Massachusetts General Laws Chapter 90 § 24(1)(a)(1) provides that anyone that operates a motor vehicle with a blood alcohol content of .08% or higher or while under the influence of alcohol, Marijuana, narcotic drugs, depressants or stimulants, or the smelling or inhaling the fumes of any substance having the property of releasing toxic vapors is guilty of OUI.
The prosecution must prove three elements in order for you to be convicted of this offense:
- That you operated a motor vehicle;
- On a public way;
- While under the influence of alcohol or while his or her blood alcohol content (BAC) was .08 or higher.
In Massachusetts a driver is considered “under the influence” if his or her ability to operate a motor vehicle has been diminished by the consumption of an intoxicating substance such as alcohol, marijuana, narcotics, or intoxicating vapors.
In most cases a police officer will allege the defendant had bloodshot/glassy eyes, slurred speech, and was driving “erratically” by speeding, or crossing onto the other side of the road. In almost every case, the officer will request the driver perform field sobriety tests. These tests are designed to fail! They often result in the driver being placed under arrest for OUI. Some common field sobriety tests include:
- One-Legged Stand Test – the driver is instructed to stand still and raise one leg six inches off of the ground while counting aloud to a certain number;
- Nine Step Walk and Turn Test – the driver is instructed to walk in a straight line for nine steps while touching heel to toe on each step and not raising his or her arms. After nine steps, the driver is instructed to turn around without losing his or her balance and walk back in the same manner;
- Horizontal Gaze Nystagmus (HGN) – the driver is instructed to follow a stimulus (with his/her eyes) to the left and to the right. The officer notes the angle at which the pupil starts to exhibit “nystagmus” (an involuntary jerking of the eye). An early onset of nystagmus (at or before a 45-degree angle) is a cue associated with a high blood alcohol concentration.
Defenses
There are many reasons a person may look as though they are driving “erratically” other than being under the influence. Passenger interaction, weather conditions, and cell phone usage are all momentary distractions which can often lead to swerving and speeding.
Remember the laws in Commonwealth do not prohibit a driver from consuming an alcoholic beverage before driving. Thus, it is perfectly legal for a driver to drink alcohol before driving. Therefore, an odor of alcohol is not a clear indication of guilt.
OUI / DUI Penalties in Massachusetts
OUI- 1st Offense:
Penalty
Jail, not more than 2 ½ years;
Fines from $500- $5,000;
License suspension for up to 1 year (in addition to a suspension for breathalyzer refusal).
OUI-1st Offense: 24D alternative disposition:
Continuance without a finding (No criminal conviction) However, a cwof will count as a conviction for purposes of future convictions;
Up to 2 years probation;
Driver’s Alcohol Education Program;
State fines/fees;
License Suspension 45- 90 days (in addition to a suspension for a breathalyzer refusal).
Reinstatement fee.
OUI- 2nd Offense:
Penalty
Jail, 60 days up to 2 ½ years (30 days Mandatory)
Fines from $600- $10,000;
License suspension two years (in addition to the suspension for breathalyzer refusal)
Hardship license possible after 1-year;
Interlock Ignition Device required;
License reinstatement fee.
OUI-2nd Offense: Plea:
Guilty Finding;
2 years Probation;
14-day inpatient program;
License suspension two years (in addition to the suspension for breathalyzer refusal)
Hardship license possible after 1-year;
Interlock Ignition Device required;
License reinstatement fee.
OUI- 3rd Offense:
Penalties
Jail, 180 days or up to 5 years in State Prison (150 days mandatory to serve);
Fines $1,000- $15,000;
License suspension 8 years (in addition to a suspension for Breathalyzer refusal);
Interlock Ignition Device at your own expense;
Hardship License possible after 2 years;
License reinstatement fee.
OUI- 4th Offense:
Penalties
up to 2 ½ years in jail or state prison 2 ½ years up to 5 years (1 year Minimum to serve);
Fines $1,500- $25,000;
License suspension 10 years (in addition to a suspension for Breathalyzer refusal);
Hardship License possible after n 5 years;
Interlock Ignition Device required at your own expense;
Vehicle forfeiture pursuant to G.L. c 90 § 24W.
OUI-5th Offense:
Penalties
Jail, 2 ½ years or state prison 2 ½ years up to 5 years in State Prison (2 Minimum to serve);
Fines $2,000- $50,000;
License revoked for life;
No hardship license available;
Vehicle forfeiture pursuant to G.L. c 90 § 24W.
OUI-6th Offense:
Penalties
Jail, 2 ½ years or state prison 2 ½ years up to 5 years in State Prison (2 years Mandatory to serve);
Fines $2,000- $50,000;
License revoked for life;
No hardship license available;
Vehicle forfeiture pursuant to G.L. c 90 § 24W.
OUI-7th Offense:
Penalties
Jail, 3 ½ years or up to 8 years in State Prison (3 years Mandatory to serve);
Fines $2,000- $50,000;
License revoked for life;
No hardship license available;
Vehicle forfeiture pursuant to G.L. c 90 § 24W.
OUI-8th Offense:
Penalties
Jail, 3 ½ years or up to 8 years in State Prison (3 years Mandatory to serve);
Fines $2,000- $50,000;
License revoked for life;
No hardship license available;
Vehicle forfeiture pursuant to G.L. c 90 § 24W.
OUI-9th Offense or More:
Penalties
jail, 4 ½ years or up to 10 years in State Prison (3 years Mandatory to serve);
Fines $2,000- $50,000;
License revoked for life;
No hardship license available;
Vehicle forfeiture pursuant to G.L. c 90 § 24W.
If you have been charged with operating under the Influence, it’s important to get a skilled attorney who knows the law. The Attorneys at JD Molleur Law have had repeated success in this area of their practice and have tried numerous OUI cases. If you have questions, please contact our office at 508.579.8333. We can also be reached directly at any time no matter when you call at 508-579-8333. You can also email us at info@jdmolleurlaw.com. We are available 24 hours a day 7 days a week at (508)579-8333. We will provide a timely response no matter when you call, most times within the hour.
This information does not constitute legal advice and is written for general information purposes only. Individuals should consult with a lawyer for specific legal advice.
