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Located in Quincy, Massachusetts, Levin and Levin, LLP was established in 1933 as a full-service law firm committed to providing clients throughout the South Shore with the highest level of legal representation available.

Chemical breath tests and Massachusetts law

Across the United States, it is common for authorities to administer a breath test to check blood alcohol when pulling someone over for potential drunk driving. After a brief suspension, prosecutors in Massachusetts can once again enter results into evidence at trial. If you refuse a breath test, there are consequences. However, you can opt not to let the jury know of your refusal at trial.

Test invalidation

In 2018 and 2019, judges in Massachusetts threw out over 30,000 breath test results due to lax government oversight and human error. Faced with evidence that the government knew the results were faulty and failed to disclose the evidence, a judge issued a ban on entering breath tests as evidence in January 2019.

However, the ban lasted only six months. After reforms by the Office of Alcohol Testing that included retraining staff, the same judge lifted the ban in July 2019. With the ban lifted, prosecutors can once again enter breath test results into evidence.

Breath test refusal

Massachusetts’ implied consent laws impose a 30-day administrative license suspension for refusing to submit to a breath test upon arrest. However, the Massachusetts State Supreme Court ruled in 2017 that defendants have the right to choose whether a judge can inform a jury of their refusal to take a breath test.

The reasoning provided in the ruling was that jurors should make decisions solely based on the evidence that they have heard, not based on evidence that they do not have. The ruling goes on to say that informing the jury of missing breath test results prompts them to act counter to received instruction by wondering about the missing evidence.

Prior to the Office of Alcohol Testing’s reforms, there were cases in which the test results were up to 40% too high because the machines had been improperly calibrated. Nevertheless, breath test results are often the primary evidence in the prosecution’s case.