JON A. CIRAULO, P.C.
A Professional Corporation Serving Clients Across the Commonwealth
Operating Under the Influence of Alcohol
OUI / DUI / DWI Defense
AN OUI CONVICTION CAN HAVE
SEVERE, LONG-LASTING CONSEQUENCES
An Attorney Experienced in Defending Operating Under the Influence (OUI / DUI / DWI) Cases Can Challenge the State of the Evidence Against You, Exclude from Your Trial the Most Damaging of the Evidence Against You, and Fight to Get You A Not Guilty.
FUNDAMENTAL CONSTITUTIONAL PRINCIPLES
THAT GOVERN YOUR CASE
In the Commonwealth of Massachusetts, an investigating officer need only develop probable cause to believe that you were operating under the influence of alcohol before he or she is legally authorized to place you under arrest. Probable cause is a minimal threshold standard and, therefore, OUI arrests are quite common.
Before you can be convicted of the charged offense however, the burden is on the Commonwealth (the Prosecution) to prove to a jury of your peers that you are guilty beyond a reasonable doubt.
There are three fundamental principles that function as the backbone to our system of justice:
(1) Burden of Proof: The burden of proof is on the Commonwealth. You do not have to prove your innocence. The burden of proof never shifts to you.
(2) Presumption of Innocence: You are presumed to be innocent and remain innocent unless and until the Commonwealth proves that you are guilty beyond a reasonable doubt.
(3) Proof Beyond a Reasonable Doubt: At trial, the judge will instruct the jury that you must not be convicted of any criminal offense unless and until the Commonwealth has produced evidence that creates in the minds of the jurors an abiding conviction to a moral certainty that you are guilty of the charged offense. If the jury is not so convinced, you must be found not guilty. The jury’s verdict must be unanimous.
ELEMENTS OF AN OUI CASE
The burden of proof falls on the Commonwealth to prove each of the following elements of the offense beyond a reasonable doubt:
(1) Operation of a Motor Vehicle: That is, evidence that you were driving the vehicle or that you intentionally manipulated some mechanical or electrical part of the vehicle which, alone or in sequence, would set the vehicle in motion.
(2) Public Way: That is, evidence that the street or highway on which you were operating was open to the public and controlled / maintained by some level of government.
(3) Intoxication: That is, some evidence that, while operating the vehicle on a public way, you were under the influence of alcohol. A person is said to be under the influence of alcohol if they have consumed enough alcohol such that their ability to operate a motor vehicle safely was decreased as a result of the consumption of alcohol and / or drugs.
DEFENSES TO AN OUI CASE
While many attorneys may recommend pleading to the charge of OUI, there are specific and effective ways to challenge each of the above enumerated elements of the offense. In evaluating your case, Attorney Ciraulo will have these legal principles in mind:
(1) Motion to Suppress the Stop: The investigating officer must have a reasonable suspicion, based on specific and articulable facts, that you are engaged in illegal activity before he or she may pull you over. In addition, the investigating officer must have the legal authority (jurisdiction) to pull you over. If the stop of your car was made without the requisite reasonable suspicion or was conducted by an officer who did not have the legal authority to do so, any evidence against you must be suppressed.
(2) Motion to Suppress the Exit Order: The investigating officer must have reasonable suspicion, based on specific and articulable facts, that you are engaged in illegal activity before he or she may order you out of the car. If the exit order was made without the requisite reasonable suspicion, any evidence against you must be suppressed.
(3) Motion to Suppress Statements: Any statements you may have made during the course of a custodial interrogation cannot be used against you at trial if those statements were made without first being advised of your Miranda Warnings.
(4) Observations of Intoxication: Often times, the investigating officer will rely on an odor of alcohol, bloodshot / glassy eyes, slurred / slow speech, and unsteadiness when formulating his or her opinion relative to intoxication. Each of the observations, however, carry with them numerous innocuous explanations. First, an investigating cannot determine, based on the odor of alcohol alone, when, what kind, or how many alcoholic beverages you may have consumed. In addition, many environmental factors including, fatigue, smoking, allergies, air bag dust, etc. can cause bloodshot and glassy eyes. Furthermore, slurred and slow speech is not necessarily indicative of intoxication; particularly where the investigating officer has never heard your voice and / or your speech patterns. Lastly, unsteadiness on ones’ feet can be attributed to pre-existing injury, acute injury due to a motor vehicle accident, or some other physical / biological deficit.
(5) Field Sobriety Tests: The National Highway Traffic Safety Administration has authored the manual now used to train police officers in the administration of so-called Standardized Field Sobriety Tests. Often times, the officer administering the test will deviate from the standardized format. Such deviations may render the results of the test, and thus, his or her opinion of your performance, unreliable. In addition, the circumstances under which these SFSTs were performed is critical in evaluating your performance. Police officers are trained in a comfortable, well lit, controlled environment such as a classroom. Chances are, you were asked to perform the tests late at night, along the roadside, with minimal lighting, and with at least one police officer standing before you - dressed in full uniform, badge and firearm displayed, and the flashing lights of the cruiser in the background. “Failing” the SFSTs does not mean you were under the influence of alcohol.
(6) Breath Test / Breathalyzer: If you have been arrested for the offense of operating under the influence of alcohol, it is likely that the officer asked that you submit to the administration of a Breath Test / Breathalyzer. The Safe Roads Regulations, as codified in 501 CMR 2.00 et seq. outline for the Police Departments the manner in which a breath test must be administered. In addition, M.G.L. c. 263 § 5A, M.G.L. c. 90 § 24(1)(e), M.G.L. c. 90 § (1)(f), M.G.L. c. 90 § 24K, Commonwealth v. Barbeau, 411 Mass. 782 (1992), Commonwealth v. Sabourin, 48 Mass.App.Ct. 505 (2000), Commonwealth vs. Pierre, 72 Mass. App. Ct. 230 (2008), Commonwealth v. Frazier, 25 Mass. L. Rep. 507 (2009), Commonwealth v. Steele, 455 Mass. 209 (2009), and Commonwealth v. Colturi, 448 Mass. 809 (2007) set out a series of prerequisites that must be satisfied before the results of a breath test may be admitted as evidence against you. Perhaps most importantly, a breath test cannot be administered to you nor may the results be admitted as evidence against you unless the Commonwealth proves that you offered voluntarily consent prior to its administration. “Failing” the Breath Test / Breathalyzer does not mean that you will be found guilty. It is critical that a seasoned and knowledgeable attorney review all of the documentation from the arresting agency as well as the Office of Alcohol Testing before you make any decisions regarding your case.
(7) Blood Alcohol Level: If you were transported to the hospital prior to your arrest, it is possible that the police obtained from your person a quantity of blood and that the blood was then tested to determine your blood alcohol level. Before the results of this blood test may be used as evidence against you, the Commonwealth - the Prosecution - must establish that you offered free and voluntary consent to have your blood drawn and tested for alcohol concentration. In the alternative, the Commonwealth must establish that your blood was drawn for medical purposes. That is, the Commonwealth must present evidence that the blood test was related to a specific treatment or diagnosis or that blood tests are standard procedure in that facility for the type of medical problem presented. Commonwealth v. Sargent, 24 Mass. App. Ct. 657, 660-661 (1987). The burden is on the Commonwealth to demonstrate both that your blood was drawn for medical purposes and that the hospital / individual who drew the blood was not in any way assisting law enforcement. Furthermore, the burden is on the Commonwealth to establish the admissibility requirements set forth in 501 CMR 2.00 et seq., M.G.L. c. 90 § 24(1)(e), M.G.L. c. 90 § 24K, the “Department of State Police Office of Alcohol Testing Regulations for Blood Analysts,” and the Massachusetts State Police “Procedures for Processing the Arrested Person at a Medical Facility for an OUI Alcohol Arrest.” It is critical that a seasoned and knowledgeable attorney review all of the documentation from the Hospital / Treating Facility as well as the arresting agency before you make any decisions regarding your case.
YOUR RIGHTS WHEN STOPPED FOR OUI
Keep in mind that it is always important to be polite, calm, and courteous when interacting with the police. Also keep in mind that you have an absolute right to refuse to answer any questions and that you cannot be compelled to participate in either Field Sobriety Tests, the Breath Test / Breathalyzer, and / or the Drawing of Your Blood.
OUI / DUI / DWI PENALTIES AND LICENSE LOSS
After you are placed under arrest with the offense of Operating Under the Influence of Alcohol, you will be asked to consent to the administration of a breath test. This test is administered to determine your Blood Alcohol Concentration or BAC. While there exist numerous challenges to the admissibility and reliability of breath test results (as outlined above) and while the period of license suspension for a breath test failure (as opposed to a breath test refusal) is far less severe, in almost all instances it is not in your best interest to participate in the test.
LOSS OF LICENSE / LICENSE REVOCATION FOR BREATH TEST FAILURE
The period of license loss / license revocation for a breath test failure (.08 or greater) is thirty (30 days) irrespective of your age.
LOSS OF LICENSE / LICENSE REVOCATION FOR BREATH TEST REFUSAL
The period of license loss / license revocation for a breath test refusal depends on whether you have previously been convicted or admitted sufficient facts operating under the influence in Massachusetts or in another state.
The breath test refusal suspensions may be summarized as follows:
- First Offense: 180 Days (3 years if you are under the age of 21)
- Second Offense: 3 Years (3 years if you are under the age of 21)
- Third Offense: 5 Years (5 years if you are under the age of 21)
- Fourth or Greater Offense: Lifetime (Lifetime if you are under the age of 21)
You may be able to challenge or appeal the license loss / revocation if you file your appeal promptly (within 15 days) and do so appropriately. There are however only three issues that can be challenged in such an appeal hearing:
- The arresting officer did not have probable cause to arrest;
- You were not placed under arrest; or
- You did not refuse the test.
Any other claims will be rejected by the Registry of Motor Vehicles.
In most instances, the loss of license / license revocation for a breath test refusal revocation is vacated upon either a "Dismissal" of the case or a "Not Guilty" verdict. If your right to operate a motor vehicle in Massachusetts has been suspended as a result of a refusal to participate in the breath test and your case resolves with either a "Dismissal" or a "Not Guilty," your right to operate may be restored only by filing with the Court the appropriate motion(s) under M.G.L. c. 90 s. 24(1)(f)(1). It is important that this motion is both properly and timely filed as the failure to do so may result in you being barred from reinstatement and thereafter serving the entire period of revocation.
PENALTIES AND LOSS OF LICENSE / LICENSE REVOCATION FOR OUI CONVICTIONS
Maximum First Offense Penalties:
•A jail term of not more than 2 1/2 years in the House of Correction.
•Fines and Fees from $500 to $5,000.
•License suspended for 1 year.
Alternative Disposition – First Offense:
•Probation for 1 year.
•Participate and Complete the 24D Alcohol Education Program.
•Fines and Fees from $500 to $5,000.
•License suspended for 45 to 90 days or 210 days for drivers under age 21.
-You must Participate in and Complete the Court Assigned Alcohol Education Program
•Eligible for hardship license within three business days from disposition.
Maximum Second Offense Penalties:
•A jail term of not less than 60 days (30 day minimum mandatory) and not more than 2 1/2 years.
•Fines and Fees from $600 to $10,000.
•License Suspended for 2 years.
Alternative Disposition – Second Offense:
•Probation for 2 years.
•Participate and Complete the 14 Day In-Patient Alcohol Treatment Program.
•Fines and Fees from $600 to $10,000.
•License Suspended for 2 years.
•Eligible for hardship at 1 year.
•Mandatory Inter-lock Device installed in your vehicle upon reinstatement of your license (two years).
Third Offense Penalties – Felony OUI / DUI / DWI:
•A jail term of not less than 180 days (150 days minimum mandatory) and not more than 2 1/2 years in the House of Correction. Maximum penalty of 5 years in State Prison should your case be indicted to Superior Court.
•Fines and Fees from $1,000 to $15,000.
•License suspended for 8 years.
•Eligible for hardship at 4 years.
Fourth Offense Penalties – Felony OUI / DUI / DWI:
•A jail term of not less than 2 years (1 year minimum mandatory) and not more than 2 1/2 years in the House of Correction. Maximum penalty of 5 years in State Prison should your case be indicted to Superior Court.
•Fines and Fees from $1,500 to $25,000
•License suspended for 10 years.
•Eligible for hardship at 5 years.
Fifth Offense Penalty - Felony OUI / DUI / DWI:
•A jail term of not less than 2 1/2 years (2 year minimum mandatory). Maximum penalty of 5 years in State Prison should your case be indicted to Superior Court.
•Fines and Fees from $2,000 to $50,000
•License suspended for life.
•Not eligible for hardship.