What Happens When You Get To Court?

Tue, 29 May 2007 21:19:00 GMT

License Suspension
As mentioned above, if you refuse the breath test after your OUI arrest, your license can be suspended for 120 days. If you submit to and fail the breath test by registering a reading of .08 percent (BAC), your license will suspended for 90 days. If either of these suspensions occurs, your license will be confiscated by the arresting police department and you will be provided with a temporary 15 day license. On the expiration of the 15th day, your right to operate a motor vehicle will be suspended until the conclusion of the applicable suspension.
The Arraignment
Your first appearance in court is for arraignment. At this time, the court advises each defendant exactly what is the nature of the charge and enters a plea of not guilty to that charge. Unless you've got a criminal history, with prior court defaults or some egregious activity in your arrest, it is more than likely that you will be released on your own personal recognizance to appear back at court for pretrial conference. If the District Attorney's Office is requesting a bail be posted to ensure your return to court, you will be entitled to a bail hearing. If you do not have an attorney with you at your arraignment, the court will provide an attorney for you for the limited purposes of that bail hearing.
PreTrial Conference
The pretrial conference is typically the next court date after your arraignment. It is designed as the first opportunity for a defendant and attorney to meet with the prosecutor and conduct a meaningful discussion of the case. By the time of the pretrial conference, the parties have had an opportunity to review relevant police reports and to identify if there is additional outstanding material available, pertinent to the case. The court encourages that the parties attempt to identify by the time of the pretrial conference whether a trial will be necessary for this case or if there is some possibility of resolving the case short of trial by way of a disposition. Under the current Massachusetts Criminal Court Procedures, every defendant now has a right to tender an admission or plea to the charges and request a disposition be imposed. If the court accepts this disposition, then the case can be resolved upon terms which the defendant has suggested. If the court is not inclined to accept that disposition and suggests a greater penalty, the defendant has the option of accepting that counter offer or rejecting the disposition and preserving their trial rights. If the case is not disposed of at pretrial conference, then a motion hearing date or a trial date is scheduled.
Motion Hearing
In a drunk driving case, just as any other criminal case, there are oftentimes many pretrial motions that can be filed and argued that may be dispositive of the charges against you. Motions to suppress evidence are regularly used to attempt to exclude damaging evidence against you that may have been secured by some improper action of the arresting police department. Motions to dismiss may also be filed in certain instances to achieve a dismissal of the charges against you, based on some technical violation.
Trial
Drunk driving trials are typically held in the courthouse where the pretrial dates have been conducted. In some instances if a jury trial is elected by the defendant, the case may be transferred to another courthouse, within that county, that has the facilities and jurisdiction to conduct a jury trial. A defendant in an OUI charge, pending in the district court has a right to a trial before a judge or a jury of six persons. The decision of whether to try the case before a judge or a jury is typically not made until the day of trial.
Sentencing
In the event that your case proceeds to trial and there is a verdict against you, sentencing is conducted immediately following the trial. After the jury reports their verdict and have been excused, the judge then proceeds to the sentencing phase if there is a guilty finding. The Commonwealth proceeds first and requests a specific disposition and offers reasons in support of that recommendation. Your attorney is then allowed to make a recommendation on your behalf and to provide pertinent personal and factual argument in support of that recommendation. The judge will typically enter the disposition at that time.

Can I Get My License Back Before My OUI Case Is Resolved?

Mon, 04 Jun 2007 21:51:22 GMT

In almost all OUI arrests, an operator's license is suspended at the time of arrest for either a breath test reading of .08 percent BAC or above or a refusal to submit to a chemical test. In Massachusetts, a license to operate a vehicle is viewed as a privilege not a right. It is a condition of possession of a license in Massachusetts that you submit to a chemical test if you have been arrested for OUI. If you refuse to submit to a chemical test after being arrested for OUI, or if one is taken and your blood to alcohol ratio is above the legal limit, your license will be temporarily suspended. In both categories, persons who have had their license suspended, pursuant to an OUI arrest, have a right to an immediate appeal to the RMV for the reinstatement of that license. This particular appeal deals with strictly technical issues relative to the suspension of the license by the arresting police department and the adherence by that department to the procedures the RMV requires for that suspension. A personal or professional hardship is not a legitimate reason that would allow the RMV to reinstate your license for these two categories of suspensions. It is important that you have a qualified and experienced criminal defense lawyer review all of the paperwork relative to our OUI license suspension to determine whether or not you may qualify for a reinstatement prior to disposition of your case.

Is Trial By Declaration Allowed?

Tue, 29 May 2007 21:19:00 GMT

Operators Under 21 Years Old

Tue, 29 May 2007 21:19:00 GMT

Massachusetts General Law Chap. 90, Sec. 24 provides a detailed and intricate range of penalties for operators under 21 years old charged with and/or convicted for OUI. The most significant difference between the under 21 penalties and the adult penalties is the increase in license suspension for under 21 operators. Operators under the age of 21 years old face license suspension from a minimum of 180 days to a maximum of 390 days. It is necessary to speak with an experienced and qualified criminal defense lawyer to fully understand the under 21 years old penalties available for your case.

Subsequent Offenses

Tue, 29 May 2007 21:19:00 GMT

Massachusetts General Law Chap. 90, Sec. 24 establishes a 10year period for determining subsequent offenses. The 10year period encompasses the date of the conviction or finding of the prior OUI offense to the date of arrest of the subsequent OUI offense. This 10year period creates a minimum statutory timeline for determining whether a person is charged with a second or subsequent offense OUI. Even if your subsequent OUI arrest falls outside of the 10year time frame, it is still within the deciding judge's discretion to impose penalties beyond the mandatory minimums. In any criminal case a judge will review a defendant's entire criminal history record in sentencing.

What Are Common Errors Made By Persons Arrested For Drunk Driving/OUI?

Tue, 29 May 2007 21:19:00 GMT

1. Not hiring an attorney.

Operating under the influence of alcohol is controlled by Massachusetts General Law Chap. 90, Sec. 24. It is one of the most complex and dynamic statutes in the Massachusetts General Laws. Without an experienced criminal defense lawyer, it will be virtually impossible for you to understand all of your rights, potential penalties and possible defenses relative to your case. It's not uncommon for the prosecutor at the time of your arraignment, the first appearance in court, to offer you a disposition of your matter upon an admission of sufficient facts or plea of guilty. The prosecutor will typically describe to you a disposition that includes a dismissal at the end of a year if you meet certain eligibility requirements. While this sounds like a fairly benign disposition for most persons, it fails to include information about the consequences and penalties for subsequent offenses. Typically a person arrested for drunk driving will go to their arraignment the morning after their arrest without an attorney. At that time it's not uncommon to be feeling embarrassed and wanting to dispose of this matter as quickly and as quietly as possible. This will make the prosecutor's recommendation sound quite attractive. It is critical, however, that you take time to understand every aspect of your case and possible defenses, and to speak with a qualified, experienced criminal defense lawyer before rushing into a disposition. You should never plead guilty or admit to a crime without consulting with an attorney.

2. Speaking to people other than your attorney about your OUI case.

As we've all seen on TV, over and over again, anything you say can and will be used against you in a court of law. Discussions with police officers, prosecutors, assistant district attorneys, court personnel and friends all can potentially be used against you in your case. Any of those persons can be subpoenaed by the District Attorney's Office to provide testimony in court as to your statements. Statements made to your lawyer are privileged and cannot be used against you in court. It is important that you speak only to your attorney about your case and avoid loose conversation, particularly in the halls of the courthouse, about your matter.

3. Operating a vehicle after your license has been revoked.

Almost every OUI arrest involves some sort of RMV license suspension action. When persons are arrested for drunk driving, they are requested to perform a breath test at the police station. If a person arrested for OUI refuses to perform that breath test, their license is suspended as a result of that refusal. A person's license is also suspended if he or she submits to the breath test and it registers a blood alcohol content (BAC) over the legal limit. Every sentence in an OUI case involves a RMV license suspension of some period, even up to a lifetime suspension for arrests involving serious injuries with suspects who have been convicted multiple times for drunk driving. In Massachusetts, operating a vehicle after your license has been suspended, pursuant to an OUI suspension, can trigger a penalty including a mandatory period of jail time. Do not operate any vehicle while your license is suspended.

4. Hiring the least expensive lawyer you can find.

As with every other purchase you make in life, the cost of legal representation for your OUI case can vary greatly. It is not in your best interest to hire the cheapest attorney you can find. Similarly, by hiring the highest priced attorney does not necessarily guarantee that you are getting better representation. Hiring a lawyer to represent you in your OUI case is a personal decision. You should look for a lawyer who is experienced in handling drunk driving matters and understands how the prosecutor will attempt to secure a conviction against you and how to win your case. It is important that you speak with a lawyer and be confident that he understands the evidence against you and how to present facts and circumstances that demonstrates that you are not guilty of the OUI charge. Geographic proximity to you or the courthouse where your case is pending is not necessarily a strong consideration. Almost all experienced criminal defense lawyers travel to and practice in a wide range of courts and jurisdictions throughout the Commonwealth. You should hire a lawyer that you feel confident will zealously advocate for your best interest. Make sure that the lawyer you hire is a qualified and experienced trial attorney.

What Are Field Sobriety Tests?

Tue, 29 May 2007 21:19:00 GMT

Field Sobriety Tests (FSTs) are the roadside examinations administered by the police officer in investigating whether you were operating your vehicle under the influence of alcohol. Field sobriety tests are specific tests and were developed and sponsored by the National Highway Traffic Safety Administration (NHTSA). The standardized field sobriety tests, if given in a prescribed manner, under a standardized setting, supposedly demonstrate validated indicators or cues of a person's impairment. When the tests are administered in the manner detailed by the NHTSA and an officer observes these cues, it allows him to establish probable cause to believe an operator is impaired and arrest that person for OUI. The three primary standardized field sobriety tests are:

Horizontal Gaze Nystagmus.
In the performance of this test, an officer asks a suspect to following a pen or small flashlight, tracking left to right with his eyes. A person's eyeball jerking (nystagmus) is magnified by the amount of impairment due to alcohol. This test is regularly deemed inadmissible in Massachusetts. Despite its nonevidentiary use, police officers conducting tests roadside regularly utilize this test in the formation of probable cause to place a suspect under arrest for OUI.
NineStep Walk and Turn.
The ninestep walk and turn test is a twopart examination. The first part is the instruction phase. The officer is conducting observations of the operator during the course of the instruction phase of this test. During this time, the officer is verbally instructing and physically demonstrating how he wishes this test to be performed. The operator is advised to stand still, feet together, hands at his side during the performance of the instruction phase. He is also instructed not to start the test until all of the instruction and demonstration is complete. The officer will typically make and record observations of an operator during this phase. The second phase is the performance of the test. What is required in the physical performance of the test is that the subject walk on a straight line, one foot in front of the other, touching heel to toe, keeping his arms to his side, counting the steps out loud. The subject is required to take nine steps out, articulate a turn at the end and take nine steps back in the same manner. During the performance of this test, the officer is watching for eight cues of impairment:
1. Loses balance during instruction
2. Starts test before instructions are finished
3. Stops during performance of test to steady self
4. Fails to touch heel to toe
5. Steps off of line
6. Uses arms for balance
7. Loses balance or turns improperly
8. Takes the wrong number of steps
If a suspect demonstrates two of these eight cues at any time during the performance of this test, the subject is deemed to have failed this test. This test demonstrates a 68 percent probability that the subject is under the influence of alcohol and has a BAC of .10 or more.
One Leg Stand Test.
Like the ninestep walk and turn test, the one leg stand test also is a twostage test, instruction and performance. During the instruction stage, the suspect is required to stand with his feet together and his arms at his side. The officer will verbally instruct and demonstrate the performance of this test for the subject. The performance stage of this test requires that the subject stands with one foot of their choice approximately 6 inches off the ground, straight out in front of them and counts out loud by thousands for 30 seconds. The suspect is advised not to hop on the one foot or to use his arms for balance. During this test, the officer is trained to observe for four cues of impairment:
1. Swaying while balancing
2. Using arms for balance
3. Hopping to maintain balance
4. Putting foot down before completion of test
If an officer observes two or more of the above cues, this test demonstrates a 65 percent probability that the subject has a blood alcohol content of .10 or more.
CONDITIONS
There are certain conditions, under which the tests should be administered, as required by the NHTSA. The tests are to be administered on a hard, dry, clean, nonslippery surface in a welllighted area. Tests that are administered in less than standardized conditions diminish the results which an officer might obtain. The tests that are mentioned above are the only tests that are scientifically validated for use by an officer in detecting intoxication in an operator. Oftentimes you will see or hear about tests such as touching finger to nose, picking up coins, and counting backwards being utilized by officers as field sobriety tests. There is no scientific validation for these tests and they offer little reliability for the officer to accurately detect impairment. Remember, if any element of the standardized field sobriety test is altered or compromised, then the validity and reliability of the test is compromised. These compromises work in your favor.
In Massachusetts, an operator has a right to refuse to perform field sobriety tests. By performing field sobriety tests, you are only providing evidence to the officer in forming his OUI case against you. An operator is advised to exercise their right to refuse the performance of field sobriety tests. In the typical administration of field sobriety tests, a police officer will not describe to the subject the criteria he is looking for in the performance of this test. The officer typically will not describe to the subject the various cues he is looking for. The officer typically will not describe the number of cues necessary to formulate the failure of the test by the operator. In a typical stop, the officer will ask the operator to perform several field sobriety tests. At the conclusion of those tests, the officer will inform the operator that he is placing the subject under arrest. Prior to advising the operator they are under arrest, the officer will have virtually no discussion with the operator about the performance of the tests.
Remember, everything you say and everything you do can and will be used against you in a court of law. Be smart and protect yourself.
DISCLAIMER
This FAQ is intended as an overview of basic field sobriety tests administered by local police departments as instructed by the NHTSA. The foregoing is provided for information purposes only. For a more encompassing discussion of field sobriety testing, you should consult in person with a qualified criminal defense lawyer.

What Are Some Other Regulations?

Tue, 29 May 2007 21:19:00 GMT

Open intoxicants are prohibited in the vehicle.
Unloaded firearms are permitted in the vehicle with a valid permit for handguns. Long guns may be transported through the state if they are cased and locked in the trunk.
Studded tires are permitted from November 1 to April 1.
Tire chains are permitted from November 1 to April 1.
Massachusetts has a seat belt law with secondary enforcement for all occupants.
Massachusetts has a mandatory child restraint law for passengers under 13 years of age. Adult safety belts may be used for all children.
Massachusetts has a mandatory motorcycle helmet law.
Registration and insurance card must be carried in the vehicle.

What Are The Penalties for an OUI?

Tue, 29 May 2007 21:19:00 GMT

For a first offense, typical penaliteis for for an OUI offense include a fine of not less than $500, nor more than $5,000, or imprisonment for up to 2 1/2 years, or both such fine and imprisonment. Alternatively, a person charged with an OUI may be able to enroll in an alcohol treatment program and receive an alternative senence which typically includes some form of probation and imposition of a fine.

What Can I Do To Help Win My Case?

Tue, 29 May 2007 21:19:00 GMT

Following the advice suggested in the Not Guilty! section of this site will help you prior to being arrested for OUI. After you've been arrested, there are a number of things that you can do to assist yourself in being found not guilty of the charge of drunk driving. Don't speak to the police prosecutor or assistant district attorney about your case at your arraignment. Statements made by you at this time can also be used against you in court.

You should meet with an experienced and qualified criminal defense lawyer as soon as possible after your arrest or arraignment.
Make a list of friends and acquaintances you were with prior to being arrested. It is important to identify as many potential witnesses as soon as possible, before memories begin to diminish.
Be organized. There are a lot of events taking place commencing with your arrest for OUI. You will be required to attend meetings with your lawyer, meetings with witnesses, dealing with license suspensions and preparing for court dates. Being disorganized and unprepared will greatly diminish your ability to assist your lawyer in preparing a defense of your case.

What Is In My Best Interest Going To Trial Or Plea Bargaining My Case?

Tue, 29 May 2007 21:19:00 GMT

As noted above, every OUI case is different. The strengths and weaknesses are unique to each case. Before you can make a decision on pleabargaining or taking a case to trial, it is important that your lawyer thoroughly investigate your case in order to develop as much information about both sides of the case as possible. Only after you and your lawyer have developed as much information as possible about your case, is it possible to adequately evaluate the case. The factors necessary to be understood before a decision can be made include, strengths and weaknesses of the prosecutor's case, strengths and weaknesses of your case, credibility and effect of any witnesses to testify in your behalf, and the effects of a conviction. As suggested by the term plea bargain, there is typically a reduction in disposition to a defendant who is willing to offer a guilty plea rather than force the court and prosecutor to use resources in proceeding with the trial. In an OUI case, however, it is unique, in that most times a defendant charged with first offense OUI, will receive essentially no greater penalty after trial than he or she would on a plea bargain. In this situation there is virtually no incentive to pleabargain a case, and a trial is almost always recommended.

When Can I Be Found Guilty?

Tue, 29 May 2007 21:19:00 GMT

In Massachusetts, the prosecutor must prove 3 elements to the charge of Operating Under the Influence of Alcohol.

That you are operating a vehicle
That you operated that vehicle on a public way
That you operated that vehicle on a public way while you were under the influence of alcohol.

A public way is any road or way which is typically maintained by a Public Works Department or Highway Department and to which the public has right of access to operate their vehicle. Parking lots and private ways to which the public has access as an invitee are also characterized as public ways for the purposes of the OUI charge. It is not necessary that you be operating behind the wheel of your car and actually driving for the prosecutor to prove that you are operating your vehicle. Sitting in the driver's seat parked with the engine running is sufficient to satisfy this element. Additionally, parking your car at the side of the road and turning the vehicle off but leaving the keys in the ignition is sufficient to prove the element of operation. The element of this charge that is typically in contest is whether an operator has consumed an amount of alcohol sufficient to impair his or her ability to operate their vehicle safely. It is not the prosecutor's burden to prove that the operator is drunk or that the operator was driving his car in an erratic fashion. All that is required of the prosecutor is that he prove that the operator has consumed some alcohol and the consumption has diminished the person's ability to operate a vehicle safely.

When Is A Jury Trial Allowed?

Tue, 29 May 2007 21:19:00 GMT

Speeding No
Parking No
Equipment No
DWI Yes

Will My Case Be Tried Before A Judge Or A Jury?

Tue, 29 May 2007 21:19:00 GMT

In a jury trial for an OUI charge, all six members of the jury must unanimously find you guilty, beyond a reasonable doubt, before you can be convicted of the crime. In a trial before a judge, only the judge has to find you guilty beyond a reasonable doubt before you can be convicted. Obviously you would want to have six people have to agree on your guilt rather than just the one. You are not required to elect a trial before a judge or a jury until the moment of trial. It is strictly a defendant's choice as to how he wishes to proceed as a defendant's right to a trial by jury of his peers is constitutionally protected. Every OUI case is factually unique. There may be a number of reasons why a jury waived trial before a judge may be more beneficial to a defendant than a jury trial. Your lawyer will consult with you about all the pros and cons of both types of trial before you have to elect.