In Massachusetts, the prosecutor must prove 3 elements to the charge of Operating 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.
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.
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.
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.
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.
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:
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.
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.
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..
The traditional symptoms of intoxication taught at the police academies are:
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:
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.
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.
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:
Given the unreliability of breath testing, it is routinely advised that the test be refused.
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.
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.
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.
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.
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:
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.
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.
Whatever the fee quoted, you should ask for a written agreement. And make sure you understand all terms.
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.
"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.
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:
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.,
54 Samoset Road,