Blew 0.08 or higher in Massachusetts? The 30-day breath test suspension

Two different results, two different tracks

After an OUI arrest, police ask you to take a breath test. What happens to your license next depends on what you did:

• You refused. The suspension is 180 days or longer, and you can challenge it at a 15-day RMV hearing. See the refusal hearing guide.
• You took the test and it read 0.08 or more (21 and over). This page is about that case.
• You took the test and it read under 0.08. There is no breath test suspension, though the OUI charge can still go forward on other evidence.

The 30-day suspension

The RMV says that if you are 21 or older and register a blood alcohol concentration of 0.08 percent or more, it will suspend your license or right to operate for 30 days under M.G.L. c. 90, § 24(1)(f)(2). The arresting officer will:

• take custody of your Massachusetts license or learner's permit,
• give you a written notice of suspension, effective immediately, and
• notify the RMV.

There is no temporary license and no notice period. The 30 days start that day.

The RMV's page also notes an exception: the 30-day suspension does not apply if you are eligible for a first offender court disposition and your case has been resolved under section 24D. The 24D guide explains that program.

Section 24N: the court can suspend too

A separate law, M.G.L. c. 90, § 24N, covers arraignment. If police did not already take your license, and the prosecutor shows at arraignment that your breath or blood test was 0.08 or more (0.02 for drivers under 21) with the required certification about the test, the judge must suspend your license. That suspension lasts until the case is decided, but no longer than 30 days. It is not added on top of the RMV's 30 days for the same test result; it fills the same role when the officer did not take the license.

How to challenge it

The RMV is clear that this suspension cannot be appealed at the RMV. The challenge goes to the court where the OUI charge is pending, usually a Boston Municipal Court division in the city or a district court elsewhere.

Section 24(1)(f)(2) allows a hearing in that court on a narrow question, such as whether a blood test taken within a reasonable time after the breath test showed less than 0.08. Because the suspension is only 30 days, any challenge has to move quickly, and it is worth asking a lawyer at or before arraignment whether it is practical in your case.

When the 30 days are up

The RMV says that when the breathalyzer failure suspension expires, you must see an RMV hearings officer to be authorized for reinstatement. Your license does not simply reappear. If you also face a suspension from the court case, such as a 24D disposition or a conviction, that suspension is handled separately, and the RMV says alcohol-related suspensions are served consecutively.

Under 21

Drivers under 21 are held to a 0.02 limit for some purposes, and the RMV has a separate page for under-21 suspensions, which can be longer. If you are under 21, read that page and speak to a lawyer, because the numbers on this page are for drivers 21 and over.

What to do now

1. Keep the suspension notice and the breath test printout, if you were given one.
2. Note your arraignment date and court.
3. Ask an OUI defense lawyer whether a court challenge is realistic before the 30 days run. The directory lists firms that handle cases in Boston and the surrounding courts.
4. Plan transport for the full 30 days.

Laws and RMV procedures can change. Confirm the rules for your case with the court, the RMV, or a licensed Massachusetts attorney.