Massachusetts Driving Laws

Drunk Driving Arrests have increased in Massachusetts

My brother and his wife were in town visiting for a wedding.  The wedding was in Boston and they were staying on the South Shore with my mom and step-dad.  On the way home from the wedding, they were stopped at a roadblock.   There seem to be more and more roadblocks lately.  As a defense attorney who defends many OUI cases in Massachusetts courts, I have had a marked increase in clients who have been stopped at roadblocks.

Luckily for my brother, he hadn't really had much to drink and the Trooper just had a quick conversation with him and sent him on his way. 

Very soon after, there was an article in the Boston Globe stating that there has been a 70% increase in drunk driving arrests in the past two years.  Guess why?  Because there has been a increase in roadblocks.   Police are getting better at running roadblocks, and following procedures.  The same rules apply for a roadblock that apply for any stop where you are suspected of drunk driving:

1.  You have the right to refuse any and all field sobriety tests.

2.  You have the right to refuse a Breathalyzer.

3.  Be Polite.

If you have been arrested for drunk driving, you have the right to be represented by an attorney.  For a consultation email me at jfoley@sullivanandsweeney.com or call me at 617-328-6900.

Big news at the Massachusetts Registry of Motor Vehicles

There are some big changes at the Massachusetts Registry of Motor Vehicles, the outgoing Registrar, Anne Collins, has been given a senior position in the Executive Office of Transportation by Deval Patrick.  She will be replaced by Rachel Kaprielian, a Democrat from Watertown. 

It is well known that Anne Collins took her job seriously, and thus made it difficult for Massachusetts Drivers to get hardship licenses and remove suspensions.  She can say that she helped make the roads safer by enforcing legislation.  She did a wonderful job.  She is very smart and successful.  The new Registrar has dedicated her life to public service and it will be interesting to see what if any changes take place at the Registry of Motor Vehicles.

Here are some recent news articles annoucing the change:

Krapielian named motor vehicle registrar, The Boston Globe, May 21, 2008

New RMV boss' hubby has drunk-drive history, The Boston Herald, May 22, 2008

BREAKING: State Rep. Rachel Krapielian has been tapped to be the registrar of motor vehicles, Wicked Local, May 21, 2008

If you have a problem with the Registry of Motor Vehicles (i.e. a license suspension, immediate threat or hardship) please contact me for a consultation at 617-328-6900 or email me at jfoley@sullivanandsweeney.com.  At Sullivan & Sweeney, LLP we have the experience, reputation and expertise to assist you.

Drunk Report, publishing names of people charged with drunk driving...what's the purpose?

If someone is going to get into a car, after going to party of having dinner with friends...is worrying that if they get pulled over and charged with drunk driving going to make them think twice?

First of all, just because someone is charged with operating under the influence - it does not mean they actually are, sometimes they are not paying attention and swerve - and get stopped.  Sometimes a plate light is out and they get stopped.  There are also many medical reasons why a person could appear to be drunk driving.

Second, I am not convinced that seeing a name in the police report does anything more than embarrass the person who is simply charged with an offense.

One thing that publishing reports of drunk drivers, whether they are found guilty or simply charged, is to make the District Attorneys and Judiciary very nervous about using their discretion to reduce a charge.  I'm not talking about someone who has been charged with a third offense drunk driving and had two previous offenses in the past few years, I'm talking about the lifetime look-back of Melanie's Law.  This means if you are charged with drunk driving now, and you have a conviction or a cwof (continuation without a finding) in 1977, and the prosecutor has a copy of the conviction, you are technically not eligible for a first offenders program.  Now, there are certainly more factors that are considered in deciding on whether or not someone is eligible for a first offenders disposition, such as whether or not they completed a program the first time they were found guilty or admitted to sufficient facts.

The Patriot Ledger has a column, that it runs regularly, called The Drunken Driving Record, where names of people charged with a second offense or higher of drunk driving are published in the local paper.  I am curious to find out if it acts as a deterrent or simply puts extra pressure on prosecutors, criminal defense attorneys and the judiciary.

If you have been charged with drunk driving (operating under the influence of intoxicating liquor) contact me at 617-328-6900 or email me at jfoley@sullivanandsweeney.com to set up a consultation.  At Sullivan & Sweeney, LLP we have the experience and expertise to handle your case.

One way to get out of a criminal conviction

On April 14, 2008, a Westborough, Massachusetts man was scheduled to go to trial on a charge of 5th offense operating under the influence (i.e. he allegedly had four previous convictions for OUI) or drunk driving.  The witnesses didn't appear due to an error in summoning the witnesses and according to the Boston Channel, he was found not guilty. 

It is not entirely clear, if Bryce Williams was found not guilty or if the case was dismissed - if he was found not guilty it was his lucky day. 

If the Judge only dismissed the charges, Mr. Williams should not discharge his counsel just yet, it is possible that the Worcester County District Attorney's office will re-file the Complaint.  If it is dismissed again, they could appeal the dismissal.  I had a similar case when I was an Assistant District Attorney in Plymouth County, and appealed the dismissal, and because there had been a mix-up with summonses and the troopers had appeared at every other scheduled date, the case was put back on the trial list.

The fact that this story even made the news, just goes to show how much pressure the media is putting on law enforcement, particularly in the wake of Melanie's Law, to prosecute drunk driving cases to the fullest extent of the law.

If you have been charged with drunk driving, call my office at 617-328-6900 or email me to arrange for a free consultation.

Can you test your blood alcohol at home?

How much can you drink and then safely operate a motor vehicle?  How much can you drink and be legally drunk in Massachusetts? (Legally intoxicated in Massachusetts is .08 if you are over 21 and .02 if you are under 21.)  How much alcohol you can safely drink depends on many different factors.

I came across an interesting online breath test (obviously you don't blow into the computer...at least not yet).  You can have a little fun comparing body types and blood alchol content by checking out this website:

Cops Online Breath Test

This post is purely for informational/fun purposes, it is not a license to have 5 drinks and go drive because the Cops test told you your blood alcohol would only be .075 if you had 5 drinks in 4.5 hours.  The test does not take into account anything except the information you punch in.  DO NOT USE IT TO ASSESS WHETHER OR NOT YOU CAN SAFELY DRIVE!

There are many factors that effect your blood alcohol, including but not limited to:

• your build
• medical conditions
• health
• how much you eat
• genetics
• your tolerance for alcohol
• medications

If you have taken a breath test and have been charged with drunk driving, call me at 617-328-6900 0 or email me to set up a consultation.

Do you need a lawyer if you are arrested?

A question I get a lot, is "Do I really need a lawyer?  Can't I just handle this myself?"

Well, what if you broke your wrist?  Would you set it yourself? Having a broken wrist that doesn't heal properly, probably won't kill you (disclaimer: I am in no way a doctor and am not saying that it couldn't kill you). It would be better if you had a knowledgeable doctor (probably not a neurosurgeon or psychiatrist) to examine the x-ray, and monitor the healing process.  I use the doctor analogy because I would have no idea what to do if I broke a bone (besides call a knowledgeable professional).

If you get arrested, you need someone who knows the system to guide you through it and advocate on your behalf.  You need a criminal defense lawyer, not an Estate or Real Estate lawyer. 

What will a lawyer do for you if you are arrested for drunk driving?

• Advise you on the process, from telling you where to stand or sit when you are in court, to explaining the court process from arraignment, through pre-trial, motions sessions and bench or jury trial.
• Talk to the Assistant District Attorney or the Police Prosecutor.
• Gather the evidence.
• Review the evidence against you and determine if there are valid motions to dismiss or suppress.
• If you take a Breath Test, your lawyer can determine if the machine was operating properly.
• Most importantly a lawyer Will make sure that your rights are protected!

I'm familiar with the local Massachusetts courts, it's not new to me even though it is often a very new and intimidating process for my clients.  Most people (including lawyers) only set foot in the local court house when they have jury duty.  If you have been charged with a criminal driving offense in Massachusetts, first - do not speak to the police, and if you have already, don't speak to them anymore, second, call me at 617-328-6900 or email me for a consultation.

Drunk Driving?

How does a prosecutor begin to prove that you were driving drunk (i.e. operating a motor vehicle under the influence of an intoxicating liquor)?

In Massachusetts, the Commonwealth has to prove the following:

1. That you were operating a motor vehicle and
2. That you were operating a motor vehicle on a public way and

You were operating with a Blood Alcohol level of .08** or greater

OR

1. That you were operating a motor vehicle and
2. That you were operating a motor vehicle on a public way and
3. You were operating a motor vehicle while while under the influence of alcohol and your ability to safely operate a motor vehicle safely was diminished by the consumption of an intoxicating beverage.

The first two elements are relatively straight forward and necessary to prove someone guilty of drunk driving.  If the Commonwealth doesn't prove Operation or Operation on a Public Way, you must be found not guilty.  For example, if you are standing beside your car and there are 3 other people also standing there, they have to prove that you were operating the car.  They also have to prove that you were driving in a place that is a public way.  If they cannot prove all three elements you must be found not guilty!

In order to prove that you have a Blood Alcohol of .08 greater, the Commonwealth must introduce proper records and they must introduce them as evidence properly.

The other way, proving that you your operation was impaired takes into consideration field sobriety tests, observations of the arresting officer, observations of your driving, observations at booking, your appearance, your attitude, and pretty much anything else you can think of that might give someone the impression that you are under the influence of alcohol and that your ability to safely operate a motor vehicle is impaired.

If you have been charged with OUI, you should consult with an attorney.  Call me at 617-328-6900 or email me for a consultation! 

** If you are under 21, the Commonwealth only needs to prove that your Blood Alcohol was .02 or higher.

Massachusetts Drunk Driving Laws

What if you are charged with OUI (i.e. drunk driving, DWI, DUI) in Massachusetts?  Well, first of all, it depends on whether or not you have been convicted of drunk driving previously.  It doesn't matter if you were convicted OR admitted to sufficient facts (i.e. a continuation without a finding) in Massachusetts or  in another state.

First, if you have never been found guilty or admitted to sufficient facts, you will most likely receive a first offender disposition (if you are found guilty - or if you admit to sufficient facts).

The following information does not take into consideration penalties for breath test/chemical test refusals.

First Offense - Statutory Disposition

• Fine of not less than $500, and not more than $5,000 and 1 year license loss or imprisonment in a House of Correction (jail) for not more than 2 and 1/2 years and 1 year license loss.
• Fine of not less than $500, and not more than $5,000 and imprisonment not more than 2 and 1/2 years, and 1 year license loss.

First Offense - Alternative Disposition (M.G.L. c. 90 s. 24D)

• Two years probation, and
• Entry into an approved OUI program (a 24D program) and
• Pay all program costs and assessments and
• License loss of 45 - 90 days.

Second Offense - Statutory Disposition

• Fine of not less than $600 and not more than $10,000 and
• Imprisonment for not less than 60 days and not more than 2 1/2  years, you must serve a minimum mandatory of 30 days and
• Two year license loss and
• Assessments and fees.

Second Offense - Alternative Disposition

• Mandatory in-patient treatment for 14 days at a residential alcohol treatment facility with aftercare, and
• Two years probation, and
• Two years license loss, and
• Program costs and assessments

Third Offense

• Fine of not less than $1000 and not more than $15,000, and
• Imprisonment for not less than 180 days and not more than 2 1/2 years in a House of Correction, or Imprisonment from 2 1/2 to 5 years in State Prison, and
• Minimum Mandatory 150 days imprisonment, and
• 8 year license loss, and
• Assessments and fees

Fourth Offense

• Fine of not less than $1500 and not more than $25000, and
• Imprisonment of not less than 2 - 2 1/2 years in the House of Correction or not less than 2 1/2 to 5 years in State Prison, and
• 10  year license loss, and
• Assessments and fees.

Fifth Offense or more

• Fine of not less than $2000 and not more than $50,000, and
• Imprisonment of 2 and 1/2 years in the House of Correction or Imprisonment of not less than 2 1/2 years and not more than 5 years in State Prison, and
• Minimum Mandatory 24 months imprisonment,  and
• Lifetime license loss.

Junior Operators face different penalties and different standards of proof.

If you have been charged with an OUI in Massachusetts, please call me at 617-328-6900 or email me for a consultation. 

For more information see:

Massachusetts General Laws

Melanie's Law

But I haven't had anything to drink - I'm not impaired!

A question that I get a lot from people (usually after I say not to take a breathalyzer) is what if I'm not drunk?  Now, the first thing you have to remember, is that you don't have to be drunk to get convicted of drunk driving (OUI).  You simply have had to consume enough intoxicating beverage (i.e. alcohol) to impair your ability to operate a motor vehicle safely.  If your blood alcohol level is a .08 or above, you are per se intoxicated.  Even worse, if you are under 21, and you have a .02 or above you are per se intoxicated.  Pretty scary? Careful, you could feel fine and still be legally intoxicated. If you drink a lot often, or even a few glasses of wine or a few beers on a regular basis, you could have a higher level of blood alcohol then you feel. I have met people who exist on a daily basis, legally intoxicated, it just depends on how much you drink.

That being said, now what if you really haven't been drinking?  You're nervous, cold, tired or simply lost, and you get pulled over by the police.  They ask you to take a breathalyzer and do field sobriety tests. A voice in your head tells you not to take any tests, but at the same time, you know that you are sober.  You also have a right to an actual blood test.  (A blood test is also a chemical test under the statute).  So tell the officer you want a blood test (politely).  The officer will take you to the station and give you the information to arrange for a blood test.  If you really haven't been drinking, the worst thing that might happen is that your car will get towed and you'll be out a few bucks.  The officer has probably conducted a legitimate stop - and has to cover him or herself and bring you in if he or she believes you to be under the influence.  So if you take a blood test - you both win!  Remember - be polite!

Did you ask for a blood test?  Did you not get one?  Have you been arrested for OUI? Call me to set up a consultation at 617-328-6900 or email me at jfoley@sullivanandsweeney.com. 

Finger to Nose

You are standing at the side of the road, the police officer suspects you are drunk, and you mistakenly believe that you must take the field sobriety tests.  The officer asks you to stand with your feet together and tilt your head back.

Great!  You know what's next, you've seen COPS on television!  You touch your finger to your nose!  Interestingly, as with most field sobriety tests, the officer is not only looking to see if you can find your nose with your index fingers.  He or she is also trying to determine whether or not you can listen and follow directions!

In my former life, as an Assistant District Attorney, I focused on the small details because not every case had a breathalyzer or a defendant who could not stand up.    I would draw out that the defendant started the test before he or she was asked, or that he or she didn't tilt his or her head back.   If you take field sobriety tests - you will be nervous - and even if you are totally sober you can give the police officer evidence that can be used against you in court!

Have you taken a field sobriety test or two?  Have you been arrested?  Charged with Operating Under the Influence?  Contact me for a consultation at 617-328-6900 or jfoley@sullivanandsweeney.com.