DUIMassachusetts OUI FAQ
Our Massachusetts DUI Defense Attorneys provide answers below to many of your questions concerning what happens following an arrest. While helpful and informative, the wisest step to take is to call (800) 782-1030 and schedule a no-obligation consultation.
Q: The police officer who arrested and charged me with an OUI had no reason to pull me over the first place. It isn't right. Is there anything that I can do?
A: Yes, there is something that can be done. Since a law enforcement officer can't just pull you over for no reason, your DUI Defense Attorney can bring a Motion to Suppress the evidence based on an illegal traffic stop. Upon cross-examination of the police officer, the objective is to cast doubt on his testimony.
Q: I have been arrested, what is the first thing I should do?
A: The first thing to do is to consult with an experienced Massachusetts OUI lawyer, particularly if you're unfamiliar with the complexities of the DUI Court Process. From there, it's critical to start building an aggressive defense to your Massachusetts criminal case. Fortunately, a drunk driving charge doesn't necessarily mean a conviction, and legal representation will help you get charges dismissed or greatly reduced.
Q: Do I need a lawyer to fight my Massachusetts OUI case?
A: While you don't need a lawyer, legal representation would certainly give you the strategic edge you need. A DUI Defense Attorney knows the ins and outs of the courtroom and may be able to obtain a lesser sentence for you if your situation allows for it. Additionally, if you are a Repeat Offender, or one whose livelihood depends on keeping your license, you should absolutely have a lawyer.
Q: Am I automatically guilty just because the police said that I was drunk?
A: No. Contrary to what most people think, before you can be convicted of an OUI, the prosecution must prove your guilt "beyond a reasonable doubt." It is not your initial responsibility to prove your innocence.
Q: Can you get my case dismissed altogether?
A: In several cases, yes we can. Interestingly enough, however, even when we can't get the entire case dismissed, there's still the opportunity to reduce the penalties through plea bargaining. A plea bargain is an agreement between you and the Prosecutor (in Massachusetts, it's the District Attorney's Office) wherein your current charges are dropped or lessened in lieu of your guilty plea on a lower, less severe charge.
Q: The police report said things in there that aren't true. What can I do about it?
A: An ideal strategy may be to file a Motion in Limine to exclude the officer's testimony that he or she "believed" you were impaired. Think about it: if the prosecution must prove that element of the crime, an officer who is attempting to testify as to his opinion, is helping the Commonwealth convict you without the requirement of proving each element of the crime.
Q: What is Melanie's Law?
A: Massachusetts passed Melanie's Law in late October, 2005. Named after 13 year-old Melanie Powell, who was killed in an accident caused by a repeat drunk driver in 2003, the law added many new, harsher penalties to the drunk driving laws across the Commonwealth. For example, now repeat offenders must apply for a Z restricted license and install an ignition interlock device (IID), which measures breath-alcohol content (BAC) and will not allow an auto to start with any detectable alcohol on the driver's breath.
Q: On what basis can I challenge the so-called "evidence" presented in court?
A: With the assistance of a DUI Defense Attorney, you can raise such defenses as the officer had no legal right to pull you over, the random stop was not run properly, there were flawed field sobriety and/or breath tests, and the police officer's subjective opinions lack merit to establish a conviction.
Q: Must I perform the field sobriety tests requested of the police officer?
A: Unlike blood and breath testing, submitting to a Massachusetts OUI/DUI field sobriety test is voluntary, but do not expect a police officer to inform you of this.
Q: What are the best ways to defend against "failed" field sobriety tests?
A: These tests are imperfect, and there are many factors unrelated to alcohol or drug use that could cause you to perform poorly on these tests. The best thing that you could do is retain a DUI Defense Attorney to argue that even if you "failed" a test, it was because of issues unrelated to alcohol or drug use.
Q: Can I beat the breathalyzer?
A: As DUI Defense Attorneys, we are asked this question on a regular basis. Short answer – yes, the machine can be overcome. Breath tests are often conducted in error or illegally obtained. The following questions and defenses should be raised in order to challenge the test and keep the results from being admitted into evidence: Did the officer observe you for a period of 15-20 minutes prior to your taking the test? Did the officer have his or her radio on during the test? Was there a specific reason for which you were pulled over and stopped by the officer? Have you seen the maintenance records from the breathalyzer – when was it last calibrated?
Q: What is "blood-alcohol concentration" or "blood-alcohol level"?
A: Blood-alcohol concentration (BAC) is the level of alcohol in the bloodstream from drinking alcoholic beverages. BAC readings are used in court as evidence in drunk-driving cases. The most common method of measure is a breath test, although blood and/or urine testing is sometimes done. A result of .08 or higher may establish a presumption of intoxication (drivers under 21 have a limit of .02). The details of the .08 BAC presumption laws vary among the states, but all 50 states have adopted .08 as their official intoxication level, in large part because of a federal threat of otherwise withholding highway funds.
Q: Massachusetts views drivers under 21 years of age differently, right?
A: Yes. There is a "zero tolerance" for underage drivers when it comes to drinking alcohol. Besides having a lower BAC limit, under Melanie's Law, an underage breath test refusal comes with a three-year driver's license suspension.
Q: What happens if I refuse a Breath Test when I'm pulled over?
A: Any driver who refuses to provide a breath sample can face harsh penalties. For example, you will have your driver's license suspended.
Q: The breathalyzer says I was over the limit. Shouldn't I just plead guilty if my test results say that I failed?
A: Many drivers are daunted by the evidence against them, such as field sobriety tests, breathalyzer results, and testimony of the police officer. It is common to feel that a conviction is inevitable, but there are many good reasons to fight the charge of a Massachusetts OUI.
A key point to always remember is that drivers who contest the charges with an aggressive and experienced DUI attorney at their side have a good chance of either having the charges dismissed completely, or greatly reduced.
Q: What is "mouth alcohol" and how can it create a false reading on the breathalyzer?
A: People with dentures and orthodontic work in their mouth often end up with inaccurate breath test results. Certain gases that move from the stomach up to the mouth, loose food particles, breath sprays and breath strips can send confusing test scores. For example, according to Listerine manufacturer Pfizer Inc.'s website, Listerine strips contain almost 27 percent alcohol.
Q: Is there any way that I could be arrested if I had a BAC of less than .08?
A: Yes. You can be prosecuted for a Massachusetts OUI if the Prosecutor proved that you were less than a safe driver due to impairment by alcohol or drugs – based on the law enforcement officer's observations. His or her opinion will have more weight if field sobriety tests, the smell of alcohol, blood shot, watery eyes, loss of coordination, and general attitude are disclosed.
Q: What is an "alternative sentence"?
A: Many DUI cases result in negotiated plea agreements. For those cases that are not tried or dismissed, an experienced DUI Defense Attorney can often negotiate with the District Attorney for alternatives to heavy fines, prison time, and other harsh penalties associated with drunk driving.
Q: How can I get a copy of my criminal record?
A: If you would like a copy of your Massachusetts criminal record, contact Massachusetts Criminal History Systems Board, Attn: CORI Unit, 200 Arlington Street, Suite 2200, Chelsea, MA 02150. Walk-in service is not available. There's a form that they'll send you to complete along with a $25 fee.
Q: What is the "24D" program?
A: If you are a first time offender, you are presumed to be eligible for this option to attend an Alcohol Education Program as an alternative to lengthier license loss, heavier fines, and possible jail time. The program consists of four months of classes and costs just under $600.
Q: If I am arrested, what happens to my driver's license?
A: Upon arrest, your license will be immediately suspended by a police officer. Additionally, your vehicle will be impounded for 12 hours.
Q: If my license gets suspended, can I get a permit to drive to work or school?
A: While the answer varies depending on your individual driving history and whether you submitted to a breath test, you can usually get a Hardship License so long as you didn't cause an accident (and this is your first offense). However, there is no "right" or entitlement to a Hardship License. The Registry has complete discretion as to whether or not they extend the privilege to you.
Q: What are the requirements to getting a Hardship License?
A: For a first-time offender, once you enter an Alcohol Education Program you should be able to apply for consideration of a license. The cost to apply is $195.
Q: How long do I have to wait before applying for a Hardship License?
A: Generally, you must wait at least three or four days from your court date in order to give the RMV time to receive information from your last court appearance.
Q: How are my criminal court hearing and the Registry Hearing any different?
A: In a nutshell, every Massachusetts OUI/DUI triggers two separate and distinct cases: one, a criminal court case, and the other, an administrative matter with the Registry of Motor Vehicles. Your driver's license is under the control of the RMV, while criminal penalties are dealt with in the criminal court. Tip: Unlike a criminal case, the defendant driver bears the burden of proving their innocence at a Registry Hearing.
Q: What is an Ignition Interlock Device?
A: An ignition interlock device (IID) is a device placed in your car that requires you to breathe into it before the car will operate. This ensures that you have not ingested any alcohol. You have to pay installation and monitoring costs. The device must be installed on any car you drive or own. If you are caught driving a car that does not have the interlock, you may be charged with a new offense. There are different interlock devices on the market and some clients have experienced problems with certain units. Our DUI Defense Attorneys can help advise you on how to deal with this situation if you are ordered to have an interlock installed in your car.
Q: What is Boating Under the Influence?
A: Much like cars or trucks, operating a boat under the influence of alcohol or drugs has serious consequences. Those convicted of "BUI" for the first time may be imprisoned for up to 30 months, fined up to $1,000, or both. An offender also may have his or her motor vehicle license and vessel's registration revoked for up to one year. Repeat offenders will receive more severe penalties.
Q: What makes your law firm different from other DUI lawyers or OUI attorneys?
A: Our clients will most likely tell you that both our customer service and aggressive defense strategies set us apart. We answer our phones and meet with clients at night and over the weekend, and we conduct a thorough independent investigation of each case that we represent. The District Attorney and arresting officer may have their side of the story, but we'll have ours. We look for evidence to prove that the police officer was mistaken, didn't follow proper procedures, or that the tests were flawed. Once we begin our investigation, we go to the scene of the crime, take pictures to show evidence of unfair road conditions, and may even look into medical records that would show a condition making you unable to perform field sobriety tests no matter what condition or time of day.
