Prior to 2003 in Massachusetts, the .08% BAC level was not a per se law; it was “evidence but not proof of drunkenness.” However, in 2003, however, Massachusetts adopted a per se BAC law in response to 23 U.S.C. §163, a statute ratified by President Clinton that would withdraw state highway funding if a state failed to enact the .08 BAC level.
Under the current law, to get a drunk driving conviction, all the prosecution has to show is that the person accused of OUI operated a motor vehicle on a public way, or place where the public has a right of access, with a blood alcohol content at or above .08. Whether the alcohol diminished the driver’s ability to operate safely is irrelevant under the .08 law.
Under the Massachusetts “per se” law, only the blood alcohol content (BAC) test result at or above .08 as sufficient evidence to satisfy the intoxication requirement. By reducing the evidentiary burden, the per se laws assist states in the prosecuting OUI offenders. In these per se cases, the central issue at the DUI trial is often the accuracy of the BAC test result and the manner in which the breathalyzer test was conducted.
Obviously, the .08 law cannot be used in cases where the driver refuses to submit to a breathalyzer or blood test. In those cases, the prosecution must prove, beyond a reasonable doubt, that the driver’s ability to drive safely was diminished by alcohol. Thus, there is an incentive to refuse to submit to a breath test. Without breathalyzer readings or alcohol blood test results, the “intoxication” element of the drunk driving charge will be more difficult to prove.
Of course, refusing the breath test is not without consequences. In Massachusetts, a breathalyzer refusal will trigger a license suspension of at least 6 months, up to lifetime, depending on the number of DUI convictions on the driver’s record and whether he or she is 21 years old or not.
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