Drunk Driving Defense

Drunk Driving (referred to as OUI, DUI, DWI, and OWI) is one of the most common criminal charges brought in Massachusetts. Under Massachusetts drunk driving law the charge is referred to as Operating Under the Influence (OUI), and that is the term that we shall use here. While actual drunken driving is a clear danger and a serious problem, many innocent drivers are swept up in the net cast by law enforcement. Many law abiding citizens face this criminal charge every year and need an experienced Massachusetts criminal defense attorney to defend their rights.

It is not a crime to drink and drive in Massachusetts. Rather, the crime of operating under the influence is comprised of the operation of a motor vehicle on a public way or on private property open to the public while the ability to drive is impaired by alcohol or drugs.

Common OUI DUI Fact Patterns

Most Massachusetts OUI arrests begin with an evening or late night traffic stop by a Massachusetts police officer, usually for some other offense, such as speeding or crossing over a marked lane. As a result of the traffic stop, the officer comes face to face with the accused, and may smell alcohol. Often the accused is then asked to exit his or her vehicle, and perform some field sobriety tests, such as the finger to nose test, the one legged stand, and the nine step walk and turn test. At the end of these tests the officer forms the opinion that the driver was operating under the influence, and arrests the accused. The car is towed, and the accused is taken back to the station for booking.

The driver is asked to consent to a breathalyzer test, and told that if he refuses, he will lose his license for 120 days. The driver may or may not take the test. The driver is eventually bailed out, and directed to report to court the next day. The entire proceeding is intimidating and above all, embarrassing. The accused is convinced of two things: he has been railroaded, and there is no viable defense to the charge (especially after a review of the police report). This is not necessarily the case.

Know Your Rights

Most people are unaware of their rights concerning being stopped for suspicion of drunk driving. For example:

  •     You have the right to refuse a breathalyzer test (although there is a license suspension as a result).
  •     You have a right to refuse to perform field sobriety tests, such as walk and turn, finger to nose, etc.
  •     You have a right to contact a lawyer.
  •     You have the right to remain silent.
  •     You have a right to prompt bail and a right to demand the ability to see an independent physician to have a blood test (even if you refuse the breathalyzer).


Analysis of a Massachusetts OUI Case

Many Massachusetts OUI cases can be successfully defended. The first step in the analysis is looking at the reason for the stop: did the officer observe a civil infraction? If not, the stop itself may be illegal, and the accused may be able to force the case to be dismissed as a result.

If the stop was legal, the next step in the analysis is whether there was a breathalyzer. If there was, what was the score. There is no per se legal limit in Massachusetts presently. If the score is below, at, or even slightly above .08%, the level at which a jury can presume impairment, the case will be a good candidate for trial.

In many cases that go to trial, there is no breathalyzer result. In such a case, all of the facts are important. For example:

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OUI DUI Penalties and Diversion Programs

OUI penalties under Massachusetts law are graduated – the minimum penalties increase if there is a second or third offense. This next section will discuss minimum penalties for first offenses and second offenses.

The minimum penalty for conviction of a first offense charge of OUI is 1 year of probation, attendance with a 18 week alcohol education program, 45 to 90 day loss of license, $600 in fines, $65 per month probation fee, and program fees.

The minimum penalty for a conviction of second offense OUI is 2 years probation (possible suspended sentence), attendance in a 14 day inpatient alcohol education program with aftercare, two year loss of license, $600 in fines, $65 per month probation fees, and program fees.

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