BAC: Blood Alcohol Content

Get Counsel from an OUI Attorney in Massachusetts

In the Commonwealth of Massachusetts, you will be arrested for operating under the influence if you cannot successfully complete a field sobriety test or are found to driving with blood alcohol content (BAC) above the legal limit. Alcohol is quickly absorbed into the bloodstream, and is mostly broken down by the liver, which is a slow process. Massachusetts defines BAC as the "percentage, by weight, of alcohol in a person's blood, as measured by a test of the person's breath or blood." For most adults, a blood alcohol content of more than .40 percent is lethal. If your BAC is measured at .08, you will be arrested for drunk driving. If you are under the age of 21, you will be charged with an OUI for a BAC of .02 or greater.

Breath Tests Inadmissible in Massachusetts OUI Cases

Currently, breath tests are not being used as evidence in OUI cases in Massachusetts as a result of Judge Brennan's decision in Commonwealth v. Ananias. Attorney Joseph Bernard was lead counsel in Ananias, the state-wide breath test litigation case that challenged the reliability of the Draeger 9510 machines. Breath tests will resume being used as evidence in court in Massachusetts once the Office of Alcohol Testing meets the requirements of Judge Brennan's order. There are 7 requirements that Judge Brennan has ordered before breath tests can resume as evidence in OUI cases in Massachusetts.

  1. That OAT* has filed an application for accreditation with ANAB** that is demonstrably substantially likely to succeed;
  2. That OAT's accreditation application has been uploaded onto the eDiscovery portal;
  3. That the ANAB Accreditation Requirements manual is available for viewing on the eDsicovery portal;
  4. That OAT has promulgated discovery protocols consisted with those employed by the State Police Case Management Unit, including a definition of exculpatory evidence and an explanation of the obligations pursuant to such evidence; or, in the alternative, that the CMU is responsible for processing OAT's discovery;
  5. That OAT's discovery protocol has been uploaded to the eDiscovery portal;
  6. That all OAT employees have received training on the meaning of exculpatory information and the obligations relating to it; and
  7. That all written materials used to train OAT employees on discovery, and particularly on exculpatory evidence, have been uploaded to the eDiscovery portal

*OAT = Office of Alcohol Testing

**ANAB = ANSI National Accreditation Board

Should you have any questions on breath tests in OUI cases in Massachusetts, please do not hesitate to contact the Law Offices of Joseph D. Bernard. We are available to answer any questions or concerns that you may have.

License Suspensions Based on Breath Tests

Although breath tests are not being used as evidence in court, whether or not you consent to a breath test will affect your license in Massachusetts. Under G.L. c. 90, § 24(1)(a)(1), if you consent to take the breath test, the Massachusetts Registry of Motor Vehicles will suspend your license for 90 days. If you refuse to take the breath test, the Registry of Motor Vehicles will suspend your license for 180 days for a first offense. If this is your second offense and you refuse the breath test, your license will be suspended for 3 years. If this is your third offense and you refuse the breath test, your license will be suspended for 5 years.

Under the Age of 21

If you are under the age of 21 and consent to the breathalyzer test to determine your BAC and it produces a reading of .02% or greater, your license will be suspended for 30 days. If you are under the age of 21 and refuse the breathalyzer test, your license will be suspended for 3 years. If this is your second offense under the age of 21, your license will be suspended for 3 years for a breath test refusal. If this is your third offense under the age of 21, your license will be suspended for 5 years for a breath test refusal. If this is your fourth or greater offense under the age of 21, you will have a lifetime loss of license.

Breath Test Analysis & Validity

Under G.L. c. 90, § 24(k), breath tests can only be valid if they are administered by a certified operator. The breath test devices themselves must be infrared breath-testing devices according to methods approved by the secretary of public safety. The secretary of public safety implements regulations to uphold an efficient protocol for breath tests. These regulations include the following:

  1. The chemical analysis of the breath of a person charged by performed by a certified operator using a certified infrared breath-testing device in the following sequence
    1. 1 adequate breath test sample analysis
    2. 1 calibration standard analysis
    3. A second adequate breath sample analysis
  2. No person shall perform such a test unless certified by the secretary of public safety
  3. No breath testing device, mouthpiece or tube shall be cleaned with any substance containing alcohol

When analyzing the facts of your case, the Law Offices of Joseph D. Bernard will ensure that the breath test that you consented to was administered properly. If it wasn't, our office will take appropriate action.

Portable Breath Tests (PBT)

After being pulled over by police officer, if he or she asked you to consent to a road side breath test, this is never used as evidence in court. The only breathalyzer test that could potentially be used as evidence in court would be if you consented to the chemical test at the police department. The portable breath test does does not follow the regulations under G.L. c. 90, § 24(k) and is thus inadmissible in court. The portable breath test also does not affect your license.

Talk with an OUI Lawyer Today

It is important to keep in mind that if you did consent to a breath test in your OUI case in Massachusetts, it is currently inadmissible as evidence in court. This means that the District Attorney's Office cannot use the breath test result against you. However, please keep in mind that breath tests can resume being used in court once the Office of Alcohol Testing fulfills Judge Brennan's orders. This can occur at any point in time.

If you chose to hire the services of the Law Offices of Joseph D. Bernard, we will be able to review your police report along with the rest of the evidence for your case to determine what is the best route for you to proceed. We counter in all factors of your situation to make sure that you get an outcome you are most comfortable with.

Don't hesitate to contact a Massachusetts DUI lawyer from The Law Offices of Joseph D. Bernard P.C. today to get your free consultation.