Massachusetts Sobriety Checkpoints: No Statute, and Implied Consent Starts at Arrest

Massachusetts legislates the OUI encounter heavily and legislates the checkpoint not at all. Searching the General Laws for the words a drafter would have used produces nothing usable. Roadblock and roadblocks return zero. Sobriety checkpoint returns zero. Sobriety on its own returns one hit, a school curriculum provision at G.L. c. 71, section 30. Checkpoint and checkpoints return one hit each, and it is G.L. c. 269, section 12F, which defines a secure area of an airport as including the area beyond a passenger or property screening checkpoint. The only occurrence of the phrase traffic stop in the entire body of law is G.L. c. 90, section 63, the stop data statute. There is no authorising statute, no notice or publicity requirement, no supervisory approval requirement and no statutory limit on how a checkpoint may be run.

What is legislated is what happens once an officer forms suspicion. G.L. c. 90, section 21 permits a warrantless arrest, and up to 24 hours in custody, where the officer has probable cause to believe the person has operated or is operating under the influence of intoxicating liquor, marihuana or narcotic drugs, or depressant or stimulant substances as defined in G.L. c. 94C, section 1, or under the influence of toxic vapours as defined in G.L. c. 270, section 18.

The breath test comes after that, not before it. G.L. c. 90, section 24(1)(f)(1) deems a driver to have consented to a chemical test or analysis of breath or blood in the event that he is arrested for operating under the influence. Two provisos narrow it: no one is deemed to have consented to a blood test unless brought for treatment to a medical facility licensed under G.L. c. 111, section 51, and no one afflicted with hemophilia, diabetes or any other condition requiring anticoagulants is deemed to have consented to a withdrawal of blood. The test must be administered at the direction of a police officer as defined in G.L. c. 90C, section 1 who has reasonable grounds to believe the arrested person was operating under the influence. Because the whole scheme runs off arrest, a driver stopped at a checkpoint and not arrested has no statutory obligation to blow.

Refusal is expensive and the ladder is set out in the section. A driver who refuses, having been told his licence will be suspended for at least 180 days and up to a lifetime loss, gets 180 days. A driver under 21, or one previously convicted of an offence under section 24, G.L. c. 90, section 24G(a) or (b), operating with a blood alcohol percentage of eight one-hundredths or greater, section 24L, or G.L. c. 90B, sections 8(a), 8A or 8B, or G.L. c. 265, section 13 and a half, or assigned to an alcohol or controlled substance programme for a like offence, gets three years. Two such prior violations makes it five years. Three or more makes it life. Refusal after a section 24L conviction is ten years, and refusal after a conviction under section 24G(a) or (b) or c. 265, section 13 and a half is a lifetime revocation. On refusal the officer must immediately take custody of the licence on behalf of the Registrar and provide a written notification of suspension in a Registrar-approved format.

One Massachusetts rule cuts strongly the other way. G.L. c. 90, section 24(1)(e) provides that evidence the defendant failed or refused to consent to the test is not admissible against him in a civil or criminal proceeding, though it is admissible in a Registrar action under paragraph (f) and in section 24N proceedings. The same paragraph makes a test result admissible only where it was taken with the defendant consent, the results were made available on request, and the defendant was given a reasonable opportunity, at his request and expense, to have another test by a person or physician of his own choosing. A result of five one-hundredths or less creates a permissible inference that the defendant was not under the influence and requires release from custody forthwith; between five and eight one-hundredths there is no permissible inference at all.

Refusing the breath or blood test after an OUI arrest is not a crime in Massachusetts; it is an administrative licence action. c. c. c. 265, section 13 and a half. The officer must take custody of the licence immediately on behalf of the Registrar and hand over a written notification of suspension in the Registrar approved format, so the loss begins at the station rather than after a hearing. The refusal itself cannot be put before the jury: section 24(1)(e) bars evidence of a failure or refusal to consent in any civil or criminal proceeding, while allowing it in the Registrar action under paragraph (f) and in section 24N proceedings.

c. c. 90, section 21, warrantless arrest with up to 24 hours in custody. c. 90, section 63 with the driver age, race and gender, the time and municipality, and whether a search was initiated.