Drunk driving defense requires an experienced lawyer.

Bernard and Rock P.C. help find solutions to your legal problems. If you, or someone you care about, has been arrested for OUI contact us for a FREE CONSULTATION by calling our offices: (413) 731-9995. Alternatively, we invite you to submit a confidential information form and one of our experienced attorneys will contact you immediately.

The following is a short list of essential information everyone charged with drunk driving should know:

OUI (Operating Under the Influence), DUI (Driving Under the Influence), and DWI (Driving While Intoxicated or Driving While Impaired) are all terms used to describe drunk driving charges in the Commonwealth of Massachusetts.

OUI arrests will usually include a request to take a both roadside field sobriety tests and a breath test. Refusal to take field sobriety tests cannot be introduced in court as consciousness of guilt.

Massachusetts has a "per se" law. This means that it is illegal to drive with a blood alcohol level that is .08% or higher for drivers over the age of 21. For those under 21, the limit is .02%. Refusal to take the breath test cannot be introduced in court, but may have serious license suspension consequences. BE AWARE, there are serious penalties if you refuse a breath test. At a minimum you can lose your license for 180 days and maybe more! Fortunately, upon a finding of “not guilty” or dismissal, a judge may restore a license suspended for a breath test refusal.

Massachusetts DUI or OUI trials are to juries of six, or to a judge, if the accused waives his or her right to a jury trial.

An OUI conviction or admission to sufficient facts will be a permanent part of your driving record. 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. Any non-resident driver's home state driver's license agency (RMV, DMV, DPS, etc.) will in all likelihood receive a notice from the Massachusetts Registry of Motor Vehicles if any license suspension or case disposition (conviction or admission to sufficient facts) occurs in Massachusetts and the non-resident license is involved. In almost all cases an admission to sufficient facts plea, guilty plea or guilty verdict in a criminal case for OUI in the Commonwealth of Massachusetts will cause a suspension to occur in the non-resident's home state. A "not guilty" or other non-OUI disposition of the case could prevent such consequences.

BLOOD ALCOHOL CONTENT

Massachusetts is 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. 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. There are also medical and environmental reasons why the test may be incorrect.

It is important to get legal advice from an experienced lawyer in drunk driving defense before admitting to anything.

SUBSEQUENT OFFENDER STATUS

"Repeat offender" status for OUI cases is determined in Massachusetts based upon a lifetime "lookback" period. This is used for purposes of increased mandatory minimum punishment and penalties. A bad record can come back to haunt a person facing a current OUI charge. Remember that a judge can review your ENTIRE record for the purposes of:

a. increasing your OUI punishment (up to the maximum penalties set by law) over that which he/she would give another person with no prior OUI record;
b. allowing the prosecutor (in some instances, after notice and a pre-trial OUI hearing) to introduce evidence of prior instances where you were convicted of crimes, although it is extremely unlikely that a prior OUI charge will be used. The prosecutor may attempt to bring in evidence from any case, even those older than 5 years. This type of evidence can be used as "impeachment" evidence if and only if the accused takes the stand in his/her own defense. Use of prior convictions, especially prior OUI convictions, is extremely rare;

POSSIBLE PENALTIES

WARNING. The following penalties list license losses for each offense. In certain cases, our experienced OUI lawyers may be successful in reducing the offense level you are charged with (such as a third offense OUI reduced to a second offense OUI). Regardless of the reduction or the sentence, the Registry of Motor Vehicles (RMV) will suspend your license based upon their records, which may include out of state offenses.

First offense (upon conviction or guilty plea)
Incarceration: Not more than 2 ½ years
Fine: $500-$5,000
License suspension: 1 year (work/education hardship considered in 3 months, general hardship in 6 months)

Alternative disposition (upon continuation without a finding under c.90, §24D)
Probation with mandatory participation in alcohol-drug education program paid for by defendant. License suspended for 45 to 90 days (210 days for drivers under age 21). A hardship license from the Registry of Motor vehicles may be available. (See Below).

Available for 2nd offenders only if the prior offense occurred more than 10 years prior to the date of the new arrest. (NOTE: Ignition Interlock Device required for at least 2 years).

Additionally, if under 21 and you receive a breath test reading over .20 you will be assigned to a special 14 day in-patient program.

Second offense
Incarceration: Not less than 60 days (30 days mandatory), not more then 2 ½ years
Fine: $600-$10,000
License suspension: 2 years (work/education hardship considered in 6 months, general hardship in 1 year)

Alternative Sentence
Probation
14 day in-patient treatment program paid for by the defendant with aftercare as determined by probation
License suspension: 2 years (work/education hardship considered in 6 months, general hardship in 1 year)

Third offense
Incarceration: 180 days – 2½ years (150 day mandatory) House of Corrections; or not more than 5 years in State Prison
Fine: $1,000-$15,000
License suspension: 8 years (work/education hardship considered in 2 years, general hardship in 4 years)

Fourth offense
Incarceration: 2 – 2½ years (1 year minimum mandatory) House of Corrections; or not more than 5 years in State Prison
Fine: $1,500-$25,000
License suspension: 10 years (work/education hardship considered in 5 years, general hardship in 8 years)

Fifth offense or more
Incarceration: 2½ - 5 years (2 years minimum mandatory) State Prison
Fine $2,000-$50,000
License suspension: Lifetime (no possibility of hardship license)

LICENSE REINSTATEMENT FEES

First OUI Offense: $300.00
Second OUI Offense: $500.00
Third OUI Offense: $1,000.00

RMV PENALTIES

License consequences from the RMV are as follows (NOTE: these are separate and apart from any license consequences imposed by the court):

1st offense OUI:
a. if you take the test and fail the license suspension is 30 days (unless case is disposed of by trial, plea, or dismissal, whichever comes first);
b. if under 21 and fail breath test, the license suspension 180 days for a test result of .02 or greater;
c. if you refuse the breath test the license suspension is 180 days;
d. if under 21 and refuse the breath test, the license suspension is 3 years.

2nd offense OUI:
a. if you take the test and fail the license suspension is 30 days (unless case is disposed of by trial, plea, or dismissal, whichever comes first);
b. if you refuse the breath test, 3 years.

3rd offense OUI:
a. if you take the test and fail the license suspension is 30 days (unless case is disposed of by trial, plea, or dismissal, whichever comes first);
b. if you refuse the breath test, 5 years.

4th offense or more OUI:
a. if you take the test and fail the license suspension is 30 days (unless case is disposed of by trial, plea, or dismissal, whichever comes first);
b. if you refuse the breath test, Lifetime.

HARDSHIP LICENSES

A hardship license is a limited use license that allows you to drive for 12 hours a day in order to get to work and/or school. It is available to individuals who have had their licenses revoked after a conviction or dispensation on a charge of OUI. To secure a hardship license, you must have documentation of employment. You are required to have a letter from your employer (on company letterhead) stating that you need a license to get to work. A pay stub is no longer sufficient. If you are self-employed, you will need to provide articles of your business registration.

If the Registry (RMV) suspends your license for refusal to take the breath test you can appeal that suspension at the Registry (RMV) and appeal the registry decision to the local district court. The Massachusetts Registry of Motor Vehicles will not issue a hardship license (also known as a limited license, work license, day license or Cinderella license), for refusing to take a breath test. They will only issue them for an OUI conviction or admission to sufficient facts, a drug conviction, or for Habitual Traffic Offender suspensions. The Mass RMV mandates a minimum suspension period before a hardship application can be made which varies depending on the reason for suspension.

The registry hearing officers have a checklist of 9 different conditions that have to be met in order to grant a Massachusetts hardship license for OUI or drug offenses, and 6 different factors for a Habitual traffic offender. Your chances of promptly receiving a hardship license increase if an attorney represents you.

1st offender hardship:
a. obtainable within 3 business days if enrolled in driver alcohol education program and presents a hardship to the RMV; if 2nd offender given 1st offender disposition, must have ignition interlock on for 2 years

2nd offender hardship:
a. obtainable after 1 year and must have ignition interlock device on for 2 years

3rd offender hardship:
a. obtainable after 2 years and must have ignition interlock device on for 2 years

4th offender hardship:
a. obtainable after 5 years and must have ignition interlock device on for 2 years 5th offender hardship: a. no hardship available

5th offender hardship:
a. no hardship available