DRUNK DRIVING - AN OVERVIEW
In Massachusetts, we refer to drunk driving as Operating Under the Influence -- "OUI" for short. Because an OUI arrest can happen to anyone, and does so commonly, I will provide a basic overview of some of the legal concepts surrounding this offense. Bear in mind that this overview does not include all possible variations of OUI and related offenses, such as enhanced penalties for junior operators, the impact of aggravating factors such as possession of a firearm while impaired or driving impaired with children in the car.
What are some of the defenses we will consider in your case? Every case is different, and my team will not pursue any cookie-cutter formula for handling your case. Instead, what we will do is conduct an exhaustive investigation of the factual and legal circumstances that will govern the outcome of your case, and formulate a strategy designed to maximize your chances for a positive outcome, with minimum risk to you. Some of the issues we will be looking at include:
- Did the police have the legal right to stop your car? Police will look for any reason to pull a car over -- and not all of those reasons are valid or lawful. For example, If police stop your car based on a call for erratic operation, we will scrutinize whether the tip was sufficiently reliable to justify stopping your car. Did the caller provide a description sufficiently detailed to allow police to single out your car from all other motorists? Did the police have reason to believe the truthfulness of the caller? Did the caller describe conduct which gave rise to reasonable suspicion of impaired operation? We will focus on these and any other problematic aspects of the car stop, because if police lacked a lawful basis to stop you, the entire case against you will be dismissed.
- Did the officer properly administer the tests against you? Officers go through academy training, where they are taught very specific rules on how to perform field sobriety tests like the walk and turn test and one-legged stand. If the officers fail to perform the tests according to their own strict guidelines, the tests lose all validity, and the jury is likely to dismiss their significance. We have obtained each manual used to train Massachusetts police officers. While the officer probably hasn't looked at his training materials since the academy, we will study the manual prior to your trial, and compare the manual to what the officer did. We will dismantle the officer's testimony with every mistake he made. With the credibility of these tests destroyed, the tent-pole of the government's case will collapse.
- Is the government presenting a fair picture of your conduct? Aside from the breathalyzer and the field sobriety tests, the Government will rely on various layman type observations to try to make the case that you are drunk driver. From the way you speak, to the way your eyes appear, to the odor of your breath, the Government will try to turn even the most innocent observations into evidence of guilt. A person with bloodshot eyes may be drunk, but he may just as easily just be tired or suffering from allergies. If a person drifts out of their lane, they may be drunk, but they also may be changing the station on the radio, talking on the phone, or adjusting their GPS. A person who fumbles for their license may be drunk, but they also might just be nervous getting pulled over by a police officer. By revealing that the government is relying on little more than speculation, we can help the jury understand that the government's case is built on a flawed foundation. A case built on assumptions and speculation can never satisfy the Government's burden of proof beyond a reasonable doubt.
- A special note about the breathalyzer. Recently, the technical divisions of Massachusetts law enforcement, for years assumed to be infallible, have been rocked by widespread corruption and scandal. Most recently, the head of the office of alcohol testing was implicated in hiding critical, exculpatory information from defendants and their attorneys. As a result of this and other shortcomings with the breathalyzer machines and their implementation, the breathalyzer test was prohibited from use in court in a great many cases. The takeaway? Even if police say you failed the breathalyzer, it does not mean that their test results are accurate or trustworthy. Time and again, they have proven they are not.
What is the Massachusetts Legal Limit?
A blood alcohol content of .08 or greater is the "limit." Under Massachusetts law, the Government has two different theories under which you can be prosecuted -- usually at the same time.
The first theory is to prove, by reference to all the facts and circumstances, that you were "under the influence" of alcohol. Testimony that you couldn't maintain control of your car, smelled like alcohol, slurred your speech, or failed field sobriety tests would go to this first theory.
The second theory is that you had a blood alcohol content of .08 or more when you drove. If that is proved, the Government does not have to prove that you were impaired by alcohol -- the .08 is enough to convict you. For that reason, we always recommend that you refuse the breathalyzer.
If I refuse the breathalyzer won't I look guilty? No. Absolutely not. Massachusetts law is particularly protective of a person's right not to incriminate himself. That means that the jury will never hear that you refused to take the test. In fact, they won't hear about the test at all. The result is that the Government will be forced to rely on vague, often inconclusive circumstantial evidence to try to put its case together. As you can see, your chances of acquittal are greatly improved if you don't take the test. The same goes for field sobriety tests -- if you refuse those tests, your refusal cannot be used against you.
What are the consequences for refusal to take the breathalyzer? Unfortunately, your refusal will come at the cost of a license suspension. This is the leverage police will use to try to force you to incriminate yourself with the test. If you take the test and fail, you will lose your license for 30 days in the short-run. What they don't tell you is that the breathalyzer result almost ensures a conviction, which carries an additional, stiffer license loss, a stain on your criminal record, fines, probation, and possible jail time.
If you refuse the breathalyzer, your license will be suspended for 6 months for a first offense. Yes, that stings. But an aggressive lawyer can fight to get your case to trial before the suspension is up, and without the breathalyzer, your chance of acquittal is substantially increased.
Should I just go for a CWOF, instead of risking a trial? Many lawyers will advocate the benefits of requesting a CWOF. CWOF is short for "continuance without a finding." That's a special plea in Massachusetts that gives the person the chance to resolve their case without getting a criminal record. Basically, you are pleading guilty, but the judge holds off on finding you guilty. You are put on probation, you lose your license, you pay fines and fees -- all the same things that a guilty person will also have to do. However, at the end of it, if you don't break your probation, your case is dismissed. You can then report that you have "no criminal record" on any job applications.
So is this a good deal? Well, it really depends on your personal situation. If the avoidance of any possibility of a criminal record is the most important thing to you, then you may want to take a CWOF. Also, if you are the type of person that must drive for a living, then with our help, we can often negotiate a CWOF and get you back on the road in as little as three days on a "hardship" or "Cinderella" license.
However, those are the only two benefits of taking a CWOF. In almost every case, A CWOF versus a guilty after trial carry the same, exact consequences. You pay the same fines and fees, you suffer the same license loss, and you are subject to the same repeat offender laws if you get caught again. For that reason, for most people, there is little sense in throwing in the towel right away. If you take your case to trial, you may lose. On the other hand, going to trial is the only way to win.
If you have our team at your side, the chances of winning get a whole lot better.
What happens if I drive while my license is suspended for OUI? The serious penalties for this offense include a minimum mandatory jail sentence of 60 days. See Mass. Gen. L. ch. 90, s23.
What are the penalties for OUI? Mass. Gen. L, ch. 90, s. 24, the Massachusetts drunk driving law, is an omnibus statute that seems to grow wordier and more complex every year. The penalties for drunk driving depend on how many prior offenses you have.
First offense: For most people, there is a standard first offense disposition which involves:
- 1 year probation.
- Driver's Alcohol Education Program 1 hour a week for 16 weeks.
- 45 - 90 day loss of license, consecutive to refusal.
- Total court costs, fines and fees around $2,000.
The first offender disposition is described in Mass. Gen. L. ch. 90 s.24D. Many lawyers call the "24D" disposition the "alternative" disposition program, but in reality the "24D" is what virtually every first offender is looking at if they lose their case. However,these penalties can increase all the way up to 2½ years in the county jail, fines up to $5,000 and a year loss of license for exceptional cases or for people with bad records.
Second offense: For most people, the standard second offense disposition includes:
- Breath test refusal -- 3 year loss of license.
- 2 years probation.
- 14-day inpatient program, which you pay for, but insurance may cover.
- 2 year loss of license, consecutive to the refusal suspension. You may apply for a hardship license after 1 year. BUT, you will need an interlock device to be fitted in your car, at your own expense, for two years from the time you apply for a hardship.
- Fines and fees.
Again, many lawyers call the standard second offense disposition an "alternative disposition," but this disposition is handed out in the majority of second offense convictions. However, the maximum penalties include a jail sentence of 60 days to 2½ years and fines up to $10,000.
A NOTE ABOUT SECOND CHANCES:
- If your first OUI is 10 or more years old at the time of your second offense, we can request that the Court waive the 2nd offender disposition, and treat you like a first offender again. Most lawyers don't know this, but we can even ask that the Court give you a CWOF again, if that is the route you wish to pursue.
A NOTE ABOUT PRIOR CONVICTIONS:
- If you go to trial as a second or subsequent offender, the jury will not hear about your prior offenses. So your prior baggage will not be paraded in front of the jury, and you will be treated in all respects as a first offender in front of the jury. It is when you plead your case out, or lose your trial, that your prior offenses come into play.
Third Offense. Third and subsequent offenses are treated as felony crimes. If convicted of this offense, you cannot escape jail time. Penalties include:
- Breath test refusal -- 5 year loss of license.
- 180 days in jail, minimum 150 to serve. Max 5 years in State Prison.
- 8 year license loss, consecutive to breath test refusal suspension. No hardship until you have served 2 years of your suspension. If you get a hardship, you will need an interlock device on your car up to and including 2 years after your get your full license back.
- Fines up to $15,000.
Fourth Offense. Penalties include:
- Breath test refusal -- lifetime loss of license.
- 2 years in jail, with a minimum sentence of 1 year, maximum up to 5 years in State Prison.
- 10 year loss of license upon conviction. No hardship until you have suffered 5 years without a license.
- The government gets to keep your car.
- Fines up to $25,000.
Fifth Offense. Penalties include:
- Breath test refusal -- lifetime loss of license.
- minimum 2 years in jail, up to 5 years in State Prison.
- Lifetime loss of license, with no hardship.
- The government gets to keep your car.
- Fines up to $50,000.
If you would like to see our memorandum of law in a case in which we challenged the officers right to stop our client's car, click below.
If you would like to see our argument in a case in which we invalidated an entire drunk driving roadblock, click below.