Driving under the influence is an incredibly serious criminal charge in Massachusetts. In Boston, it is illegal to operate a motor vehicle while under the influence, if:
- your blood alcohol concentration (BAC) is .08% or more
- if you are under the influence of any other form of intoxicating substance(s)
Intoxicating substances can include liquor, marijuana, heavy prescription medication, narcotics, intoxicating vapors, or any other form of drugs.
A driver is considered “under the influence” when the substance(s) they have consumed have removed or diminished their capacity to properly operate their motor vehicle. It is very important to note that operating does not necessarily require the vehicle to be in motion or the engine even to be running.
In 2018 alone, Massachusetts Law Enforcement recorded the arrests of approximately 8,280 people who were allegedly operating a motor vehicle while under the influence of various substances. Because of this, DUI/OUI’s (Driving Under the Influence/Operating Under the Influence) have become an increasingly pressing issue for Massachusetts Law Enforcement and legal systems.
Massachusetts Law Enforcement Officers have taken to various practices to cut back on the staggeringly high number of OUI offenses. These practices include specially trained DUI task forces, DUI sobriety checkpoints to utilize roadside stops and breathalyzers, and even video evidence from body and traffic cameras.
- 1 DUI/OUI Penalties in Massachusetts
- 1.1 Field Sobriety Tests: What Are They?
- 1.2 The following are the three standardized field sobriety tests:
- 1.3 Michael Parousis is Certified in DWI Detection and SFST’s
- 2 CWOF (continuance without a finding)
DUI/OUI Penalties in Massachusetts
OUI offenses in Massachusetts come with some very steep consequences. Several factors determine these consequences, the most important being the circumstances of the current offense in question and the number of previous OUI convictions that the driver has accumulated on their record.
Other factors to consider are if there were children present in the vehicle at the time of the offense and the driver’s age. Any OUI incident that involves a child 14 years of age or younger can result in the driver receiving child endangerment charges. A conviction would come with a fine of $1000-$5000, 90 days to 2 and a half years jail time, and a year loss of license.
An Underage OUI charge is given to anyone under 21 caught operating a motor vehicle while under the influence. A driver in this age category caught with a BAC of at least .02% but not exceeding .08% will be subject to legal penalties (even if not convicted of the standard OUI offense).
If the underage offender submits to chemical testing and has a BAC of at least .02%, they face a 180-day license suspension (it will be one year for anyone under 18 years of age). This type of suspension can sometimes be waived if the driver is able to complete the Youth Alcohol Program.
Here is a list of OUI offenses and the specific consequences each face.
1st Offense: a misdemeanor offense, one-year license revocation, $500-$5000 in fines, and the possibility of up to 2 and a half years in jail.
2nd Offense: a misdemeanor offense, two-year license revocation, $600-$10,000 in fines, and 60 days to 2 1/2 years jail time (a minimum of 30 days must be served).
First and second offense DUI’s are classified as misdemeanor charges but can become more serious felony offenses if they involve any of the following scenarios:
Serious Bodily Injury: If a driver receives a drunk driving charge that has subsequently caused serious injury to another person, they’re charged with OUI – Serious Bodily Injury. This is considered a felony offense, regardless of the number convictions.
- Causing permanent damage to the body or causing significant impairment for a long period of time.
- Causing total disability
- Can cause death
An OUI – Serious Bodily Injury conviction carries a mandatory minimum jail term of 6 months and the potential of a prison term with a maximum of 10 years.
Death: if a motorist is charged with DUI that has subsequently caused the death of another, it is a felony charge. Operating Under the Influence Causing Death or ‘OUI Manslaughter’ is Massachusetts’ most serious felony DUI offense.
The minimum mandatory penalty for OUI Manslaughter is 5 years jail time and 15-year license revocation. However, this charge could carry a lifetime revocation of your driver’s license, a $25,000 fine, and up to 25 years in prison.
3rd Offense: a felony crime, 8-year license revocation, $1000-$15,000 in fines, and 180 days to 2 1/2 years in jail OR 2 and a half to 5 years in prison (a minimum of 150 days will be served).
4th Offense: a felony crime, 10-year license revocation, $1,500 -$25,000 in fines, a minimum mandatory sentence of 2 years in jail to a maximum of 2 1/2 years, or 2 1/2 to 5 years prison time.
5th Offense: a felony crime, lifetime revocation of driver’s license, $2,000-$50,000 in fines, a minimum of 2 and a half years in jail, or a maximum of 5 years in prison.
In addition to the government-imposed penalties, drivers who receive OUI charges on their record will more than likely be forced to pay higher insurance rates/premiums.
What Does the State Have to Prove to Charge You With A DUI/OUI?
To charge you with a DUI offense, the State has certain facts the need to prove. In the Commonwealth of Massachusetts, three main factors need to be proved beyond a reasonable doubt for a conviction. These factors are:
- That the person in question did, in fact, operate the motor vehicle.
- They did so in a public way.
- They did so while under the influence of an intoxicating substance(s).
What Are Your Rights, in Regards to DUI Charges?
As an offender, you have rights in regard to DUI defense from the moment you are pulled over. You are immediately entitled to the right of a criminal defense lawyer if you choose. You also have the right to refuse to comply with field sobriety tests. You are entitled to do provide breath test evidence or an independent blood test.
You are not legally required to speak to or answer questions from the authorities. You have every right to speak to a Boston criminal defense attorney first. This is also why you have the same right to an attorney immediately after being arrested.
As many experienced criminal defense lawyers will tell you, it’s possible for even the police department to make mistakes so, it’s very important to exercise your right to legal counsel.
Factors in Legal Strategies for DUI Cases
Boston Criminal Defense Lawyers will take on many strategies or tactics when going into court. They also delve deeply into the facts of the case, including any instances where law enforcement may have made an error in judgment. These lawyers will first look into whether the police officer had probable cause to initiate a traffic stop.
Next, they will look into whether a breathalyzer was administered by the police or whether their client refused to take one.
They will even look into the proper administration of the breathalyzer and other field sobriety tests to ensure they were done correctly.
Lawyers will recount the entire scenario by carefully reviewing all of the law enforcements notes and observations made at the scene. This means they intensively scrutinize the police report made post-arrest. From there, a lawyer will look into eye-witness testimonies, victim impact statements, and any and all admissible evidence in the case to mount a drunk driving defense. An experienced defense lawyer can find even the slightest crack or mistake in a case, so it’s crucial that one is involved in any DUI case.
Field Sobriety Tests: What Are They?
Police departments utilize a variety of field sobriety tests to determine whether your ability to drive a vehicle is impaired. In reality, the scientific validity is debatable; instead, the police officer must decide whether you “passed” or not based on his or her subjective judgment.
Some argue that these tests are set up for you to fail to give the cops a reason to force you to undergo a breath sample.
The following are the three standardized field sobriety tests:
1. Look at the ground horizontally Nystagmus – The officer instructs you to shift your eyes back and forth across your field of vision while following a pen, flashlight beam, or the officer’s finger. As they follow the item, the officer allegedly watches for any jerking or involuntary eye movement. Nystagmus is a type of eye movement that can occur spontaneously in certain persons or be caused by intoxication or a variety of disorders.
2. Walk and Turn – You must walk in a straight line from heel-to-toe for nine steps, then turn around on one foot and repeat. The officer is looking for several things to see whether you’re under the influence of alcohol, including how well you hold your balance if you use your arms to assist you to balance, if you step off the line or stop and start again, if you take the wrong number of steps, and so on. Even if you make a mistake because you’re scared, if it’s windy or dark outside, or if the test isn’t done on a rough or uneven surface, the police may be able to force you to undergo a breath sample.
3. One-Leg Stand – For this exam, you’ll need to stand with one foot six inches off the ground and count by one from 1,000 to 30 seconds. The officer will assess your ability to maintain balance without using your arms, swaying, hopping, placing your foot down, or other tactics. Keep in mind that you must concentrate on both counting and maintaining your balance simultaneously. Think about taking this test sober and see how well you can balance on one foot for thirty seconds without needing to steady yourself. You’ll probably discover that it’s not that simple, and the outcomes will differ depending on which foot you use.
Other “common” Field Sobriety Tests include tilting your head back with your eyes closed, touching your finger to your nose, and counting backward.
Factors like a handicap, injury, age, stress, and environmental variables can all impact the results of conventional testing.
Before administering any Field Sobriety Tests, the police are obligated to inquire about any restricting conditions you may have, although this does not always happen. What does it matter how well you do a Field Sobriety Test after drinking if the cops have no means of knowing how well you would pass them if you hadn’t consumed alcohol? These exams are extremely difficult to assess with any consistency due to a baseline measurement.
What Would you Do If You Were Requested To Conduct These Tests?
You are not required to undergo field sobriety tests in Massachusetts, and you can decline them without facing any penalty. In an OUI prosecution, a refusal to take field sobriety tests cannot be used against you.
However, your refusal, along with your demeanor and behavior during the interaction, might be used against you to show you were impaired at the time. Passing the test, as well as your demeanor and conduct during the exam, may prevent you from getting arrested or may work in your favor if you are charged with DUI.
If you become unaware of your rights, you are unlikely to realize that you have the right to reject Field Sobriety Tests, and the police are unlikely to inform you. You may believe that their “request” is a kind request or that denying will make you appear dishonest. Even if you make a mistake because you’re scared, if it’s windy or dark outside, or if the test is done on a rough or uneven surface, the police may be able to force you to undergo a breath sample.
Bear in mind that you must concentrate on both counting and maintaining your balance at the same time. Think about taking this test sober and see how well you can balance on one foot for thirty seconds without needing to steady yourself. You’ll probably discover that it’s not that simple, and the outcomes will differ depending on which foot you use.
Understand that roadside sobriety tests are meant to be rejected, and they aim to give the cops a cause to have you undergo a breath test. When requested to conduct Field Sobriety Tests during a DUI traffic stop, keep these facts in mind.
Michael Parousis is Certified in DWI Detection and SFST’s
DWI Detection and Standardized Field Sobriety Testing are certifications held by criminal Attorney Michael Parousis. The National Highway Traffic Safety Administration recognizes this as a 24-hour practitioner course.
He went through the same education that law enforcement officers around the country go through to conduct field sobriety tests. As a result, when reviewing potential defense strategies, he may examine every detail of how the officer administered the Field Sobriety Tests.
Such tests are famously inaccurate since a variety of factors might influence your results, including but not limited to:
- medical condition
- weather conditions
- pavement structure
Should You Negotiate a Plea Deal in a Drunk Driving Charge?
In Massachusetts, a 1st offense DUI stands a chance to be offered a pre-trial plea deal. The offer of a CWOF (Continuance Without a Finding) is always open. This might often be the best solution for some offenders.
However, for others, it could have long-term consequences for years and warrants serious considerations of all possible outcomes of the decision.
Pre-trial probation is another alternative available only in limited situations and must be approved by the prosecutor. If the option is available, the defendant must always apply for a probationary period before the trial. It lets the judge set aside the charges against you if, and when, you meet certain probationary conditions on all points.
The terms of your release could include:
- Compensating the victim.
- Taking a court-ordered educational class.
- Performing community service hours.
- A mixture thereof.
If, after a particular time (generally 3-6 months) and before the case goes to court, the defendant meets all the conditions for release, the judge will let off the charges.
In addition, failure to meet the conditions of pre-trial probation will not, in itself, result in a conviction or imprisonment. However, a pre-trial probation violation will cause the case to be returned to the court and placed on the trial list for complete prosecution.
CWOF (continuance without a finding)
So what is continuance without a finding?
A CWOF Is essentially probation with no guilty finding. When you consent to CWOF, you tell the court that you accept that there’s sufficient proof against you to be termed as guilty at trial.
You’ll be on probation for a fixed period (generally one year) but NOT convicted if you meet the conditions of your probation. When the one-year period ends, as long as you adhere to all the conditions, the case will be closed, and you won’t have a conviction in your name.
Probation conditions may include completing classes, paying fines, drug and alcohol testing, and community service. Also, you shouldn’t have any other criminal charges against you. Non-fulfillment of any of the conditions can lead to the revocation of CWOF. Plus, you’ll be termed as guilty.
Remember that by agreeing to the CWOF terms, you acknowledge the charges. If you violate the terms, the judge may announce a guilty verdict with no further proceedings.
CWOF might be the best solution for those with no criminal record or individuals without a strong defense against prosecution. It allows them to return to their normal life quickly.
However, CWOF could have life-changing consequences for others. For example, even though a CWOF isn’t technically a conviction, it’s still on file for you and considered a 1st offense drunk-driving violation. This means if you get booked for drunk driving again, the CWOF could and will work against you, and you’ll face tougher penalties for violating the law a second time.
Secondly, if an employer asks you if you’ve ever been convicted for committing a crime, you may bluntly reply no. CWOF isn’t a conviction. However, a CWOF will come up if employers undertake a thorough criminal background check.
Professional Licenses and a CWOF in MA
A nurse is a perfect example of a person who should never seek a CWOF. Nurses have the potential to lose their licenses for a drug crime or alcohol-related violations. If licensing entities or employers in the medical field perform a thorough background check, a CWOF will turn up and pose issues to the person in question.
CWOF And Immigration
Lastly, CWOF can present long-term issues for immigration matters. It’s imperative to understand that the federal immigration law considers a CWOF in Massachusetts a conviction. It indicates that you have to face the same consequences for immigration matters whether you accept guilty, plead guilty, or are found guilty.
Note that these consequences vary greatly and could get complex and technical at times. For the sake of this blog, we suffice to say that you must be aware of the possible immigration consequences before deciding to accept or reject the CWOF.
For this reason, it’s essential to have aggressive legal representation when faced with this type of allegation. Things happen swiftly in criminal courts; the legal process can get overwhelming and complicated. You must get familiar with your choices and the effects of those choices. They can hurt your career and life, providing difficult times to come.