Criminal Defense & OUI FAQ

In Massachusetts, the prosecutor must prove three elements to convict a person for Operating Under the Influence of Alcohol:

• That you are operated a vehicle;
• That you operated that vehicle on a public way;
• 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 can also 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 0.08% or above. It is not the prosecutor's burden to prove that the operator is drunk or that the operator was driving their car in an erratic fashion. All that is required of the prosecutor is that they 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 0.08% or higher.

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.

Our Boston OUI attorney recommends the following:

• 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 fade.
• Be organized. There are a lot of events taking place, starting with your arrest for OUI. You will be required to attend meetings with your lawyer, attend meetings with witnesses, deal with license suspensions, and prepare for court dates. Being disorganized and unprepared will greatly diminish your ability to assist your lawyer in preparing a defense 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 they wish to proceed, as a defendant's right to a trial by a jury of their 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.

The following is a list of indicators that a law enforcement officer may interpret as being intoxicated.

The list is based upon research conducted by the National Highway Traffic Administration:

• Driving with the headlights off
• Decelerating or accelerating rapidly
• Turning illegally or abruptly
• Stopping inappropriately
• Responding slowly to traffic signals
• Signaling inconsistently with driving actions
• Driving into crossing or oncoming traffic
• Erratically braking
• Driving in the center of the road
• Drifting
• Following another vehicle too closely
• Stopping for no reason in the traffic lane
• Driving more than 10 mph below the speed limit
• Swerving
• Almost striking a vehicle or object
• Straddling the center of the lane marker
• Turning with a wide radius