Massachusetts Driving Laws

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.

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

Penalties for Breathalyzer Refusal under 21

Drivers who are under 21 faced enhanced penalties for operating a motor vehicle while consuming alcohol.  One of the areas where the penalty is increased if you are under 21, is for chemical test refusals.  Usually, but not always, chemical tests are breath tests.

First, if you are under 21 and your breath tests registers .06 or higher you will be charged with OUI.  You face additional suspensions if you take the breath test and it registers .02 or higher, even if you are not 'legally drunk'. 

If you are UNDER 18, you face a one year license loss for refusing a chemical test, if you have no prior record of an OUI conviction.

If you are UNDER 18 and have two prior OUI convictions AND refuse the a chemical test, then your license will be suspended for 18 months. 

If you are UNDER 18 you also face an additional 1 year suspension of your license for refusing a chemical test, simply because you are under 18.  This additional 1 year suspension can be reduced to 180 days if you voluntarily enter into and complete a Youth Alcohol Program that is recognized by the Department of Public Health.  (This additional year is not affected at all by the outcome of your criminal case - even if you are found not guilty.)

If you refuse a chemical test and are convicted of OUI, you will receive a license suspension of an additional 210 days. 

A breath test or other form of chemical test is evidence that will be used against you by the police and prosecutors.  You don't have to take it or any field sobriety tests offered by the police.      

Should you or shouldn't you take the Breathalyzer?  Have you taken a Breathalyzer and now need legal help?  Are you at the police station and being offered a breath or other chemical test? Have you refused a Breathalyzer and need advice?  Call me at 617-328-6900 or email me for a consultation.  Phone calls are accepted 24 hours a day!

Licenses are a Privilege

Having your driver's license suspended is not something that most people think about until they get a notice from the Registry of Motor Vehicles.   In Massachusetts, if you are over the age of 18, your license can be suspended for multiple traffic violations and upon conviction of certain criminal offenses.  (If you are between 16 1/2 and 18 please see Junior Operators for more information.)

    Suspensions for Civil Infractions:

• 3 civil infractions in 12 months - 30 day suspension;
• 5 surcharge-able events in 3 years - 90 days, and you must complete a driver retraining course and your license is suspended UNTIL you complete driver retraining;
• 7 surcharge-able events in 3 years - 60 day suspension;
• Habitual Traffic Offender Status - 4 year license suspension (the second time it is 8 years);
• Out of State suspension - until the other state lifts the suspension;

    Suspensions for Criminal Convictions:

• operating a motor vehicle on a suspended license - 60 days to 1 year;
• operating a motor vehicle without authority - 1 to 3 years;
• larceny of a motor vehicle - 1 to 3 years;
• leaving the scene of bodily injury - 1 to 2 years;
• leaving the scene of property damage - 60 days to 1 year;
• operating to endanger - 60 days to 1 year;
• motor vehicle homicide - 15 years to lifetime;
• vehicular manslaughter - 15 years to lifetime;

     OUI Suspensions* -

• first offense - 1 year;
• second offense - 2 years;
• third offense - 8 years;
• fourth offense - 10 years;
• fifth offense or more - lifetime license loss;

*there are alternative dispositions and additional suspensions that may be imposed.

     Other reasons why your license can be suspended:

• drug conviction
• defacing property
• obtaining a fake id
• non payment of child support
• non payment of excise tax

IF YOU ARE FACING A LICENSE SUSPENSION, I CAN  HELP, CALL ME AT 617-328-6900 (PHONE LINES ARE OPEN 24 HOURS A DAY) OR EMAIL ME AT JFOLEY@SULLIVANANDSWEENEY.COM

Ignition Interlock Devices

What are Ignition Interlock Devices?   Why would you need one?

The number of drivers required to use an Ignition Interlock Device increased when Melanie's Law went into effect on October 28, 2005.  An Ignition Interlock Device is a breath-alcohol monitoring device.  It is slightly larger than a cell phone and is wired to your vehicles ignition. The Ignition Interlock Device requires you to take and pass a breath test prior to starting your vehicle.  It also requires you to periodically re-test your breath-alcohol while you are operating your vehicle.

If you have two or more OUI convictions and are eligible for a Hardship License then you must use the Ignition Interlock Device for the term of the Hardship License.    You must also use the Ignition Interlock Device for TWO additional years once your license is fully reinstated.

A court may also order you to use an Ignition Interlock Device for any reason. 

If you have your license reinstated in court after a suspension of five years or more for a chemical test refusal, the Registry of Motor Vehicles can reinstate your license but require you to have an Ignition Interlock Device installed in your motor vehicle for no less than two years.   

The Massachusetts Registry of Motor Vehicles has published information for Massachusetts Drivers regarding Ignition Interlock Devices, there are also several providers of Ignition Interlock Devices that are approved by the Massachusetts Registry of Motor Vehicles