Sullivan & Sweaney:
Massachusetts Drunk Driving Laws (DUI or OUI)
In 2005 Massachusetts adopted some of the toughest drunk driving, or Operating Under the Influence (OUI), laws in the country. These laws have lifetime implications and demand the best attorneys who have the knowledge and experience to deal with them. No one should attempt to handle their own case as even cases where a guilty does not enter has serious implications involving past and future conduct. You can lose your license and your freedom by not understanding the law. Know your rights! You have the right to refuse field sobriety tests, the right to remain silent and refuse to answer any questions other than your name and address at booking, the right to refuse a breathalyzer and the right to contact an attorney. Use these rights and consider the chart below to help you understand the implications of a drunk driving arrest. Finally choose to deal with a firm that has the knowledge of local courts and Massachusetts laws as well as the experience to deal with any and all charges against you.
In Massachusetts, to prove a person guilty of drunk driving the District Attorney must prove the elements of offense.
OFFENSE ELEMENTS
* Operation of MV on a public way (street or other area where the public has free access such as a mall parking lot) with a Blood Alcohol of .08 or greater,
* Operating while under influence of alcohol where the ability to operate safely is diminished by the consumption of alcohol
IMPLIED CONSENT TO BREATH TEST
* All operators are deemed to have consented to a breath test administered by a police officer by virtue of driving and being arrested for OUI
* Refusals to take the breath test will result in license loss of anywhere from 180 days to life.
* The duration of license loss for breath test refusal depends on prior convictions and age of offender
Breath Test Refusal Penalties
* First Offender 180 days
* Second Offender or Under 21 3 years
* Third Offender 5 years
* Fourth Offender 10 Years
* Fifth Offender Life
* Prior offense includes prior OUI, OUI and serious injury and MV homicide
* No hardship license is available during any period of suspension for breath test refusal
* License may be restored after an acquittal
Breath Test Failure Consequences
* Immediate loss of license to police officer for 30 days or until case is disposed of by plea or trial, whichever comes first
* Automobile is impounded for 12 hours
* Breath Test result of .08 or above is admissible in prosecution provided test is administered in accordance with law.
* Represents a Òper seÓ violation of statute
Penalties for Conviction
First Offense Over Age 21
* Statutory penalty:
o Fine of not less than $500 nor more than $5,000, or
o Imprisonment in jail for not more than 2 1/2 years in House of Correction, or
o Both a fine and imprisonment
o License loss 1 year
* Alternate Disposition for First Offenders under G.L. c. 90, ¤ 24D
o Two years probation, entry into approved OUI program, pay program costs and assessments, probation supervision fees
o License loss of 45-90 days
o Hardship license available after enrollment in program on limited basis
o Fines and community service may be assessed.
Penalties for First Conviction
Under Age 21
* A person under age 21 loses their license for 210 days for first offense conviction for OUI even if they enter G.L. c. 90, ¤ 24D program, but is eligible for 12 hour hardship license upon enrollment in program.
* An additional license loss of 180 days is imposed under G.L. c. 90, ¤ 24P Ð this may be avoided by attendance at special underage drinking program
* If the Breath Test result for a person between the age of 17 and 21 inclusive, is not less than .20, the first offender program is not available and the individual must attend a rehabilitation program known as the Ò14 day second offender in-home program.Ó
Penalties for Conviction
Second Offense
* Fine of not less than $600 nor more than $10,000, AND
* Imprisonment for not less than 60 days nor more than 2 1/2 years
* Minimum Mandatory Sentence of 30 days
* License loss of two years
* Assessments and fees applicable
* Alternate Second Offender Disposition Available:
o Mandatory in-patient treatment at a residential alcohol treatment facility for 14 days, with aftercare
o Two years probation
o Two year license loss
o Hardship license available after six months with ignition lock
o Program costs and assessments applicable
* Prior Convictions more than 10 years old may render a person eligible for first offender program once in a lifetime.
OUI Programs
* Persons eligible for any of the programs are presumed to be an appropriate candidate for the program.
* A judge may deny admission of an otherwise eligible defendant to a program, but must make specific written findings that a defendant is not a suitable candidate.
* Defendant not eligible for first offender program if serious bodily injury or death was caused in the events that gave rise to the conviction for OUI.
* Persons who are domiciled out of state may be allowed to attend out of state programs
* Defendants pay the costs associated with the programs
* Probation fee of $250 in addition to program fees
* Court may impose a minimum of 30 hours of community service
Mandatory Alcohol Assessment
* G.L. c. 90, ¤ 24Q
* Mandatory Alcohol Assessment by Department of Public Health or court approved program
* All repeat offenders
* Any offender with BAC of .20 or above >
* Must include assessment of the level of addiction to alcohol or drugs and recommended course of treatment.
* Additional fee will be charged for the assessment
Penalties for Conviction
Third Offense
* Fine of not less than $1,000 nor more than $15,000, AND
* Imprisonment for not less than 180 days, nor more than 2 1/2 years in House of Correction or,
* Imprisonment of 2 1/2 - 5 years in State Prison
* Minimum Mandatory Sentence of 150 days
* License loss of 8 years
* Hardship Available after 2 years with ignition lock
Penalties for Conviction
Fourth Offense
* Fine of not less than $1,500 nor more than $25,000, AND
* Imprisonment for not less than 2 Ð 2 1/2 years in the House of Correction or not less than 2 1/2 - 5 years in State Prison
* Minimum Mandatory Sentence of 12 months
* License Loss of 10 years
* Hardship available after 5 years with ignition lock
Penalties for Conviction
Fifth Offense or More
* Fine of not less than $2,000 nor more than $50,000, AND
* Imprisonment of 2 1/2 years to the House of Correction, or
* Imprisonment of not less than 2 1/2 nor more than 5 years in State Prison
* Mandatory Minimum Sentence of 24 months
* License Loss Ð Lifetime
* No hardship available
Special Penalty Provisions
* Any person under the age of 21, who takes a breath test with a result of .02 or greater, and who is not charged with OUI, shall have his license suspended for 180 days immediately under G.L. c. 90, ¤ 24 P.
* Lifetime revocation for persons who are convicted of OUI, MV Homicide and who have a prior OUI, OUI Homicide or OUI serious injury. G.L. c. 90, ¤ 24R
Hardship Licenses
* No hardship license from suspensions imposed for Breath Test refusals, except in the case of a first offender who is enrolled in the OUI program.
* Hardship licenses are issued in the discretion of the registrar on such terms and conditions as are deemed appropriate and upon a showing the causes of the past and present violations have been dealt with or brought under control.
* First offenders: 12 hour hardship license is available upon entry into program.
* Second offenders: 12 hour hardship license for education or employment reasons after 12 months, provided person has completed in-patient program. After 18 months may request for a new license.
* New, as of January 1, 2006 vehicle must have ignition lock to obtain hardship license
* Third Offense: 12 hour hardship license for education and employment purposes after two years and a new license on a limited basis after 4 years.
* New, as of January 1, 2006 vehicle must have ignition lock to obtain hardship license.
* Fourth Offense: 12 hour hardship license for education and employment purposes after five years and a new license in a limited basis after 8 years.
* New, as of January 1, 2006 vehicle must have ignition lock to obtain hardship license.
* Fifth offense or more Ð No hardship license
Proof of Prior Convictions
* Certified or attested copies of original court papers
* Certified or attested copies of defendantÕs biographical and informational data from records of the department of probation
* Certified copies of any jail or house of corrections, the department of correction, or the registry shall be prima facie evidence that a defendant before the court had been previously convicted.
* The documents are self-authenticating and admissible, after conviction of primary offense. No live witnesses or other corroborating testimony is necessary
Manslaughter by Motor Vehicle
* New Crime: G.L. c. 265, ¤ 13
* Imprisonment for not less than 5 nor more than 20 years, and
* A fine of not more than $25,000
* Minimum Mandatory Sentence of 5 years
* Manslaughter not defined in this statute
* License loss of 15 years minimum, but may be up to a lifetime suspension
Ignition Interlock Device
* G.L. c. 90, ¤ 24
* The device prevents the vehicle from operating if the BAC is above .02.
* Device must be installed on each vehicle owned, leased or operated by a person previously convicted of OUI or similar offenses as a condition of the issuance of a new license
* The device is to be installed for a period of two years (presumably from the date the new license is issued).
* Device must be maintained and inspected in accordance with regulations yet to be enacted.
* The device will not permit operation of vehicle if BAC is .02 or above
* Registrar may revoke license for up to life for two or more occasions of a failure to maintain or two or more instances of attempted use with .02 or above.
* New Crimes
o Operation MV in violation of interlock device restriction
+ Fine of $1000 to $15,000
+ Imprisonment for not less than 180 days nor more than 2 1/2 years, or
+ Not less than 2 1/2 nor more than 5 years in State prison
+ Mandatory Minimum of 150 days.
o Tampering with Ignition lock
+ Not less than 6 months nor more than 2 1/2 years H/C or
+ Not less than 3 years nor more than 5 years in state prison
o Starting a MV equipped with Ignition lock
o Fine of not less than $1000 nor more than $5000 or
o Imprisonment for not less than 6 months nor more than 2 1/2 years,
o Second Offense:
+ State Prison 3-5 years
Child Endangerment While Operating MV
* G.L. c. 90, ¤ 24V
* Punishes person who violates G.L. c. 90, ¤ 24(a) or section (a) of 24G operating with a BAC of .08 or more, or
* While operating under the influence of alcohol violates subsection (b) of 24G, or 24L, G.L. c. 265, ¤ 13
* With a child under age 14
* Conviction carries 1 year license loss for first offense, 3 years for second
* Penalty
o Fine not less than $1,000 nor more than $5,000, and
o Imprisonment in House of Correction for not less than 90 days nor more than 2 1/2 years.
o Consecutive to underlying OUI offense
o G.L. c. 276, ¤ 87 does not apply, No CWOF, cannot be placed on file
o Second offense:
+ Fine of $5000 - $10,000
+ MM 6 months
+ 6 months to 2 1/2 years HC, or
+ State prison 3-5 years
Vehicle Forfeiture
* For persons with three previous convictions
* If they own the vehicle they are driving the same may be forfeited to the State District Attorney brings civil action for forfeiture
Cancellation of Registration
* Requires two or more previous convictions
* Registrar may cancel registration of a motor vehicle owned by such person for the period of any license suspension.
OUI HARDSHIP CRITERIA
There must be a hearing before the Registry of Motor VehicleÕs Appeals Board and any and all hardships are entirely at their discretion. In Massachusetts there is no ÒrightÓ to operate it is considered a privilege at the RegistrarÕs discretion. An experienced attorney can tell you what must be done by you, in advance of any hearing, to increase your chances of getting a hardship license.
DWI ELIGIBLE TIME
Length of suspension Work\education General hardship
1 yr (365 days) 3 months into dwi revocation 6 months into dwi revocation
2 yrs (730 days) 1 yr into dwi revocation 18 months into dwi revocation
8 yrs (2920 days) 2 yrs into dwi revocation 4 yrs into dwi revocation
10 yrs (3650) 5 yrs into dwi revocation 8 yrs into the dwi revocation
____ There is NO evidence of any operation since the effective date of this revocation
____ The MINIMUM amount of time has been served for hardship consideration.
____ All other active revocation periods have been COMPLETED.
____ The applicant must provide documented proof of completion of the proper alcohol treatment program. 2 week in-house program for 2nd offense, 90 day in-house program for 3rd and 4th offenses.
____ The applicant must provide the Discharge Summary from the treatment program, stating the risk factor or recidivism rate.
____ The applicant must provide proof of compliance with all ordered after-care. A Discharge Summary (if aftercare complete) or a Progress Review (if aftercare is ongoing) from the aftercare provider stating the risk factor or recidivism.
____ The applicant has provided a letter from probation, less than 30 days old stating, that the applicant is in compliance with probation.
____ The operator has documented a legitimate hardship. Applicant must provide a letter from his/her employer, on letterhead, less than 30 days old. The letter must state the applicantÕs need for a hardship license and the work hours.
A self-employed applicant must present proof of self-employment. Acceptable forms of proof consist of a business certificate, tax forms indicating self-employment, and/or a current professional license. The applicant must also present a letter on his/her own behalf explaining his/her need for a hardship license and the hours requested.
Applicants applying for a hardship license for other purposes (i.e. education, medical treatments), require third party documentation of the hardship.
____ Twelve (12) hours are allowed for a hardship license. Hardship hours must be consistent with documentation presented by the customer at the time of the hearing.
____ The applicant is responsible for providing proof regarding the availability of public transportation. This proof may be included within the employerÕs letter. The applicant may also provide local bus/transit routes, mapquest etc.
____ Ignition Interlock Device is required if:
1. There are two or more OUI(s) on the record, OR
2. An OUI revocation has completed and the applicant never reinstated for the OUI offense and there are two or more OUI(s) on the record.
NOTE: Reinstatement is only allowed once the proof of installation of interlock and affidavits have been returned to a hearings officer.
Fees: You are subject to a reinstatement fee if your Massachusetts license or your right to operate has been suspended or revoked. This fee ranges from $50.00 - $1,000, depending upon the offense.
Donovan, Patrick:
An OUI 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 drunk driving 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 OUI 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 OUI conviction will likely be raised to a felony if it is the driver's fourth OUI offense or the driver has had a prior felony OUI offense within 10 years of the new charge.
Greene, John:
After you have been arrested, it is of paramount importance to be represented by an attorney that will zealously advocate for you in the courtroom. It is equally important to be represented by an attorney that understands the investigation that led to your arrest.
Flaherty, David:
OUI/Operating Under the Influence:
An OUI 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 OUI 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 OUI 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 OUI conviction will likely be raised to a felony if it is the driver's fourth OUI offense or the driver has had a prior felony OUI offense within 10 years of the new charge.
Freeman, Risa:
DONÕT FORGET, YOU HAVE RIGHTS!!!
But you need an aggressive, zealous and experienced attorney who knows her way around the criminal justice system and knows how to WIN!!
Keegan & Flanagan:
Criminal Law, Family Law, Personal Injury, Real Estate, Auto Accidents, Wrongful Death, OUI (Operating under the influence).
Robert Harnais:
Your first appearance in court is for arraignment. At this time, the
court advises each defendant exactly what is the nature of the charge
and enters a plea of not guilty to that charge. Unless you've got a
criminal history, with prior court defaults or some egregious activity
in your arrest, it is more than likely that you will be released on
your own personal recognizance to appear back at court for pre-trial
conference.
Cosgrove, Eisenberg, and Kiley: If you are convicted of a misdemeanor or a felony, you will face serious consequences, including:
Establishment of a Criminal Record
Large Fines and court costs
Lengthy probation
House arrest
Jail time
If you are convicted of drunk driving (OWI) you are facing additional consequences, including:
Loss of your driver's license or vehicle
Court-Ordered alcohol education & treatment
Laila Maalouf:
As of July 1st, 2003, Massachusetts amended it's drunk driving laws
changing the limits of blood alcohol levels. It is now a criminal
offense to submit to a chemical or blood test and obtain a result of
.08 or higher, .08 being the legal limit in Massachusetts. The failure
of the test will result in a 120 day license loss. This will take
effect after the expiration of your 15 day temporary license which is
issued at the time of arrest. If you fail a breathalyzer and fail, your
license will be suspended for a period of 90 days. If you are under the
age of 21 your license loss will be a minimum of 210 days.