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Defending Yourself Starts With Knowing Your Rights...

There are few feelings worse than having a police cruiser behind you, lights flashing, after you have made the poor decision to get behind the wheel of your car after having a few drinks or more.

At that point, what’s done is done and you need to think quickly about protecting yourself against the considerable consequences in Massachusetts of even a first conviction for Operating Under the Influence of Alcohol.

Many people do not realize that when the police ask you questions about where and whether you’ve been drinkingyou do not have to answer.

When the police ask you to exit the vehicle and take Field Sobriety Testsyou do not have to take them (but you do have to exit if you are ordered to - be compliant and stay calm).

If you are arrested nonetheless (and you very well may be), when the police ask you to take the Breathalyzer test, you do not have to take it (this refusal comes with a license suspension, but see below).  Be polite and respectfully decline if that is your choice.

Your refusals will not be used against you in a court of law and, in doing so, you have eliminated the three of the main pieces of evidence used in every OUI prosecution:

  • admissions;
  • Field Sobriety Tests; and
  • the Breathalyzer.

Likewise, if you are offered a portable breath test (PBT) at the scene, you don't have to take it.  Note that the results of the PBT cannot be used in court, so taking it is without risk.  If you are fairly certain that the reading will be below the legal limit of .08 BAC, it may be worth doing to avoid an arrest.

Keep in mind also that many police departments videotape the actual stop and a vast majority videotape the booking process, so be aware of how you carry yourself and speak.

If you are worried about the license suspension associated with the Breathalyzer refusal, it may not be as bad as you think.

With little evidence against you, a good attorney can push your case to trial as soon as possible and, if you are found not guilty, we can file a motion to have your license reinstated by the RMV.

As always, call an attorney as soon in the process as possible. A good attorney will guide you through the process and be available to answer any questions you may have.

We hope this helped!

Article by ADB

Andrew Berman has handled civil and criminal matters at the highest levels for over 20 years. He is a former prosecutor and senior civil trial attorney at a Boston law firm. He has argued in front of the Supreme Judicial Court 3 times on both civil and criminal matters (and the New Hampshire Supreme Court once) and has been appointed as a Special Prosecutor seven times in serious and high-profile criminal matters. He was born in Boston’s North End and currently lives in Braintree with his family, including his three sons, where he is a regular coach and volunteer for Youth Basketball and Baseball.