- You have a right to refuse field sobriety tests
- A breathalyzer at the scene is not admissible in court
- Operating under the influence of marijuana is a crime
According to a recent report in 24/7 Wall Street, Barnstable has the highest rate of drunkenness in the entire state of Massachusetts. It is not clear whether this is because more people drink in the town of Barnstable or because more people get caught doing so. It is probably a combination of both. As a vacation destination, people who visit the Cape may drink more while they are here. Holidays especially are times when people may tend to drink more. Cape law enforcement is attuned to this type of behavior and may have extra time to investigate these types of situations in an otherwise quiet off-season.
Should You Take a Field Sobriety Test or Portable Breathalyzer Test?
In Massachusetts, a blood alcohol content (BAC) level of .08% is considered operating under the influence (OUI), whether or not a person is actually impaired. If you are stopped on the suspicion of operating under the influence, a police officer may ask you to submit to “field sobriety tests”. These are a series of tests that the officer administers at the scene. They can include asking you to recite the alphabet, counting backwards, standing on one leg, or walking a straight line. The officer’s observations of you performing these tests can be admissible in court. You are not under an obligation to perform these tests, you have the right to say you will not do them, and your refusal is not admissible at trial. There is no automatic suspension of your license if you refuse to perform the field sobriety tests.
Instead, you should ask the officer to take a portable breathalyzer test. Many police officers have these devices in their patrol cars. The results of the test will not be admissible in court as they are only used to determine whether there is “probable cause” to arrest someone on the suspicion of drunk driving. If you pass the portable breathalyzer, you most likely will not be arrested. If you fail, it cannot be used against you in court, and you will know that you will probably fail a subsequent test performed at the police station.
Breathalyzers Performed at the Police Station
If you are arrested, you will be asked to take another breathalyzer test at the police station. If you refuse this breathalyzer, even though it is voluntary, there is an automatic 6-month suspension of your Massachusetts driver’s license, for the first offense. If you take the test at the station and fail, there is an automatic 30-day license suspension. Know that the results of a breathalyzer test performed at the police station are admissible in court. Keep in mind that the above penalties only apply to refusing or failing the breathalyzer. There will be further penalties for a admission or plea of guilty to OUI.
IMPORTANT NOTE: At this time, the Barnstable District Attorney’s office is not admitting the results of breathalyzer tests due to questions surrounding the reliability of the test results. Be aware that this policy could change at any time and these test results could be admitted in court proceedings.
IT IS A FEDERAL OFFENSE TO REFUSE A BREATHALYZER TEST IN THE NATIONAL SEASHORE OR OTHER FEDERAL PROPERTY.
What About Pot?
Remember that marijuana is still illegal for those under 21. Although adults over the age of 21 may use marijuana legally, it is still a crime to drive under the influence of pot. The law and technology have not yet determined how to measure impairment from marijuana as they have with alcohol. There is no specific test, like a breathalyzer, that can be administered. As with field sobriety tests with alcohol, if you are stopped for suspected driving under the influence of cannabis you have a right to refuse to perform these tests.
Although it may seem “safer” to drive under the influence of marijuana than alcohol, do not assume the police are without tools to combat this growing problem. As a matter of fact, some local police have taken to using an arcane provision of the law which allows an officer to declare a driver “an immediate threat”. This law, usually reserved for those whose driving abilities are questionable due to age or a medical condition, such as a seizure disorder, results in an immediate and indefinite suspension of your license without benefit of a hearing.