Massachusetts OUI Defense

Massachusetts has some of the most draconian Operating Under the Influence penalties in the country. Even if you enter a plea that is not a conviction or an admission of guilt, the consequences are permanent. You should not face OUI charges without an experienced OUI attorney to analyze the evidence and communicate with prosecutors on your behalf.

Just because you were arrested does not mean the prosecution can prove the case.

Using my experience both prosecuting and defending OUI cases, I will identify weaknesses in the Commonwealth’s evidence as well as any police mistakes that may form the basis of a motion to suppress evidence or dismiss the charges. I will also negotiate with prosecutors to ensure that you receive best offer possible, which could mean an alternative disposition or even outright dismissal of your case.

I am committed to protecting your rights, informing you of the most recent changes to Massachusetts OUI laws, and holding the prosecution to its burden of proving every element beyond a reasonable doubt. I can be reached at (978) 704-9223 to advise you immediately following your arrest, and I will appear in court on short notice whenever possible.

Never take the first plea offered.

Many people charged with OUI have very defensible cases, yet they take the first plea offered because they are intimidated by the statements in the police report, afraid of appearing in court, or believe that the judge will punish them for exercising their constitutional right to a trial.

You have the right to confront the witnesses against you and to examine the government’s evidence. If you ultimately accept a plea, it should be an informed decision following consultation with your OUI defense attorney, rather than a reaction under pressure in the courtroom.

OUI Liquor

Do not assume that your case is not defensible just because:

  • The police report sounds horrible.

The police report is not evidence and the jury will not see it. Police reports always sound horrible – officers write them to document their reasons for arresting you and to provide them with a reminder of your case. Almost all OUI police reports contain the same description of the defendant. “Slurred speech, strong odor of alcohol, and bloodshot watery eyes” is known among attorneys as “the trifecta” because it is included in almost every single OUI narrative.

At trial, I will cross-examine the officers to present a more accurate version of events. Officers must testify from their memory and are not allowed to read from the police report while on the witness stand. By the time the officers appear in court on your case months and many arrests later, they may not remember much about your case at all.

Here is what the jury will see and hear: the witnesses on the witness stand. Were the police officers rude to you? Most likely they will be rude in court as well. Were they unclear in their instructions to you regarding “field sobriety tests” or the breath test? They will be unlikely to hold up under cross-examination as to whether they followed correct procedure. Is there anyone who saw you shortly before your arrest? That person can testify as your witness.

  • I admitted that I had been drinking and made other incriminating statements to the police.

Your statements may not be admissible in court. When we meet, I will ask you to describe in detail your interactions with the police to determine if there are grounds to file a motion to suppress statements or other evidence. If the police report includes statements that you never made, I will prepare my cross-examination of the police officers accordingly.

  • I refused to perform the field sobriety tests.

You have the right to refuse to perform the field tests, and the jury will not hear evidence of your refusal.

  • I failed the field sobriety tests.

The field tests are difficult under any conditions, let alone when you are on the side of the road, possibly at night, with cars zooming by and headlights blinding you, nervous about going to jail.

At trial, I will highlight what you did well on the field tests and throughout your interaction with the police. The jurors are the finders of fact, and it is for the jurors to decide if your performance of the field tests is evidence of impairment.

The officers may not have conducted the field tests correctly. I will request that the court order the government to provide me with the exact manual used to train the officers who administered the field tests, for use in cross-examination. If the officers failed to follow correct procedure, neglected to conduct the appropriate investigation as to whether it was appropriate to administer field tests, or were unqualified to do so, it will give the jurors reason to doubt the officers’ credibility and place little weight on your performance.

  • I refused the breath test.

You have the right to refuse the breath test, and the jury will not hear evidence of your refusal.

Your license will be suspended for a period of time dependent on how many times you have refused the breath test previously (see table below); however the license suspension is administrative through the Registry of Motor Vehicles, not the criminal court.

  • I failed a breath test on the side of the road.

Portable breath tests (PBTs) administered roadside are inadmissible at trial and the jury will not hear evidence of the PBT results. While the police will almost certainly arrest you, only the results of the breath test administered at the station are admissible at trial.

  • I failed the breath test at the police station.

Depending on the circumstances of your case, there may be arguments against admitting the results of the breath test at trial.

If you test above 0.08% Blood Alcohol Content (BAC), you will lose your license for 30 days or until the resolution of your case, whichever comes first. The suspension is administrative through the Registry of Motor Vehicles, not the criminal court. See further details below.

If you are under 21, the Registry of Motor Vehicles will suspend your license for a breath test result of 0.02%; however, for purposes of criminal charges, 0.08% BAC remains the limit.

  • I’m afraid that if I lose at trial, I will go to jail.

You have a constitutional right to a trial and the court should not punish you for exercising that right. The consequences are usually available if the trial result is not in your favor.

There is a significant chance that the jury will find you not guilty. While the public disapproves of drunk driving, when jurors hear the facts of a specific case, they tend to identify with the individual accused, because most people could have been arrested for OUI at some point in their lives.

OUI Drugs

If you have been charged with Operating Under the Influence of Drugs rather than alcohol, the Commonwealth has a significantly more difficult case to prove. Often the police investigate the possibility of intoxication by drugs precisely because the breath test results are so low.

The Commonwealth’s case may rely on evidence found in your vehicle or your own statements to prove the presence of an intoxicating drug. I will analyze the facts of your case for grounds to file a motion to suppress the evidence and/or statements.

It will also be more difficult for the Commonwealth to prove your impairment. Jurors are less familiar with the signs of impairment by drugs rather than alcohol. Prosecutors will need to convince jurors of the officers’ training and experience in detection of impairment by drugs. The Commonwealth may bolster the case with testimony of a Drug Recognition Expert who was not even at the scene, but who will testify that the arresting officers’ observations are consistent with impairment by drugs. This is a prime opportunity for your attorney to highlight reasonable doubt through effective cross-examination.

Sentencing

First OUI Alternative Disposition

Pursuant to Mass. Gen. Laws c. 90, sec. 24D (Misdemeanor).

  • Disposition can be Continued Without a Finding
  • Probation for less than two years (usually one year)
  • $65 per month probation supervision fee for duration of probation
  • Participation in an alcohol/drug education program designated by the Department of Public Health
  • Fine between $500 and $5,000
  • Driver’s license revocation for between 45 and 90 days. Eligible to apply for a hardship license upon entry in the 24D program.
  • $250 Head Injury Treatment Services Trust Fund assessment
  • $50 Victims of Drunk Driving Fund assessment
  • $250 fine to be paid to chief probation officer of sentencing court
  • Court may impose minimum of 30 hours of public or community service
  • Court may require attendance at a half day Brains at Risk program

Under 21 OUI

Pursuant to Mass. Gen. Laws c. 90, sec. 24P, drivers under the age of 21 and drivers under the age of 18 are subject to enhanced statutory driver’s license suspensions and treatment programs.

  • If convicted of a first OUI, 210-day driver’s license suspension
  • Breath test refusal or result of 0.02% BAC or above will result in an additional 180-day driver’s license suspension
  • If under 18 years of age, breath test refusal or result of 0.02% BAC or above will result in an additional one-year driver’s license suspension
  • If breath reading is 0.20% BAC or above, could be subject to inpatient treatment

Second OUI (Misdemeanor)

  • Incarceration between 60 days and two and a half years, with 30 days mandatory
  • Fine between $600 and $10,000
  • Driver’s license revocation for two years, eligible to apply for a work/education hardship after six months and a general hardship after one year.
  • $250 Head Injury Treatment Services Trust Fund assessment
  • $65 per month probation supervision fee for duration of probation
  • $50 Victims of Drunk Driving Trust Fund assessment
  • $50 Victim and Witness Fund assessment
  • Court can order a minimum of 30 hours of public or community service work

Second OUI Alternative Disposition

Pursuant to Mass. Gen. Laws c. 90, sec. 24(1)(a)(4).
***The judge must make written findings in order for this case disposition.

  • Two years of probation
  • $65 per month probation supervision fee for duration of probation
  • 14-day confined treatment program and outpatient counseling
  • Fine between $600 and $10,000
  • $250 Head Injury Treatment Services Trust Fund assessment
  • $50 Victims of Drunk Driving Trust Fund assessment
  • $50 Victim and Witness Fund assessment
  • Driver’s license revocation for between 45 and 90 days
  • $250 fine to be paid to the sentencing court
  • Court can order a minimum of 30 hours of public or community service.

Third OUI (Felony)

  • Incarceration for between 180 days and two and a half years in the House of Corrections (with 150 days mandatory), or between two and a half years and five years in state prison
  • Fine between $1,000 and $15,000
  • Driver’s license revocation for eight years (eligible to apply for a work/education hardship license after two years, general hardship license in four years)
  • $250 Head Injury Treatment Services Trust Fund assessment
  • $50 Victims of Drunk Driving Trust Fund assessment
  • $90 Victim and Witness Fund assessment
  • Must provide DNA sample

Fourth OUI (Felony)

  • Incarceration between two and two and a half years in the House of Corrections (one year mandatory), or between two and a half years and five years imprisonment in state prison
  • Fine between $1,500 and $25,000
  • Driver’s license revocation for ten years, eligible to apply for a work/education hardship license in five years and a general hardship license in eight years
  • $250 Head Injury Treatment Services Trust Fund assessment
  • $50 Victims of Drunk Driving Trust Fund assessment
  • $90 Victim and Witness Fund assessment
  • $65 per month probation supervision fee for duration of probation
  • Must provide DNA sample

Fifth OUI (Felony)

  • Incarceration for two and a half years in the House of Corrections (with a two year minimum mandatory), and between two and a half and five years imprisonment in state prison. Sentence may be served in a treatment program within the facility
  • Fine between $2,000 and $50,000
  • Driver’s license revocation for life, permanent ineligibility for a hardship license
  • $250 Head Injury Treatment Services Trust Fund assessment
  • $50 Victims of Drunk Driving Trust Fund assessment
  • $90 Victim and Witness Fund assessment
  • $65 per month probation supervision fee for duration of probation
  • Must provide DNA sample

Driver’s License Suspensions

Driver’s License Suspensions for Breath Test Refusal
Although your refusal will not be admissible at trial, when you apply for a driver’s license, you agree to submit to any sobriety tests requested. This is known as “implied consent”. Due to your failure to submit to the breath test, you are subject to a statutory loss of license as follows:

First refusal180 days
Under 213 years
Second refusal3 years
Third refusal5 years
Fourth refusal10 years
Fifth refusallife

Under Melanie’s Law, you are not eligible for a hardship license during a license suspension for a breath test refusal, although you may seek reinstatement of your license if you are acquitted of the charges.


Driver’s License Suspension for Failing the Breath Test

If you fail the breath test, your driver’s license will be suspended immediately for 30 days. This is an administrative suspension through the Registry of Motor Vehicles, and you must reinstate your driver’s license at the end of the suspension.

Underage drivers who fail the breath test are subject to enhanced license suspensions, which may be waived upon entry to an alcohol treatment program approved by the Department of Public Health. If you are under 21, your driver’s license will be suspended for 180 days. If you are under 18, your driver’s license will be suspended for one year.

OUI is a serious criminal charge with permanent consequences. As a former prosecutor, I have extensive experience in OUI investigation, motion practice, and trials. If you have been arrested for OUI, call (978) 704-9223 or email Lance Law LLC to schedule a consultation.

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