Should I Take the Breathalyzer

If You are Stopped…

One of the most common questions we get is, “If I’m stopped for drunk driving, should I take the breathalyzer” or “Should I take the field tests?” First, it is important to know that you do not have to do either. Police will inform you of your right not to take the breathalyzer. However, they most likely will not tell you that, when they ask you to do field sobriety tests such as walk in a straight line, say the alphabet (say the alphabet backward), touch your nose, or stand on one leg, you do not have to do the tests. It is always a good idea to be respectful during a traffic stop, but you have the right to tell the officer that you do not have to do the tests, and you do not want to do the tests.


If you refuse the breathalyzer or refuse the field sobriety tests, not only can the results not be used against you, but the fact that you refused the tests also cannot be used against you in Massachusetts (in some states, a refusal can be used as evidence or can even result in a separate criminal charge with separate penalties). Breathalyzer refusal in Massachusetts does, however, carry a license suspension: License Suspension for OUI.


Oftentimes, there will be other evidence against the driver in DUI other than the tests. Police will describe the operation of the vehicle if the driver was speeding, crossing a double yellow line, driving too slowly, or swerving. If there was an accident, that can be used as evidence. Police often talk about the driver having slurred speech, being unsteady on his or her feet, having red eyes, bloodshot eyes, or glassy eyes. They may also describe the odor of alcohol coming from the driver’s body, breath, or vehicle. Empty beer cans or liquor bottles in the car or any statements about drinking (“I had one or two beers”) can, of course, be used as evidence.


But typically an OUI/DUI/Drunk Driving case relies heavily on the results of a breathalyzer or field sobriety test. When deciding whether or not to take the tests, it is important to remember that you have a right not to take the tests and that the results of those tests will be used against you in your case.