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DEFENSE OF DRUNK DRIVING CASES IN MASSACHUSETTS The Charge of Drunk Driving - OUI, DUI, DWI, or OWI Drunk Driving (referred to as OUI, DUI, DWI, and OWI) is one of the most common criminal charges brought in Massachusetts. Under Massachusetts law the charge is referred to as Operating Under the Influence (OUI), and that is the term that we shall use here. While actual drunken driving is a clear danger and a serious problem, many innocent drivers are swept up in the net cast by law enforcement. Many law abiding citizens face this criminal charge every year. It is not a crime to drink and drive in Massachusetts. Rather, the crime of operating under the influence is comprised of the operation of a motor vehicle on a public way or on private property open to the public while the ability to drive is impaired by alcohol or drugs. Common Fact Patterns Most OUI arrests begin with an evening or late night traffic stop by a police officer, usually for some other offense, such as speeding or crossing over a marked lane. As a result of the traffic stop, the officer comes face to face with the accused, and may smell alcohol. Often the accused is then asked to exit his or her vehicle, and perform some field sobriety tests, such as the finger to nose test, the one legged stand, and the nine step walk and turn test. At then end of these tests the officer forms the opinion that the driver was operating under the influence, and arrests the accused. The car is towed, and the accused is taken back to the station for booking. The driver is asked to consent to a breathalyzer test, and told that if he refuses, he will lose his license for 120 days. The driver may or may not take the test. The driver is eventually bailed out, and directed to report to court the next day. The entire proceeding is intimidating and above all, embarrassing. The accused is convinced of two things: he has been railroaded, and there is no viable defense to the charge (especially after a review of the police report). This is not necessarily the case. Know Your Rights Most people are unaware of their rights concerning being stopped for suspicion of drunk driving. For example: 1. You have the right to refuse a breathalyzer test (although there is a license suspension as a result). 2. You have a right to refuse to perform field sobriety tests, such as walk and turn, finger to nose, etc. 3. You have a right to contact a lawyer. 4. You have the right to remain silent. 5. You have a right to prompt bail and a right to demand the ability to see an independent physician to have a blood test (even if you refuse the breathalyzer). Analysis of an OUI Case Many OUI cases can be successfully defended. The first step in the analysis is looking at the reason for the stop: did the officer observe a civil infraction? If not, the stop itself may be illegal, and the accused may be able to force the case to be dismissed as a result. If the stop was legal, the next step in the analysis is whether there was a breathalyzer. If there was, what was the score. There is no per se legal limit in Massachusetts presently. If the score is below, at, or even slightly above .08%, the level at which a jury can presume impairment, the case will be a good candidate for trial. In many cases that go to trial, there is no breathalyzer result. In such a case, all of the facts are important. For example:
Whether or not any particular OUI case should be taken to trial should be the subject of discussions at length between client and lawyer. Penalties and Diversion Programs OUI penalties under Massachusetts law are graduated - the minimum penalties increase if there is a second or third offense. This next section will discuss minimum penalties for first offenses and second offenses. The minimum penalty for conviction of a first offense charge of OUI is 1 year of probation, attendance with a 18 week alcohol education program, 45 to 90 day loss of license, $600 in fines, $65 per month probation fee, and program fees. The minimum penalty for a conviction of second offense OUI is 2 years probation (possible suspended sentence), attendance in a 14 day inpatient alcohol education program with aftercare, two year loss of license, $600 in fines, $65 per month probation fees, and program fees. The minimum penalty for a conviction of third offense or more OUI is mandatory jail time of at least five months. License Losses There are a number of license loss provisions connected to charges of OUI. This section describes those that apply to drivers over 21. Drivers under 21 face additional license loss penalties. When a driver is arrested for OUI, he or she is given the option to take a breathalyzer test. If the driver takes the breathalyzer and fails, the driver loses his or her license for the lesser of 30 days or until the case is resolved, beginning 15 days after the arrest. If the driver refuses to take the breathalyzer, the driver loses his or her license for a minimum of six months, beginning 15 days after the refusal. If the driver pleads the case out or is found guilty, the driver will lose his or her license for a minimum of 45 to 90 days for a first offense, or two years for a second offense. However, it is possible to get a restricted license (twelve hours per day) during the period of the first offense license loss. The license losses are cumulative. Return to Services Page
Mark W. Helwig Attorney at Law 323 Boston Post Road Sudbury, Massachusetts 01776 978.443.3334 508.620.2242
Nights and Weekends Call 508 400 7012
email mark@markhelwig.com
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Send mail to mark@markhelwig.com with questions or comments, or for further information, call us at 978.443.3334.Copyright © 2001-2005 by Mark W. Helwig
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