Massachusetts Drunk Driving Statute

Section 24. (1) (a) (1) Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or while under the influence from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270 shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and one-half years, or both such fine and imprisonment.”
Mass. Gen. Laws Chapter 90, Section 24 (1)(a)(1)

In Massachusetts, the Commonwealth has the luxury of choosing two different paths in efforts to convict an alleged Massachusetts drunk driver on a charge of operating under the influence. The easiest way for the Commonwealth to obtain a guilty verdict against an alleged drunk-driver is to use the breathalyzer test results.

In Massachusetts, it is illegal to drive with a blood alcohol level at or higher than .08. If the alleged drunk-driver submits to a breathalyzer test – and those test results are submitted as evidence to the jury – the Commonwealth must only show that the defendant took the breath-test, and the defendant blew a .08 or higher. This “.08 Per Se” drunk driving case is the easiest and fastest way for the Commonwealth of Massachusetts to obtain a guilty verdict against an alleged drunk-driver.

No Breathalyzer Test – The Commonwealth Must Prove The Driver Was Impaired Not Drunk

In Massachusetts, if an alleged drunk-driver does not take the breathalyzer test, the Commonwealth is required to prove the defendant was operating the motor vehicle, on a public way, under the influence of alcohol. The Commonwealth is not required to prove the defendant was “drunk.” Rather, the Commonwealth of Massachusetts only requires the prosecuting attorney prove that the operator of the motor vehicle was impaired by alcohol, and that this impairment influenced the driving of the operator. Indeed, based on the drunk driving laws of Massachusetts:

the Commonwealth is not required to show that the defendant actually drove in an unsafe or erratic manner, but must prove a diminished capacity to operate safely. “
Commonwealth v. Connolly, 394 Mass. 169, 173 (1985).

American citizens have rights and liberties. We are not to be arrested without cause. We are entitled to due process. We are presumed innocent until proven guilty. The United States Constitution and the Massachusetts Declaration of Rights were created to insure the government is for the people, by the people, and of the people.

Attorney Anthony Rao, Esq. is a zealous advocate for his clients, and he is available for telephone consultations at 617-953-0836, or at his email address: Anthony@lawrao.com. He is a lifelong resident of the Commonwealth of Massachusetts, the bedrock of American democracy.

ALL ARE FREE THE SECOND TIME AROUND

For any second-time drunk driving offender in Massachusetts, there are three distinct and separate parts to the entire ordeal. There is the event itself, the court proceedings, and the aftermath. All of these three separate parts effect the defendant differently. The defendant will be better prepared to deal with each of these events if he is fully aware of what each part consists of and how to better cope with each phase.

First, there is the entirety of the events up and until the first court appearance. This includes the months, days and nights that lead up to the second offense itself. Of course, this also includes the second offense itself. The memories from that night might be very vivid for most, and for others, well, there may be no memory of the event at all. Blackout, anyone? Anyone?

Second, is the entirety of the court process itself, from your first court appearance (the arraignment), through to the verdict or plea deal. This process, at least for the majority of clients, is the most difficult. The criminal justice system is complicated. There is language used that is dense and hard to understand (even for some attorneys, hopefully not yours). There are numerous delays, continuances, and the entire process seems unfair and skewed. This perception is not incorrect and is not uncommon.

Further, during the entire court process the client has anger and resentment. This anger and resentment is aimed at numerous targets: the police; the judge; the prosecutor; the client’s own attorney; and inevitably, the client himself. Each of these separate targets becomes a part of the process, for better or worse. It is common for a defendant to blame external factors, especially in the beginning of any court proceeding. However, once the process has taken its course, and the defendant has come to terms with the events that brought him before the court, the defendant usually and correctly, takes responsibility for the events of that fateful day that brought him fully and completely into the criminal justice system.

Third, after the court process is complete and the OUI Second Offender has been found guilty or has plead guilty to OUI 2nd, the “rehabilitative” phase of the Second Offenders process begins. There are three distinct and separate parts of the “rehabilitative” process: (1) Probation; (2) Aftercare; and (3) the 2-week In-patient Rehab Program, better known as the DUIL Program, or as “hell” by some more disgruntle former clients.

PROBATION STATION (First and Last Stop)

Every defendant’s case is different. Some defendant’s have simple facts. There was no car accident. There were no injuries. No one was hurt, there was no breathalyzer tests, and there were no witnesses, besides the police officer, to the alleged “dangerous” driving. Other cases have more egregious facts, and these cases may be treated quite differently. However, for the sake of brevity, we will discuss only the most simple of cases.

Under Massachusetts Law, almost every defendant will receive the following set of terms for probation: (1) Monthly check-ins with probation, either through writing, or by the defendant’s actual appearance; (2) Monthly probation fees of approximately $90.00 per month; (3) participation in an accredited “After-Care” Program within the Commonwealth of Massachusetts; and (4) 2 Week In-Patient Rehabilitation Program, better known as DUIL. The length of the probation term for a Second Offender is 2 years from the date of the disposition of your case. In other words, if you were found guilty of OUI Second and sentenced on July 14, 2012, your probation term would end on July 14, 2014.

AFTER-CARE BEWARE

The “After-Care” Program varies from each separate organization allowed to have an “After-Care” Program within the Commonwealth. The defendant should pick a program that is close and convenient for the defendant. On average, the “After-Care” programs generally last approximately 20-weeks. The defendant is required to attend weekly group meetings that last for approximately one-hour and-a-half. These meetings substantively discuss issues relating to alcohol, alcohol-education, and issues dealing with living a sober and healthy lifestyle. Upon completion of the initial 20-week, week-to-week meetings, the defendant is required to do an exit interview with the “After-Care” Program, as well as attend once-a-month meetings for 6 months subsequent to the completion of the initial weekly group meetings and exit interview.

Finally, in regards to the “After-Care” Program, the defendant is also required to attend and complete 40 Alcoholic or Narcotic Anonymous classes before the completion of the initial 20-week “After-Care” Classes. Once all of this is complete, the defendant is no longer required to attend any further “After-Care” Classes or AA/NA meetings, and is complete with this portion of his probation.

I AM GOING TO HELL IN A BUCKET, BUT AT LEAST I AM ENJOYING THE RIDE (On Second thought, not so much): DUIL

Over the years of my practice, out of all of the questions and concerns that Second Offenders raise during the initial consultation, there is no subject that is brought up by prospective clients more than DUIL. The 2-week In-Patient program located in Tewskbury, Massachusetts, strikes the most fear in the heart of two-time OUI offenders. But what is DUIL, exactly? And what should a Second Offender expect? Besides the flames of hell, let’s try to explain. (I kid, I kid).

The Beginning. The DUIL program has strict restrictions as to what clients can and cannot bring. I will not draft an exhaustive list as to what a client cannot bring, but I will list the most important. This information has changed over the years, and it is important to make certain to review the packet that the DUIL program will send a client approximately 2 to 4 weeks before their assigned check-in date.

DUIL clients cannot take any sort of electronic device such as Ipods, Ipads, cell phones, radios, etc. Further, there is no smoking on the premises, and clients cannot take cigarettes, lighters, matches, etc. Clients are also precluded from taking any items with them that contain alcohol, such as certain hair products, and facial cleansers.

The substance of DUIL. Check-in day is a difficult day for the client, and the client’s family. The client will feel like a pseudo-prisoner, and for good reason. For all intents and purposes, the client’s liberty and freedom has been taken from them. They cannot go and do as they please. They cannot watch tv when they want to. They cannot use or have access to their cell phones. They cannot sleep in their own beds.

Clients are required to have a family member or friend drive them to DUIL. The driver must wait for the client to successfully check-in to the DUIL Program. The check-in process itself can take up to 3 hours, and it is strongly advised that the client notify the driver of this before the driver accepts this responsibility. The reason for this is simple. There are approximately 55 to 60 DUIL clients that must be processed. Clients must submit to breath tests, complete voluminous paperwork, make payment, meet with nurses, meet with staff, etc. In fact, it is one of the longest and hardest days the client will have at DUIL.

An important note: it is not entirely uncommon for individuals to be refused entry to DUIL at check-in. There are two types of reasons for someone not to succeed at check-in: (1) Medical discharge; or (2) non-medical discharge. An individual may be medically discharged if they are having issues with blood pressure, or other medical issues that are non-related to drug or alcohol use. The second, and more serious discharge for individuals on probation, relates to individuals who may be under the influence of drugs or alcohol, or have been caught attempting to bring contraband into DUIL. These clients may likely face substantial punitive measures from their probation officers, including but not limited to violation of probation and an imposition of a prison term. (At least at DUIL you can wear what you want!)

Clients are assigned to a room. You may or may not have a roommate depending upon the number of clients at DUIL during your 2-week term. There is a daily schedule that is rigorous. As part of the daily routine, clients are required to wake-up every morning at 6:30am. Breakfast is served daily at 7:30am. The remainder of the day is filled with classes, group therapy, recreational time, chore time, AA meetings, and bed time at approximately 10:30pm. There is no reading, no talking, and no lights allowed after 10:30pm. Lunch is served daily at 12:30pm, and dinner is served promptly everyday at 5:30pm.

Clients should understand that after the first week, DUIL becomes somewhat enjoyable. Clients have reported that they connect with other clients. Group therapy allows for bonding as clients share their stories, their struggles, and the issues that have brought them to DUIL. While many clients have equated DUIL to hell, many other clients have come out of DUIL stronger, wiser, and “cleansed.”

CHRIST YOU KNOW IT AIN’T EASY

As a criminal defense attorney that has handled numerous OUI Second-Offense cases, I have personally seen the trauma, and intense stress that my clients have been under. Many alleged offenders are innocent as a matter of law, and they may never have to face the issues that await them if found guilty of this crime. However, I offer this information to those of you who may find yourself in a situation that while not enviable, is what it is. One must focus on the future, and only the things they can change, and part of changing is understanding the rode that is in front of you.