1. How can I be found guilty?
  2. What can I do to help win my case?
  3. Can I get my license back before my OUI case is resolved?
  4. Will my case be tried before a judge or a jury?
  5. What is in my best interest going to trial or plea-bargaining my case?
  6. What do police officers look for when searching for drunk drivers on the highways?
  7. If I'm stopped by a police officer and he asks me if I've been drinking, what should I say?
  8. Do I have a right to an attorney when I'm stopped by an officer and asked to take a field sobriety test?
  9. What is the officer looking for during the initial detention at the scene?
  10. What should I do if I'm asked to take field sobriety tests?
  11. Why did the officer make me follow a penlight with my eyes to the left and right?
  12. Should I agree to take a chemical test? What happens if I don't?
  13. Do I have a choice of chemical tests? Which should I choose?
  14. The officer never gave me a Miranda warning: Can I get my case dismissed?
  15. The officer took my license and served me with a notice of suspension after the breath test: Can he do that if I'm presumed innocent?
  16. Can I represent myself? What can a lawyer do for me?
  17. How can I find a qualified drunk driving lawyer?
  18. What will it cost to get a lawyer?
  19. What is the punishment for drunk driving?
  20. What is "mouth alcohol"?
  21. What defenses are there in a DUI case?
  22. I have some questions about my DUI case. Where can I go for answers?

1. How can I be found guilty?

In Massachusetts, the prosecutor must prove 3 elements to the charge of Operating Under the Influence of Alcohol.

  1. That you are operating a vehicle
  2. That you operated that vehicle on a public way
  3. That you operated that vehicle on a public way while you were under the influence of alcohol.

A public way is any road or way which is typically maintained by a Public Works Department or Highway Department and to which the public has right of access to operate their vehicle. Parking lots and private ways to which the public has access as an invitee are also characterized as public ways for the purposes of the OUI charge. It is not necessary that you be operating behind the wheel of your car and actually driving for the prosecutor to prove that you are operating your vehicle. Sitting in the driver's seat parked with the engine running can be sufficient to satisfy this element. Additionally, parking your car at the side of the road and turning the vehicle off but leaving the keys in the ignition also can be sufficient to prove the element of operation. The element of this charge that is typically in contest is whether an operator has consumed an amount of alcohol sufficient to impair his or her ability to operate their vehicle safely or if his BAC is .08 or above. It is not the prosecutor's burden to prove that the operator is drunk or that the operator was driving his car in an erratic fashion. All that is required of the prosecutor is that he prove that the operator has consumed some alcohol and the consumption has diminished the person's ability to operate a vehicle safely or that the operator's BAC is .08 or higher.

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2. What can I do to help win my case?

Following the advice suggested in the Not Guilty! section of this site will help you prior to being arrested for OUI. After you've been arrested, there are a number of things that you can do to assist yourself in being found not guilty of the charge of drunk driving. Don't speak to the police prosecutor or assistant district attorney about your case at your arraignment. Statements made by you at this time can also be used against you in court.

  • You should meet with an experienced and qualified criminal defense lawyer as soon as possible after your arrest or arraignment.
  • Make a list of friends and acquaintances you were with prior to being arrested. It is important to identify as many potential witnesses as soon as possible, before memories begin to diminish.
  • Be organized. There are a lot of events taking place commencing with your arrest for OUI. You will be required to attend meetings with your lawyer, meetings with witnesses, dealing with license suspensions and preparing for court dates. Being disorganized and unprepared will greatly diminish your ability to assist your lawyer in preparing a defense of your case.

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3. Can I get my license back before my OUI case is resolved?

There is no hardship license available for the initial administrative suspension. In almost all OUI arrests, an operator's license is suspended at the time of arrest for either a breath test reading of .08 percent BAC or above or a refusal to submit to a chemical test. In Massachusetts, a license to operate a vehicle is viewed as a privilege not a right. It is a condition of possession of a license in Massachusetts that you submit to a chemical test if you have been arrested for OUI. If you refuse to submit to a chemical test after being arrested for OUI, which is your right, your license will be suspended for a minimum of 180 days and a maximum of up to life for 3 or more prior OUI convictions. If you submit to a chemical test such as a breathalyzer test at the police station, subsequent to your arrest, and register a BAC of .08 percent or higher, your license will be suspended for 30 days or until the disposition of the case, whichever comes first. In the case of refusals, persons who have had their license suspended, pursuant to an OUI arrest, have a right to an immediate appeal to the RMV for the reinstatement of that license. This particular appeal deals with strictly technical issues relative to the suspension of the license by the arresting police department and the adherence by that department to the procedures the RMV requires for that suspension. A personal or professional hardship is not a legitimate reason that would allow the RMV to reinstate your license for these two categories of suspensions. It is important that you have a qualified and experienced criminal defense lawyer review all of the paperwork relative to our OUI license suspension to determine whether or not you may qualify for a reinstatement prior to disposition of your case.

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4. Will my case be tried before a judge or a jury?

In a jury trial for an OUI charge, all six members of the jury must unanimously find you guilty, beyond a reasonable doubt, before you can be convicted of the crime. In a trial before a judge, only the judge has to find you guilty beyond a reasonable doubt before you can be convicted. Often times you would want to have six people have to agree on your guilt rather than just the one. You are not required to elect a trial before a judge or a jury until the moment of trial. It is strictly a defendant's choice as to how he wishes to proceed as a defendant's right to a trial by jury of his peers is constitutionally protected. Every OUI case is factually unique. There may be a number of reasons why a jury waived trial before a judge may be more beneficial to a defendant than a jury trial. Your lawyer will consult with you about all the pros and cons of both types of trial before you have to elect.

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5. What is in my best interest going to trial or plea-bargaining my case?

As noted above, every OUI case is different. The strengths and weaknesses are unique to each case. Before you can make a decision on plea-bargaining or taking a case to trial, it is important that your lawyer thoroughly investigate your case in order to develop as much information about both sides of the case as possible. Only after you and your lawyer have developed as much information as possible about your case, is it possible to adequately evaluate the case. The factors necessary to be understood before a decision can be made include, strengths and weaknesses of the prosecutor's case, strengths and weaknesses of your case, credibility and effect of any witnesses to testify in your behalf, and the effects of a conviction. As suggested by the term plea bargain, there is typically a reduction in disposition to a defendant who is willing to offer a guilty plea rather than force the court and prosecutor to use resources in proceeding with the trial. In an OUI case, however, it is unique, in that most times a defendant charged with an OUI offense, will receive essentially no greater penalty after trial than he or she would on a plea bargain. In this situation there is virtually no incentive to plea-bargain a case, and a trial is almost always recommended.

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6. What do police officers look for when searching for drunk drivers on the highways?

The following is a list of symptoms in descending order of probability that the person observes driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration:

  • Turning with a wide radius
  • Straddling center of lane marker
  • "Appearing to be drunk"
  • Almost striking object or vehicle
  • Weaving
  • Driving on other than designated highway
  • Swerving
  • Speed more than 10 mph below limit
  • Stopping without cause in traffic lane
  • Following too closely
  • Drifting
  • Tires on center or lane marker
  • Braking erratically
  • Driving into opposing or crossing traffic
  • Signaling inconsistent with driving actions
  • Slow response to traffic signals
  • Stopping inappropriately (other than in lane)
  • Turning abruptly or illegally
  • Accelerating or decelerating rapidly
  • Headlights off

Being the only car on the road late at night often leads to being stopped. Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, may indicate sobriety.

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7. If I'm stopped by a police officer and he asks me if I've been drinking, what should I say?

You are not required to answer potentially incriminating questions. A polite "I would like to speak with an attorney before I answer any questions" is a good reply. On the other hand, saying that you had one or two beers is not incriminating: It is not sufficient to cause intoxication - and that may explain the odor of alcohol on the breath. If the officer is aking if you have been drinking, however, he has already smelled the odor of an alcoholic beverage coming from your breath. What you should not do is lie and say that you have not been drinking. That response, coupled with the officer saying that he smells an odor of an alcoholic beverage coming from your breath, makes it look like you are hiding something. Politely declining to answer the question is a better choice.

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8. Do I have a right to an attorney when I'm stopped by an officer and asked to take a field sobriety test?

The law on this varies from state to state. In Massachusetts and generally across the country, however, there is no right to an attorney until you have submitted to (or refused) blood or breath testing. In Massachusetts, there is no right to consult with counsel upon being arrested and before deciding whether to submit to chemical testing. Of course, this does not mean that you cannot ask for one, or that you have to speak with the officer before speaking with your lawyer..

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9. What is the officer looking for during the initial detention at the scene?

The traditional symptoms of intoxication taught at the police academies are:

  • Flushed face
  • Red, watery, glassy and/or bloodshot eyes
  • Odor of alcohol on breath
  • Slurred speech
  • Fumbling with wallet trying to get license
  • Failure to comprehend the officer's questions
  • Staggering when exiting vehicle
  • Swaying/instability on feet
  • Leaning on car for support
  • Combative, argumentative, jovial or other "inappropriate" attitude
  • Soiled, rumpled, disorderly clothing
  • Stumbling while walking
  • Disorientation as to time and place
  • Inability to follow directions

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10. What should I do if I'm asked to take field sobriety tests?

There are a wide range of field sobriety tests (FSTs), including walk and turn, finger-to-nose, one leg stand, horizontal gaze nystagmus, alphabet recitation, modified position of attention (Rhomberg), fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to such tests.

Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. The reality is that officers usually made up their minds to arrest before they give the FSTs; the tests are simply additional evidence that the suspect inevitably "fails." Thus, in almost all cases a polite refusal may be appropriate.

Recently, many states have begun following the federally approved (National Highway Traffic Safety Administration) "standardized" field sobriety tests. These consist of a battery of three tests:

  • Heel-to-Toe (also referred to as "walk-and-turn")
  • One-Leg Stand
  • Horizontal Gaze Nystagmus

All other field sobriety tests are disapproved. And unlike non-standardized tests, in which the officer subjectively decides whether the suspect passes or fails, the SFSTs are scored objectively - that is, a numeric score is assigned according to specific errors, or "clues." The officer's observations and interpretations are, however, subjective.

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11. Why did the officer make me follow a penlight with my eyes to the left and right?

This is a "horizontal gaze nystagmus" test, a relatively recent development in DUI investigations. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye tracks as far to the side as it can go.

This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset. Because of this, and the fact that the test is not accepted by the medical community, it is routinely not admissible as evidence in Massachusetts courts; it continues, however, to be widely used by law enforcement.

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12. Should I agree to take a chemical test? What happens if I don't?

The consequences of refusing to submit to a blood, breath or urine test varies according to each state. In Massachusetts, you will be offered only a breath test. You may be offered a blood test if you have been arrested for OUI and taken to a hospital for treatment. Generally, there are three adverse results:

  • Your driver's license will be suspended for a period of time. In Massachusetts the suspension for a refusal on a first offense is 180 days.
  • In some states, refusal is a separate crime; in others, it adds jail time to the sentence for the DUI offense (no additional penalty in Massachusetts).
  • The fact of refusal may not be introduced into evidence as "consciousness of guilt" in Massachusetts.

Given the unreliability of breath testing, it is routinely advised that the test be refused.

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13. Do I have a choice of chemical tests? Which should I choose?

In most states, you have a choice - of breath, blood or urine (most states, however, do not offer urinalysis). In Massachusetts, you will be offered only a breath test. You may be offered a blood test if you have been arrested for OUI and taken to a hospital for treatment. If you choose breath, Massachusetts permits you to have a second test of blood by a doctor or hospital of your own choosing at your own expense. This is because a breath sample is not saved and so cannot later be reanalyzed by the defense to test the accuracy of the reading. You should insist on being released from the police station as soon as possible for the purpose of obtaining an independent blood test.

Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems rendering them often unreliable. They are widely used by law enforcement, however, due to their convenience. The least accurate by far, however, is urinalysis. Thus, if you are confident that you are sober, a blood sample is the wise choice; being least accurate and most easily impeached, is the best option if you believe your blood alcohol concentration is above the legal limit.

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14. The officer never gave me a "Miranda" warning: Can I get my case dismissed?

No. The officer is supposed to give a 5th Amendment warning after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.

Of more consequence in most cases is the failure to advise you of the state's "implied consent" law - that is, your legal obligation to take a chemical test and the results if you refuse. This affects the suspension of your license.

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15. The officer took my license and served me with a notice of suspension after the breath test: How can he do that if I'm presumed innocent?

Agreed, it is blatantly unfair. But the law in most states (including Massachusetts) having a "per se" statute provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit. The independent blood test, if done shortly after your arrest, can be used to restore your license.

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16. Can I represent myself? What can a lawyer do for me?

You can represent yourself - although it is not a good idea. "Drunk driving" is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues.

What can a lawyer do? Nothing (or worse) if he is not qualified in this highly specialized field more than a family doctor could help with brain surgery. A qualified attorney, however, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest administrative license suspension, etc.

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17. How can I find a qualified drunk driving lawyer?

The best way to find a good OUI/DOI lawyer is by meeting and speaking with lawyers who concentrate on OUI defense.

Contrary to popular belief, it is not a wise idea to obtain a referral from the local Bar association or referral service. There are rarely any qualifications required for an attorney to be on a referral list; he usually only has to ask to be placed on it. When you call, you are simply given the next name on that list.

When you meet with the attorney, make sure of three things:

  • He has extensive experience in OUI/DUI litigation;
  • He has a reputation for going to trial in appropriate cases, rather than just "copping out" his clients; and
  • The financial terms of representation are clear.

Caution: Beware of lawyers claiming to be experts in the field who simply refer you to other "top DUI lawyers" and who then receive a fee from those lawyers.

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18. What will it cost to get a lawyer?

This varies, of course, by the reputation and experience of the lawyer and by the geographical location. As with doctors, generally, the more skilled the attorney and the larger the city, the higher the fee. A related factor is the amount of time a lawyer devotes to his cases: the better lawyers take fewer clients, spending more hours on each.

  • The range of fees is huge. A general practitioner in a small community may charge only $500 - $1,000; a DUI specialist with a national reputation may charge up to $15,000 or more, depending on the facts. In addition, the fee may vary by such other factors as:
  • Is the offense a misdemeanor or felony?
  • If prior convictions are alleged, the procedures for attacking them may add to the cost.
  • The fee may or may not include trial or appeals.
  • Administrative license suspension procedures may also be extra.
  • The lawyer may charge a comprehensive fixed fee, or he may ask for a retainer in advance - to be applied against hourly charges.
  • Costs such as expert witness fees, independent blood analysis, and service of subpoenas may be extra.

Whatever the fee quoted, you should ask for a written agreement. And make sure you understand all terms.

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19. What is the punishment for drunk driving?

Again, this varies according to the laws of the state and the customs of the local jurisdiction. Generally speaking, a conviction for a first offense may involve a fine, a license suspension restriction, and attendance at a DUI education course for a period of time, and probation for perhaps three years. A short jail sentence may or may not be required; for a second offense, it almost certainly will. Additional punishment may involve community service, ignition interlock devices, AA meetings, and/or impounding of the vehicle. See the Penalties section of this site for specific Massachusetts OUI penalties.

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20. What is "mouth alcohol"?

"Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2,100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact.

Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine's reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2,100 times. A chronic "reflux" condition from gastric distress or a hiatal hernia can cause elevated BAC readings.

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21. What defenses are there in a DUI case?

Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:

  • Driving. Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of some accidents, there are no witnesses to his being the driver of the vehicle.
  • Probable cause. Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.
  • Miranda. Incriminating statements may be suppressed if warnings were not given at the appropriate time.
  • Implied consent warnings. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, in some states (including Massachusetts) this may invalidate a RMV license suspension based upon a refusal to provide a breath/blood sample.
  • "Under the influence." The officer's observations and opinions as to intoxication can be questioned - the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as "failing." Witnesses can testify that you appeared to be sober.
  • Blood-alcohol concentration. There exists a wide range of potential problems with blood, breath or urine testing. "Non-specific" analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2,100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state's expert witness, and/or the defense can hire its own forensic chemist.
  • Testing during the absorptive phase. The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking "one for the road" can cause inaccurate test results.
  • Retrograde extrapolation. This refers to the requirement that the BAC be "related back" in time from the test to the driving. Again, a number of complex physiological problems are involved here.
  • Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc.
  • License suspension hearings. A number of issues can be raised in the context of an administrative hearing before the state's department of motor vehicles.

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22. I have some questions about my OUI case. Where can I go for answers?

  • Contact Jack Diamond at (866) 770-1100 to schedule a free consultation/free case evaluation.
  • Go to a law library (at courthouses and law schools) and research OUI law and blood alcohol analysis.

Many of the FAQs are from my friend and colleague, Lawrence Taylor. He is considered one of the top DUI lawyers in the country.

738 Main Street                         Route 228                             Hingham, MA 02043

The Torney Bldg.,
15 Foster Street,
Quincy, MA 02169

54 Samoset Road,
Route 44,
Plymouth, MA 02360

Phone: 866.770.1100