First Offense OUI: The First Cut is the Deepest

Massachusetts Drunk Driving Laws:  The $10,000.00 Drink

There is a misconception that one must be drunk to be arrested and convicted of drunk driving in Massachusetts.  Unfortunately, this could not be further from the sobering truth.  One drink may be enough to not only have the driver arrested, but also convicted of drunk driving.  So then, what exactly is the standard police officers, judges, and juries use when determining when an individual has been “drunk driving” under Massachusetts law?

.08: The Commonwealth’s 8 Ball

In Massachusetts, the prosecution is allowed to choose between two different “roads” when proving an individual was driving under the influence of alcohol.  The first, and often time, the easiest path for a finding of guilt, is the .08 approach.  This is used when a defendant has submitted to a breathalyzer test, and has blown a .08 or higher.  In this instance, the Commonwealth need only prove that the defendant took the breath-test, and the defendant blew a .08 or higher.  That is all.  Of course, there are numerous factors that may make the results of the breath-test questionable, even inadmissible at trial; however, if the test is allowed to be used as evidence against the defendant, the defendant will have a long and arduous road ahead of him to prove his innocence.

Impairment: Look Back on the Days When My Life Was a Haze

If an alleged drunk driver does not take the breathalyzer test in Massachusetts, the Commonwealth is left to approach the case with the “Impairment” theory.  Meaning, the Commonwealth will be forced to prove – with circumstantial evidence -  that the defendant’s ability to drive was impaired by the influence of alcohol and/or drugs.  In this instance, the Commonwealth’s case is immediately more difficult, and it is because of this reason that Massachusetts will harshly punish any alleged drunk driver for refusing to take the breath-test.  For a first offender, the minute she refuses the breath-test, the Massachusetts Registry of Motor Vehicles will automatically suspend her driver’s license for 180 days.  There is no exception to this rule.

Although the thought of losing one’s license for 180 days is a daunting one, the defendant has set himself up for a higher chance of success if and when the matter is brought to trial.  Indeed, without the breath-test, the Commonwealth is forced to rely on witnesses that may not exist (and may not be very good), and police officers that may have seriously fumbled the investigation.  As a Massachusetts Criminal Defense attorney, I would advise any client to never submit to the breath-test unless you are 100% confident you will blow below the .08.

It is important to understand that the Commonwealth is never put in a position where they must show that the driver was actually drunk.  Rather, the Commonwealth need only show that the driver was impaired due to alcohol, and this impairment affected the driver’s driving.  That is all.  There are many instances where the driver can be alert, not slurring his words, and for all intents and purposes acting in a manner that does not necessarily evince that the driver was under the influence of copious amounts of alcohol.  Nevertheless, this flimsy evidence may still be enough for a judge or jury to find that the driver was impaired by alcohol, and therefore guilty of operating under the influence in Massachusetts.

Plea or Fight: He’s Throwing Several Punches and He’s Blocking Most of Mine

At arraignment for a first-offense drunk-driving charge in Massachusetts, a defendant must make a decision.  After looking at the entirety of the evidence against him, does the defendant believe he has a fighter’s chance of obtaining a not guilty verdict.  If so, the defendant can plea not guilty at the arraignment, put his gloves on, and get ready for a fight.

If, however, the defendant decides to plea no contest to the charges, then the defendant will be entitled to what is called a “24D Disposition.”  In this instance, the defendant will be on track to obtain a hardship license within a few weeks, be enrolled in alcohol classes, and be placed on probation for 1 year, which includes a substantial amount of fines.

While most first-time alleged offenders are eager to put this matter behind them, and take a plea, if the case is a “winnable” one, then the defendant must take a long, hard look at the totality of the circumstances – including the potential of obtaining a second-offense at any point in his lifetime – before making such a decision.






To take or not take the field sobriety tests?

At a recent family dinner, a few members of my family were drinking their usual “Vodka with a splash of cranberry.”  As with most families, having a drink or two at a dinner is a common occurrence in my family.  However, there has never been a more dangerous time in Massachusetts to have a few drinks and then go behind the wheel of a motor vehicle.

For example, on April 22, 2011, a young girl lost of her life due to the alleged drunk-driving of her friend. And of course, there has never been a year where more State Troopers were hit and injured by the actions of alleged drunk drivers.  So the questions remains, what if you are pulled over after having a drink?  What do you do?  Do you take the Field Sobriety Tests?

Under the Massachusetts Declaration of Rights, Article 12, all citizens of the Commonwealth have the right to refuse a police officer’s request to submit to Field Sobriety Tests.  Further, said refusal is inadmissible at trial.  However, if you refuse to submit to the Field Sobriety Tests you will almost certainly be placed under arrest and charged with Operating Under the Influence.  So the question remains, what are the pros and cons of submitting to a field sobriety test?

In the first instance, we should all be acutely aware that when someone is pulled over after a drink or two there is nothing more nerve-racking.  Our reactions will not be the same.  Our decision-making ability might be altered, and quite frankly, we may not do things the way we would normally do.  The very first thing one must do is gain their composure and make sound and logical decisions.  Take a deep breath, and quickly obtain your driver’s license and registration — even before the police officer approaches the vehicle.   Indeed, your goal at this point would be to minimize your engagement with the officer, as everything the officer sees, smells, and hears will be used against you.

Secondly, in almost every circumstance, if you have had more than two drinks over a short amount of time, it would be advisable to not take the field sobriety tests.   The following articulates the reasons as to why this is a sound idea:

(1) Everything observed will be used against you.  When you submit to field sobriety tests every mis-step, every stuttered letter, and everything you say or do not say will be used against you at trial.  Why help the Commonwealth build their case against you?

(2) Your chances of passing the tests after having a drink or two are slim.  Sober people do not pass all of the sobriety tests.  You are nervous.  It could be dark.  The road could be slanted or skewed.  There is traffic passing you.  There are people watching you.  Even sober people – who have had nothing to drink – do not pass field sobriety tests.  Therefore, do not submit to the tests because you think you are going to pass.  Indeed, if I am asked to take a field sobriety test, I will not do it.  If a police officer is asking you to take a field sobriety test he is already inclined to arrest you and charge you with OUI.

(3) You have no obligation to submit to the Field Sobriety Tests — But the police do not need to tell you this.  When someone is asked to step out of their motor vehicle by a police officer, many scary things will be running through your head.  Indeed, your livelihood, your family’s well-being could all be on the line.  The police officer WILL intimidate you.  The police officer will make you feel that you have no choice but to take the filed sobriety tests.  However, what he does not have to tell you — and trust me, he won’t tell you — is that YOU DO NOT HAVE TO TAKE FIELD SOBRIETY TESTS.  You have a Constitutional Right not to incriminate yourself.  Use your rights!

(4) No evidence, no case.  The burden of proof in a criminal case falls squarely on the shoulders of the Commonwealth.  You never have to prove a thing.  You do not need to prove that you were not drinking.  Rather, the Commonwealth must prove that you were operating your motor vehicle while under the influence of alcohol.  How does the Commonwealth prove that you were drunk?  They do this by observations of police officers and witnesses.  They do this by watching you submit to field sobriety tests, and they do this by the breath test results.  If you do not submit to the field sobriety tests, and you do not take the breath test, the only thing the Commonwealth will have in their case-in-chief is the observations made by any witnesses that may have observed your driving, and the testimony of the police officer who pulled you over.  While there are never any guarantees, the Commonwealth would be hard-pressed to prove BEYOND A REASONABLE DOUBT that you were driving under the influence with such little evidence.  Play the game, they want to win, don’t give them the cards to do so.