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Q. What is the difference between OUI, DUI and DWI?

A. None. Different states use different terminology. Massachusetts employs the term OUI, which is an abbreviation for “operating under the influence.” Other states use either DUI, which stands for “driving under the influence” or DWI, signifying “driving while intoxicated.” They are all generically known as drunk driving.

Q. Is it illegal to drink and then drive? Does a person have to be drunk to be convicted?

A. No. It is not a crime in Massachusetts to consume alcohol and operate a motor vehicle. The conduct becomes criminal when someone is "under the influence." A person does not have to be drunk or unconscious to be “under the influence” of alcohol. Someone is “under the influence” whenever that person has consumed enough alcohol to reduce his or her ability to operate a motor vehicle safely.

The purpose of the statute is to protect the public from any driver whose alertness, judgment and ability to respond promptly have been lessened by alcohol. This would include someone who is drunk, but it would also include anyone who has consumed enough alcohol to reduce that person’s mental clarity, self-control and reflexes, and thereby left that person with a reduced ability to drive safely. The amount of alcohol necessary to do this may vary from person to person. The government is not required to prove that the defendant actually drove in an unsafe or erratic manner, but it must prove that alcohol had diminished the defendant’s capacity or ability to drive safely.

Q. What does the government have to actually prove to convict an accused of the crime of OUI?

A. In Massachusetts, the government must prove three things beyond a reasonable doubt to prove a defendant guilty of OUI. First, that the defendant operated a motor vehicle. Second, that the defendant did so on a public way, or in a place where the public has a right of access, or in a place where members of the public have access as invitees or licensees. Third, that the defendant was operating the vehicle under the influence of intoxicating liquor, or with a .08% or greater blood alcohol level.

Q. Will my driver’s license be suspended if either I refuse to take the Breathalyzer test or fail it?

A. Yes. A person in Massachusetts cannot be compelled by a police officer to submit to a Breathalyzer test and can decline to take the test. However, for drivers over the age of 21, the administrative license suspension for refusing a chemical test are as follows: 180 days if there are no prior OUI convictions; 3 years if there is one prior OUI conviction; 5 years if there are two prior OUI convictions; and lifetime if there are three or more prior OUI convictions. A continuance without a finding (“CWOF”) on a first offense will be counted by the Registry of Motor Vehicles as a conviction for purposes of calculating this administrative suspension. Unlike the criminal OUI statute, there is no “second chance” to be deemed a first offender when a single prior is outside of ten years. Additionally, there is a 10-year license suspension for a refusal of a prior offender where an accident results in serious bodily injury and a lifetime license suspension for a refusal of a prior offender where an accident results in death. Refusal suspensions shall run consecutively, and not concurrently, with any other suspensions related to conviction or assignment to a program. A refusal to take the chemical test, however, cannot be used against a defendant at trial.

If an OUI arrestee takes and fails the test, meaning that the test results yield a blood alcohol level (BAC) finding of .08% or greater, there will be an administrative license suspension for 30 days or until the conclusion of the criminal case, whichever is shorter. It does not matter what number OUI offense it is. BAC is a term used to describe the level of alcohol in the bloodstream of a person arrested for drunk driving. It is used in court as evidence of that offense. The most common method of determining BAC is through a breath test, although blood and urine testing is also done.

The allowance of a 15-day temporary license has been eliminated. The operator’s vehicle will also be impounded for 12 hours in the case of either a chemical test refusal or failure.

Q. Are the driver’s license suspensions more severe for a person under 21?

A. Yes. It is important to remember in the first instance that it is illegal for a person under 21 to consume alcohol in Massachusetts. Therefore, the BAC level for an operator under the age of 21 is .02% or greater, much less than the .08% standard used for persons over 21. Significantly longer administrative license suspensions are imposed for chemical test refusals or failures as well as for the disposition or conviction of an OUI offense. Additionally, there are two different categories of suspensions and requirements, those that apply to operators under the age of 18 and those that apply to operators ages 18 to 21.

Q. How is the driver’s license suspension for failing or refusing the Breathalyzer test different from the license suspension following a criminal disposition or conviction?

A. The length of the suspensions will likely be different. More significant are the potential criminal penalties if the suspended driver gets caught operating a motor vehicle during the specific suspension. If a defendant operates while suspended for a chemical test refusal or failure, new criminal charges that are separate and distinct from the original OUI charge are taken and incarceration is possible, but not required, if convicted of the new offense. However, if a defendant operates while either suspended as a result of a criminal OUI conviction or a continuance without a finding and assignment to a 24D alcohol program, new and separate criminal charges will be brought and, however, there is a minimum mandatory sentence of incarceration for conviction.

Q. Is it possible to challenge the reliability of Breathalyzer test results?

A. Yes, though this is usually a complicated and difficult process. The use of a breath test is by far the most popular scientific method for establishing that drunk driving has occurred. Some defendants, however, have been able to challenge the results of such tests in court, thereby preventing a conviction. Breathalyzer evidence may be attacked on a number of grounds, including lack of certification and/or incompetence of the tester, lack of certification and/or accuracy of the machine, failure to follow proper maintenance/cleaning/testing procedures of the machine, etc. The investigation to determine whether there might a basis for attacking the test almost always occurs in the pretrial stage of the case by use of discovery and motion practice. It is also recommended in some instances to retain an expert witness, usually a scientist and at significant expense, to testify as to the scientific methodology and flaws of the test as it specifically applies to the particular defendant and the circumstances.

Q. What happens if I refused the field sobriety tests?

A. A Massachusetts police officer is not required to inform a person that he or she may refuse to take field sobriety tests unless asked. However, in contrast to a Breathalyzer refusal, the motorist’s driver’s license will not be suspended for declining to take field sobriety tests. Moreover, the refusal cannot be used against the accused person at trial.

Q. Are the criminal penalties greater for an OUI offense that involves an accident?

A. The government zealously prosecutes all OUI cases. Notwithstanding, it is customary that an offense that results in property damage or bodily injury to another incurs a greater amount of scrutiny and more aggressive prosecution. It is noted that drunk driving offenses are, in the vast majority, victimless crimes. In instances where victims or family members suffer alleged physical, emotional or financial loss due to the alleged criminal actions of an accused OUI offender, the government will almost always more so aggressively prosecute the case and seek greater criminal penalties. The court is also usually more so inclined to impose a greater criminal sentence in these cases. The Registry of Motor Vehicles will additionally impose an increased 10-year administrative license suspension for a Breathalyzer refusal of a prior offender where an accident results in serious bodily injury, and a lifetime license suspension for a Breathalyzer refusal of a prior offender where an accident results in death.

Q. Will I be able to get a hardship license?

A. Hardship licenses are called by many different names: driving privileges, limited licenses, Cinderella licenses, 7-to-7 licenses, day licenses and work licenses. They are all the same thing. If a defendant on a first offense pleads out or presumably is found guilty after a trial and gets a 24D disposition, the defendant can usually get an immediate hardship license. To get the hardship, the defendant must enroll in the 24D program (meaning the defendant must go to the initial evaluation meeting at the program) and bring a letter from the program with any evidence of hardship to the RMV and the defendant will usually get the license automatically. The license will be good seven days per week for an identical 12-hour period. If the person drops out of the program, it will be revoked.

The hardship license will trump all suspensions related to a chemical test refusal (the failure suspension automatically terminates on disposition anyway). The new Massachusetts statute relating to hardship licenses was legislatively enacted on July 3, 2003. The hardship is retroactive to the date of disposition, meaning that if someone admits or is convicted after the (7/3/03) effective date, they can get the hardship, even if the offense occurred before the enactment of the statute. The hardship is also available to second offenders who receive a 24D disposition because the prior offense was more than 10 years ago, though there are no hardships for repeat offenders during the suspension for a chemical test refusal.

Q. What should I know about Melanie’s Law?

A. The highly controversial “Melanie’s Law” was passed by the Massachusetts legislature on October 28, 2005 and became effective as of January 3, 2006. Its purpose is to enhance the penalties and administrative sanctions for OUI offenders. The new law allows certified court records to be introduced to prove prior OUI convictions and doubles minimum mandatory sentences for motor vehicle manslaughter to 5 years in drunken driving cases. Anyone convicted of OUI with a suspended license faces a mandatory minimum 1 year incarceration.

The law also significantly requires second or subsequent offenders who are eligible for a hardship license or license reinstatement to have an Ignition Interlocking Device installed in any vehicle they own, lease or operate (including an employer’s vehicle) at the driver’s expense. The devices are intended to prevent ignition if the driver is drunk. A driver with a hardship license must use the device for the entire life of the hardship license and for 2 additional years after the license has been reinstated. If a repeat OUI offender is eligible for license reinstatement, the Ignition Interlocking Device will be required for 2 years. This 2-year period is mandatory, even if the device was used with a hardship license. A driver who has received a suspension of 5 years or longer for a chemical test refusal will be required to have a device for the balance of the chemical test refusal suspension period if a court orders an early reinstatement. Installation of the Ignition Interlocking Device is a mandatory condition of the issuance of a hardship license or of license reinstatement. Once the device is installed, a driver will be required to pass a breath test before starting the vehicle. Any blood alcohol reading greater than .02 will prevent the vehicle from starting. The driver must return to the vendor every 30 days to upload and transfer data from the device to the Registry of Motor Vehicles. Failure to comply with the Ignition Interlocking Device requirements under the law will result in a license revocation from 10 years to life.

Arguably, the single most significant and far-reaching consequence of Melanie’s Law is the drastically increased license suspensions for “repeat” offenders who refuse the Breathalyzer. Several examples of this are illustrated above within the FAQ entitled “Will my driver’s license be suspended if either I refuse to take the Breathalyzer test or fail it?” Some other notable provisions of Melanie’s Law include:

  • Imposition of a 10-year license suspension for refusal of repeat offenders where an accident results in serious bodily injury, and a lifetime suspension for refusal of repeat offenders where an accident results in death.
  • Elimination of the 15-day temporary license immediately given to drivers after their license is suspended for the Breathalyzer refusal.
  • Mandatory 12-hour vehicle impoundment for drivers who refuse or fail the Breathalyzer.
  • Creation of a new crime of manslaughter by motor vehicle committed by any driver while operating a motor vehicle while under the influence of alcohol or drugs.
  • Increased length of license suspension from 10 years to a minimum of 15 years for a conviction of motor vehicle homicide.
  • Creation of a new child endangerment by OUI offense when an alleged drunk driver is transporting a child 14 years of age or younger.
  • Incarceration for tampering with an Ignition Interlocking Device.
  • Mandatory lifetime license revocation for anyone who has previously been convicted of an OUI resulting in death and who is convicted again for OUI.
  • Mandatory alcohol assessment for anyone with a blood alcohol level of .15% or higher.
  • Increased penalties for knowingly allowing someone under a license suspension for OUI to use an automobile.
  • Allows the Registry of Motor Vehicles to cancel the registration plates of anyone convicted of a third or subsequent alcohol-related driving offense for the duration of the suspension period.
  • Allows a District Attorney to seek forfeiture of a motor vehicle for any defendant convicted of a fourth or subsequent alcohol-related driving offense.