Can I request a blood test instead of the breathalyzer ? And what if they refuse to let me ?

I was arrested for oui and refused the breathalyzer, However I wanted to take a blood test. I was refused the chance.

Newburyport, MA -

Attorney Answers (4)

James Michael Dunn

James Michael Dunn

DUI / DWI Attorney - Boston, MA
Answered

You do not get to choose a blood test instead of a breath test. You do, however, have the right to get your own blood test, at your own expense and by a doctor of your choosing, in addition to the breath test and the police must make reasonable efforts to accommodate you – such as releasing you within three hours.

It would be a good idea for you to speak with an attorney because there might be grounds to appeal your suspension at a hearing at the RMV, but you should do that soon because there are short time limits on when you can request such a hearing.

Good luck!

Robert D Lewin

Robert D Lewin

Criminal Defense Attorney - North Andover, MA
Answered

Section 5A of Chapter 263 of the Massachusetts General Laws provides as follows: "A person held in custody at a police station or other place of detention, charged with operating a motor vehicle while under the influence of intoxicating liquor, shall have the right, at his request and at his expense, to be examined immediately by a physician selected by him. The police official in charge of such station or place of detention, or his designee, shall inform him of such right immediately upon being booked, and shall afford him a reasonable opportunity to exercise it. Such person shall, immediately upon being booked, be given a copy of this section unless such a copy is posted in the police station or other place of detention in a conspicuous place to which such person has access." Section 24 of Chapter 90 is the so called "implied consent law"; that section provides essentially that any person arrested for oui shall be deemed to have "consented to submit to a chemical test or analysis of his breath or blood"; that law goes on to provide for loss of license penalties in the event the person "refuses to submit to such test or analysis"; that law also provides that in the event you take the police test then you "must be afforded a reasonable opportunity, at [your] request and at [your] expense, to have another such test or analysis made by a person or physician selected by [you]". Under the Chapter 90 provision the police get to pick the test, in your case a breathalyzer. You refused, you lose your license. Under the chapter 90 provision, had you taken the test you would have the right to another test; however, the right to another test is the right to make a phone call from the police station to see if you can get a doctor or a nurse to come to the police station to draw your blood. Likewise under the Chapter 263 provision you have the right to make a make a phone call from the police station to see if you can get a doctor or a nurse to come to the police station to draw your blood. There is nothing in the law that requires the police to give you a blood test. The police get to pick the first test - in your case a breath test. All the police have to do if you refuse the breath test is inform you of your right to be examined by a doctor and give you access to a phone to make a call to a doctor to see if you can get a doctor to come to the police station. You are not the first person to ask this question. These laws have been in effect for decades. A review of either the police report or the video of your booking (if it was videoed) will show whether or not the police complied with Chapter 263, Section 5A.

Robert D. Lewin, Attorney
LEWIN & LEWIN, CRIMINAL LAWYERS
Offices in Andover, MA and Malden, MA serving all of Essex and Middlesex Counties
Tel. 781-322-2228
Fax. 781-322-6351
Email: rlewin@lewinandlewin.com
Website: www.lewinandlewin.com

Benjamin Urbelis

Benjamin Urbelis

Criminal Defense Attorney - Boston, MA
Answered

Requesting a blood test is separate from the breath test refusal. Under the implied consent law, your license is suspended for 180 days if you refuse the breathalyzer for a first offense OUI charge (although most attorneys would tell you that refusing the BT will usually make it much easier to fight your OUI charge in court). That being said, the police department is not equipped to provide you with a blood test at the station. They are supposed to inform you that you may, at your own expense, go to a hospital and request your own blood test. If they prevent you from doing so within a reasonable amount of time (3 hours), then there may be a motion to dismiss the criminal charge of OUI- but it becomes fact specific and you'd need to speak to an attorney to determine whether this applies in your case. If your case is ultimately dismissed, your attorney can file a motion to the court requesting that your license be reinstated, if it is still under suspension for the BT refusal. Good luck.

Gregory Casale

Gregory Casale

DUI / DWI Attorney - Worcester, MA
Answered

You have received excellent answers to your question. The short answer is no, you cannot choose what type of test you get for your blood alcohol, by the police. If you refuse the breath test, you will loose your license for a minimum of 180 days. However, if you are later found Not Guilty, you can get your license reinstated. The breath test is a very damaging piece of evidence at trial, assuming you blow .08% or greater. If there is any doubt in your mind whatsoever, you should refuse it. You can later, on your own, get a blood test.

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