How Is A DUI/DWI Defined Under Massachusetts State Law?
In Massachusetts it’s actually OUI—operating under the influence. That distinction is important, because many activities other than driving still qualify as “operating” a motor vehicle. Operation is any action that makes use of any mechanical or electrical device that alone or in sequence with other devices could set the vehicle in motion. In effect, putting the key in the ignition, even just to turn on the heat or the lights, is OUI. Additionally, the definition of intoxication is a BAC above .08 (lower thresholds exist if under 21 or driving a commercial vehicle) OR impaired ability to drive. So, a smaller amount of alcohol or any drug can still qualify if the police judge you to be impaired. I am simplifying a bit when I say “drugs” because the definition there is complicated. It includes some substances not normally classified as controlled substances under state law (such as glue vapors), but excludes some that are normally controlled substances under state law (especially certain prescription medications, if they are not also controlled substances under federal law). Finally, the operation must be on a public way or a place accessible to the public. A public street would always qualify, a business’s parking lot would almost always qualify but there might be exceptions if it’s a business not generally open to the public; your own driveway might not.
What Are The Top Misconceptions People Have About Being Arrested For DUI/DWI When They Speak With You About Their Case?
OUI is a common charge among people who have never been arrested or had any contact with the criminal justice system before, so a lot of the misconceptions people have are misconceptions about the criminal justice system in general. For some more on that, click here.
Probably the most common misconception about OUI specifically is what will happen to you. For a first offense you will probably not go to jail or permanently lose your license. The most common result for a first offender is a continuance without a finding (which is an admission to sufficient facts to prove guilt, but does not show up on your criminal record for most purposes, like a guilty plea would), a year of probation, a 45-90-day loss of license (210 days if under 21), and a driver alcohol education course. More serious penalties are possible, but this penalty is pretty common unless there are aggravating factors such as injury or property damage, leaving the scene, or very serious intoxication. However, second offenses, third offenses, and so on potentially carry much more serious penalties including mandatory minimum jail times for third offenses and beyond.
A lot of people are confused by the legalization of marijuana in Massachusetts. It is still a crime to drive under the influence of marijuana. It can be hard for the government to prove these cases because there is not a breathalyzer or a blood test like there is for alcohol, but the arresting officer can still testify to any impairment she or he observed.
There has been a lot of litigation recently over the validity of the state’s breathalyzers. But I expect any breathalyzer test done by the time you are reading this will be valid, unless new issues arise, so don’t count on getting that thrown out. And even without the breathalyzer, the police can still testify to any observed impairment.
Portable breath tests are also a source of confusion. The test the officer carries around is a preliminary test, and you do not lose your license for refusing it. However, if you are asked to take the chemical breath test and refuse, your license will be suspended for at least 180 days (maybe longer depending on your age and prior record).
What Are Some Common Mistakes People Make Once They Have Been Arrested And Before They Go To Court That Can Hurt Their Case?
Talking to the police. If you’ve been arrested or are suspected of a crime, don’t talk to the police. Telling them you only had two beers is still admitting that you’ve had alcohol, which they might not be able to prove without your admission. Whether to consent to the chemical breathalyzer is more complicated, because you lose your license for a longer period of time for refusing than you would for the most common plea on a first OUI (180 days if you are over 21 and have never had a prior OUI or refused a breathalyzer before). For many people, a criminal record is worse than an administrative loss of license, so this is a tougher choice. But remember, this is only about the actual chemical breathalyzer at the police station. Refusing the field sobriety tests (“FSTs”) or the portable breath test does not result in a license suspension. Consenting to any kind of search or any other kind of testing, such as the FSTs or portable breath test, is generally a bad idea.
Is Someone’s License Immediately Confiscated When They Are Arrested On DUI Charges?
If you fail the chemical breathalyzer test, the officer will immediately take your license and it will automatically be suspended for 30 days (longer for subsequent offenses or if you are under 21). And in reality longer than this since you have to see a hearing officer to get it reinstated. If you refuse the breathalyzer, it is 180 days (again, longer if under 21 or you have a prior OUI). There are hardship license available, assuming you meet the stringent criteria set by the RMV. There must be no evidence of driving during the suspension, you must be a first offender (or second offender with more than 10 years since the first), enroll in the required alcohol education program, and prove the hardship and the lack of appropriate public transportation, and if it is your second offense, install an ignition interlock device.
For more information on OUI Charges In The State Of Massachusetts, an initial case evaluation is your next best step. Get the information and legal answers you are seeking by calling today.