I receive similar questions frequently when talking to clients and prospective clients. Here are some of the most common questions and concerns you probably have if you’ve been arrested and are not sure what to do next.
If you give me a call, I can answer other questions and give you some additional details that may apply to you specifically.
If I plead guilty to a DUI in Massachusetts, what kind of penalties am I facing?
For a First Offense OUI plea, I can usually get the DA to agree to the minimum penalty allowed by law, which is a Continuation without a Finding (CWOF) agreement, a mandatory 16 week Alcohol Education Program (2 hours, once a week), a 12 month unsupervised probation, and a number of fines, I have a full page of information about pleading guilty here. In the case of a Second (2nd) Offense OUI plea, you’ll be required to enter a 2 week inpatient alcohol program. If you are facing a 3rd offense, there is a mandatory 5 month jail term. I have a full list of potential OUI Penalties. In the case of multiple offenses (third of more), it makes sense to try to beat the charges at trial, unless the DA is willing to offer you a 2nd offense plea deal, which isn’t likely unless they have a very weak case.
How do I decide if I should try to fight my Mass DUI arrest?
There are a lot of factors to weigh. Consult with your attorney to consider the pros and cons and how they apply to your situation, and read up on the details of a Massachusetts OUI plea agreement, as well as what happens if you fight the case.
I failed my breathalyzer test. Can I still fight and win a DUI trial?
Yes, we can although the case may be more difficult. The Massachusetts Supreme Judicial court recently ruled that breath test evidence does not require expert testimony to establish the validity of the testing, which was a disappointing ruling.
However, there are still options that are available, not the least of which is giving the prosecution every opportunity to screw up their evidentiary procedures so the breathalyzer evidence will be excluded. This happens more often than you might think, and a good defense lawyer like myself will know how to capitalize on any such errors, where an inexperienced attorney might not challenge the DA.
In some cases, we may need to get a breath test machine expert to analyze the machines logs and find some errors in the machine, maintenance, or police procedures. This area of Massachusetts DUI defense can be particularly tricky, call me to discuss the details of your situation.
What should I look for in hiring a lawyer to defend me?
The most important thing is for your OUI defense lawyer to have the right experience. Experience in criminal defense. Experience with lots and lots of OUI cases. Ask him or her how many cases they defend each year, and what percentage of their business is OUI defense.
Some defense lawyers claim that it is important to be a former prosecutor, but I disagree. Being a prosecutor is very different than being a defense lawyer. The prosecutor has a presumption of respectability, the presumption of being on the side of the law. The prosecuting DA also has the vast resources of the government on his side, and has an army of police officers to do his investigative work.
Defense lawyers, on the other hand, are not instantly regarded with respect by a jury. A good defense lawyer needs to win the jury over, be like-able and convince the jury that his client is a good person just like them. He must tell a story where each jury member can consider what it would be like to be in the shoes of the defendant. These skills require specific experience to hone.
In addition to defense jury skills, the attorney must know Massachusetts OUI laws backwards and forwards to afford the defendant every advantage. Ask good questions about any prospective attorneys experience, how they stay current on OUI law, defense techniques, and what kind of specific training they have had. For example, here are some details on my OUI and legal training.
Can I get my previous OUI conviction expunged from the record or sealed?
It is possible, but not easy. You’ll need to speak with a lawyer who has a lot of direct experience with expungement. In most cases, the conviction with have to be at least ten years old.
As far as having your record sealed, that is also possible, but not usually a good idea. If you have your record sealed, it will show up has having been sealed. Having a sealed record may make people thing there is something far worse there than an OUI conviction!
I have an old, out of state DUI conviction. Does that count as a prior OUI offense in Massachusetts?
Yes. However, it’s possible the state and DA prosecuting the case may not be aware of it, or may not be able to prove it. Records in these matters are often incomplete.
If they offer you a deal on a first offense, they can’t come back later to determine that they should have charged you with a second. But if you are arrested again in the future, is still possible that old priors can come back to haunt you. I’ve had clients with two previous “1st offense” convictions, who’ve faced a third offense (and mandatory jail time).
The Officer said I failed my field sobriety test, but I have a medical condition that affected my balance. Can that help me fight the OUI charge?
Absolutely. I will subpoena any medical records you have that show a condition that could have been a factor in the test. There are many physical conditions that can affect your balance, as well as medication you may take, and past and chronic injuries to your back, legs, knees, or feet. Any of these factors makes you a bad candidate for field sobriety tests and can seriously discount claims and evidence that you were impaired by alcohol, which lead to your OUI arrest.
I was arrested in Massachusetts for a DUI, but I live out of state. What do I need to know?
You’ll have to face the charges here in Massachusetts, and you’ll need to have a Massachusetts lawyer represent you. I’m sure it can be difficult to get here, especially for multiple court dates, but it will be necessary in most cases. As far as license suspension considerations, if you have an out of state license, a suspension in Massachusetts will affect your drivers license, although official notification is sometimes imperfect. Call me for details.
I’ve represented clients in Mass DWI cases who live in New Hampshire, Rhode Island, Maine, Connecticut, New York, Vermont, New Jersey, Florida, and many other states.
If you’ve got an old Massachusetts DUI charge that was never resolved, I can help you clear it up with the courts and get your license back.
I have a DUI charge in another state. Is my Massachusetts License suspended?
Probably, yes. As an administrative body, the Massachusetts Registry of Motor Vehicles generally treats drunk driving charges in other states the same as they would if you were arrested and charged in Massachusetts.
So if you refuse an out of state breath test, you’d be facing a suspension. If you have been convicted, you will also generally face a suspension, and will have to complete the equivalent steps to be eligible for either license reinstatement or a hardship license. This may include alcohol education classes, or an interlock device for a second offense.
How much is the license reinstatement fee from the Massachusetts Registry of Motor Vehicles (RMV)?
The fees to get your license back after an OUI are:
- First Offense $500.00
- Second Offense $700.00
- Third Offense $1,000.00
Note that in a 2nd or 3rd offense license reinstatement, as of 1/1/06 you are required to get a ignition interlock breath device on your car for 2 years or more, which will add significant additional fees and hassle to your life. This is true even if your OUI happened well before Melanie’s Law was instituted. Unfortunately, the Registry is interpreting the law that anyone who is trying to get their license reinstated after an OUI suspension must comply with this new law.
What is a Dangerousness Hearing?
A dangerousness hearing occasionally happens in Massachusetts felony OUI cases (3rd offense or greater), particularly if there is an accident or other serious circumstances.
It is a type of bail hearing where the DA argues that the defendant should be held in jail without bail until the case is resolved on the grounds that the defendant is a “danger to society”. Unfortunately, you will usually be held in jail until the issue is resolved.
The legal standard for establishing dangerousness is unspecific, and the decision usually just depends on the opinion of the judge.
What Happens in a Dismissal?
If your OUI case is dismissed by a judge, that is a good thing. However, there are two kinds of dismissals.
A dismissal without prejudice means that the judge believes that the facts against you as currently presented do not justify a prosecution. However, if the prosecutor gets additional facts and evidence against you, they may re-file the case against you, and start over.
Most of the time, this doesn’t happen. District Attorneys have a big caseload, and usually aren’t inclined to go through the effort to gather additional evidence in an OUI case, unless it is easy for them to do, or if the facts of the case are serious enough that they feel obligated to make the extra effort
If a case is dismissed with prejudice, that basically means the charges against you can’t be re-filed, barring some extraordinary legal maneuvering.
I was stopped based on a 911 call. Is that legal?
It depends. Under Massachusetts law, the police can’t stop your car based solely on information from an anonymous phone call. They have to observe you violating some traffic law to pull you over.
If it was not an anonymous call, then that person is a witness in the case. If your OUI case goes to trial, that witness will have to appear in court and testify to whatever driving behavior they saw.
Sometimes civilian witnesses without any other connection to you other than being on the road at the same time, fail to show up in court (even when summoned). If the witness does not appear, then the prosecutor can’t legally establish a legitimate basis for the police to stop you, then the case should get dismissed.
Can I be Charged with an OUI in a Boat?
Yes, you can. The rules of operating under the influence are the same for any motorized vehicle, including a boat. You can’t operate any watercraft in Massachusetts while impaired with a BAC over .08%.
And it can affect your regular driver’s license as well, so these cases get complicated.
As is noted in this article, there is no driver’s license in Massachusetts, so an OUI conviction and license suspension won’t prevent you from legally driving a boat in most circumstances.
Call Russell Matson’s cell phone to talk to an attorney anytime at (781) 380-7730.