DUI and OUI defense
Breath test refusal in Massachusetts
If you refused a breath or blood test after an OUI arrest in Massachusetts, your license is suspended immediately: 180 days if you are 21 or older with no prior OUI, and 3 years, 5 years, or life if you are younger or have priors. You are entitled to an RMV hearing within 15 days, and the refusal generally cannot be used against you at the OUI trial.
How long a refusal suspension lasts
The length depends on your age and your OUI record. Prior OUI convictions and program assignments from any state count.
| Your situation | Suspension |
|---|---|
| 21 or older, no prior OUI | 180 days |
| Under 21 | 3 years (a separate under-21 suspension can also apply) |
| One prior OUI conviction or program assignment | 3 years |
| Two priors | 5 years |
| Three or more priors | Life |
| Prior conviction for OUI causing serious bodily injury | 10 years |
| Prior conviction for OUI motor vehicle homicide | Revoked for life |
What happens when you refuse
The suspension applies when you refuse after being told that refusing means a suspension of at least 180 days and up to a lifetime loss. Once you refuse, no test is given. The officer takes your license for the RMV, gives you a written notice of suspension, and has your vehicle impounded for 12 hours at your cost.
The suspension starts the moment you receive the notice. The officer has 24 hours to prepare a sworn report, and the refusal must be witnessed by someone other than you. A refusal suspension runs consecutively, not at the same time, with any other suspension from the same incident.
Blood is different. You are not deemed to consent to a blood test unless you were brought to a licensed medical facility for treatment, and people with hemophilia, diabetes, or another condition requiring anticoagulants are not deemed to consent to a blood draw.
No hardship license during the refusal period
The refusal statute says no license can be restored and no hardship permit issued during the refusal suspension. There is one important exception. If your OUI case is resolved under § 24D, you can apply to the RMV for a 12-hour hardship license once you enter the program, and that covers refusal suspensions from the same incident. The RMV decides in its discretion.
Challenging the suspension at the RMV
The RMV hearing is limited to three questions. Did the officer have reasonable grounds to believe you were operating under the influence on a public way? Were you arrested? Did you refuse? If the answer to any one is no, the RMV must reinstate your license. The officer's sworn report counts as prima facie evidence, so preparation matters.
If you lose, you can petition the District Court where the offense occurred within 30 days of the RMV's final decision. Filing does not pause the suspension. The court reviews the RMV's record and can reverse a decision that is legally wrong, arbitrary, or unsupported by the evidence.
Getting your license back after a not guilty or dismissal
If you are found not guilty, or all OUI charges are dismissed, and no other alcohol-related charges are pending, you can immediately ask the court that decided the case for a restoration hearing. The law presumes your license should be restored unless the Commonwealth proves, by a fair preponderance of the evidence, that restoring it would likely endanger public safety. The judge must issue written findings.
Can the refusal be used against you at trial?
Generally no. M.G.L. c. 90 § 24(1)(e) says evidence that you refused a test is not admissible against you in a civil or criminal case. It can be used in the license suspension proceedings.
The rule has constitutional roots. In Opinion of the Justices, 412 Mass. 1201 (1992), the Supreme Judicial Court advised that a bill making refusals admissible at criminal trials would violate Article 12 of the Massachusetts Declaration of Rights, because it would compel a driver to furnish evidence against himself.
Commercial drivers and drivers under 21
For a commercial driver's license holder, a refusal in any vehicle also brings a CDL disqualification of at least one year. Drivers under 21 face the 3-year refusal suspension and may face a separate under-21 suspension. Our CDL DUI and under-21 DUI pages explain those rules.
Frequently asked questions
180 days if you are 21 or older with no prior OUI. It is 3 years if you are under 21 or have one prior, 5 years with two priors, and life with three or more.
Not during the refusal suspension, under the refusal statute. The exception is a § 24D disposition, which lets you apply to the RMV for a 12-hour hardship license once you enter the program.
Through the RMV hearing, which you are entitled to within 15 days of the suspension. It covers only reasonable grounds, arrest, and refusal. If you lose, you can seek District Court review within 30 days of the RMV's decision.
Generally no. Massachusetts law makes refusal evidence inadmissible against you in a criminal or civil case.
You can ask the court for a hearing right away after a not guilty finding or dismissal. The law presumes restoration unless the Commonwealth shows it would likely endanger public safety.
Next step
Refused a breath test in Massachusetts?
The RMV hearing window is short. Call 401-621-9700 or send us a message. The first conversation is free. We answer. We listen. We fight.