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Operating While License Suspended for OUI

Operating with a License that is Suspended from an Operating Under the Influence Conviction (OAS for OUI)

In Massachusetts, under MGL c. 90 s. 23, operating with a license that is suspended due to an OUI charge carries a minimum mandatory jail sentence of 60 days, up to the following potential penalties:

2 1/2 years in jail
1 year license loss (mandatory)
$1,000 fine (minimum) up to $10,000 fine

If you are charged with this offense, it is very important that we review your case as soon as possible. We have represented clients who have been improperly charged under this statute, and as a result we were able to convince the prosecutors to drop the charge. A review of your full criminal record, and more importantly your RMV driving record, is critical. The reason for your underlying license suspension must be the statutory suspension from the court. That means that if, at the time you were charged with this new offense of operating with a suspended license for OUI, your license was suspended for refusal to take the breath test, failing the breath test, or any other administrative RMV suspension, you cannot be convicted under this statute, and the charge should be amended to simple operating with a suspended license. This is very significant, as it takes a mandatory jail sentence off the table.

Operating Under the Influence while License is Suspended for Prior Operating Under the Influence

If you are charged with OUI while your license was suspended for a prior OUI charge, you face a minimum mandatory 1 year jail sentence up to the following potential penalties:

2 1/2 years in jail
$2,500 fine (minimum) up to $10,000 fine
1 year license loss (mandatory)

In order to be convicted under this paragraph, the prosecution must prove that your license was suspended specifically for the prior OUI, and not for some other offense from the court or an administrative suspension from the RMV. Further, the prosecution must prove that you were under the influence of alcohol or drugs, and overcome all of the obstacles they face in OUI cases.

Unlicensed Operation

Operating Without Being Licensed

While driving can be fun, it is also highly regulated through statutes in the Commonwealth. Operating without a proper license is a criminal offense in the Commonwealth of Massachusetts. According to Gordon v. Bedard, the purpose of the statute was to make roads safer and assure that those operating on the roadways are qualified to do so. Gordon v. Bedard, 265 Mass. 408 (1929). If you operate without a license, you are considered to act negligently and are a potential danger to the public safety.

If you have operated a vehicle without being licensed or unknowingly let your license expire and have been charged with this offense, we are here to help.

Who can be charged with this offense?

To be guilty of this offense, the individual must operate a motor vehicle on a road which is dedicated to public use, as a highway, private roads under statutory authority, or park road. Basically this means any operation of a motor vehicle by someone unlicensed, no matter where it takes place in the Commonwealth, can result in a charge of this crime. An owner of a vehicle who allows an unlicensed driver to operate their vehicle can also be held liable under this statute. Le Blanc v. Pierce Motor Co., made it clear that it does not matter whether or not the owner actually knows if the individual is unlicensed. Le Blanc v. Pierce Motor Co., 370 Mass. 535 (1940) The government does not have to show that the offender “knowingly” committed this offense.

The simple fact that you cannot produce your license upon being stopped does not give the government enough ammo to charge you with this offense. Usually the government will look into the Registry of Motor Vehicle records prior to making a charge.

Exceptions to this crime
There are 7 exceptions:

Those who are licensed in other states and have been given a temporary license in the Commonwealth;
This generally includes students who are attending a school within the Commonwealth and those who are simply passing through from another state.
Person’s with valid Commonwealth learner’s permits;
Person licensed in another state and is accompanying a member of the armed forces who is licensed in Massachusetts;
Members of the armed forces who are on active duty and have a license elsewhere;
Members of the armed forces returning from active duty, who are licensed in a foreign country (must be within 45 days of his/her return);
Non-resident who is licensed in the state where the vehicle is registered (for no more than 30 consecutive days);
If you remain in the Commonwealth for more than 30 days without a Massachusetts license, you can be charged under this offense.
Individuals who are licensed in states that will provide reciprocity to Massachusetts’ citizens (not for more than 30 days annually, unless he/she has a valid place of business in Massachusetts and Massachusetts liability insurance rules are met).
The fate of those who operate without a license;
There is little defense for unknowingly allowing your license to expire. The offense is criminal in nature and those who choose to operate without a license could face fines of $500 up to $1000 and/or potential jail time of up to 10 days.

The Importance Of Fighting This Charge
Being found guilty of unlicensed operation can have a number of negative consequences. Besides the potential of jail and a fine, a guilty finding for this offense can result in a loss of license, insurance surcharge, and points towards becoming a habitual traffic offender with the potential of a long loss of license. If you are cited for this offense, appeal the citation, contact a Middlesex County Operating Without Being Licensed Attorney, and make your case to a Clerk Magistrate before you are arraigned. If you have already been arraigned, contact an attorney immediately.

Use of a Vehicle Without Authority

Use of Vehicle Without Authority

It is a well-established right that an individual has the right to possess and protect his or her public property. In Massachusetts, a motor vehicle is considered private property and is thus protected from others. The crime of larceny is a common law crime involving the theft of another person’s property with the intent to deprive him or her of its possession permanently. Use of a motor vehicle without authority is a lesser-included offense of larceny of a motor vehicle, without the element of intending to deprive the owner of possession permanently as established by the Court in Commonwealth v. Giannino. Even though the crime of using a motor vehicle without authority is a lesser-included offense, it is still a very serious crime that could result in a prison sentence. In cases such as this, admission to sufficient facts or evidence may do more harm than good, even if you were mistaken as to whether you had valid authority to use the vehicle. Early intervention by a skilled Massachusetts motor vehicle crimes defense attorney may be hugely beneficial on the outcome of a case.

M.G.L. c. 90, § 24 [2][a] provides that any individual who uses a vehicle without authority or permission knowing that such use is unauthorized shall be in violation of this law. A conviction for a first offense shall be punishable by the following:

  • A fine ranging from $50- $500, or
  • Imprisonment for not less than 30 days or more than 2 years, or
  • Both fine and imprisonment.

A conviction for a second offense shall be punishable by the following:

  • Imprisonment in the state prison for not more than 5 years, or
  • Minimum mandatory imprisonment in a house of correction for 30 days, but no more than 2.5 years, or
  • A fine not to exceed $1,000, or
  • Both such fine and imprisonment.

Any individual found guilty of a third or subsequent offense in Massachusetts for using a vehicle without authority committed within 5 years of the earliest of his two most recent prior offenses shall be punishable by the following:

  • A fine of not less than two hundred dollars or more than one thousand dollars or by imprisonment for not less than six months or more than two and one half years in a house of correction or for not less than two and one half years or more than five years in the state prison or by both fine and imprisonment.

In order for a defendant to be found guilty of this offense, the Commonwealth must prove three things beyond a reasonable doubt:

  1. The defendant used a motor vehicle;
  2. At the time he or she used that motor vehicle, he or she did so without the permission of the owner, or the permission of some other person who possessed the legal right of control ordinarily exercised by the owner; and
  3. At the time he or she used the motor vehicle, the defendant knew that he or she was not authorized to use that vehicle.

For the purposes of this law, it is considered “use” if a person rides in the car, either as the driver or as a passenger. It is not necessary that the defendant personally drove or controlled the vehicle; only that he or she was physically in the vehicle while it moved. Under this law, the Commonwealth must be able to prove that the defendant had knowledge that his or her use of the vehicle was unauthorized. This may be established through testimony by the owner or other person in charge of the vehicle, or inferences may be made regarding specific facts surrounding the circumstances.

Motor Vehicle Homicide

Motor Vehicle Homicide

Any motor vehicle accident causing death is a horrendous experience for all involved. And if you are accused of negligently or recklessly causing someone’s death in a car accident, you can be charged with motor vehicle homicide or manslaughter by motor vehicle under Massachusetts law.

If you are accused of leaving the scene of an injury resulting in death, or if you were allegedly impaired during the accident, the criminal charges are compounded.

In addition to all this, your name will probably be in the news, particularly if it is an alcohol-related accident that resulted in someone’s death. That kind of stress and shame can be overwhelming if you have made a terrible mistake.

And, unfortunately, this is the type of tragic event that could happen to anyone. A momentary distraction that wasn’t even your fault can have deadly consequences. We’ve all had careless moments behind the wheel that could have resulted in a terrible accident.

I want you to know that you have rights, and you need and deserve proper legal defense representation in court. Whatever lead you to this situation, you are innocent until proven guilty. A defense attorney like myself will fight on your behalf to get you the best possible outcome.

When it feels like no one is on your side, please contact me for a confidential legal defense consultation.

Massachusetts Motor Vehicle Homicide Laws & Penalties

Motor vehicle homicide charges can be either a misdemeanor or felony, depending on if the driver was impaired by alcohol or drugs.

For any motor vehicle homicide conviction in Massachusetts, you face a 15-year license loss, and it could be lifetime license suspension (revocation) if you have a prior OUI conviction on your driving record.

Your license is immediately suspended upon being charged with motor vehicle homicide. You will have to have a hearing at the Registry to get your license reinstated even if you are acquitted.

Misdemeanor Motor Vehicle Homicide Charge – Massachusetts Penalties

A homicide by motor vehicle can be a misdemeanor charge in many cases.

A motor vehicle homicide by negligent operation is charged when you are accused of driving negligently or recklessly, resulting in a death.

The penalty for Misdemeanor motor vehicle homicide is:

  • a Minimum of 30 days in jail, or up to 2 ½ years in the House of Correction.
  • Fines range from $300-$3000.

clerk magistrate's hearingMisdemeanor charges where the officer didn’t witness the incident typically result in a criminal citation to appear at a Clerk Magistrate’s Hearing, even with something as serious as a homicide.

These hearings are evidentiary procedures to determine if there is sufficient probable cause to move forward with a formal criminal charge and an arraignment. With a charge this serious, and the standard for probable cause so low, it can be difficult to win these hearings outright. However, the hearing itself is still an important step in preparing a defense, and evaluating any evidence the Commonwealth is planning to use to prosecute a case.

Felony Motor Vehicle Homicide Charge -Massachusetts Penalties

To be convicted of felony motor vehicle homicide, the Commonwealth must prove that your driving negligently or recklessly caused death, while you were under the influence of an intoxicating substance (alcohol or drugs).

The penalty for felony vehicular homicide under Massachusetts law 90 24G is:

  • A minimum 1 year in house of corrections, which must be served.
  • The maximum is 15 years in state prison.
  • Fine of no more than $5000.

You are not eligible for parole until after 1 year of sentence.

Ref: MGL Ch 90 Sec 24

Manslaughter by Motor Vehicle

With essentially the same standard of proof as felony motor vehicle homicide, you can potentially be indicted and face a more serious charge of manslaughter by motor vehicle (manslaughter while operating a motor vehicle) in Massachusetts Superior Court.

Penalties for vehicular manslaughter under Massachusetts law 265-13 are as follows:

  • Mandatory minimum 5 years in jail.
  • Maximum 5-20 years in prison.
  • Fines up to $25,000.
  • 15-year license loss
With the stakes this high, you need the help of a criminal defense attorney immediately. The quicker we can advise you on your case, the more options we will have and the more time we will have to prepare every possible defense option.
Please contact me immediately for a free and confidential legal defense consultation and case evaluation.

Frequently Asked Questions

How can a homicide charge only be a misdemeanor?

It does seem surprising to many people, but if the incident was essentially a terrible accident – even if the accused may have made a mistake or displayed poor driving – it is still only a misdemeanor under Mass law.

It’s not so crazy. Terrible accidents do happen. If someone is tragically killed directly by someone else’s action, there is an understandable desire for someone to be responsible under the law.

But, every terrible thing doesn’t have an appropriate criminal legal remedy, and almost all of the time, there is no justice in seriously punishing someone who caused a tragic accident. There is no continuing public safety risk to be addressed for a freak incident, no matter how terrible.

You can get a ticket for a homicide and not be arrested?

Yes. That is how misdemeanor offenses work in Massachusetts. If the officer didn’t witness the offense, and it is a misdemeanor, you can’t be arrested.

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.

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.