What is BAC and Why It Matters
Blood Alcohol Concentration, often abbreviated as BAC and pronounced "bee-a-see," is a medical term that represents the percentage of alcohol in a person’s blood. It is measured in terms of milligrams of alcohol for every 100 milliliters of blood. For example, a BAC of .10 means that you have 0.10 percent (%) alcohol in your blood stream. BAC levels are most commonly measured by using a breathalyzer. Breathalyzers measure the amount of alcohol on the breath of a given suspect and convert it into a BAC. Breathalyzers can be used on a road side by the police department or in the police station itself. However, the only legally accurate way to measure BAC levels is through a chemical test. A chemical test is done either by taking a blood sample or a urine sample, both of which are sent to a lab for testing. Defining legal limits of intoxication: In Massachusetts, the legal limit of intoxication is lowered. On the books, the law says that you should not have a BAC of more than .08% when driving. Yet , it also states that you cannot operate a motor vehicle if you are "under the influence" of liquor. So it’s really two different standards working in tandem. What it means is that the legal limit is still .08%, but a driver can be prosecuted for operating under the influence, or OUI, of alcohol without necessarily reaching the legal limit. Furthermore, even though it is not on the books, any driver with a BAC of .05% or greater could face insurance consequences like having their license revoked, if they are convicted of an OUI. In addition, charges of OUI with accident, OUI with property damage and OUI with negligent injury all carry a legal limit of .05%. What does this mean for you? For the average person, this means that the law considers someone who has consumed about four or five drinks over a period of time to be legally intoxicated. Yet, the state also realizes that everyone’s body processes alcohol differently, so the legal limit is sometime hard to determine.
Permissive BAC Limits Under Mass Law
Massachusetts law sets the legal BAC limit that is not subject to criminal punishment or civil sanction. For those under the lawful drinking age of 21, the legal BAC limit is 0.02%. For those over the lawfully drinking age of 21, the Massachusetts legal BAC Limit is 0.08%. Massachusetts law has a legal limit of 0.08% for all persons with a motor vehicle license. It does not matter if the individual is driving a passenger motor vehicle, commercial motor vehicle, motorcycle, truck, bus, tractor trailer, tractor, three wheeler, tractor, assistive device, moped, scooter, eight wheeler or any other vehicle when it comes to determining if you are over the legal limit. Someone driving at 0.09% is over the legal limit.
Penalties for Driving Over the Legal BAC
In Massachusetts, the legal blood alcohol concentration (BAC) limit for operating a motor vehicle is .08%. The legal BAC limit for operating a commercial motor vehicle (CMV) is .04%. Driving with a BAC beyond these legal limits is a violation of the law and can lead to substantial penalties.
If you are caught driving with a BAC beyond .08%, you can be charged with Operating Under the Influence (OUI). Penalties for an OUI charge vary dramatically depending on whether you have any previous OUI convictions on your record. First time offenders face up to 2½ years in jail, a $500 fine, and a 1-year driver’s license suspension. Subsequent offenders face up to 5 years in jail, a $25,000 fine, and a license suspension of up to 8 years. Those who have three or more previous OUI convictions on their record may also face felony charges and a potential 5-year prison sentence if the case goes to trial. Commercial drivers can also be disqualified from operating a CMV for up to a year if convicted of a .04% BAC OUI, and face a one-year suspension even for a first offense DUI in a personal vehicle.
In situations where someone operating a motor vehicle without a license or a suspended license results in a fatality, the District Attorney may pursue enhanced penalties for motor vehicle homicide. These penalties include a potential 20-year prison sentence and a permanent license suspension for blood alcohol levels greater than .08%. License revocation meaning your right to operate a motor vehicle is permanently revoked.
If a motor vehicle accident occurs while an individual is operating under the influence of alcohol, the District Attorney may also take criminal action on insurance fraud-related grounds. These allegations can involve misrepresentation regarding who was operating the vehicle at the time of the accident, which can carry heavy penalties for both the driver and the owner of the vehicle who misrepresented who operated the vehicle.
BAC Level Influencing Factors
Numerous factors can affect a person’s blood alcohol concentration, in addition to how many drinks a given individual has consumed. The contents of the beverages, the rate at which a person consumes alcohol and his or her physical characteristics can all influence BAC levels.
The four main factors that can contribute to BAC level are: These factors are highly individualized, thus each person will be affected differently by alcohol. However, there are general rules that can be applied to these four factors. For instance, the size and weight of an individual will determine how much alcohol is spread through their blood. A larger individual will have lower BAC levels than another individual that is smaller in size, even if they have consumed the same amount of alcohol . In terms of gender, men typically consume alcohol at a different pace than women. Additionally, women have less water in their body than men, meaning they will reach a BAC of .08 after drinking fewer alcoholic beverages than similarly-sized men. The types of alcohol that a person consumes can also influence their BAC level. Beer, wine and hard liquor all contain varying alcoholic contents. Mixing these different types of beverages can often result in a higher BAC than intended. The least controllable factor of legal BAC levels is the pace at which a person consumes alcohol. Although the rate of consumption is dependent on how quickly and heavily an individual chooses to drink, it could also be affected by environmental factors. DUI checkpoints, for example, may give people the motivation they need to stop drinking earlier than they planned.
BAC Testing Methods
There are a number of different methods of testing the level of alcohol in a person’s blood, breath, or urine. Typically law enforcement will use a breathalyzer to determine a person’s BAC. The most common one used by Massachusetts state troopers is the Intoxilyzer 5000. The Intoxilyzer is designed to be reliable and accurate but can be susceptible to error. The primary method by which the Intoxilyzer uses to test a person’s breath is called infrared spectroscopy. This is a process that various molecules will absorb infrared light at certain frequencies. The Intoxilyzer sends infrared light through a breath sample which is then recorded. The Intoxilyzer is calibrated to determine how much alcohol is present by measuring the frequency of the light absorbed. Several problems may occur with breath tests. The most common problem occurs due to the mouth alcohol effect. This may occur if the Intoxilyzer is not calibrated properly, or alcohol is present in the person’s mouth due to burping or regurgitation. If mouth alcohol is present the only accurate way to determine BAC is by testing a blood or urine sample. The Intoxilyzer is calibrated to detect alcohol and not acetone or other substances. If a person has diabetes the alcohol level can be inflated. This is due to the fact that the Intoxilyzer cannot differentiate between alcohol and acetone and releases a result which is much higher.
In Massachusetts only a trained and registered technician can operate an Intoxilyzer. The results from that Intoxilyzer will be admissible as evidence in court without testimony from the technician as long as he or she follows the established protocol.
Blood tests are another method used to determine BAC, especially when breath testing was not possible. A health care professional will draw blood from the individual and a chemical will be mixed with that sample to determine the level of alcohol present. Drawn blood may also be tested for drugs, such as prescription drugs, illegal drugs, or even prescription medications. If the blood was drawn pursuant to a warrant then it will be admissible as evidence without testimony to explain the meaning of the results as long as it was collected pursuant to proper standards. Blood tests can create various problems as well. The equipment used to determine the amount of alcohol from the blood has to be properly calibrated and working in order to give an accurate result. The blood must also be collected following good medical and laboratory practices.
Possible Defenses for Charged High BAC Levels
Challenges to the Accuracy of the Test
When you are tested and the machine shows a high BAC, the result may be accurate. But there are additionally many ways the machine could be an invalid reading. Many machines are notoriously inaccurate. It is critical to have your Massachusetts DUI lawyer know how to challenge and counter the tests results through cross-examination and rebuttal evidence. Oftentimes the results will be challenged by compliance with all rules for administering the breath test and rules for maintaining the machine. There are many reasons the machine might produce an invalid breath test sample. For example:
- A breathalyzer malfunction. Like any machine, a breathalyzer is subject to malfunction. The machine could be out of calibration, or the mouthpiece could have been used and given to several people. The police officer could have used the machine incorrectly, resulting in an inaccurate reading. Hillside v. California (1988) 454 U.S. 105, held that the Sixth Amendment Confrontation Clause provides a right to confront witnesses against a defendant. Therefore you have a right to confront the officer who administered the breath test and cross-examine him to determine if the machine was defective, improperly used, improperly maintained, or improperly calibrated , if the officer was properly trained, etc.
- Subjectivity of the breath test evidence. The law is complex in terms of the requirements for breath tests. If the breath test was obtained in violation of the law, the Court has to grant a motion to exclude the test by the defense attorney, and the test results are not admissible against the defendant.
- Blood sample issues. A blood test is not as universally accepted as a breath test in Massachusetts. Blood tests are frequently not preserved, especially when they are obtained at a hospital or in a hospital setting, you have the right to be present or witness at the time the blood test is administered, you have a right to demand third party witness be present at the time the blood test is taken, and make sure that the test results were lawfully obtained, and did not violate any rights you have under the law in Massachusetts. In this way, your Massachusetts DUI lawyer can effectively confront and challenge the blood test results in your case.
Illegal conduct during test
There are many ways to test the reliability of the breath test. If the police officer departs from the rules established by the Massachusetts State Police and the statute, the breath test result will be invalid, and your Massachusetts DUI lawyer can successfully exclude those results.