First Offense OUI

First Offense OUI

Being arrested for operating under the influence can cause a tremendous disruption to your family life and employment. Whether it is a fist offense OUI or a subsequent OUI offense, you need to know your options and what to expect before you make any decision about how to handle your case.

  1. Whether the police had a valid reason to stop your car.
  2. Whether the police had a valid reason to order you out of your car.
  3. Whether any so-called field sobriety tests ("FST's") administered to you were given properly.
  4. Whether any statements made by you can be suppressed.
  5. If a breathalyzer was given, whether it was administered properly and whether the machine was properly functioning.

Things to Know About Your License:

  • If you refused to take the breath test and this is a first offense, the Registry of Motor Vehicles will suspend your license for 180 days.
  • If you have taken the breath test with a reading of .08 or above, the Registry of Motor Vehicles will take your license for 30 days.

There are no Hardship Licenses for Breath Test Refusal Suspensions.
If you refused the breath test, under the OUI statute, you are entitled to a hearing to challenge your refusal suspension. You want to take advantage of this hearing.
  • You have 15 days from the date of your arrest to appeal your license suspension.
  • The Massachusetts Registry of Motor Vehicles does not give work or daytime licenses for breath test refusal or breath test failure suspensions. You either get the license back completely or not at all.
  • The first step is at the RMV where a brief hearing is conducted. The hearing is frequently denied but it is a necessary step in the procedure.
  • Assuming the RMV denies the hearing appeal, the second step is to petition the district court where you were arraigned to reverse the Registrar's decision. (This is where your attorney has the opportunity to get your license back).
  • The appeal is somewhat technical in nature. When you were brought back to the police station after your arrest and booked, the officer or trooper is supposed to complete some forms pursuant to the procedures set forth by the police department and the Registrar. This paperwork is sometimes not completed in the proper form or not completed at all. You should not try to this appeal on your own, you need a lawyer who has experience in Massachusetts OUI laws and who knows how the Registry of Motor Vehicles works and what to look for in the forms.

 
What are Your Options?
You have 2 options when charged with OUI. You either plea/admit to the charges or you can fight the case.  If you take a plea, you will likely receive a standard first offenders disposition. Every case is different and you may receive additional conditions of probation that are not listed below.
 
The standard first offender disposition includes:
  • A continuance without a finding (CWOF) sentence. This is a non-conviction disposition. It essentially means that you are put on probation for a defined period of time. If you successfully complete this periOd, the case is dismissed. However, note that if you are charged against with OUI, even if the first case is dismissed after a CWOF, then the RMV will still treat a second arrest and disposition as a subsequent offense.
  • You will receive 1 year probation.
  • Fees and fines will be around $1,380.
  • An additional license suspension of 45-90 days. Note: A refusal suspension does not run CONCURRENT with any conviction or admission suspension.
  • You may be eligible for a hardship license, 12-hour license seven days a week. Should you decide to retain my services, I will help you get a hardship license.
  • A Commercial Drivers License (CDL) will be taken for 1 year.

If you fight your case and win, upon order of the Court your license will be restored.
 
If you fight your case and lose, the penalties will likely be the same as above. The only difference is that if you lose after trial, you will receive a conviction.

Subsequent Offender OUI Cases

Subsequent Offender OUI Cases are serious and involve a number of issues apart from a typical "OUI" case. I am experienced in handling subsequent offender OUI cases and can advise you of the risks you face with such a charge. As with any OUI case, we will go over your case from the beginning to the end. We will review a number of issues, including:

  1. If the police had a valid reason to stop you.
  2. If the police had a valid reason to ask you to perform so-called field sobriety tests ("FST's").
  3. If the FST's were administered properly by the police.
  4. If any statements made by you may be suppressed.
  5. If any breathalyzer test was administered and, if so, if it was administered properly.
  6. If there are any challenges to the breathalyzer machine.

Second Offense OUI Charges:
  • You may receive a guilty finding.
  • You may receive a jail sentence of not more than 2 1/2 years. Many judges will not impose jail time, but will order probation with the requirement that the individual complete a 14-day inpatient program. Whether jail time is likely on a second offense depends on a number of factors: the judge, the facts of the individual case, the length of time between offenses, and the overall criminal history of the individual.
  • Your license will be suspended for 2 years, with a work/education hardship considered in 1 year. If you refused the breath test your license will be suspended for three (3) years. If you have taken the breath test with a reading of .08 or above, the RMV will take your license for 30 days.

Third Offense OUI: 
 
A third offense OUI is a felony and you are facing a 15- day minimum mandatory sentence in jail. The RMV will suspend your license for eight (8) years.
  • You may receive a guilty finding.
  • You may receive a jail sentence of not less than 2 1/2 years, of which 150 days is a mandatory minimum to be served. If indicted, you may receive a jail sentence of not more than 5 years (felony status).
  • Your license may be suspended for 8 years, with a work/education hardship considered in 4 years, and a general hardship in 8 years. If you refused the breath test your license is suspended for LIFE.
  • Ignition interlock devise required under G.L. ch. 90, sec. 24 1/2.
  • A felony conviction requires the motorist to provide a DNA sample upon conviction.

Fourth Offense:
  • You may receive a guilty finding.
  • You may receive a jail sentence of not less than 2 years (1 year mandatory minimum). If indicted you may receive a jail sentence of not more than 5 years (felony status).
  • A fine of $1,500 - $25,000.
  • Your license may be suspended for 10 years, with a work/education hardship considered in 5 years and a general hardship in 8 years. If you refused the breath test your license is suspended for LIFE.
  • Ignition interlock devise required under G.L. ch. 90, sec. 24 1/2.

Fifth Offense:
  • You may receive a guilty finding (felony).
  • You may receive a jail sentence of not less than 2 1/2 years (2 year mandatory minimum). If indicted, you may receive a jail sentence of not more than 5 years (felony status).
  • A fine of $2,000 - $50,000.
  • Your license may be suspended for LIFE with no possibility of a hardship license.

Subsequent Offender Status:
 
Effective November 30, 2002, "Repeat offender" status for Drunk Driving (OUI, DUI, DWI) cases is determined in Massachusetts based on a "Lifetime Lookback". So, even if you had two OUI/DUI/DWI convictions 30 years ago, they will count against you.
 
A previous Continuance Without A Finding (CWOF) with an assignment to an alcohol education program will count as a first offense. Additionally, if you have been charged with an out-of-state offense with a Massachusetts driver's license, then you may also be treated as a subsequent offender.
 
Note: Even if a court consider you a first or second offender in a Lifetime Lookback type of situation, the RMV is not bound by the court's classification of you. For instance, if you are charged with a first offense even though you had to prior OUI convictions in Massachusetts or another state that were over 10 years old, the RMV will likely consider your conviction a third offense and suspend your license as such.