Drunk Driving

Written by Chris Uhl
The information contained herein is only to inform the public and does not create an attorney client relationship with the reader. You should always consult an attorney when seeking legal advice.

You just hear those words and you begin to fear for yourself and your family members. Even the drunk drivers fear the words "Drunk Driving" because today it is a real crime with stiff penalties upon conviction. Mothers Against Drunk Driving (MADD) has the political clout to change the laws. Beware! Do not drive between the hours of 11PM and 3AM because this is when over ninety-percent of the offenders are arrested.

In America you are supposed to be innocent until proven guilty because this is the law of our forefathers. Today, the media depicts the accused as guilty until proven innocent. This is done with drunk driving, the crime of the time. The crime is not really drunk driving or driving while drinking. The crime is operating under the influence, OUI. A person does not have to be drunk, but unable to operate their vehicle safely if required to do so after consuming some amount of alcohol. This is what the judge tells the jury every day all across Massachusetts. What does it mean, exactly? I suggest it means different things to different jurors. Ten years ago, drunk driving was not taken seriously. Today it is considered a major crime by the criminal justice system. The tough OUI laws took effect on Memorial Day weekend 1994. The look back provision of the law was only six years without stiff penalties.

Today upon a first time OUI conviction within ten years, the penalties are guilty, forty-five to ninety days additional drivers license loss, one year probation and completion of the Massachusetts General Law (MGL) 90-24d program. If you choose not to do the program, the penalty is a fine and one-year additional license loss. The court fees, probation and program fees total about one thousand six hundred dollars ($1,600). This does not take into account the additional costs of car insurance and a six-hundred dollar ($600) fee to the registry for your license reinstatement. A few beers can be very expensive, if you are stopped.

Upon a second conviction within ten years, the penalties are guilty, one year additional license loss, one-year probation and completion of the in-patient 14-day program. The in-patient program is an allowed alternative sentence in the MGL. The statutory sentence is a minimum of 30 days committed in the house of correction. Some judges, one in Worcester District Court in particular who happens to be a former prosecutor, follow the 30-day committed sentence rigorously on every second offense OUI. The court fees, probation and program fees are all more expensive than the first offense fees.

Upon a third conviction within ten years, the penalties are guilty, two years additional license loss, six months in the house of correction with a mandatory minimum of 120 days to serve. You cannot get out a day earlier than the 120 days from jail. You have the option while in jail to do the intensive 90-day in-patient program. Any other conviction beyond the third is mandatory jail time up to and including 5 years in a state penitentiary. The only problem is this is where experienced defendants reach different results. Why, you ask? These defendants know the system, and how to beat it.

The Supreme Judicial Court (SJC) through numerous decisions on OUI cases allow an accused individual certain rights protected by the fifth amendment to the U.S. Constitution and the Massachusetts Declaration of Rights. Some first- and second-offense OUI defendants perform the field sobriety tests and take the Breathalyzer (BT). Third offenders and beyond know to refuse everything, because it is in their best interest at trial. No evidence! No conviction! There is no penalty to you for refusing the field sobriety tests, except that you may be arrested. This is most likely going to happen anyway, even if you perform the tests, as a result of the vehicle stop.

If you do the field sobriety tests, you supply evidence against yourself, which can and will be used in a court of law. If you are arrested, you are taken to the police station to be booked. This is where the police ask you to take a BT. Failure to take the BT will result in an automatic minimum 120-day license suspension, which can be considerably more if this is not your first offense. The law becomes very technical and intricate at this point. Only an experienced attorney can decipher the legal mumbo jumbo for you.

While much has been done to stiffen the penalties of OUI, very little has been done to fix the legal loopholes that allow the multi-offenders to escape conviction.

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