Boston Drunk Driving Lawyers
- Brant, Thomas:
In Massachusetts, all drivers are prohibiting from driving or operating a motor vehicle if their blood alcohol concentration level (BAC) reaches or exceeds 0.08%. When a police officer suspects a person is drunk driving, he/she has the right to pull over the driver and test his/her BAC level. Police officers can determine the driver’s BAC level by means of a blood test, breath test, or urine test. If the test results indicate that the driver’s BAC level is above or exceeding 0.08%, then he/she will be arrested and charged with OUI.
It is not only illegal to drive a motor vehicle while under the influence, but you can also be arrested if you are in “actual physical control” of the vehicle. This means that even if you are sitting or sleeping in your parked car on the side of the road, you can still be charged with OUI. If you need to park your car to rest or sleep, the only way to avoid OUI charges is to park your car and lock your keys in a place that is out of your reach.
Contact Boston Drunk Driving/OUI Attorney
The consequences of drunk driving can be catastrophic. For this reason, all people found operating under the influence (OUI) will be arrested, charged, and prosecuted to the fullest extent of the law. If you have been arrested and charged for drunk driving/OUI in Boston, it’s extremely important to hire an attorney with years of experience handling drunk driving cases.
- Louison, Costello, Condon & Pfaff:
What can a lawyer do about an OUI/DUI charge?
There are effective defenses to charges of driving while intoxicated (DWI)/operating under the influence (OUI)/driving under the influence (DUI) of drugs or alcohol. Was the traffic stop legal? Was evidence acquired through an illegal search and seizure? Did police follow approved procedures related to the blood alcohol content (BAC) test? If a suspect is convicted or pleads guilty to drunk driving, an experienced criminal defense attorney may be able to work out a favorable sentencing option.
- Lev, D:
The criminal process can be complex and confusing. But it's important to know your legal rights. The best way to be informed is to contact an criminal defense attorney as soon as possible. A criminal defense attorney will understand the law as it relates to the crime you've been charged with, and will be able to help you in making informed decisions as your case moves through the process.
Discussed below are the various possible levels of police intrusion, from a simple stop to an arrest with a warrant. It is important to understand what conduct by the police is permissible, and what is not. Conduct outside the scope of authority of the police may be in violation of our State and Federal Constitutional rights, and much of the criminal defense process is focused on protecting those rights to the fullest extent possible. This discussion is followed by a detailed chronological description of the criminal process in Massachusetts.
Stop
A person may be stopped for questioning by the police. A stop is not the same as an arrest because, although one may be detained, one is not moved to a different location. During a stop the police officer may ask questions, but one has the right to refuse to answer. A person may be frisked by the police at the time of a stop, but only if the police have a "reasonable suspicion" that the person is armed and dangerous or possesses contraband. In that case, a pat down search is allowed, but the police is not allowed to reach into pockets, they must be able to identify the any objects by plain feel.
Searches
Search Warrants
A search warrant authorizes the police to conduct a search of a specific, place such as a residence, for a specific item, a specific type of item, or contraband. In order for a warrant to be issued by a judge, "probable cause" is necessary.
Probable cause to search means that:
* It is more likely than not that the specific items to be searched for are connected with criminal activities
* Those items will be found in the place to be searched
Warrantless Searches
The general rule is that warrants are required for searches. But search warrants are not required for the following:
* Searches incident to arrest: Police officers are permitted to search the body and/or clothing for weapons or other contraband when making a valid arrest.
* Automobile searches: If a person is arrested in a vehicle, the police may search the inside of the vehicle. To perform a complete search of the vehicle (such as in locked glove compartments, for example), probable cause is necessary.
* Exigent circumstances: Searches may be conducted if there are "exigent circumstances" which demand immediate action, such as to avoid the destruction of evidence.
* Plain view: Police do not need a search warrant when they see an object that is in plain view of an officer who has the right to be in the position to have that view.
* Consent: If a person consents to a search of their body, vehicle, or home, the police are not required to have a warrant. One is not required to consent to any police searches.
Arrest
In order to be arrested, there must be what's called "probable cause." This means that there must be a reasonable belief that a crime was committed and the person being arrested committed the crime. An arrest warrant is not necessary, unless the arrest is to take place in a person's home.
After one is placed under arrest, that person is protected by constitutional rights. Two important rights to be aware of are right to remain silent and the right to have an attorney. After the arrest, a person is not required to say anything else to police or investigators, until an attorney is present. An opportunity to contact an attorney must be given.
Miranda Rule
Under the Miranda Rule, if a person is in police custody , specific constitutional rights must be made clear before any interrogation begins. Those rights are as follows:
* The right to remain silent
* The right to have an attorney present during questioning
* The right to have an attorney appointed if one is unable to afford one
Important to note is that Miranda rights do not have to be read until one is taken into custody. That means that a person may be questioned by the police before being taken into custody, and anything said at that point can be used against the person later in court.
Booking
After the arrest, the police will bring the person to the police station for the booking process, which involves fingerprinting and a series of questions, such as name and date of birth. The person will also be searched and photographed. The personal property, such as jewelry and cash, will be catalogued and stored.
Appointment of an Attorney
In Massachusetts, if one cannot afford to hire an attorney, an attorney will be appointed to defend the person. That attorney may be a public defender, or an attorney in private practice contracted by the court.
After an attorney has been appointed, the person may ask the court to appoint a substitute attorney only for good cause. Good cause requires more than mere dissatisfaction with the appointed attorney and may include:
* A conflict of interest between the person and the attorney
* The attorney becomes ill and cannot continue to the representation
* There is reason to believe that the attorney is not providing effective assistance
Charges
The case against a person is formally initiated when a complaint is issued. Either a police officer or a private citizen may make the application for the complaint to the Clerk Magistrate. If the complaint is sought by a police officer after an arrest, the officer must swear under oath to the facts alleged in the complaint. These applications are routinely granted by the Clerk Magistrate with no other proceedings.
Applications for complaint brought forth by private citizens entitle the accused person to a show cause hearing, also known as "clerk's hearing." Here the accused person has an opportunity to be heard and to oppose the issuance of the complaint. Certain instances are exempt from the hearing requirement, such as threat of imminent bodily injury or risk of flight from the Commonwealth.
Arraignment
Once criminal charges are filed, the accused person will make a court appearance which is known as an "arraignment." If the person has been in custody since the arrest, the arraignment will usually occur within 24 hours of the arrest.
During the arraignment, a "plea" to the crime charged must be entered. Massachusetts pleas and corresponding definitions follow:
* Guilty plea: this is a full admission to the facts of the crime and the fact that the person pleading was the one who committed that crime. Following a guilty plea, the judge will impose sentence immediately.
* Not guilty plea: this plea asserts that the person did not commit the crime as accused. After a not guilty plea, a pre-trial date will be set.
* No contest plea: A "no contest" or "nolo contendere" plea may be entered with the permission of the court. This plea is essentially the same as a guilty plea, with the exception that, unlike guilty plea, a "nolo contendere" plea cannot later be used against the person in a civil lawsuit. Like with the guilty plea, sentence will be imposed immediately.
* "Mute" plea: In Massachusetts, one may "stand mute" instead of making a plea. The court will then enter a plea of not guilty.
During the arraignment, the court will also:
* Set bail, which, if met, will allow the person not to remain in custody while awaiting trial, with certain restrictions;
* Refuse to set bail; or
* Release the person on their own personal recognizance, which means that the court takes the person's word that they will appear when necessary for later court obligations
Bail/Bond
"Bail" is money or property put forth as security to ensure that one will show up for further criminal proceedings.
In Massachusetts, bail can be paid:
* In cash
* A pledge of property (if permitted in that court)
* A bail bond
A professional bail bondsman is an individual whose business is to pledge his or her own property or security to guarantee the bail bond to the court.
Speedy Trial
There is a right to a speedy trial under the Sixth Amendment of the United States Constitution, which requires that the trial be held within a certain time frame after a person has been charged with a crime.
This right can be waived by asking for additional time for the preparation of the defense.
With limited exceptions, a defendant should be brought to trial in Massachusetts within 12 months.
Pre-Trial Conference and Hearing
A Pre-Trial Conference is usually the first date after the arraignment on which the person accused is to return to court. On that date, the person's attorney and the prosecutor will meet to discuss whether the case may be disposed of without a trial. While the accused person must attend, no testimony or other formal proceedings will take place. At the pre-trial conference, the prosecution may offer a plea bargain, which is an agreement for the person accused to accept some responsibility in exchange for a lesser punishment or perhaps a lesser crime than initially charged. At the same time, the parties agree on the details of a trial, if one were to take place, such as the number of witnesses, length, etc. The next date to return to court is usually the pre-trial hearing, where a judge again attempts to resolve the case without a trial, which may include accepting a plea bargain. Certain motions may also be heard at this time.
Trial
There is a right to a jury trial, whereby a jury of 6 or 12 members must unanimously render a guilty or a not guilty verdict. The right to a jury trial may be waived by:
* Pleading guilty; or
* Choosing a bench trial (a trial in front of a judge only)
If a bench trial is requested, the judge will perform the fact-finding function that is usually performed by the jury. In Massachusetts, a defendant in a capital case must be tried by a jury and cannot choose a bench trial.
Appeals
A person found guilty by a jury or a judge is entitled to an appeal. The process varies depending upon the crime, but there are always time deadlines by which an appeal must be filed.
In Massachusetts, the general rule is 30 days after the judgment to file an appeal. There are numerous reasons for an appeal from a guilty verdict in a criminal case, including what's called "legal error." Legal error may include:
* Allowing inadmissible evidence during the criminal process, including evidence that was obtained in violation of constitutional rights
* Lack of sufficient evidence to support a verdict of guilty
* Mistakes in the judge's instructions to the jury regarding the case
An appeal may also be filed due to misconduct on behalf of the jurors, or if there is newly discovered evidence to exonerate.
Sealing of Records
In Massachusetts, under some circumstances, one may be able to have a criminal record sealed. This means that the records cannot be obtained except in limited circumstances, such as a future criminal case against the person.
One may be eligible to have the records sealed if:
* Criminal charges have been dismissed or a not guilty verdict was reached, or
* It has been either 10 or 15 years since the conviction (depending on the crime), or
* The record is a juvenile record that is at least three years old, or
* There has been a pardon
If eligible, one may file a written request with the Massachusetts Commissioner of Probation asking that the records be sealed. A hearing before a judge may be required in certain circumstances.
- Topazio, Steven:
MASSACHUSETTS DRUNK DRIVING LAWS - MELANIE'S LAW
The laws in the area of drunk driving are getting tougher and the penalties more severe as the result of recent legislative action. The Commonwealth of Massachusetts recently passed "Melanie's Law" on October 28, 2005, which added a number of new, harsher penalties to the drunk driving laws in the state. A drunk driving offense which at one time was removed form an individual's record for purposes of prior convictions, every six years, will now follow you for the rest of your life if convicted. The penalties include a loss of your driver's license, paying fees for being placed on probation, attending drunk driving programs and even serving mandatory jail time. Every DUI conviction after the first one becomes progressively much more serious and will have profound implications on your future.
Under Massachusetts Law drunk driving is called Operating Under the Influence or "OUI" . In this area of law, the Government has the option of prosecuting you under one of two separate theories. The first theory the government can proceed under is referred to as the "impaired" theory. In this type of case the Government uses the observations of the police, including the individual's performance on field sobriety tests, to prove that the driver's ability to operate a motor vehicle safely was impaired through the consumption of alcohol. The second theory is called the "per se" theory. Under this theory the Government uses the officer's observations and the results of a Blood Alcohol Test to obtain a conviction if it can prove that an individual 21 or older drove a motor vehicle on a public way with a blood alcohol reading of .08 or higher.
WHY FIGHT A DRUNK DRIVING CHARGE?
A conviction, plea of guilty or admission to sufficient facts to an OUI charge will be a permanent part of your driving record. Penalties range from probation, loss of license, fines, alcohol education programs, in patient hospitalization, up to incarceration. In the past, OUI convictions "came off" your record after 6 years. Today, with the passage of Melanie's Law (discussed below), every OUI conviction you ever had is considered by the Commonwealth when prosecuting you. The punishment for multiple offenders escalates. Moreover, a conviction, guilty plea or admission to sufficient facts plea is reported to the Massachusetts Registry of Motor Vehicles, which in turn, reports it to the National Driver's License Registry. These computer records are accessible to driver's licensing agencies nationwide.
WHAT IS DRUNK DRIVING?
Nothing is quite as frustrating as attempting to plod through the confusing language of Massachusetts drunk driving laws embodied in General Laws chapter 90, section 24. Expertise in understanding the various elements of a drunk driving crime and a well planned strategy become all the more important in light of the new drunk driving legislation know as Melanie's Law.
Massachusetts General laws Chapter 90, Section 24(1) (a) (1) states:
"Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and one-half years, or both such fine and imprisonment."
In other words, a drunk driving charge, (also referred to as DUI, "Driving Under the Influence", DWI, "Driving While Impaired" or OUI "Operating Under the Influence") under Massachusetts law is composed of three elements that a prosecutor has to prove beyond a reasonable doubt in order to convict you. The prosecutor must prove that you were:
1) operating a motor vehicle;
2) on a public way or any place to which the public has a right of access; and
3) while you were under the influence of intoxicating liquor.
Most drunk driving trials focus on the third element, whether the person is "under the influence" of alcohol.
WHAT DOES "UNDER THE INFLUENCE" MEAN?
Drunk driving does not mean that you have to be drunk to be convicted of this crime. More often than not, most defendants in drunk driving cases maintain that they were not "drunk" when arrested. Massachusetts law however does not require that you be "drunk" to be guilty of OUI. Under current law, the prosecutor only has to establish that your ability to operate a motor vehicle safely has been impaired, by the consumption of alcohol. The Commonwealth does not even have to prove the defendant actually drove in an unsafe or erratic manner; only that alcohol diminished the defendant's ability to drive safely. Additionally, with the passage of Melanie's Law, you are also assumed to be intoxicated if your blood alcohol reading is .08% or above for individuals 21 or older or .02 or above for individuals under 21. This is called the "per se" rule.
FIELD SOBRIETY TESTS
Field Sobriety Tests such as the Nine Step Walk and Turn test, One Leg Stand test, Horizontal Gaze Nystagmus test, are roadside examinations used by the police to establish probable cause to arrest you if he suspects you of OUI.
In Massachusetts, an operator has a right to refuse to perform field sobriety tests. If you submit to field sobriety tests you only provide evidence to the investigating police officer who will use his observations against you if your case goes to court.
Field sobriety tests are standardized tests developed by the National Highway Traffic Safety Administration. Standardized field sobriety tests supposedly demonstrate validated indicators or cues of a person's impairment. When the tests are administered in the manner detailed by the National Highway Traffic Safety Administration and an officer observes those cues, it allows him to establish probable cause to believe an operator is impaired so that he can arrest that person for OUI.
Field sobriety tests are not foolproof and are often unreliable if administered incorrectly, in an inappropriate setting or given to an inappropriate candidate. Even if administered correctly, the National Highway Traffic Safety Administration claims that there are large degrees of unreliability associated with these tests, and in some cases as much as 35%.
When a police officer uses other field sobriety tests, such as picking up coins, counting backwards or touching finger to nose, to evaluate sobriety, the test results are even more unreliable. There is no scientific validation for non standardize tests which offer little or no documented reliability for the officer to accurately detect impairment. If the test is unreliable then it can be argued that the test results should be excluded or their impact diminished at time of trial.
BLOOD ALCOHOL CONTENT and BREATH TESTS
Massachusetts recently became a "per se" state. This means that if your breath or blood are tested and the result is .08 or above, you will be found guilty if and only if the judge or jury believes the test was conducted properly and the reading was accurate. For drivers under 21, an alcohol content of .02 or above must be demonstrated. There are many reasons why the test may not be used against you. This may be as a result of poor record keeping by the police, machine malfunction or an improperly administered test. A trained lawyer knows what to look for when evaluating the reliability of breath tests. It is important to get legal advice before admitting to anything.
SUMMARY OF LAW CHANGES UNDER MELANIE'S BILL
If one chooses to refuse a breath test in Massachusetts
• No 15-day temporary license after refusal
• The vehicle will be impounded for 12 hours after the arrest and no one, not even friends or family members, will be permitted to pick it up earlier.
• A suspension due to refusal must run consecutively with any other suspension, such as that imposed for conviction. Until now, a judge could order that such suspensions run concurrent, although the order was non-binding to the registry. However, the registry, within its discretion, generally granted such nonbonding orders.
• Upon a not guilty verdict, nolle prosequi or dismissal, a judge has the discretion to restore a license suspended for breath test refusal. There is a rebuttable presumption that the license be restored unless the commonwealth establishes, by a fair preponderance of the evidence, that this would endanger the public safety. In that case, the court must issue written findings of fact to support its decision not to restore the license.
• No hardship license for first offenders is available due to the suspension until there has been a 24D disposition.
The length of the suspension for breath tests refusals is as follows:
• First offender: 180 days
• First offender under the age of 21: 3 years
• Second offender: 3 years (but a continuance without a finding does not count as a prior conviction for these purposes).
• Second offender (if first offense was OUI with serious bodily injury): 10 years.
• Second offender (if first offense was OUI motor vehicle homicide or manslaughter by motor vehicle): Lifetime
• Third Offender: 5 years
• Fourth offender: Life.
Breath test failures (b.a.c. of .08 or higher):
• Loss of license for 30 days or until the case is disposed of by trial, plea or dismissal, whichever comes first.
• If under the age of 21, a loss of license of 180 days for breath test result of .02 or greater.
• Automobile impounded for 12 hours following arrest, regardless of who comes to pick it up.
• Breath test failure is considered a "per se" violation of the law and is admissible in the prosecution as long as it was conducted properly.
Massachusetts penalties for drunk driving conviction:
First offense over the age of 21:
• License loss of one year (with 24D alternative disposition, license loss is 45 to 90 days).
• Probation for not more than two years.
• A period of incarceration in the house of correction for not more than two and a half years. Incarceration may be served on weekends, evenings and holidays.
• A fine of not less than $500 or more than $5,000.
• Community service may be assessed.
• Under 24D program, entry into the approved alcohol education program, the payment of the costs of such program, assessments and probation supervision fees.
• The 24D program is still available after conviction by trial.
• The 24D program is not available in the cases of death or serious bodily injury.
• Within the discretion of the judge, the first offenders program isavailable "once in a lifetime" to a second offender if the date of the incident that resulted in the one prior conviction occurred more than 10 years earlier than the second offense. However, in this situation, t he offender will still need the new ignition interlock device on the vehicle during this period of use of a hardship license.
• Unlike the previous procedure, if a first offender legally resides out of state or is a full-time student out of state, that offender may take an equivalent alcohol education program outside of state.
First offense under the age of 21:
• License loss of 210 days, even with 24D program.
• An additional license loss of 180 days, but this may be avoided by enrolling in a special underage drinking program.
• If the breath test result is .20 or over, the offender, aged 17-21 inclusive, must take a specially designed driver alcohol treatment and rehabilitation program called the "14 day second offender in-home program."
Second Offense:
• Not less than 60 days nor more than two-and-a-half years in the house of correction (30 days of this is mandatory).
• Alternative sentence is a mandatory 14-day in-patient treatment program with aftercare as determined.
• Two-year loss of license
• Two years of probation
• Fine of $600-$10,000.
Third Offense:
• 180 days or two-and-a-half years in the house of correction (150 days of that is mandatory) or two-and-a-half to five years in state prison.
• May serve it at a specially designated D.O.C. facility for alcohol programs.
• Eight year loss of license
• Fine of $1,000-$15,000.
Fourth offense:
• Two to two-and-a-half years interrogatories eh house of correction or two-and-a-half to five years in state prison (one year of that is mandatory).
• Ten year loss of license.
• Fine of $1,5000-$25,000.
Massachusetts Hardship Licenses:
• First offender is eligible for a 12-hour hardship license (for work/education) within three business days of disposition if (a) enrolled in an alcohol education course, even information classes have not yet commenced and (b) demonstrates to the Registry of Motor Vehicle that not having one presents a hardship. Once the disposition is made, this hardship license is also good for use during the loss of license period imposed by a first offender's breath test refusal.
• Second offender eligible for 12-hour hardship license after one year with ignition interlock device. New license may be requested after 18 months. In the case of a second offender who, because the first offense was more than 10 years earlier, was permitted to take the 24D first offenders program this time, there is still a requirement for the ignition interlock device during any period of a hardship license.
• Third offender eligible after two years with ignition interlock device. Device must be in service for two years. New license may be requested after four years.
• Fourth offender eligible after five years with ignition interlock device. Device must be in service for two years. New license may be requested on a limited basis after eight years.
• Fifth offender - no hardship license available.
Introduction of certified copy of prior conviction allowed without requiring corroborating evidence or live witness testimony may be introduced through:
• Certified arrested copies of original court papers:
• Certified attested copies of the Defendant's biographical and informational data from records of the department of probation, any jail or house of corrections, the Department of Corrections or the registry, which shall be considered prima facie evidence that the Defendant has been previously convicted.
• Documents are self-authenticating and admissible after the Commonwealth has proven guilt on the primary offense.
New Massachusetts offense of manslaughter by motor vehicle.
The difference between the charge of motor vehicle homicide and this new offense of manslaughter by motor vehicle is the enhanced sentencing.
• A period of incarceration for five to 20 years in state prison. Five years of that sentence is a mandatory minimum without eligibility for parole or good time. However, one may be eligible for a work release program.
• A fine of not more than $25,000
• License suspension by the registrar of motor vehicle minimally for 15 years and up to life. Person may appeal registrar's decision to the Superior Court, which may reduce the period of suspension, but not to less than the mandatory 15 years.
New Massachusetts offender of child endangerment by operating a motor vehicle.
This new law pertains to anyone convicted of an alcohol-related offense with a child 14 years of age or younger in the motor vehicle.
• A period of incarceration in the house of correction for not less than 90 days nor more than two-and-a-half years.
• A fine of $1,000-$5,000.
• Second offense carries a sentence of not less than six months or more than two-and-a-half years in the house of correction or by imprisonment in state prison for not less than three years or more than five. Six months of that sentence is a mandatory minimum without eligibility for parole or good time. However, one may be eligible for a work release program.
• Sentence must be served consecutively without predicate violation.
• Loss of license of one year for a first offense and three years for a second or subsequent offense.
Forfeiture of motor vehicle:
For fourth offense or higher, prosecutors may file for civil forfeiture of the motor vehicle if vehicle is also in the offender's name. A portion of the proceeds from the sale will go to the district attorney's office.
In cases where the motor vehicle is jointly owned, prior to the offense, with, for example, a spouse, the claimant will have the burden of proving to the court's satisfaction that the property is not forfeitable because the claimant is dependent upon it for employment o the maintenance of one's family.
Offenses concerning violations of new ignition interlock device:
The ignition interlock device must be installed on each vehicle owned, leases or operated by the offender. It must be blown into and will not permit operation of the b.a.c. is .02 or higher. The device is to be installed for a period of two years. (It is currently unclear when the two years begins to run, but it is reservedly presumed that it begins at the time the new license is issued.) The license is responsible for having the device regularly inspected, maintained and monitored.
1. Driving without an ignition interlock device when one is required
• Period of incarceration for 180 days to two-and-a-half years in the house of corrections or two-and-a-half to five years in state prison. Of that, 150 days is a mandatory sentence without parole or good time, but one may participate in a work release program. May be served in a specially designated D.O.C. alcohol facility.
• A fine of $1,000-$15,000
• Tampering with an ignition interlock device
• Period of incarceration for six months or two-and-a-half years in the house of correction or three to five years in state prison.
• Breathing into an ignition interlock device for a restricted person
• Period of incarceration for six months to two-and-a-half in the house of correction
• A fine of $1,000-$5,000
• Second or subsequent offense of three to five years in prison
Whoever, on two or more occasions, removes such a device or fails to have it regularly inspected, maintained and monitored or records a b.a.c. of over .02 after blowing into it, may have their license revoked by the registrar of motor vehicles of ran extended period or for life. A person may appeal this decision to the Superior Court.
- Stephen J. Weymouth:
DWI/Driving While Intoxicated:
A DWI occurs when someone is operating, or is in actual physical control, of a motor vehicle while under the influence of alcohol or other controlled substance to the extent that their mental faculties are impaired and/or their blood alcohol content (BAC) is above the legal limit. Even for a first offense, penalties can include license suspension, substantial fines, community service, mandatory attendance at a state or DMV approved alcohol program, mandatory overnight incarceration and the required installation (at the offender's expense) of a car ignition locking device. In addition, a DWI conviction stays on a DMV record for several years, it typically results in higher insurance premiums, and an offender may become ineligible for credit. Plus, a DWI could also jeopardize your employment opportunities.
However, if someone was injured as a result of the drunken driving accident, it is possible the defendant will be charged with a felony (and if the victim dies, the driver may be charged with vehicular manslaughter). Further, a DWI conviction will likely be raised to a felony if it is the driver's fourth DWI offense or the driver has had a prior felony DWI offense within 10 years of the new charge.
- MERRICK, LOUISON & COSTELLO:
You should consult an attorney for individual advice regarding your own situation.
- Bourbeau & Bonilla:
Our state and federal constitutions guarantee each one of us Due
Process of law. Yet, when accused of a crime, the person charged
suffers from a system which provides the government with almost
limitless resources.
- David Yannetti:
In October 2005, the Massachusetts legislature passed “Melanie's Law,”
which substantially increased the penalties for DUI or OUI convictions.
The consequences for refusing a breathalyzer test increased as well,
with a more severe license suspension and increased penalties for
multiple offenders.
- Joseph Griffin:
Consequences of a DUI / OUI conviction
There are economic penalties for conviction or admission of driving
under the influence, such as job loss, insurance rate increases, and
inability to rent a car. There are also legal penalties, that may have
an significant effect of your driving privilege. There are mandatory
minimum fines and jail sentences, depending on the blood alcohol level
and the number of prior offenses. With prior convictions or admissions
of guilt, probationary sentences can be extremely harsh for an OUI
second offense. That is why it is so important not to plead guilty
right away. It can hurt you both immediately, and down the road, if you
are ever arrested again for the same offense.
- Scott Lopez:
You should consult an attorney for individual advice regarding your own situation.
- Fitzgerald & Company:
In general it is unlawful to operate a motor vehicle on a public road
or way, while under the influence of intoxicating liquor, marijuana,
narcotic drugs, depressants, or stimulant substances. The penalties for
a violation of this law include probation or a jail sentence depending
upon the number of times that a person has been convicted previously,
and whether there was serious damage to persons or property. The courts
and prosecutor will routinely require completion of an alcohol or
substance abuse education program as part of any sentence.
- Thomas Brant:
You should consult an attorney for individual advice regarding your own situation.
- Denner Associates:
The Criminal Defense Attorney is Home indeed the last bastion of freedom in this country.
- Laurence Cote:
Drunk driving in Massachusetts or New Hampshire is a very serious
offense. Massachusetts has a lifetime look-back policy, so each
consecutive offense carries larger fines and jail time than the last,
no matter how many years are between the offenses. New Hampshire has a
similar policy but the look-back period is only 10 years. If you have
been charged with drunk driving, a lawyer can make a difference. You
need to enlist the skill of a highly experienced DUI attorney to
effectively protect your rights and seize any opportunity to keep your
record clean.
- Terry Flukes: 1.
Q: Do you have to be "drunk" to be guilty of drunk driving?
A: No. Years ago, a drunk driving charge meant someone was "drunk" in
the way all of us commonly understand the word - intoxicated. But
today, intoxication as we know it is not required for one to be guilty
of drunk driving. During the last ten years public outcry against the
toll of injury and death which drinking drivers inflict has changed the
laws against drunk driving radically and made them much more severe. So
the criminal laws against drinking and driving now mean operating a
vehicle with considerably less alcohol in your system than what we
customarily recognize as being enough to make a person drunk.
You may not think you are drunk. Those around you may not think you are
drunk. Indeed, for the purpose of every other situation except driving,
you may not even be considered drunk. But your condition may be enough
for you to be found guilty of a drunk driving offense under the current
definition of the law. And if you are convicted, you will suffer some
very harsh penalties.
- Brandon Suanders:
If you have been charged with a criminal offense, including DWI / DUI, you have options.
- Joseph Griffin:
Criminal vs. Civil Matters
A criminal case arises when either the federal or state government
seeks to punish an individual for an act that is a crime. Whereas a
civil case typically deals with a dispute over rights and duties that
individuals and entities owe to one another. Some differences between
criminal and civil matters are listed below.
- In a criminal case, a prosecutor handles the case on behalf of the federal government or state.
- In a civil case, the victim or wronged party sues a defendant.
- If a defendant is convicted of a crime she may be required to pay a fine, be incarcerated or both.
- In a civil case, one held responsible might be required to pay
money damages, return property, or cease from engaging in a certain
activity. They will not be sentenced to jail or prison.
- In a criminal case, the prosecutor must prove a defendant's guilt beyond a reasonable doubt.
- In a civil case, a plaintiff must prove that a defendant is guilty by a preponderance of the evidence, more than 50 percent.
- In a criminal case, a defendant is almost always entitled to a jury trial.
- In a civil case, a defendant is only entitled to a jury trial in certain cases.
- Anthony Lochiatto:
After a defendant has been arrested, he will be scheduled for an
arraignment. The defendant may have been released on bail or his own
recognizance, or he may have been required to remain in jail until his
arraignment. An arraignment is a proceeding whereby the offense that
the defendant is charged with is read to him and he enters a plea to
the offense charged. The defendant is also apprised of his right to:
- Be present.
- Right to an arraignment.
- Right to counsel.
- Right to receive a copy of the accusatory instrument.
- Right to appear pro se.
- Francis
O'Brien: Frequently, individuals accused of operating under the
influence or other motor vehicle offenses, will also face suspension of
their right to operate a motor vehicle.
- Stephen Neyman: 1.
You are not obligated to take a chemical (breath or blood) test. 2. You
are not obligated to take field sobriety tests. 3. Your refusal to take
the tests mentioned above will not be used against you at your trial.
Our appellate courts have found it proper to instruct a jury that such
actions should not be considered as evidence of guilt. In Commonwealth
v. Downs, 53 Mass.App.Ct. 195 (2001) the Massachusetts Appeals Court
looked favorably upon the following jury instruction: "You are not to
mention or consider in anyway whatsoever, either for or against either
side, that there is no evidence of a breathalyzer. Do not consider that
in any way. Do not mention it. And put it completely out of your mind."
Commonwealth v. Downs, 53 Mass.App.Ct. 195 at 198. 4. Even if you took
and 'failed' a breath test you should not despair. A breathalyzer
machine is just that - - a machine. There are many external influences
that trigger false results from the machine. In cases where the breath
reading exceeds .08 we recommend using one of our toxicologists to
demonstrate and explain to a jury the shortcomings of the machine.
- Peter Elikann:
New Massachusetts Drunk Driving (O.U.I.) Law
By Peter Elikann
The following is the new Massachusetts OUI law (Melanie's Law):
Breath test refusals:
No 15-day temporary license after refusal.
The vehicle will be impounded for 12 hours after the arrest and
no one, not even friends or family members will be permitted
to pick it up earlier.
A suspension due to refusal must run consecutively with
any other suspension such as that imposed for conviction. Until
now, a judge, could order that such suspensions run concurrent
although the order was non-binding to the registry. However,
the registry, within its discretion, generally granted such non-binding
orders.
Upon a not guilty verdict, nolle prosequi or dismissal, a judge
has the discretion to restore a license suspended for breath
test refusal. There is a rebuttable presumption that the license
be restored unless the Commonwealth establishes, by a fair preponderance
of the evidence, that this would endanger public safety. In that
case, the court must issue written findings of fact to support
its decision not to restore the license.
No hardship license for first offenders is available due to the
suspension until there has been a 24D disposition.
The length of the suspension for breath test refusals is as follows:
1. First offender: 180 days
2. First offender under the age of 21: 3 years
3. Second offender: 3 years (a continuance without a finding
does not count as a prior
conviction for these purposes, according to the law, but it is
unclear whether the Registry of Motor Vehicles will recognize
this).
4. Second offender (if 1st offense was 10 years
oui with serious bodily injury)
5. Second offender (if 1st offense was Lifetime
oui motor vehicle homicide or
manslaughter by motor vehicle)
6. Third offender: 5 years
7. Fourth offender: Lifetime
8. Fifth offender: Lifetime
Breath test failures (b.a.c. of .08 or higher):
Loss of license for 30 days or until the case is disposed
of by trial, plea, or dismissal, whichever comes first
If under the age of 21, a loss of license of 180 days for breath
test result of .02 or greater
Automobile impounded for 12 hours following arrest regardless
of who comes to pick it up
Breath test failure is considered a "per se" violation
of the law and is admissible in prosecution as long as it was
conducted properly
Penalties for conviction:
First offense over the age of 21:
License loss of 1 year (with 24D alternative disposition
license loss is 45 to 90 days)
Probation for not more than 2 years
A period of incarceration in the House of Correction for not
more than 2 1/2 years. Incarceration may be served on weekends,
evenings and holidays.
A fine of not less than $500 or more than $5000.
Community service may be assessed.
Under 24D program, entry into an approved alcohol education program,
the payment of the costs of such program, assessments and probation
supervision fees.
The 24D program is still available after conviction by trial.
The 24D program is not available in the cases of death or serious
bodily injury.
Within the discretion of the judge, the first offenders program
is available "once in a lifetime" to a second offender
if the date of the incident that resulted in the one prior conviction
occurred more than 10 years earlier than the second offense.
However, in this situation, the offender will still need the
new ignition interlock device on the vehicle during this period
of use of a hardship license.
Unlike the previous procedure, if a first offender legally resides
out of state or is a full time student out of state, that offender
may take an equivalent alcohol education program out of state.
First offense under the age of 21
License loss of 210 days even with 24D program
An additional license loss of 180 days, but this may be avoided
by enrolling in a special underage drinking program,
If the breath test result is .20 or over, the offender aged 17-21
inclusive must take a specially designed driver alcohol treatment
and rehabilitation program called the "14-day second offender
in-home program."
Second offense
Not less than 60 days nor more that 2 1/2 years in the House
of Correction (30 days of this is mandatory)
Alternative sentence is a mandatory 14-day in-patient treatment
program with aftercare as determined
2 year loss of license
2 years probation
Fine of $600-$10,000
Third offense
180 days-2 1/2 years in the House of Correction (150 days
of that is mandatory) or 2 1/2 years-5 years in State Prison
May serve it at a specially designated D.O.C. facility for alcohol
programs
8 year loss of license
fine of $1000-$15000
Fourth offense
2 years- 2 1/2 years in the House of Correction or 2 1/2-
5 years in State Prison (1 year of that is mandatory)
10 year loss of license
fine of $1500-$25000
Fifth offense or more
2 1/2- 5 years in State Prison (2 years of that is mandatory)
Lifetime loss of license
Hardship Licenses
First offender is eligible for a 12-hour hardship license
(for work/education) within 3 business days of disposition if
(a) enrolled in alcohol education course, even if classes have
not yet commenced and (b) demonstrates to the Registry of Motor
Vehicles that not having one presents a hardship. Once the disposition
is made, this hardship license is also good for use during the
loss of license period imposed by a first offender's breath test
refusal.
Second offender eligible for 12-hour hardship license after 1
year with ignition interlock device. New license may be requested
after 18 months. In the case of a second offender who, because
the first offense was more than 10 years earlier, was permitted
to take the 24D first offenders program this time, there is still
a requirement for the ignition interlock device during any period
of a hardship license.
Third offender eligible after 2 years with ignition interlock
device. Device must be in service for 2 years. New license may
be requested after 4 years.
Fourth offender eligible after 5 years with ignition interlock
device. Device must be in service for 2 years. New license may
be requested on a limited basis after 8 years.
Fifth offender-no hardship license available.
Introduction of certified copy of prior conviction allowed
without requiring corroborating evidence or live witness testimony
May be introduced through:
1. certified attested copies of original court papers.
2. certified attested copies of the defendant's biographical
and informational data from records of the department of probation,
any jail or house of corrections, the department of correction,
or the registry which shall be considered prima facie evidence
that the defendant has been previously convicted.
Documents are self-authenticating and admissible after the Commonwealth
has proven guilt on the primary offense.
New offense of manslaughter by motor vehicle
The difference between the charge of Motor Vehicle Homicide
and this new offense of Manslaughter by Motor Vehicle is the
enhanced sentencing.
A period of incarceration for 5-20 years in State Prison. 5 years
of that sentence is a mandatory minimum without eligibility for
parole or good time. However, one may be eligible for a work
release program.
A fine of not more than $25,000.
License suspension by the Registrar of Motor Vehicles minimally
for 15 years and up to life. Person may appeal Registrar's decision
to the Superior Court that may reduce period of suspension, but
not to less than the mandatory 15 years.
New offense of child endangerment by operating a motor vehicle
This new law pertains to anyone convicted of an alcohol-related
offense with a child 14 years of age or younger in the motor
vehicle.
A period of incarceration in the House of Correction for not
less than 90 days nor more than 2 1/2 years.
A fine of $1,000-$5,000.
Second offense carries a sentence of not less than 6 months or
more than 2 1/2 years in the House of Correction or by imprisonment
in State Prison for not less than 3 years or more than 5. Six
months of that sentence is a mandatory minimum without eligibility
for parole or good time. However, one may be eligible for a work
release program.
Sentence must be served consecutively with predicate violation.
Loss of license of 1 year for first offense and three years for
second or subsequent offense.
Forfeiture of motor vehicle
For fourth offense or higher, prosecutors may file for civil
forfeiture of the motor vehicle if vehicle is also in the offender's
name. A portion of the proceeds from the sale will go to the
District Attorney's office.
In cases where the motor vehicle is jointly owned, prior to
the offense, with, for example, a spouse, the claimant will
have the burden of proving to the court's satisfaction that the
property is not forfeitable because the claimant is dependent
upon it for employment or the maintenance of one's family.
Offenses concerning violations of new ignition interlock device
The ignition interlock device must be installed on each vehicle
owned, leased or operated by the offender. It must be blown into
and will not permit operation if the b.a.c. is .02 or higher.
The device is to be installed for a period of 2 years. (It is
currently unclear when the 2 years begins to run, but it is reservedly
presumed that it begins at the time the new license is issued.)
The licensee is responsible for having the device regularly inspected,
maintained and monitored.
1. Driving without an ignition interlock device when one is required
Period of incarceration for 180 days- 2 1/2 years in the House
of Correction or 2 1/2- 5 years in State Prison. 150 days of
that is a mandatory sentence without parole or good time, but
one may participate in a work release program. May be
served in a specially designated D.O.C. alcohol facility.
A fine of $1,000-$15,000.
2. Tampering with an ignition interlock device
Period of incarceration for 6 months- 2 1/2 years in the House
of Correction or 3-5 years in State Prison.
3. Breathing into an ignition interlock device for a restricted
person
Period of incarceration for 6 months- 2 1/2 years in the House
of Correction.
A fine of $1,000- $5,000
Second or subsequent offense 3-5 years in State Prison.
Whoever, on 2 or more occasions, removes such a device or fails
to have it regularly inspected, maintained and monitored or records
a b.a.c. of over .02 after blowing into it, may have their license
revoked by the Registrar of Motor Vehicles for an extended period
or for life. A person may appeal this decision to the Superior
Court.
- Jeffrey Karp:
Generally speaking, the police may pull over a vehicle only if they
witness a violation of the traffic laws or if they have reasonable
suspicion that the driver is operating the vehicle while under the
influence of alcohol or a controlled substance. Once the driver is
pulled over he or she will be asked to provide his/her drivers license
and the registration for the vehicle. These two documents must be
provided. If the police officer has reasonable suspicion that the
driver has operated the vehicle while under the influence, he may ask
the driver to step out of the vehicle and perform field sobriety tests.
- Austin Freeley: Sometimes, after a person is charged
with a crime, the charges will be dropped as a result of the defense
attorney's negotiations with the prosecutor. In other cases, the
prosecutor will agree to drop more serious charges if the defendant
agrees to plead guilty to lesser charges. The criminal defendant always
has the final word, however, on whether to accept a plea agreement.
- David Fox:
Such charges can have serious consequences. A conviction will result in
fines and possibly land you in jail. In addition, your insurance
company may increase your rates to an unmanageable level. In defending
against a DUI charge, you have many rights as a criminal defendant,
including the right to cross-examine the witnesses against you, even if
they are police officers. An experienced attorney can make all the
difference in such a difficult case.
- Carney & Basil:
By obtaining a driver's license, you have consented to taking the
breathalyzer. Therefore, if you refuse to take the breathalyzer, your
driver's license will be taken away for at least ninety days. HOWEVER,
breath test machines are not perfect and are very often inaccurate.
They were not designed to measure someone's blood alcohol and if you
blow a .08 or more, this evidence will be very very damaging against
you at trial. A couple of drinks can register as a .08 so be extremely
cautious before deciding to take a breathalyzer.
- Stephen Jones:
WARNING! If you refused to take a breath or blood test after being arrested for
OUI in Massachusetts, or if the results of your test were .08 blood-alcohol or above,
your license will be suspended 15 days after the arrest unless you or your attorney
take appropriate action to demand an administrative hearing within 30 business days
after the arrest. Get more information about saving your driver's license now before
it's too late.
- Neil
Madden: n every district court throughout the Commonwealth the dockets
are bulging with cases of Operating under the influence. The technical
definition of OUI is the operator of an automobile while driving on a
public way consume enough alcohol to impair his safe operation of that
automobile. Anyone who chooses to take the breathalyzer and gives a
reading in excess of .08 will be presumed to be intoxicated at the time
of arrest.
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