OPERATING UNDER THE INFLUENCE: QUESTIONS & ANSWERS

UNDER MASSACHUSETTS LAW

PLEASE NOTE:  The information provided is intended to give a general overview of the law in Massachusetts pertaining to the crime of operating under the influence. It is not intended to establish an attorney-client relationship. If you have specific questions, you may call Attorney Jeff Karp at 617-227-3361 or email him at JKarp@newmanlegal.com.

1. What is the crime of operating under the influence of alcohol in Massachusetts?

            A: In Massachusetts, the crime of operating under the influence ("OUI," or driving under the influence, "DUI," or driving while intoxicated, "DWI") really consists of two separate crimes depending on whether the police conduct a breath test on the driver. If no breath test is performed on the driver, the prosecution must prove beyond a reasonable doubt that the driver not only consumed alcohol, but that the consumption of alcohol diminished the driver's ability to operate the vehicle safely. However, on the other hand, if the police administer a breath test and the test results establish that the percentage of alcohol by weight in the driver's blood is .08% or more, the driver is presumed to have operated the vehicle under the influence of alcohol. Thus, the simple fact of operating a vehicle with a blood alcohol level of .08% or more is a crime in Massachusetts, even if the driver's ability to operate the vehicle was in no way impaired by the alcohol.

2. May a driver be charged in Massachusetts for driving under the influence of drugs?

            A: Yes. A driver may also be charged with operating under the influence of a controlled substance if the police determine that the driver's ability to operate the vehicle in a safe manner has been affected by a controlled substance such as marijuana, cocaine, heroine, ecstasy, etc.

3.Under what circumstances may I get pulled over by the police in Massachusetts in a case of suspected OUI?

            A: Generally speaking, the police may pull over a vehicle only if they witness a violation of the traffic laws or if they have reasonable suspicion that the driver is operating the vehicle while under the influence of alcohol or a controlled substance. Once the driver is pulled over he or she will be asked to provide his/her driver's license and the registration for the vehicle. These two documents must be provided. If the police officer has reasonable suspicion that the driver has operated the vehicle while under the influence, he may ask the driver to step out of the vehicle and perform field sobriety tests.

4. What are field sobriety tests?

A: Field sobriety tests are used by the police to make a preliminary determination concerning whether the driver's coordination, balance, and thinking are impaired due to the consumption of alcohol or drugs. Common field sobriety tests conducted in Massachusetts include the alphabet test in which the driver is asked to recite the alphabet backwards, the one leg stand test, the heel-to-toe test in which the driver is asked to walk along a straight line for a certain number of steps and then turn around and do the same, the finger-to-nose test, and the nystagmus test in which the police officer requests that the driver have his eyes follow the officer's finger while he moves it side to side (because it is thought that persons under the influence of alcohol exhibit certain responses in their eyeball movement during this test).

5. If a police officer in Massachusetts requests that I conduct field sobriety tests, do I have to?

            A: Generally speaking, there is no law in Massachusetts that requires a driver to submit to a police officer's request that he or she perform field sobriety tests.

6. Can I lose my license in Massachusetts if I refuse to take the field sobriety tests?

            A: No.

 7. What is a breath alcohol test (breathalyzer)?

            A: A breath testing device simply calculates the content of alcohol present in a person's breath and then converts the breath alcohol level into a blood alcohol level. The blood alcohol level result is reflected as a percentage of alcohol by weight in the driver's blood. In Massachusetts, the breath test machine most commonly used by the police is the Alcotest 7110 which is manufactured by Draeger. The Alcotest 7110 uses infrared spectroscopy to analyze the amount of alcohol in someone's breath.

8. What happens if I refuse to take the breath test when asked to do so by a police officer in Massachusetts?

            A: If a Massachusetts driver refuses to take a breath test when asked to do so by a police officer and has never been convicted of OUI in Massachusetts or any other state, the driver's license will be suspended for 180 days. If the driver is under the age of 21 or has been previously convicted of OUI in Massachusetts or any other state, his or her license to operate will be suspended for a period of 3 years. If a person refuses to take a breath test and has been previously convicted of OUI in Massachusetts or any other state on two prior occasions, his right to operate will be suspended for 5 years.  If a person refuses to take a breath test and has been previously convicted of OUI in Massachusetts or any other state on three or more prior occasions, his right to operate will be suspended forever.  All license suspensions for refusing to take the breath test are on and after any license suspension the driver gets for the OUI offense.

9. If my license is suspended because I refused take the breath test in Massachusetts may I get a restricted or hardship license while the suspension is pending?

            A: If a person's license is suspended for failure to take a breath test in Massachusetts, he is not eligible to obtain a restricted permit (i.e., "Cinderella permit") or hardship permit during the period of suspension. However, if the charge of OUI is dismissed or the driver is found not guilty during the period of suspension, the driver may request that the court restore his license even if the full suspension period has not ended.

10. What happens if I take the breath test in Massachusetts and fail?

            A: If a person is over the age of 21 and takes the breath test in Massachusetts, and the result is .08% or greater, the police will take custody of the person's driver's license and the person's license is immediately suspended for thirty days, or earlier if the OUI charge is resolved in court before the end of the 30 day period. If a person is under the age of 21 and the breath test result is .02% or greater, his or her learner's permit or license will be suspended for 210 days. However, a person under the age of 21 years-old who fails a breath test may get his driver's permit or license back upon entering an underage drunk driver's program certified by the Massachusetts Department of Health.

11. If I fail the breath test will I still have a defense available to me if I go to trial on the OUI charge?

            A: As of July 2003, the Massachusetts Legislature has made it much more difficult to defend someone charged with OUI who has failed a breath test. This is because the law now states that a breath test result of .08% presumes a finding that the driver was under the influence of alcohol at the time of his or her arrest. However, an experienced and well-trained attorney could attack the accuracy of the breath test results or the competency of the breath test operator at trial. For instance, the police officer conducting the breath test must obtain training in order to do so, and must be certified by the Commonwealth of Massachusetts to conduct the test. Moreover, Massachusetts law requires periodic maintenance to be performed on the breath test machine by the Police Department and a log to be maintained regarding maintenance and repairs made to the breath test machine. Also, certain illnesses and medical conditions of the driver could affect breath test results. For example, gastro esophageal reflux disease ("GERD"), fever, breathing difficulties such as asthma, and simple burping and belching could affect the breath test results. Moreover, there are certain procedural requirements required by the police when arresting a person for OUI, and if they are not followed, your attorney could seek dismissal of the charge. The bottom line is, although it is now more difficult to defend an OUI charge resulting from a breath test failure, a well-trained attorney still may have significant ammunition to persuade a jury or judge that the results are unreliable and that you should be found not guilty.

12. How long will I lose my license if I am convicted of OUI in Massachusetts?

            A: You will be subject to the following period of license suspension depending on whether you have ever been convicted of OUI in the past or have ever been sentenced to a continuance without a finding ("CWOF") on an OUI charge.

¿        First Offense- Up to one year loss of license.

¿        Second Offense (One prior conviction or prior CWOF for OUI in any state)- Two years loss of license.

¿        Third Offense- Eight year's loss of license.

¿        Fourth Offense- Ten year's loss of license.

¿        Fifth Offense- Lifetime loss of license.

13. If I am convicted of OUI in Massachusetts, could I go to jail?

            A: Generally speaking, everyone convicted of OUI in Massachusetts is subject to a jail or prison sentence, but much depends on the circumstances of the offense, the driver's criminal record, and whether or not the person convicted has ever been convicted of OUI or sentenced to a continuance without a finding on an OUI charge in any state. The following potential jail sentences apply:

¿        First Offense- Subject to a sentence in the House of Correction of not more than 2 1/2 years.

¿        Second Offense- Up to 2 1/2 years in the House of Correction with a minimum mandatory sentence of thirty days in the House of Correction.

¿        Third Offense- Not less than six months or more than 2 1/2 years in the House of Correction, or up to 5 years in the State Prison with a minimum mandatory sentence of 150 days in state prison.

¿        Fourth Offense- Not less than 2 years or more than 2 1/2 years in the House of Correction with a minimum mandatory sentence of 1 year, or up to 5 years in the State Prison with a minimum mandatory sentence of 1 year.

¿        Fifth Offense- A minimum mandatory sentence of 2 years.

14. How much money in court costs may I expect if I am convicted or sentenced to a continuance without a finding in Massachusetts for an OUI charge?

            A: You could be fined between $500.00 and $25,000.00 depending on the number of prior convictions. You will also be assessed $250.00 for the Head Injury Treatment Services Trust Fund and $50.00 for the Victims of Drunk Driving Trust Fund.

15. If I am convicted or receive a continuance without a finding on a charge of OUI in Massachusetts and I am placed on probation, what are the additional costs and the conditions of the probation that I will have to perform?

            A: At a minimum, you will be obligated to pay $75.00 per month while you are on probation for a Probation Supervision Fee. You may work community service in lieu of making the monthly payment. You will also be required to successfully complete a driver alcohol education program that is certified by the Massachusetts Department of Public Health. A driver alcohol education program generally requires attendance once per week for a period of approximately four months. The program costs approximately $600.00. You may also be required to attend the Brains-at-Risk program during which you will spend approximately one half day visiting a brain injury rehabilitation center and listening to survivors of brain injuries. Other probation conditions could include attending AA meetings, random urinalysis, community service, and abstention from the consumption of alcohol and/or controlled substances.

16. If my Massachusetts license is suspended because of a conviction for OUI, may I get a restricted ("Cinderella") license or hardship license?

            A: Depending on the number of prior convictions or CWOFs for OUI,  a driver may request that the RMV issue an employment license which is valid for the same 12 hour period each day, or a hardship license which grants driving privileges in Massachusetts with certain conditions. After a conviction of OUI for the first time, a driver may apply to the RMV for an employment license 3 months after the date of conviction and a hardship license after 6 months. A person who is convicted of OUI for the second time may apply for an employment license after 1 year and a hardship license after 18 months. A person who is convicted of OUI for the third time may apply to the RMV to get an employment license after 2 years and a hardship license after four years. A person convicted of OUI for the fourth time may apply to the RMV to obtain an employment license after 5 years and after 8 years for a hardship license.

17. In Massachusetts, how long of a period of time can the state "look back" in order to determine whether a person has prior convictions for OUI?

            A: Massachusetts now has a lifetime "look-back" period which means that if you have ever been convicted of OUI or sentenced to an alcohol or substance abuse education program because of an offense similar to OUI by any state in the country, that prior conviction or assignment may be used in Massachusetts as a prior OUI offense. This means that a person who is arrested for OUI in Massachusetts must be very careful and recognize the ramifications of being convicted or sentenced to a continuance without a finding because such a conviction or sentence will forever be used against the driver if he or she is ever again charged with OUI in Massachusetts or any other state. Most other states also have a lifetime "look-back" OUI law. If arrested for OUI, the only way to avoid the offense being used in the future for the basis of a potentially longer jail sentence or longer loss of license is to seek dismissal of the charges on procedural grounds or a verdict of not guilty at trial.

18: If I am arrested in Massachusetts for OUI for a first offense, will I really lose my license for one year and be subject to a jail sentence?

            A: Yes, however, you or your attorney may be able to arrange an alternative disposition that could involve a significantly shorter period of license suspension and no jail time. At a minimum, you will be placed on probation, incur certain court costs, and have to attend the driver alcohol education program explained above.

19. Is it a crime in Massachusetts to allow someone to drive your car who has a suspended or revoked license, or has no license at all?

            A: Yes.  If you know that the person driving your car has no lincense, or a suspened or revoked license, you could be imprisoned and/or fined.

20.  What is a "ignition interlocking device?"

            A: It is a device that attached to the ignition of a vehicle that requires the operator to breathe into in order to start the engine.  The device detects whether  the operator has a blood alcohol concentration over a certain prest limit.  The device is required is a driver seeks a hardship license in an O.U.I. case and is  required in certain instance when a person is placed on probation after being convicted of O.U.I.