Overview
This doesn’t have to be a difficult process. If you’ve recently been charged with OUI or DUI in Massachusetts, asked to perform a field sobriety test, or you’re simply trying to educate yourself, you are already taking the first step to securing the best outcome for your case. By educating yourself with basic legal principles, you’re more likely to make choices that help us achieve the best result for you.
DUI & OUI Law can seem confusing at first, so that’s why we’ve broken a lot of legal language down to easy-to-understand concepts.
Substances (Marijuana, Prescriptions, Inhalants)
OUI & BAC Defined
The Commonwealth of Massachusetts can use your Blood Alcohol Content (BAC) to determine if you’re legally under the influence of alcohol. The legal limit for someone 21 years or older is a BAC of .08%. If you are under the age of 21, the legal limit in court is still .08, but there will be separate administrative penalties for a BAC of .02 or greater. Driving commercial vehicles with a BAC of .04% can also have additional administrative consequences.
Having an open container of alcohol in your car can subject you to a civil penalty. It doesn’t matter who’s holding it. Even if it’s an empty bottle in your backseat, you could face a $100-$500 fine.
Know Before: First Experience
You’re stopped by an officer. It can be nerve-wrecking for a lot of us. Flashing lights are drawing a lot of attention to you as other vehicles speed past, or onlookers peek in at busy intersections. When we’re experiencing such high stress levels it can be difficult to make the right choices.
If an officer has pulled you over because they think you’ve been Operating Under the Influence, you’re under no obligation to take part in Field Sobriety Tests. You should always cooperate with an arresting officer, but don’t let your nerves get the best of you. Now is the best time to breathe and think. What’s the best way for you to move forward?
In most cases it’s better if you don’t perform a sobriety test. From the moment you are charged with OUI, the burden of proof is on the government. This means that it is their job to gather evidence to help prove your guilt. By participating in Field Sobriety Tests, you are likely providing them with evidence that will later be used against you in court.
Your refusal of a test can’t be used against you. Under Massachusetts state law, drivers automatically consent to a chemical test, whether it be breath or blood, just by driving on the road. You will lose your license for 180 days if you refuse the breath test. That period can be longer for younger drivers, repeat offenders, or if your accident caused serious injury, but your refusal is inadmissible in Massachusetts court. Any jury would never know that you were offered a test to begin with.
If you decide to take a test and fail, your license is automatically suspended for 30 days. If you submit to a blood test and the results showed a BAC of 0.08% or higher, this evidence can be used by the prosecution. However, it doesn’t mean you will automatically lose your case.
If your case ends in your favor you can file a motion to get your license restored. You could still see a reinstatement fee of at least $500.00.
Breathalyzers
Breathalyzer evidence can be challenged in court by your attorney, but it’s existence makes it more difficult for your attorney to fight the case.
The police are required to observe you for at least 15 minutes before they administer breath test. This is to make sure the breath test results remain accurate and are not distorted because of a hiccough, burp, or the presence of “mouth alcohol.” In some cases, the police do not comply with the rules and regulations that govern the administration of breath tests. If there’s evidence that they didn’t follow procedure, your lawyer can challenge the admissibility of the breath test result.
You need a lawyer, someone who knows how to dig for this level of information. The results from a breathalyzer test are not always accurate and your counsel can prove that.
You are entitled to a hearing at the Registry of Motor Vehicles within 15 days of the date you refused a breathalyzer test. The purpose of the hearing is to appeal the suspension associated with your refusal. You are allowed to, and we would encourage you to, have a lawyer present.
The government must provide documents that detail which machine they used to test you and whether it has been properly certified. At times, machines are found to be faulty. A major ruling in a case against the Draeger Alcotest 9510 breath testing machine excluded thousands of OUI breath tests in Massachusetts between the years of 2012-2015.
Pre-Trial
You’ve been deemed “impaired” by the police, arrested and booked. The next step is your arraignment. This is your first formal appearance in court. It normally happens within a few days of your arrest. You should already be working with a lawyer before this point. While an arraignment can be seen as just a formality, it is important that you go into it prepared and know what to expect.
There may be multiple pre-trial conferences before your actual trial. In the weeks following your first appearance, you and your lawyer will have an opportunity to discuss the details of your case and options moving forward. It’s during this time that your lawyer will identify what issues exist in your case and what the best approach is to address them.
At a Motion Hearing, the police officers that you interacted with on the night of your arrest will be questioned by the prosecutor and your attorney. They’ll testify as to why they pulled you over, how you did on field sobriety tests, what statements you made, etc. Your attorney will have a chance to figure out if your rights were violated at anytime during the process. They may be able to strengthen your case or even have it dismissed entirely.
Trial & Sentencing
With advice from your lawyer you’ll choose whether you want a jury trial or a bench trial. A bench trial is when you elect to have a judge listen to your case instead of a jury. Depending upon your individual situation, there can be benefits and drawbacks to either choice.
Once your case is heard and your attorney has argued on your behalf, a verdict will be reached. Whether you are found Guilty or Not Guilty, it’s necessary to have legal counsel to get you through the next steps. They could include promptly filing paperwork to restore your driving privileges.
Penalties
If you’re found guilty there are administrative and criminal penalties that you will face. Both the Commonwealth’s judicial system and the RMV can impose the following:
1. First Offense:
Your license could be suspended for up to a year. You could see a fine ranging anywhere between $500-$5,000. Jail time is on the table for up to 2.5 years, although most first-time offenders receive a period of probation with an assignment to an alcohol education program.
2. Second & Multiples:
With a second OUI, your license could be suspended for two years. The court can impose $600-$10,000 in fines. Jail time could be possible between 60 days and 2.5 years, although most second-time offenders receive either a suspended jail sentence or a probationary period. Usually, second offense dispositions include a 14-Day Inpatient Alcohol Treatment Program. If you refused the breathalyzer, the two year license suspension will be attended to your breath test refusal suspension.
With a third offense, you could see your license suspended for up to eight years. Your fines can range from $1,000-$15,000. The law requires a minimum jail sentence of 180 days, with a minimum of 150 days served. The maximum penalty is 5 years in state prison.
A fourth offense could result in your license being suspended for 10 years, fines up to $25,000, and prison for up to 5 years. The law requires a minimum jail sentence of 1 year. If you refuse the breath test on a Fourth Offense, you license will be administratively suspended for life.
If your OUI ended in someone else's death (vehicular manslaughter) your license could be revoked for anywhere between 15 years to life. You could see 5-20 years in prison with up to $25,000 in fines.
Felony Charges
First and second offense DUIs on their own are considered misdemeanors in Massachusetts. When it goes beyond that to third and subsequent offenses, you are in the territory of Felony DUI Charges.
If you were proven to have caused serious bodily injury to someone else, your charges can be considered a felony if you were deemed to be operating your vehicle negligently, regardless of whether it’s your first or fifth offense. The law defines what amounts to “serious bodily injury”, but it generally involves the loss of a bodily function.
A charge involving serious bodily injury with negligence carries a mandatory minimum jail sentence of 6 months. It also gives the potential for a prison term of up to 10 years. There is a possibility to be charged with DUI serious bodily injury as a misdemeanor, but it is rare.
Reinstating Your License
Getting back on the road could be the difference between working and not. It can be a way of life for many. After a DUI, your driving record will likely never be the same. In Massachusetts, there is a “Lifetime Lookback”, meaning that your DUI(s) will stay on your record forever. This reality subjects multiple offenders to enhanced penalties regardless of how much time has elapsed between their offenses.
You must complete all the requirements of your OUI suspension before your license is reinstated. This includes paying all fines to the RMV and paying back any court costs and fees. You may have to serve out your imposed jail time or at least complete the process of your probation. Often, you’re required to complete alcohol education courses. You may even be told you need to retake all of the initial tests you took to get your license.
Substances (Marijuana, Prescriptions, Inhalants)
Operating Under the Influence doesn’t just apply to drunk driving laws. Driving under the influence of any substance that’s been proven to inhibit your ability to drive has consequences.
Despite its legalization in Massachusetts, driving after ingesting marijuana or any cannabis product is grounds for an OUI. The laws that regulate its legality for recreational use don’t change the existing laws that make marijuana use while driving illegal. What is different about marijuana OUI law is the state’s ability to prove the substance was a factor in any crash or suspicious driving. The smell of marijuana isn’t reason enough for an officer to stop and search your car. However, if you’re pulled over for any other legitimate reason, the smell of marijuana could be used as evidence against you.
OUI Marijuana carries the same penalties that come with drinking. OUI marijuana convictions (first offense) can include up to 2.5 years in prison, suspension of your driver’s license for 1 year, and a fine of $500 - $5,000.
Prescription drugs will specifically say on the bottle whether or not they are safe to use while operating a vehicle or “heavy machinery”. Even with a legal prescription, you are breaking the law operating under the influence of a drug that inhibits your driving. If you’re charged with OUI after using prescription drugs an experienced attorney will be needed to help you establish your case.
Legislation passed in the spring of 2018 added new language that widens the law to include more enforcement of inhalants as part of OUI investigations. Previously, the laws narrowed in on glue vapors but now “smelling or inhaling the fumes of any substance having the property or releasing toxic vapors” will be considered when defining OUI. This was intended to target a loophole that possibly allowed people who had gotten high from inhalants other than glue to avoid a DUI conviction.
