BAC is only one of several methods and means by which the prosecution can attempt to prove you were legally impaired at the time of the arrest, but it is a common one. Others include a heel-to-toe walking test, reciting the alphabet, a pupil observation test known as "horizontal gaze nystagmus" test, as well as others. However, the most immediate type of test you should know about, is the Breathalyzer (or alternatively, serum blood) test.

Massachusetts is now a "per se" state. If you measure .08 or higher on a breath or blood test, the court (judge or jury) will determine you guilty, provided that the test was administered correctly and that any equipment was functioning properly. It is possible that an alcohol detection test may be disqualified as a part of the case against you. Inadequate organization of test result records, malfunction of a piece of equipment, and tests not properly administered could result in test data not being used against you. Medical and other issues could also mean that a test may not be used against you. You need a skilled attorney who knows the law regarding OUI / DUI defense prior to you admitting to anything. We specialize in challenging the reliability and veracity of Breathalyzer results. Contact us for a free consultation and we can explain more.

PENALTIES

"Melanie's Law" became effective October 29, 2005. The law now requires longer refusal periods, longer waiting periods to be granted a hardship license and requires ignition kill switches be installed after the second offense. The vehicle driver will not be able to start the vehicle if the driver's breath alcohol level is .02 or higher.

If the case results in dismissal or the court finds you not guilty, you will get your license back most likely immediately.

Penalties for loss of license increase with additional offenses. An attorney with knowledge of and experience with OUI / DUI / DWI issues may succeed in getting the level of the offense reduced, resulting in a shorter suspension.

1ST OFFENSE - ADULT

POTENTIAL SENTENCES:

• Jail: 2 ½ years maximum
• Person fined from $500 to $5,000
• Suspension of license 12 months, education/work hardship or general hardship license possible after 6 months

Possible Alternative Disposition Available – First Offender Program – Section 24D:

• Probation for 12 months, must participate in education alcohol/drugs program (client pays fees)
• Suspension of license 45 days minimum to 90 days maximum (210 days for those under 21). Hardship licenses are possible for first time offenders after intake. An option for second time offenders if first conviction or plea older than 10 years before arrest date.

MASSACHUSETTS SPECIAL PENALTIES MINORS AND UNDER 21 DRIVERS:

Penalties for those under 21 or minors in an OUI case are more strict. Refusal of a breath alcohol test results in license suspension for 3 years A zero tolerance policy is used in Massachusetts for drivers under 21 caught driving under the influence of alcohol. A result of .02 BAC is considered failing the test. This can occur after as little as one drink.

Even if the driver is under 21, prosecutors need to know all of the details of a case in order to try to prove that you are guilty. In some cases fighting charges in a court of law may result in you not having a conviction that would be on your record for the rest of your life.

OUI Arrest Under 21 in Massachusetts - Laws and Penalties

• Refusal of a Breath detection test (person younger than 21): Suspension of license 3 years
• Failure of alcohol detection test (21 and under) of .02 BAC Suspension of license
• Penalty maximum younger than 21:
  House of Corrections: 2 1/2 years;
  Fined: from $500 to $5,000
  License suspension 12 months, served consecutively with suspension for breath test failure

As you can see, the consequences of any OUI conviction on your record are significant, and many times far more so for minors. For a young person, a criminal record can impact future career opportunities, scholarships, and a host of other issues.

IMPORTANT FOR EVERY OFFENSE AFTER FIRST OFFENSE:
"SUBSEQUENT OFFENDER STATUS":

In Massachusetts, "Repeat offender" status for DUI / OUI cases is determined based upon a lifetime "look back" period. This status is used for purposes of allowing judges and courts to issue increased mandatory minimum punishment. Judges are allowed to review all of your record to:

• Increase the punishment to (to maximum levels)
• Allow the prosecution to include your prior record, though not likely that prior OUI charges will be introduced.

2ND OFFENSE

POTENTIAL SENTENCES:

• Person incarcerated: 60 days or more (30 days mandatory), up to 2.5 years
• Person fined from $600 to maximum of $10,000
• Suspension of license for 24 months, education/work hardship considered after 12 months, general hardship considered after 18 months
• Hardship licenses requires that an ignition kill switch be installed for 2 years or longer. The vehicle driver will not be able to start the vehicle if the driver's breath alcohol level is .02 or higher.
• Exceptions if prior offense took place more than 10 years previous may apply.

Alternative Disposition Possibility:

• 24 months probation
• 2 week treatment program (confined) paid by defendant
• Suspended license 24 months, education/work hardship considered after 12 months, general hardship after 18 months
• Hardship licenses requires that an ignition kill switch be installed for 2 years or longer. The vehicle driver will not be able to start the vehicle if the driver's breath alcohol level is .02 or higher.
• Exceptions if prior offense took place more than 10 years previous may apply.

3RD OFFENSE

• Person incarcerated: 180 days or more (150 days mandatory), up to 5 years, in state facility (felony)
• Incarceration may occur in treatment program in corrections facility
• Person fined $1,000-$15,000
• Suspension of license not less than 8 years, education/work hardship considered after 24 months, general hardship after 4 years
• Vehicle seized, sold, or kept by the Commonwealth
• Hardship licenses requires that an ignition kill switch be installed for 2 years or longer. The vehicle driver will not be able to start the vehicle if the driver's breath alcohol level is .02 or higher.

4TH OFFENSE:

• Person incarcerated: Not less than 24 months (Minimum 12 months Mandatory), no greater than 5 years, in State facility (Felony status)
• Person fined $1,500-$25,000
• Suspension of person's license for no less than 10 years, education/work hardship potentially after 5 years, option for general hardship after 8 years
• Hardship licenses requires that an ignition kill switch be installed for 2 years or longer. The vehicle driver will not be able to start the vehicle if the driver's breath alcohol level is .02 or higher.

5TH OFFENSE

• Corrections Facility: 2.5 years or more (Minimum Mandatory of 24 months), maximum of 5 years, in State facility (Felony Status)
• Person fined $2,000-$50,000
• Loss of License for remainder of, hardship not possible

FEES, REINSTATEMENT OF LICENSE (WHEN REINSTATEMENT ALLOWED)

• Following 1st offense $500.00
• Following two offenses $700.00
• Following three offenses $1,200.00