Breathalyzer Tests

One the police have arrested you and brought you to the station you will be offered an opportunity to take a breathalyzer test. If you register of a .08 BAC or higher then your license will be suspended for 30 days on the spot and the Commonwealth will use the test results as evidence against you at trial unless your attorney can find a flaw in the test procedure. Your attorney may be able to challenge the admissibility of those tests by challenging whether the test procedures were properly followed and the breathalyzer was in compliance with the requirements G.L. c. 90, § 24K and C.M.R. regulations.

If you refuse to take a breathalyzer and your 21 years or older your license will be suspended for 180 days. However you may challenge that suspension to the Registry Of Motor Vehicles for a vey limited time to challenge that there was no probable cause to arrest you for drunk driving.

Except in rare instances where the defense brings it up ,the prosecutor may not tell the jury or have a witness testify that you did not take the breathalyzer. That used to probably be to the benefit of the defendant since some jurors would ask the court why there was no breathalyzer test. However, in 2001 the Appeals Court said it was not a violation of Article 12 of The Massachusetts Declaration Of Rights to instruct a jury that they are not to construe it against either side that there was no evidence of a breathalyzer test. Commonwealth v. Downs, 53 Mass. App. Ct. 195, 198 (2001).

Since the 1980’s the legislature has continued to provide for lower tolerance, harsher penalties and enhanced sentences for repeat offenders . With the changes in the law the stakes have never been higher if you are accused of drunk driving. The law is complex, lengthy and intricate. It is essential to your interests to have an experienced criminal defense attorney on your side to help you mount a defense and obtain the most favorable result the facts and the law provide. Opportunity for a more favorable resolution may be missed by not sifting through the facts and exploring all possible avenues of defense.

Attorney O’Malley has successfully represented individuals charged with operating under the influence by tirelessly working to sift through the evidence finding flaws in the prosecution’s case. Many clients have been found not guilty on a case that was not as promising before they met Attorney O’Malley Call an experienced DUI lawyer today. We are available 24 hours a day 7 days a week 365 days a year to answer your call.

Commonwealth v. LB

Client was arrested by the Salem police and charged with operating under the influence. The client consented to take a breath test at the police station. The Salem Police breathalyzer was out of commission. The client was taken by the Salem Police to Peabody Police Station where he took a test with a BAC exceeding .08. Attorney O’Malley challenged the breath Test with a pre-trial motion on the grounds that proper procedures had not been followed. Although the Motion judge denied the request to exclude the results of the test, attorney O’Malley was able to expose facts and circumstances that eventually on the Trial date the Commonwealth was unable to go forward and the case was “Dismissed”