It is legal in all 50 United States to drive a car after drinking alcoholic beverages, if you are over the age of 21 years. Despite this fact, drunk driving is one of the most politically controversial crimes, subject to constant lobbying by powerful groups such as Mothers Against Drunk Driving (MADD). Today, drunk driving is one of the most aggressively enforced crimes on the Massachusetts books. What is drunk driving, operating under the influence (OUI), driving under the influence (DUI) or driving while intoxicated (DWI)? Contrary to the term drunk driving, one does not actually have to be drunk to be arrested and convicted for drunk driving. Massachusetts law states that an operator only has to have his ability to safely operate a motor vehicle impaired by the consumption of alcohol to be guilty of operating under the influence of alcohol. This terminology creates a very ambiguous standard of measure that is subject to the subjective opinions of various jurors, judges and police officers. In Massachusetts, as it is in most other states in this country, an operator is per se under the influence of alcohol if he has a .08 percent blood alcohol content (BAC). In Massachusetts, effective July 1, 2004 a breath test of .08 or higher can be considered as proof of intoxication. While OUI is not the most serious crime on the books in Massachusetts, it is one of the most aggressively prosecuted crimes and carries mandatory minimum dispositions for convictions or pleas. All of these dispositions carry a Registry of Motor Vehicle (RMV) license suspension, in addition to court-imposed penalties. Effective, November 29, 2002, any conviction (or CWOF) for OUI can and will count against you for the rest of your life. In October of 2005, Melanie's Law was passed and put into effect in Massachusetts. Melanie's Law is one of the most comprehensive and dramatic revisions to the Massachusetts OUI law. Melanie's Law imposes very serious license suspensions and criminal penalties. Melanie's Law is primarily aimed towrds repeat OUI offenders . It is important you understand all of the various penalties and ramifications imposed against you in disposing of your OUI case.
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Despite the grim picture painted above, with proper representation, your likelihood of avoiding a conviction for your OUI charge is quite good. Juries currently acquit OUI defendants in over 50 percent of the trials presented to juries. The most important step you can take to avoiding a conviction in your OUI case is to consult with a qualified criminal defense lawyer immediately. As with any criminal case, early intervention into your matter helps to preserve evidence that may be favorable in your behalf and can mitigate some of the prosecutor's efforts to secure evidence to convict you.
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- License Suspension
As mentioned above, if you refuse the breath test after your OUI arrest, your licensewill be suspended for at least 180 days, and up to a life suspension if you have 3 or more prior OUI convictions. If you submit to and fail the breath test by registering a reading of .08 percent (BAC), your license will suspended for 30 days. If either of these suspensions occurs, your license will be immediately confiscated by the arresting police department.
- There is, however, a provision in the OUI statute that states that if you are found NOT GUILTY or if the OUI charges are dismissed before the refusal suspension has expired, you are presumed to have your license reinstated immediately.
- There is no hardship license available for this administrative suspension.
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- The Arraignment
Your first appearance in court is for arraignment. At this time, the court advises each defendant exactly what is the nature of the charge and enters a plea of not guilty to that charge. Unless you've got a criminal history, with prior court defaults or some egregious activity in your arrest, it is more than likely that you will be released on your own personal recognizance to appear back at court for pre-trial conference. If the District Attorney's Office is requesting a bail be posted to ensure your return to court, you will be entitled to a bail hearing. If you do not have an attorney with you at your arraignment, the court will provide an attorney for you for the limited purposes of that bail hearing.
- Pre-Trial Conference
The pre-trial conference is typically the next court date after your arraignment. It is designed as the first opportunity for a defendant and attorney to meet with the prosecutor and conduct a meaningful discussion of the case. By the time of the pre-trial conference, the parties have had an opportunity to review relevant police reports and to identify if there is additional outstanding material available, pertinent to the case. The court encourages that the parties attempt to identify by the time of the pre-trial conference whether a trial will be necessary for this case or if there is some possibility of resolving the case short of trial by way of a disposition. Under the current Massachusetts Criminal Court Procedures, every defendant now has a right to tender an admission or plea to the charges and request a disposition be imposed. If the court accepts this disposition, then the case can be resolved upon terms which the defendant has suggested. If the court is not inclined to accept that disposition and suggests a greater penalty, the defendant has the option of accepting that counter offer or rejecting the disposition and preserving their trial rights. If the case is not disposed of at pre-trial conference, then a motion hearing date or a trial date is scheduled.
- Motion Hearing
In a drunk driving case, just as any other criminal case, there are oftentimes many pre-trial motions that can be filed and argued that may be dispositive of the charges against you. Motions to suppress evidence are regularly used to attempt to exclude damaging evidence against you that may have been secured by some improper action of the arresting police department. Motions to dismiss may also be filed in certain instances to achieve a dismissal of the charges against you, based on some technical violation.
OUI trials are typically held in the courthouse where the pre-trial dates have been conducted. In some instances if a jury trial is elected by the defendant, the case may be transferred to another courthouse, within that county, that has the facilities and jurisdiction to conduct a jury trial. A defendant in an OUI charge, pending in the district court, has a right to a trial before a judge or a jury of six persons. The decision of whether to try the case before a judge or a jury is typically not made until the day of trial.
In the event that your case proceeds to trial and there is a verdict against you, sentencing is usually conducted immediately following the trial. After the jury reports their verdict and have been excused, the judge then proceeds to the sentencing phase if there is a guilty finding. The Commonwealth proceeds first and requests a specific disposition and offers reasons in support of that recommendation. Your attorney is then allowed to make a recommendation on your behalf and to provide pertinent personal and factual argument in support of that recommendation. The judge will typically enter the disposition at that time.
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