Incomplete Breath Tests and Refusals Under 501 CMR 2.16 in Massachusetts

A Massachusetts police officer who administers a breath test after an OUI arrest follows a sequence codified in 501 CMR 2.00. Section 2.16 of those regulations states what the operator must do when a test ends before completion. The breath test operator must terminate the test and note the test as a refusal if the arrestee, after consenting, refuses to participate, declines to cooperate, or fails to supply the required breath samples upon request. This page describes what the regulation requires of the operator, what the Registry of Motor Vehicles (“RMV”) does to the driver’s license when the operator notes a refusal, what a jury may hear about an incomplete test, and what the defense argues when the operator continues a test past the point at which the regulation requires the operator to stop the test.

The Breath Test Sequence the Operator Must Follow

G.L. c. 90, § 24K requires that a breath test be performed by a certified operator, on a certified infrared device, according to methods approved by the Secretary of Public Safety. The Secretary’s methods are set out in 501 CMR 2.00. Section 2.13(1) requires that every breath test of an arrestee be administered in accordance with § 24K and the whole of 501 CMR 2.00.

The arresting officer or the breath test operator must document the arrestee’s consent. 501 CMR 2.14(1). The operator must then observe the arrestee for at least 15 minutes immediately before the test, and must restart the period if the operator has reason to believe the arrestee put anything in the mouth. 501 CMR 2.13(3). The firm’s page on breath test science and the Alcotest 9510 covers the observation period and the reasons for it.

The test itself is a three-part sequence of one adequate breath sample analysis, one control standard analysis, and a second adequate breath sample analysis. 501 CMR 2.14(3). An adequate breath sample under Massachusetts regulations is defined as a sample of breath that, when delivered, is sufficient in volume and flow for analysis by an approved breath test device. 501 CMR 2.02. The two breath samples must agree within 0.020 blood alcohol content units. If the two samples do not agree within 0.020, the operator must begin a new sequence. 501 CMR 2.14(4). When the two samples differ within that range, the operator reports the lower of the two, truncated to two decimal places, as the arrestee’s blood alcohol content. 501 CMR 2.15(2). The Supreme Judicial Court has held that the Commonwealth may present only that lower result to the jury. Commonwealth v. Steele, 455 Mass. 209 (2009).

Under 501 CMR 2.13(4), a test that complies with 501 CMR 2.14 is valid and its results are admissible. The Commonwealth must prove that compliance before the judge admits the result into evidence. Commonwealth v. Barbeau, 411 Mass. 782 (1992). Commonwealth v. Pierre, 72 Mass. App. Ct. 230 (2008).

What 501 CMR 2.16 Requires of the Operator

Section 2.16, titled Breath Test Refusal, addresses three situations.

For a refusal before any test begins, the regulation provides that once the arrestee has been advised of the rights and the consequences of refusing and then refuses to submit, no test shall be given. The police officer must notify the RMV of the refusal in a format the Registrar approves.

For a withdrawal of cooperation after consent, the regulation provides that if, at any time after the arrestee’s initial consent and before the successful completion of the test, the arrestee refuses to participate or declines to cooperate, the test shall be terminated and noted as a refusal.

For a failure to supply the samples, the regulation provides that if the arrestee fails to supply the required breath samples upon request, the test shall be terminated and noted as a refusal.

For a withdrawal of cooperation after consent and for a failure to supply the samples, the regulation requires the operator to terminate the test. The operator who sees the arrestee decline to cooperate, or who requests a sample and receives none, ends the sequence at that point and records a refusal on the test record and on the report to the RMV. The Supreme Judicial Court has described the regulation as ensuring that a person who fails to perform the test properly does not avoid the license suspension the implied consent law imposes on a refusal. Commonwealth v. Adonsoto, 475 Mass. 497 (2016).

Consequences at the Registry of a Test Noted as a Refusal

The RMV suspends the license for longer when the operator records the test as a refusal than when the driver fails a completed test. The driver cannot obtain a hardship license during a refusal suspension. Under G.L. c. 90, § 24(1)(f)(1), the RMV suspends the license or right to operate for 180 days for a driver with no prior offense. The RMV suspends the license for 3 years for a driver under 21 or a driver with one prior OUI conviction or program assignment, for 5 years for a driver with two, and for life for a driver with three or more. The statute provides that during that suspension no license or right to operate shall be restored under any circumstances and no restricted or hardship permit shall be issued.

A driver who completes the test at .08 or greater, or at .02 or greater when under 21, faces a shorter suspension. Under § 24(1)(f)(2), the officer takes custody of the license on the spot. The suspension continues until the case ends, but the statute caps the suspension at 30 days. The officer’s sworn report to the RMV must state that the operator was trained and certified, that the test was performed in accordance with the Secretary’s regulations, and that the equipment was regularly serviced and maintained.

A hearing officer may find a refusal where the driver began the test and did not complete it. In Kasper v. Registrar of Motor Vehicles, 82 Mass. App. Ct. 901 (2012), the driver gave one adequate sample and then failed to give an adequate sample on five further attempts. The Appeals Court held that those facts permitted the hearing officer to infer a refusal, and that a driver need not commit an observable act of defiance for the Registrar to find a refusal. The court also noted that once the police report of refusal meets the statutory requirements, the burden at the RMV hearing shifts to the driver to show that the driver did not refuse. 540 CMR 11.02(5)(b).

The driver has 15 days from the suspension to obtain a hearing before the Registrar. The hearing is limited to three questions: whether the officer had reasonable grounds to believe the driver was operating under the influence on a public way, whether the driver was placed under arrest, and whether the driver refused the test. G.L. c. 90, § 24(1)(g). The firm’s OUI license FAQs explain the hearing procedure. A driver with a documented medical or physical reason for an inadequate sample presents it at that hearing, because the inference in Kasper rested in part on the absence of any explanation for the failed attempts.

After a not guilty finding or a dismissal of all the alcohol charges, the driver may immediately ask the court that took final action to restore the license. The statute creates a rebuttable presumption in favor of restoration. The judge therefore restores the license unless the Commonwealth establishes by a fair preponderance of the evidence that restoration would likely endanger the public safety. G.L. c. 90, § 24(1)(f)(1). The firm’s license suspension and reinstatement guide covers the restoration hearing and the prior-record rules, and the hardship license guide addresses same-incident refusal relief after a Section 24D disposition.

What the Jury Hears About an Incomplete Test

The jury never hears that a defendant refused the test outright. Evidence that the defendant refused the test is inadmissible in a criminal proceeding under G.L. c. 90, § 24(1)(e), and under article 12 of the Massachusetts Declaration of Rights, because a refusal is testimonial and compelled. Opinion of the Justices, 412 Mass. 1201, 1211 (1992).

The jury does hear about a test the defendant began after consenting and did not complete. In Commonwealth v. Adonsoto, 475 Mass. 497 (2016), the defendant consented, attempted the test three times, and produced no result. The Supreme Judicial Court held that a failure to properly perform the test after giving consent is not refusal evidence, because the reason for excluding a refusal, that the evidence is compelled and testimonial, does not apply to a defendant who consented. The Court adopted the reasoning of Commonwealth v. Curley, 78 Mass. App. Ct. 163, 167 to 168 (2010), where the Appeals Court held that the officer may describe the defendant’s physical actions during the attempts and the jury may infer that the defendant was trying to avoid giving a sample while appearing to try to take the test.

The defendant in Adonsoto argued that 501 CMR 2.16 itself labels a failed test a refusal and that the label should exclude the evidence. The Court rejected the argument and held that a refusal under the regulation is not a refusal for constitutional purposes. The Court read the regulation as a rule written for the license suspension.

Where the operator records the incomplete test as a refusal, the RMV imposes the refusal suspension with no hardship permit. The jury still hears about the failed attempts, because the driver consented. A driver who refuses outright receives the refusal suspension and a trial with no test evidence. A driver who completes the test receives the 30-day suspension and a trial with a breath test final analysis the defense can challenge. A driver whose test ends before completion can receive both the refusal suspension and testimony at trial about the failed attempts.

The defense answers the Curley inference with the record of the attempts. Booking room video shows what the operator instructed, how long each attempt lasted, and whether the driver was blowing. Medical records of asthma, chronic obstructive pulmonary disease, a rib or chest injury, or another condition that limits breath volume explain an inadequate sample. The printed test record from the Alcotest 9510 shows each attempt in the sequence and its result.

A Test Continued Past the Required Termination Point

The regulation requires the operator to terminate the test at the first failure to supply a requested sample. Some breath test records show that the operator continued the test after a failure. The driver gives a first sample and fails on the second request. The operator then restarts, coaches, and requests again, sometimes through several more attempts, until the device produces two samples within 0.020. The report shows a result rather than a refusal. The sworn report under § 24(1)(f)(2) states that the test was performed in accordance with the regulations.

The defense argues that the operator did not comply with the regulations. Section 24K requires tests performed according to the Secretary’s approved methods. 501 CMR 2.13(1) also requires administration in accordance with all of 501 CMR 2.00, which includes 2.16. The Commonwealth bears the burden of showing that compliance. Barbeau, 411 Mass. 782. Pierre, 72 Mass. App. Ct. 230. Under Pierre, a judge excludes the result where the deviation from the regulations was substantial. Lesser deviations from meticulous compliance ordinarily affect the weight the jury gives the result rather than whether the judge admits the result. Commonwealth v. Kelley, 39 Mass. App. Ct. 448, 453 (1995). The defense argues in the motion that a sequence the regulation required to end at the second request, and that the operator continued through further requests to a result, is a substantial deviation. The defense also argues that a result obtained after the required termination point has no regulatory foundation.

Under section 2.13(4), however, a test that complies with 2.14 is valid and admissible. Section 2.14 requires the three-part sequence but does not limit how many times the operator may request a sample. No reported Massachusetts appellate decision holds that a result obtained after a point at which 2.16 required termination is inadmissible. The Court in Adonsoto described 2.16 as a rule written for the refusal suspension. The Commonwealth argues from that description that the regulation serves the RMV rather than the defendant. A judge who accepts the Commonwealth’s argument admits the result and leaves the extra attempts for the jury to weigh.

The motion rests on the records. The printed test sequence shows the time and result of each attempt. Booking room video shows the requests and the responses. The officer’s report and the sworn report to the RMV show how the officer characterized the event. On cross-examination, defense counsel compares the sworn statement of compliance with the text of the regulation.

The Refusal Risk in Bringing the Motion

In the motion, the defense describes the event as one the regulation required the officer to record as a refusal. The RMV imposes the refusal suspension on an officer’s report of refusal. Where the officer reported a result, the RMV imposed the 30-day suspension under § 24(1)(f)(2). The driver may already hold a restored license. A motion that seeks a finding that the test should have ended as a refusal asks the judge to reexamine how the officer described the event. In Attorney Joe Serpa’s assessment, a driver with a prior offense who wins that motion invites the Commonwealth to describe the same event as a refusal, with a 3-year or 5-year suspension and no hardship permit.

The motion also rests on the premise of Adonsoto, that the driver consented and then failed to complete the test. Whether the judge excludes or admits the result, the Commonwealth may offer the officer’s account of the failed attempts at trial. The jury may then draw the Curley inference. The defense that files the motion prepares the answer to that inference at the same time.

Counsel therefore weighs the value of excluding the result against the risk of a refusal suspension before filing. For a first offender with a result near .08, the 30-day suspension has usually ended before the judge hears the motion. Exclusion of the result also changes the trial from a blood alcohol case to an impairment case. For a driver with a prior conviction or program assignment, the exposure to a 3-year refusal suspension with no hardship permit can outweigh the value of excluding the result.

What Counsel Reviews in an Incomplete-Test Case

1. The printed test record. The Alcotest 9510 record shows each attempt, its time, and its result, and shows whether the operator restarted the sequence. The record shows the point at which the regulation required the operator to terminate the test.
2. Booking room video. The video shows the operator’s requests and instructions, the length of each attempt, the driver’s effort, and whether the operator continued after a failure. The firm requests the video in every breath test case.
3. The officer’s report and the sworn report to the RMV. The reports show whether the officer recorded a refusal or a result. The sworn report under § 24(1)(f)(2) contains the officer’s statement that the test complied with the regulations.
4. The operator’s certification and the device’s certification. Section 2.14(2) requires a certified operator and a certified device. The Commonwealth must prove the existence of the periodic testing program and compliance with that program before the judge admits the result. Barbeau, 411 Mass. 782.
5. Medical records. Records of a respiratory condition, a chest injury, or another limit on breath volume explain an inadequate sample at the RMV hearing and answer the Curley inference at trial.
6. The Registry timeline. The driver has 15 days from the suspension to obtain the hearing under § 24(1)(g). The hearing addresses only reasonable grounds, arrest, and refusal.
7. The prior record. Under § 24(1)(f)(1), the RMV counts prior convictions and prior program assignments for the listed offenses, including like offenses in other jurisdictions, in determining the length of the refusal suspension. Counsel obtains the certified record to learn which suspension length applies before weighing the motion.

What the Regulation Requires and What Happens to the Driver

Section 2.16 requires the operator to end the test and record a refusal when the arrestee stops cooperating or fails to supply a requested sample. If the operator records a refusal, the RMV suspends the license for 180 days up to life with no hardship permit. The failed attempts are also admissible at trial because the driver consented. Where the operator continued past the required termination point to a result, the defense may move to exclude the result for noncompliance with the Secretary’s regulations. The defense weighs the refusal exposure before filing that motion.

Representation in Greater Boston

Attorney Serpa has practiced Massachusetts criminal defense since 1995 and represents drivers in the Boston Municipal Court and the District Courts of eastern Massachusetts whose cases involve a breath test result, a refusal, or an incomplete test. He handles the criminal case and advises clients about the related Registry proceedings. Call 617.936.0201 for a free, confidential consultation. The firm’s guide to OUI and DUI defense in Greater Boston covers the elements, penalties, and trial issues of the charge.

Related Serpa Law Office Resources

• Breath Test and Blood Alcohol Science in Massachusetts: The Alcotest 9510, the Regulations, and the Blood Rules
• Breathalyzer Defense in Massachusetts
• Massachusetts OUI License Suspensions and Reinstatement
• Massachusetts OUI Hardship Licenses and Section 24D
• Should I Take the Breathalyzer in Massachusetts?
• Massachusetts OUI License FAQs
• Breath Test and BAC FAQs
• How Attorney Serpa Tries a Massachusetts Breath Test Refusal Case
• OUI / DUI Drunk Driving Defense Lawyer in Greater Boston
• Massachusetts OUI and Motor Vehicle Defense