OPERATING A VEHICLE WITH A BLOOD ALCOHOL LEVEL OF .08% OR GREATER

G.L. c. 90 § 24[1]

• A person is guilty of operating a motor vehicle under the influence of alcohol  with a blood alcohol level of .08% or greater, if the Commonwealth can prove three elements, beyond a reasonable doubt:
  • (1) That the defendant operated a motor vehicle;
  • (2) That the defendant did so in a place where the public has a right of access or in a place where members of the public have access as invitees or licensees; and
  • (3) That at the time of operation, the percent of alcohol in the defendant’s blood was .08% or greater.
• Practice Notes
  • The third element can be determined based off of the defendants breath or blood, so long as it was at .08% or greater at the time of operation.
  • A passage of up to three hours between testing and the time of operation may be considered reasonable.
  • If more than one test was administered, the lowest reading will be the test administered but other samples may be used to determine accuracy.  See Commonwealth v. Steele, 455 Mass. 209 (2009).