DeGelleke, Peter: What is a continuance without a finding?
What are the maximum and minimum penalties for operating under the influence of alcohol?
Do I get a break if my prior offense was a long time ago?
Can I still fight the case if my breath test was over .08?
How long will I lose my license?
Am I eligible for a hardship license?
What should I do if I know that I have a problem with alcohol?
What is the Alcohol Education Program?
What does it mean to be on probation?
What is a violation of probation and what are the consequences?
What should I do if I am stopped again and suspected of operating under the influence?
What is a continuance without a finding?
A continuance without a finding means that you are not found guilty of the charge, and the complaint is dismissed upon the successful completion of probation. Ordinarily this is not available to someone with a previous record, but there are exceptions. There is no benefit in the terms of probation, license loss, or the costs, and even after the dismissal it is still considered a first offense if you are charged with OUI again. The one very real benefit to a CWOF comes when you fill out an application that asks “Have you ever been convicted of a crime?” – and you can honestly answer “No”.
What are the maximum and minimum penalties for operating under the influence of alcohol?
First offense:
Maximum: 2.5 years in the House of Correction and a fine of $5,000
Minimum: A CWOF (continuance without a finding), probation for 1 year, attendance at the Alcohol Education Program, a license loss of 45 to 90 days (usually in addition to any license loss for refusing the breath test, although the judge has the power to run them together). Total costs, program fees and fines averaging approximately $2000.
Second offense:
Maximum: 2.5 years in the House of Correction and a fine of $10,000
Minimum: 14 day inpatient hospital treatment program and a 2 year license loss. The fines and costs are highly variable, and a common sentence would be two years of probation, with counseling, possibly both before and after the hospital stay.
Third offense:
Minimum: 150 days in the House of Correction
Maximum: 5 years in State Prison, $15,000 fine
Fourth offense:
Minimum: 2 years in the House of Correction
Maximum: 5 years in State Prison, $25,000 fine
Do I get a break if my prior offense was a long time ago?
Unfortunately, effective July 1, 2003, the law changed and any prior OUI charge at any time during your lifetime is considered a prior offense (the previous "lookback" period was 10 years). The only "break" is if you have only one "prior" more than 10 years ago, the judge has the discretion to sentence you as a first offender.
Can I still fight the case if my breath test was over .08?
Yes, but it is more difficult since July 1, 2003 because the prosecution no longer needs to prove that you were impaired by alcohol if they prove that your BT was .08 or higher. It is generally advisable to hire an expert to review the maintenance history and certification of the breath testing machine to see if the results can be excluded or questioned before the jury.
How long will I lose my license?
If you refused the breath test, you will lose your license for 180 days (1 year if is your second offense) even if you are acquitted of the OUI charge. If you take the breath test and register a .08 or higher, you will lose your license for up to 90 days or until the case is resolved, whichever comes first. (If you are under age 21 you will be suspended if the result is over .02). If it your first offense and you are convicted or receive a CWOF with assignment to the alcohol education program, there is an additional license loss of between 45 and 90 days, determined by the judge (210 days if you are under 21). The Registry of Motor Vehicles runs the breath test refusal suspension and this suspension consecutively, but if a judge signs an order that the suspensions run together, the Registry will abide by this ruling. For people with a record of multiple offenses, or a bad driving record, there are longer suspension terms.
Am I eligible for a hardship license?
If your arrest was on or after July 1, 2003, you will be eligible for a hardship license (valid for the same 12 hour period every day) three business days after your court case is resolved (six months for a second offense). You must go to one of the Registry offices that holds hearings with the following: a letter from the Alcohol Education Program confirming that you have completed your "intake interview"; a letter from your employer or school confirming the need for your license.
What should I do if I know that I have a problem with alcohol?
You should obtain professional help as soon as possible. If you do not know where to go, your attorney can help with a referral to a competent professional. You should do this for yourself whether or not you decide to fight the case. The Alcohol Education Program is an educational program, not a treatment program; although the staff of the program could give you a referral, it usually better to get in treatment by yourself, as soon as possible. If you do so, it is likely that you would be allowed to stay with a treatment provider of your own choice in the event that treatment is (or becomes) a condition of probation.
What does it mean to be on probation?
Your attendance at the Alcohol Education Program and any other conditions set by the judge will be monitored by a probation officer working at the local district court. If you were charged in a district that is distant from your home, the supervision is usually transferred to your local court. You may be required to report in by telephone or in person, or you may be told to mail in monthly report forms. You will be required to report any changes of address or employment to the probation officer, to give notification of any out of state travel plans, and to obey all laws. The probation department can also impose other conditions.
What is a violation of probation and what are the consequences?
You violate probation by not fulfilling all of the conditions set by the judge or the probation officer. Common examples of probation violations: failing to pay fines/costs; getting into further trouble; failing to obtain counseling or to complete the Alcohol Education Program; not reporting to the probation officer as directed. If you are charged with violating probation, you will be given a summons and required to appear before the judge, who may: revoke a continuance without a finding, impose jail time, allow you to stay on probation, impose further probation conditions, or find that you did not violate probation as charged.
What is the Alcohol Education Program?
The Alcohol Education Program varies somewhat throughout the state, but generally it is a class that meets one night per week for about 6 months; there are numerous programs throughout the state, so you should not need to travel too far. If you live in another state, it may be possible to find an equivalent program that will satisfy the Court. Attendance is strictly mandated and missing a class is not tolerated. Typically the cost of the program is about $700. At the end of the program, there is usually an “exit interview” which is aimed at deciding whether you need to be in alcohol treatment.
What should I do if I am stopped again and suspected of operating under the influence?
Many people do not know that they have the right to refuse to perform the so-called "field sobriety tests", and the refusal cannot be mentioned to the jury. The "tests" are neither fair nor accurate; the police are attempting to obtain incriminating evidence, and the decision to arrest may have already been made. I recommend performing these tasks only if you are extremely confident regarding your ability to understand the instructions and to perform fairly complex, strange and new exercises under a great deal of pressure. If you are arrested, the more difficult question is whether to take the breath test, because there is a 180 day license suspension if you refuse (1 year if this is your second offense); if you take the test and blow over .08 (.02 if you are under 21), your license will be suspended for up to 90 days, but that suspension ends when the court case is resolved. If you are the type of person who is likely not to fight the case in Court, you should probably take the test. If you want the best chance to "beat" the case in Court and can live with the license loss, it is best to decline the test unless you have consumed very little alcohol.
These Are Your Options in Court:
* To fight the case and to demand a full trial in front of a judge and a jury or a judge alone (the choice of a forum is a very important decision to be made only after careful reflection)
* To demand information to explore potential weaknesses in the prosecution's case, a process which is called "discovery" (examples: maintenance/repair history of the breath testing device; documentation showing proper state certification of the machine and operation; copies of any audio/video recordings of the arrest scene or booking)
* To try to "make a deal" to settle the case; for a first offense, this involves admitting that the prosecution has enough evidence that a jury might convict you. The most lenient disposition that is possible: agreeing to attend the Alcohol Education Program and being put on probation with a loss of license and court costs of roughly $2,000. You would also pay more for your automobile insurance for several years. An effort should be made to convince the judge to enter a "continuance without a finding" rather than a guilty finding.
Other Decisions You Will Need to Make
* Whether it is advisable to hire an investigator to locate and interview potential witnesses
* Whether it is advisable to hire an expert on breath testing devices to examine the machine and its maintenance history, or to testify regarding factors which may have made the result inaccurate
David Burgess: The following is an introductory discussion of the crime of operating under the
influence of liquor (OUI). It is not intended as a complete treatment of
this area of the law (multi-volume books exist on the subject), but it demonstrates
the importance of consulting with a lawyer who
- knows the OUI law and procedure,
- is able to identify the legal and factual issues presented by a
particular case, and
- is skilled and experienced in pretrial and trial advocacy.
Additionally, for persons who are accused of OUI and who believe their
position is hopeless, this overview will demonstrate that the situation
may not be as desperate as it appears to be.
OUI is not a cookie-cutter practice
OUI is not a cookie-cutter practice, in which every case involves the same
routine. The circumstances of each criminal case are different, and a good
lawyer will identify the particular circumstances that favor his client
At trial, a jury is far more likely to give the benefit of the doubt
to a defendant with a lawyer who shows that he is committed to the person
he is defending, and will not give the same benefit of the doubt where
it is apparent that the lawyer is going through a well-practiced routine
on behalf of whomever happens to be his client that day.
Elements of the offense of OUI
The definition of the offense of operating under the influence in
Massachusetts is deceptively simple. The government must prove that the
defendant drove a motor vehicle on a public way while his ability to drive
safely is reduced by alcohol or drugs or while his blood alcohol content
is .08 or higher. This breaks down to 3 distinct elements:
- Operation of a vehicle
- On a public way
- While under the influence of alcohol or with a blood alcohol content
of .08 or higher.
If the government proves those 3 elements beyond a reasonable doubt,
then the defendant is guilty. The defense lawyer's job, if the case goes
to trial, is to persuade the fact-finder that reasonable doubt exists.
In an OUI case there is more for a defense lawyer to work with than you
might think.
The initial reaction of a person accused of this offense typically is
something like this:
What chance do I have when a police officer will say under oath that
he pulled me over because of my driving, that because my breath smelled
of alcohol he made me perform field sobriety tests, that based on those
tests he concluded that I was drunk, and that back at the station he
tested my breath and determined that my blood alcohol content exceeded
the legal limit?
With the evidence so heavily stacked against me, what difference does
it make whom I hire as a lawyer? Do I even need a lawyer? Shouldn't
I just save my money for all the fines I'm going to have to pay?
The short answer is that you cannot make an informed assessment about
the hopelessness of your situation until you have obtained impartial
advice from a lawyer whom you know to be competent and knowledgeable.
You cannot expect such impartial advice from a police officer, a probation
officer or a judge. Those people might know about the law and the process,
but it is not their job to assess the case critically and identify weak
points in the government's case, or to advise a defendant about what
is in his best interests.
How do you establish the existence of reasonable doubt in an OUI case?
There is far more to work with in an OUI complaint than you might expect.
Here are just a couple of examples:
Field sobriety tests
Performance on field sobriety tests is often offered as evidence of impairment.
The following questions might provide a basis for reasonable doubt:
Might environmental conditions have affected the defendant's performance?
Was it dark? Was it cold? Was it windy? Were cars whizzing past? Were
the police car's lights flashing (try standing on one leg or walking
heel to toe in a straight line with bright flashing lights in your face)?
Was the surface even or bumpy, level or sloping?
Might the defendant's performance have been affected by his nervousness?
Many people are intimidated by the police. Their nervousness may affect
their speech, their ability to concentrate, and their coordination. The
nervousness is compounded if the encounter with the police occurs on
a roadside, at night, and the defendant is alone. A person who knows
that the police officer suspects him of drinking and driving is likely
to be particularly nervous.
Breath tests
Persons accused of OUI are usually asked to give a breath sample. Although
they have a right to refuse the breathalyzer, the law encourages them to
give a breath sample by imposing a much shorter license suspension for those
who take and fail the test than for those who refuse to take it.
The result of the breath test is a determination of the defendant's
blood alcohol content. A breathalyzer reading of .08 or higher does not
necessarily eliminate reasonable doubt, however. Points to be made in
favor or reasonable doubt include the following:
- The breathalyzer measures breath alcohol content, but the law is
concerned with blood alcohol content. The breathalyzer measures a person's
breath alcohol content and then performs a calculation based on the
average person. Because the blood alcohol content in the average person
is 2,100 times the breath alcohol content, the breathalyzer multiplies
the defendant's breath alcohol content by 2,100 in order to arrive
at an estimate of the defendant's blood alcohol.
- There is no evidence to suggest that the defendant is the average
person. He might be one of those whose breath alcohol content is substantially
more than 1/2,100 times his blood alcohol content, and for whom the
2,100 multiplier results in an overstatement of his blood alcohol content.
- The breathalyzer result is an estimate of the blood alcohol content
at the time the breath test was taken, but the law is concerned with
the blood alcohol content at the time the defendant drove the car.
When a person drinks alcoholic beverages, alcohol does not enter the
bloodstream immediately, but is absorbed over a period of time. During
that absorption period, the blood alcohol content is increasing. Thus,
the result of a breath test administered 30 minutes to one hour after
the defendant last drove his car does not prove that the person was
over the limit or under the influence while driving his car.
What procedural motions might be available in an
OUI case?
Analysis of the facts of an OUI case must include a thorough consideration
of the conduct of the police. The constitutions of the United States and the
Commonwealth of Massachusetts protect citizens against unreasonable intrusion
by the police. It is in criminal cases that breaches of constitutional rights
are most often litigated, usually in the context of a motion to suppress evidence.
An order of suppression can result in dismissal of the case and will,
at the very least, increase the defendant's chances of obtaining a not
guilty verdict.
Motions to suppress the stop and everything that
followed it
The police do not have the right to stop a car unless they have reasonable
suspicion that a crime has been committed or that a civil infraction has occurred
(such as speeding, driving with an expired registration or inspection sticker,
or the like). Although the police usually articulate a sufficient basis for
the stop, they cannot always do so.
For example, there is case law discussing whether an officer has a reasonable
suspicion where his suspicion is based on an anonymous tip (such as a
call to the police department made by another driver). Without evidence
to show the tip's reliability, such a stop would be illegal. In that
event, everything that followed, including questioning of the defendant,
field sobriety tests, and breathalyzer tests, would be excluded from
evidence, meaning that the government would lack sufficient evidence
to proceed with the case.
Motions to suppress the breath test
A breath test must be suppressed if it is shown that the operator did not follow
proper procedures, that the testing equipment had not been properly maintained,
or that there was some other such defect or failure to adhere to the applicable
regulations.
Motions to suppress evidence of the defendant's
statements to police
A defendant's statements to police must be excluded from evidence if they were
made in response to police questioning when the defendant was in custody and
the defendant had not been read his Miranda warnings. Being "in custody," for
these purposes, is not limited to the obvious (i.e., being in handcuffs or
at the police station lock-up), but can include a situation in which the police
are questioning the defendant and the circumstances cause the defendant reasonably
to believe he is not free to leave.
What to expect from a lawyer
- You should expect your lawyer to be capable of carrying out your
wishes after you have decided how to proceed. Even if you do not expect
to try your case, you need to be confident that your lawyer knows how
to try a case. If he does not, then your options are limited. Having
that option also increases your leverage in a plea bargain.
- You should expect your lawyer to give you an early and realistic
assessment of the strengths and weaknesses of your case and of the
advantages and disadvantages of the various courses of action available
to you. You cannot make an informed decision about how to proceed without
this. A lawyer cannot provide such a realistic assessment without a
thorough understanding of the applicable law and the ability to analyze
the facts and identify vulnerabilities in the government's case.
- You should expect your lawyer to take the time to get to know you
well enough to enable him to argue on your behalf with conviction and
zeal. A lawyer who shows that he knows and cares about the person he
is defending is an infinitely more effective advocate than one who
is simply rehashing a set of arguments and theories he has made on
dozens of previous occasions. The better advocate argues not for a
position but for a person: you.