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.

 

 

 

 

 

Second Offenders Guide To Life After The Second Offense: It Takes Two to Make A Thing Go Right.

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.