachusetts General Laws 90-24(f).

Should You Refuse to Take a Mandatory DWI Test in Massachusetts?

It usually does not help you to refuse to take a blood or breath test when you are arrested for a DWI. In Massachusetts, you will be fined at least $500, could spend time in jail, and will have your license suspended if you are convicted of a DWI.  These consequences are more severe than those for refusing a test. Still, refusing the test does not guarantee that you won’t be convicted – you could be found guilty of a DWI even if your refusal means that the state does not have proof that your BAC was over.08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DWI.

Get Help With Your DWI

If you have been arrested on a DWI charge in Massachusetts or any other state, get help from an experienced DWI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DWI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DWI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.

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