Drunk Driving / OUI / DWI

“Drunk Driving.” “DWI.” “OUI.” “DUI.”

Whatever you call it, it sounds awful.  It feels awful.  It’s embarrassing.  And it’s traumatic.

You were pulled over, humiliated on the side of the road, and arrested.

You wonder who saw you. You worry about who will find out, how the arrest will affect your work, what your family and friends will think.

If it will cost you your job.

If you will get suspended or kicked out of school.

In Massachusetts the courts call it “Operating Under the Influence.”  Most of the people charged with Operating Under the Influence in Massachusetts have never been arrested before, never even set foot in a police station or courtroom before. And most never will again.

The whole experience is foreign and can be frightening. Even the language used by the police, lawyers, judges and others you have to interact with is strange.

“Operating Under the Influence.” “Arraignment.” “Probable Cause.” “Reasonable Suspicion.” “CWOF.” “Admission to Sufficient Facts.” “Colloquy.” “BAT.” “FST.” “HGN.”

It is easy for those of us who defend these cases all the time to forget how absolutely NOT ROUTINE the experience is for you. And how scared, angry, and frustrated you can feel.

This is the most important thing for you to remember about your OUI case, and the most important advice to start out with:

Important thing:  You are a unique individual who is different from every other person in the world.  Your priorities, needs, fears, wishes, and responsibilities are uniquely yours. Your case is different from every other OUI case.  No other case has had the combination of facts, people, circumstances, and impact that yours has. It doesn’t matter what happened in someone else’s case, or what someone else told you about your case.

Important advice:  Get a lawyer who knows what they are doing, has lots of experience, and who will listen to your story and get to know who you are. Don’t try to figure this out yourself.

The basic information about OUI cases is easy to find.

There is a lot of information on the internet about OUI cases.  Lots of lawyers have information about the charge on their websites.  If you have been charged with OUI, you are now a “defendant” in a criminal case, and it makes sense to educate yourself.

– You can see the potential penalties for operating under the influence in Massachusetts here.

– The instruction that jurors are given, about what the government has to prove to find you guilty, is here.  (Don’t read this and decide you can be your own lawyer. That is a terrible idea. But you can get an idea about how an OUI charge has to be proven.)  Basically, the prosecutor has to prove beyond a reasonable doubt that:

  • You operated a motor vehicle;
  • On a public way;
  • While you were under the influence of intoxicating liquor.

These three elements of the offense seem simple, but can actually be pretty complicated.  The particular details of your case are important.

For example:

“Operation” includes any act that engages the mechanical or electrical system of your car or truck.  So if you are sitting with the key in the ignition, listening to the radio, with the engine off, you are “operating.”

A “public way” can include the parking lot of a business, or another place the public “has access to”.

It is important to know, also, that “under the influence” doesn’t necessarily mean drunk.  If your ability to safely operate the car was affected in any way by alcohol, you could be found to have been under the influence.

If it is your first time being charged with OUI, like most folks, there are a few things you should know right off the bat:

  1. You most likely aren’t going to jail, unless you are already on probation for something else, have a prior criminal record, or there was an accident and someone else was seriously hurt or killed.
  2. Very few people will know or find out about this. Its not big news for the rest of the world.
  3. Yes, your driver’s license is in jeopardy, and already may be suspended for a period of time if you refused or failed a breath test. But if getting your license back is the most important thing to you, it is possible to get it back very quickly, much sooner than the end of the suspension you may have right now.
  4. The case against you is probably not nearly as hopeless, or as good, as you think. Even a failed breath test is not the end of the world. But things you said to the police may come back to haunt you. Because of the stress, frustration and fear you were experiencing at the side of the road and when you were arrested, you are probably the least qualified person to assess your case.
  5. The police report is not evidence. A jury doesn’t see it. What is written in the police report may not sound to you like it has much to do with what really happened. That isn’t unusual, to be honest. But the police officer will have to testify live, in person, at a trial. He can’t just read his report. He will get cross-examined by your lawyer. There may be other sources of information that will show inaccuracies in the officer’s report, and his memory. Don’t read the report and give up. Lawyers look at police reports very differently than you do.
  6. There can be a lot of unexpected consequences of an OUI charge, depending upon how it is resolved. If you are found not guilty at trial or the case is dismissed by a judge, of course, you have nothing to worry about. But if you are found guilty, or if you plead guilty, or if the case is Continued Without A Finding, there may be what we call “collateral consequences” of the disposition. Simply, the OUI case can affect other, unexpected, areas of your life, from your right to own firearms, to your ability to participate in children’s school events, even your ability to travel outside the United States. And some of these consequences can be forever. There are lots of potential consequences that may or may not apply to you. You need to know before you make any decisions about how to proceed with your case.
  7. OUI cases are not simple. And they aren’t inexpensive. Even if you just want to resolve it as soon as possible and accept the consequences, you need to be represented by someone who knows what he or she is doing. (See the last paragraph above. ) If you want to assert your right to a trial and fight the charge, you will want a lawyer who has experience and training in OUI cases. A lawyer who can answer all your questions, and who can advise you about the things you don’t even know to ask about. Someone will always be willing to take your case for less money. Always. But you wouldn’t choose your doctor that way. Don’t choose your lawyer that way, either. The reality is, you get what you pay for.

So, if you’ve been charged with OUI in Massachusetts, here’s what you should do:

  1. Don’t jump to conclusions about how good or bad your case is.
  2. Educate yourself.
  3. Get help, right away.  Hire a good criminal defense lawyer with experience in OUI cases.

Leaving the Scene of an Accident

Leaving the Scene of An Accident after Personal Injury or Property Damage

Elements of Leaving the Scene

To prove the charge of Leaving the Scene of Personal or Property Injury the Commonwealth must prove that the defendant (1) operated a motor vehicle, (2) on a public way within the Commonwealth, (3) that the defendant was involved in an accident involving injury to property or to a person, (4) that he or she knew he was involved in an accident, (5) and that he or she left the scene without stopping to provide name, address, and registration.  This charge can be brought in cases ranging from minor fender-benders to true hit-and-runs.

Strict Penalties

Police, judges, and district attorneys have very little tolerance for people who leave the scene of an accident.  The police demonstrate this by making uncharitable assumptions about the knowledge and intentions of anyone they suspect of having left the scene of an accident.  The district attorney demonstrates this by asking for bail in cases where the ordinary reasons for doing so are absent, or asking for more bail than usual.

The potential penalty for a conviction on a charge of leaving the scene ranges from two weeks to two yeas in jail, along with a fine, and a 60 day license suspension.  Where the accident caused personal injury, the penalty carries a minimum of six months in jail.

Defending the Charge of Leaving the Scene

Fighting a leaving the scene charge is often an uphill battle, but when the police make uncharitable assumptions they also increase the chances of getting the story twisted.  Working in your favor is the fact that the events giving rise a charge of leaving the scene usually occur out in the open where there are people watching and video cameras rolling.  The sooner you contact an attorney, the more of this evidence can be found and preserved to help present a defense.

Steps You Need to Take Immediately

Ordinarily, when someone is charged with a misdemeanor offense, not constituting a breach of the peace, and for which the person is not placed under arrest, that person is entitled to a hearing before a Magistrate. A Magistrate’s hearing can be a crucial tool because it gives the defendant a chance to ask that the court exercise its discretion, and dismiss the case before it ever shows up on any public records.

There is, however, an exception to that rule in cases where the defendant receives a citation (ticket) for the offense. A ticket can list civil offenses (like speeding), criminal offenses (like negligent operation of a motor vehicle, or leaving the scene of property damage), or both. The back of the ticket explains, in very small print, how to request a hearing on the charges listed on the front.

If an officer has charged you with a criminal offense by handing you a citation, it is crucial that you mail the citation in immediately, as described on the back of the ticket, and request a hearing on all charges. Failure to do so in a timely manner could forever deprive you of very important rights.

If you are charged with leaving the scene, contact me immediately to discuss strategies for defending your case and to avoid losing your license.

Possession of Controlled Substances

Drugs that are illegal to possess in Massachusetts are classified into five categories, and each category carries different penalties for possession of those substances.

What Does “Possession” Mean?

To prove you guilty of possession of a controlled substance, the government must prove that you had the substance in your “possession, custody or control.”  Maybe the best explanation of what this means is the instruction that judges give jurors at trials in which the possession of something is an element of the charge against them.

The Massachusetts jury instruction for the proof of “Possession”:

“What does it mean to “possess” something? A person obviously
“possesses” something if he (she) has direct physical control or custody of
it at a given time. In that sense, you possess whatever you have in your
pocket or purse right now.

However, the law does not require that someone necessarily have
actual physical custody of an object to “possess” it. An object is
considered to be in a person’s possession without physical custody if he
(she) has:

• knowledge of the object,
• the ability to exercise control over that object, either directly or
through another person, and
• the intent to exercise control over the object .

For example, the law considers you to be in possession of things
which you keep in your bureau drawer at home, or in a safe deposit box at your bank.

Whether the defendant possessed is something that you
must determine from all the facts and any reasonable inferences that you
can draw from the facts. However, I caution you to remember that merely
being present in the vicinity of a , even if one knows that it is
there, does not amount to possession.

Neither is possession proved simply because the
defendant was associated with a person who controlled the motor vehicle
or the property where was found.

To show possession, there must be evidence justifying a conclusion
that the defendant had knowledge of the controlled substance coupled with the ability
and the intent to exercise control over the . Only then may the
defendant be considered to have possessed the controlled substance.”


Controlled Substance Classification in Massachusetts.

Massachusetts classifies controlled substances on a 5 tier, A through E scale.

Class A – Some examples of class A drugs are heroin, morphine, codeine, or ketamine, although other drugs are listed as class A. These drugs are considered to be the most dangerous of controlled substances and carry the harshest possession penalties.

Class B – While not classified as dangerous as class A drugs, class B drugs are still considered very dangerous and the possession of these drugs will carry harsh penalties. Drugs considered to be class B are cocaine, crack, PCP, LSD, or amphetamines.

Class C – Class C drugs will carry less harsh penalties than classes A or B, and these drugs include mescaline, diazepam, or peyote.

Class D – Class D drugs are considered to be less dangerous on the controlled substance scale, and this class includes marijuana, hashish, or any drug containing THC as its psychoactive component.

Class E – Class E drugs include prescription medication, and if a person is found not to have a prescription for the class E drugs they are in possession of they may face criminal drug possession charges.

Each class of controlled substances carries its own penalties for possession. Class A drug possession holds the harshest penalties for even small amounts of the drug, while the penalties incurred for possessing classes D or E drugs are much lower.


Penalties for Controlled Substance Possession.

Class A – The possession of a class A substance will come with a period of incarceration of up to 2 years in jail for a first time offense, and these penalties can go as high as 5 years in prison for subsequent offenses. These charges may also come with potential fines that go as high as $2,000, or $5,000 if the drug in question is heroin.

Class B – A first time offender may receive up to a year in jail, while those with past convictions could face 2 years in jail. These charges may also come along with fines.

Class C – Possession of a class C substance in the state of Massachusetts is similar to possession of a class B substance in terms of penalties. Often, a first time offender will face up to a year in jail as well as fines, while the penalties will grow with subsequent offenses.

Class D – Marijuana laws have changed recently, making the possession of marijuana for recreational use legal.  Go here to see the laws about marijuana possession.

Class E – Possession of a class E substance in the state of Massachusetts may result in a misdemeanor charge as well as probation and/or a fine.

Special Case: Possession Of Heroin in Massachusetts.

Heroin possession carries some of the weightiest penalties in the state of Massachusetts. Although a class A drug, heroin possession and other heroin related charges will often carry penalties harsher than those for other Class A substances.

A first time offender facing heroin possession charges may be forced to pay a fine of up to $2,000 as well as a 2 year prison sentence.

For subsequent charges, a convicted person could then face up to 5 years in prison as well as a fine of up to $5,000. Also, while the possession of other classes of drugs will often come with a misdemeanor charge, heroin possession is more likely to be considered a felony.

Special Case: Knowingly Being Present Where Heroin is Kept.

Knowingly being present where heroin is kept is a misdemeanor under Massachusetts General Laws Chapter 94C Section 35. You can be convicted of this crime if the District Attorney proves beyond a reasonable doubt either:

  • That you knew you were at a place where heroin was kept or deposited; or
  • That you were with another person who you knew to be in possession of heroin.

It is not a crime to be present where drugs other than heroin are present, even if you are aware of it. For example, it is not a crime to knowingly be present where marijuana is kept, stored or even grown. This is because the legislature considers heroin use or sale to be so dangerous and destructive that merely being around the drug should be a crime.

Drug Trafficking

Drug Trafficking & Distribution

Selling and distribution of illegal drugs or prohibited substances is a crime at both state and federal levels. Persons charged with drug trafficking and distribution face serious penalties, including sentencing, fines and loss of freedom. It is essential to get an experienced Criminal Defense Lawyer to help you fight for your rights and freedom if you are charged with this type of criminal activity.

Drug Trafficking & Distribution Laws

In the state of Massachusetts, the possession or trafficking of drugs or narcotics is defined as the possession of the drugs with an intention to distribute them, or the actual distribution of drugs or narcotics. You would be charged either with possession or trafficking, depending on how much of those illegal drugs you possessed and whether you had any drug distribution paraphernalia in your possession.

In a trial, the prosecutor needs to prove several elements beyond a reasonable doubt. All elements of the drug possession and the amount of drugs that were charged in the indictment must be proven. Drug trafficking is the most serious of all drug crimes in Massachusetts and they have a mandatory minimum prison sentence that a convicted person must serve before they can get a parole.

The three most frequent types of drug possession and trafficking in this state are:

  • Marijuana
  • Cocaine
  • Heroin

About Drug Dealing Laws in Massachusetts

Drug possession is a serious crime in Massachusetts and it is dealt with harshly. Trafficking is an even greater crime, with harsher punishments. If a person is convicted for the illegal possession of a prescription drug, they can be sentenced to jail for up to one year and be fined $1,000.

Someone who is found in possession of heroin will get two years in jail and a fine of up to $2,000. Possession of the last of these three prohibited drugs, marijuana, will land a convicted person with up to six months in jail and a fine up to $500.

Sentencing for Trafficking in Massachusetts

Drug Trafficking in Massachusetts is a Class D Felony. If you are convicted of this criminal offense, you could receive a serious sentencing:

  • 2.5 to 15 years in prison if you are found guilty of trafficking 50 pounds or more of the drug. You may also face another 1 to 2.5 years in the county jail; a one year sentence is mandatory.
  • 3 to 15 years in state prison is the sentence for trafficking 100 pounds but less than 2,000 pounds. There is a minimum three year sentence for an offense of this magnitude.
  • 5 to 15 years in state prison is the sentence for trafficking 2,000 to 9,999 pounds. The minimum sentence required is five years.

Drug Trafficking for cocaine in Massachusetts is more serious than a conviction for trafficking marijuana. It is a Class B Felony. For a conviction, the following sentences apply:

  • For up to 14 grams but less than 28 grams of cocaine, you get 5 to 20 years in prison; there is a five year minimum sentence.
  • For up to 28 grams but less than 100 grams, there is a sentence of 10 to 20 years in prison; the minimum sentence is 10 years.
  • For up to 100 grams but less than 200 grams, 10 to 20 years in prison; 10 years minimum sentence.

Anyone convicted for trafficking heroin in Massachusetts will be charged with a Class A Felony.

  • 14 grams but less than 28 grams of heroin gets you up to 20 years, with five mandatory years in prison.
  • 28 grams but less than 100 grams will bring 20 years in prison and a seven year minimum sentence.
  • 100 grams but less than 200 grams is a 20 year prison sentence with 10 year minimum sentence.

Defense for Drug Trafficking Charges

The best defenses are created by experienced Drug Trafficking Criminal Defense Attorneys. They use multiple defenses to protect their clients and create defenses customized for each case and client.

In many drug trafficking cases, the person charged with this crime is merely a mule or agent, and that this type of participant was not the target of legislators who imposed mandatory sentences for controlled substances. When the lawyer is familiar with the court systems, judges, prosecutors and other factors, they may use a mule defense to benefit their client.

New laws and rulings also affect the defense strategy used by Criminal Defense Attorneys. They understand any ambiguity in mandatory minimum sentencing. They can argue a defense that there is no tie to a larger organization, no violence or weaponry was used and cite other factors to help strengthen your defense case. They will call in reliable resources and expert witnesses to support your defense case.

An experienced drug trafficking lawyer will use many strategies to circumvent or avoid minimum mandatory prison sentences. Some claims in this area include challenging the admissibility of any state evidence. Medical records are usually protected, but if used for prosecution of drug trafficking, there could be a potential error there to exploit in your defense. Lawyers always are watching for any violation of constitutional rights.

Other challenges are based on search and seizure tactics. If there were violations here, that evidence could be suppressed. Entrapment is another possible defense argument if a suspect was persuaded to commit a crime by undercover agents. The lawyer will also present effective cross examinations of government witnesses, to try to show motivations and lack of credibility.

Drunk Driving Penalties in Massachusetts

License Suspensions for a Breath Test failure:

Age of DriverLicense Suspension
21+ (BT limit .08)30 days
Under 21 (BT limit .02)30 days + 180 Days under Junior Operator Law (unless proof of entry into Youth Alcohol Program which eliminates 180 day susp.)
Under 18 (BT limit .02)1 year under Junior Operator Law (unless proof of entry into Youth Alcohol Program which reduces suspension to 180 days)

License Suspensions for Refusing to Take the Breath Test:

Age of DriverNumber of Prior OUIsSuspension Period
21+None180 days
13 years
25 years
3 or morelifetime
Under 21none3 years
13 years
25 years
3 or morelifetime
Under 18none1 year
AnyPrior OUI with serious bodily injury10 years
Prior vehicular homicide involving alcohollifetime

DWI/OUI Sentences:

First Offense

– A jail term of up to 2 1/2 years House of Correction;
and/or
– Fines from $500-$5,000;
and
– Your license suspended for 1 year.

“Alternative Disposition”,  (This is the most common disposition.)
– 45 – 90 day license suspension, hardship license available after 3 business days, if you qualify (if under 21, suspension is 210 days);
and
– Mandatory alcohol education class (16 weeks);
and
Probation for not more than 2 years.

You can expect to be assessed fines and fees in the neighborhood of $700.00.

Second Offense

– A jail term of not less than 30 days, not more then 2 1/2 years;
and/or
– Fines from $600-$10,000;
and
-Your license suspended for 2 years – work & education hardship considered in 12 months; general hardship in 18 months. No hardship license will be granted for 3 additional years if your refused the breath test;
and
– 2 Years Probation;
and
– 14 day in-patient alcohol treatment program;
and
– An interlock device is installed in your car for 2 years*.

*The Ignition Interlock Requirement: Anyone who has 2 or more OUI convictions and goes to the Registry to have his or her license reinstated must have an ignition interlock device installed in their car for 2 years. This device requires you to blow into it and register a BAC of under .02 or the vehicle will not start. You will pay an installation fee and a monthly rental fee for this device.

Third Offense

– A mandatory jail term of not less than 150 days, up to 5 years in State Prison;
and
– Fines of $1,000-$15,000;
and
– The state may seize and sell your vehicle;
and
– License suspended for 8 years, work/education hardship considered in 2 years (no hardship license for 5 additional years if you refused the breath test); general hardship in 4 years.

Fourth Offense

– A jail term of not less than 2 years, of which you must serve 1 mandatory year, not more than 5 years in State Prison;
and
– Fine $1,500-$25,000;
and
– License suspended for 10 years, work/education hardship considered in 5 years; general hardship in 8 years.

Fifth Offense

– A jail term of not less than 2 1/2 years (24 mos. minimum mandatory), not more than 5 years in State Prison;
and
– Fine $2,000-$50,000;
and
– License suspended for life, no possibility of hardship.