DWI Attorney Massachusetts

BREATH TEST FAILURES AND REFUSALS

Alert!!! Melanie's Law took effect on October 28. It increased refusal periods, increased waiting periods for hardship licenses and requires an ignition interlock device for reinstatement for ALL SUBSEQUENT OFFENDERS. Changes are outlined below in red.

All license losses on a case are added to each other.

If you are found not guilty or the case is dismissed, there is a presumption that your license will be reinstated for the rest of the refusal suspension period.

Note: Operators under age 21 face additional penalties to the following under c.90,§24P (see elsewhere in these materials)

CHEMICAL TEST FAILURES:

A breath test of .08 for operators over age 21, or .02 for operators under age 21 incurs a 30 day suspension. Note: This suspension terminates at 90 days or with the disposition of the case, whichever is earlier.

CHEMICAL TEST REFUSALS:

  • Suspensions for Chemical Test Refusals increase when the operator has had previous OUI convictions or admissions. Contrary to the popular opinion, the enhanced suspensions are not based on previous refusals.
  • 3 years: Operator over age 21 who refuses and has one prior OUI.
  • 5 years: Operator over age 21 who refuses and has two prior OUIs.
  • Lifetime: Operator who refuses and has three prior OUIs.

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UNDER 21 OUI ISSUES

There is a complex set of rules that affect drivers under 21 differently from their adult counterparts. These issues have come up more and more frequently lately, Use the following as a guideline in handling some of these issues.

NOTE: See "Junior Operator" section for additional under age 18 penalties

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CHEMICAL TEST REFUSALS

BEFORE DISPOSITION: (assuming first offense)

  • 3 year suspension.
  • 180 day suspension under M.G.L. c.90, §24P (run on/after the above suspension)

NOTE: The 2nd 180 day suspension under §24P is waivable upon ENTRY into the alcohol program. Unlike the statue for conviction, completion is not required. If they do not complete the program, we have the authority at that time to reinstitute the suspension.

AFTER DISPOSITION: (assuming first offense)

  • GUILTY/CWOF: The minimum sentence is 210 days, run on/after the above suspensions.
  • NOT GUILTY/DISMISSAL: The operator can get the first 180 days cleared if they get an order from the court. They still must serve the 2nd 180 days under §24P unless they enter a program on their own accord.

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CHEMICAL TEST FAILURES

The new law calls for suspension actions even when the BAC reading is under the limit that would result in an OUI charge (which must be .06 or above). Any youth having a reading of .02 or above falls under M.G.L. c.90, §24 (1)(f)(2) and §24P EVEN IF THEY ARE NOT CHARGED WITH OUI.

IF THERE IS NOT AN OUI CHARGE: (assuming first offense)

180 day suspension under M.G.L. c.90, §24P

NOTE: The 180 day suspension under §24P is waivable upon ENTRY into the alcohol program. Unlike the statue for conviction, completion is not required. If they do not complete the program, we have the authority at that time to reinstitute the suspension.

IF THERE IS AN OUI CHARGE: (assuming first offense)

  • 30 day suspension under §24 (1)(f)(2), or until the case ends in court (whichever is shorter)
  • 180 day suspension under §24P (on/after), waivable upon entry into the program.
  • 210 days minimum if convicted, on/after the above.

NET RESULT: A youth in this case entering the program must serve 210 days (first offense), as the 30 days ends with the case, and the 180 days ends with the program entry.

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Effects of a Not Guilty / Dismissal / Nolle Pros In OUI Cases on Chemical Test Refusals and Failures

  1. When the operator is under a 30 suspension for failing a breath test:
    The Not Guilty or Dismissal (incl. Nolle Pros) will terminate the 30 day suspension as soon as the RMV has notice of the court finding.
  2. When the operator is under a 3 year suspension for refusing the test:
    The finding does not automatically terminate the suspension, but in the great majority of cases the license is returned upon motion.

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