Legal language, terminology & jargon can be very confusing and overwhelming to understand. If you are facing a drunk driving criminal charge, you are already under enough pressure. You need an attorney who will listen to you and answer your questions in plain English.
I treat all my clients with the utmost respect and sympathy. My job is to be a strong advocate for you, and part of that is making sure you understand everything, so you can make an informed decision about what is best for you.
The following are some common terms used in Massachusetts Operating Under the Influence (OUI) and other criminal cases. If you have a specific question about anything not covered here, feel free to give me a call at (781) 380-7730 and I’ll be happy to answer your question. I provide free consultations over the phone to anyone who calls.
Russell Matson, Attorney at Law
OUI / DUI / Drunk Driving & Criminal Defense
Legal Terms Common in Massachusetts DUI Cases
24D Disposition – A legal status given to OUI Convictions more that 10 years old, allowing a 2nd offense OUI to be treated as a first offender with a 1st offense penalty. if the motion is allowed by the judge. Also known as a “second chance” on a second offense. See my 2nd offense OUI page for more details.
Alcohol Education Program – One of the required penalties of a Massachusetts OUI conviction is an alcohol education program. 1st Offenders must take a 16 week course, while those found guilty of a second (2nd) offense must participate in a 2 week inpatient program. There are also some accelerated first offense programs available.
Alphabet Test – A field sobriety “test” consisting of reciting the alphabet, backwards or forwards from different start and stop points. Not considered an accurate or scientific test.
Appeal – You have a right to appeal a guilty finding in an OUI within 30 days of your conviction. OUI Appeals are a specialized area of the law, and you must find legal grounds, such as a mistake by a lawyer or judge on which to base an appeal.
Arraignment – The first court appearance after an arrest is the arraignment, where the charges are formally read, and you plead not guilty. It is usually the first business day after your arrest.
Arrest – The process of being taken into custody and charged with a crime. After being arrested for an OUI, you will usually be eligible for release in a few hours. Your car will be towed if you were stopped on the road.
Blood Alcohol Content/Level (BAC) – The amount of alcohol in your bloodstream. The legal limit is .08% in Massachusetts and most states. For someone under 21, the legal limit is .02%.
Blood Test – A test to measure your BAC by taking your blood, usually done in a hospital. You do not have to agree to give blood for such a test, and in most case should not agree to do so.
Breath Test – A test to supposedly measure your BAC (BrAC), usually done at a police station. Frequently referred to as a “breathalyzer” machine, although technically most actual breath test machines used in Massachusetts Police stations are Draeger Alcotest models (7110 MKIII-C). You do not have to agree to blow into a breath machine, and in most cases should not agree to do so. Also see my breath test machine info page.
Some police jurisdictions also use roadside portable breath test (PBT) devices, but these are not admissible as evidence in court.
Cross Examination – a cross-examination in an OUI defense trial is the process of challenging the evidence presented by a prosecution witness, typically a police officer in these cases.
CWOF (Continuance Without a Finding) – A common outcome of an OUI plea. A CWOF is not technically the same as a guilty plea. You do not admit that you did anything wrong, but agree that there is sufficient evidence to find you guilty. If you get in trouble again, a Continuance/Continuation Without a Finding will be used against you as a prior offense. However, you can truthfully say that you have never been convicted of a crime.
Dangerousness Hearing – A procedural hearing to determine if someone is a continuing danger to public safety, and should be held in jail until his or her case is resolved in court. In Massachusetts OUI cases, this occasionally happens in multiple offense cases, if the prosecution believes the defendant will continue to drink and drive.
Direct Examination – In the case of a defense lawyer, a favorable witness we call (or the defendant himself in some cases) would be subject to a direct examination. The prosecutor would then be allowed to cross-examine the witness.
Dismissal – If your OUI is dismissed, that usually means the case is over, and you’ve won without having to go to trial. The judge may dismiss your case at motion hearing if there is evidence that your rights were violated during the stop of the vehicle, or a host of other reasons, if the evidence again you is weak. The judge can dismiss a case with prejudice, which means the DA can’t re-file the case against you, or without prejudice, which means the DA can chose to re-file and try again to convict you. In most Massachusetts OUI/DUI cases, even a dismissal without prejudice will stand, since as a practical matter, prosecuting DA’s are not eager to start over with a case that may be weak to begin with. However, they are free to so and may, especially if it is a multiple offense.
District Attorney – The prosecuting lawyer works for the District Attorney’s (DA) office of the county in which the court resides. Technically, the lawyer working for the state is usually a low level assistant district attorney in Massachusetts OUI cases.
Drug Recognition Expert (DRE) – In cases of Operating Under The Influence of Drugs (OUI-Drugs), the Commonwealth must bring in a Drug Recognition Expert, or DRE, to establish that an substance suspected of imparing the defendant is a controlled substance. Under Melendez-Diaz, that person, typically a forensic scientist paid by the state, must certifty and testify in court about any analysis he or she performed in the lab to determine that the substance was on the controlled substance list in Massachusetts.
Exculpatory Evidence – Evidence that the District Attorney may possess that could establish your innocence.
Field Sobriety Tests – Various roadside exercises used to supposedly test whether or not you are impaired. You must agree to perform any such tests, and in most cases you should not agree to perform them.
Finger to Nose Test – A commonly administered field sobriety test. Not considered very accurate or scientific in determining alcohol impairment.
Hardship License – In the case of an OUI, a hardship license is available to those found guilty (or CWOF) for the purpose of getting to work. It allows you to drive for 12 hours a day, 7 days a week during the time of your license suspension. Also known as a Cinderella license, limited license, or work license.
Horizontal Gaze Nystagmus (HGN) – A field Sobriety Test that Massachusetts Courts have declared to be non-scientific, and can’t be used as evidence to prove that you were impaired in Massachusetts Courts. The test involves the officer shining a light in your your eyes and watching for involuntary eye movements. Police officers may still do perform the horizontal gaze nystagmus as part of their judgment in whether or not to arrest you, but it is irrelevant in court and can’t be mentioned.