Massachusetts Drunk Driving Law

OFFENSE ELEMENTS

• Operation of MV
• On Public Way
• With a Blood Alcohol of .08 or greater, or
• Operating while under influence of alcohol. i.e., the ability to operate safely is diminished by the consumption of alcohol
• All operators are deemed to have consented to a breath test administered by a police officer by virtue of driving
• Applies if you are arrested for OUI
• Refusals to take the breath test will result in license loss of anywhere from 180 days to life
• The duration of license loss for BT refusal depends on prior convictions and age of offender

Breath Test Refusal Penalties

• First Offender                                             180 days
• Second Offender or Under 21              3 yrs + 180 days (waived if in 24P program)
• Third Offender                                            5 years
• Fourth Offender                                         10 Years
• Fifth Offender                                              Life
• Prior offense includes prior OUI, OUI and serious injury and MV homicide
• No hardship license from suspensions imposed for Breath Test refusals, except in the case of a first offender who is enrolled in the OUI program.
• License may be restored after an acquittal

Breath Test Failure Consequences

• Immediate loss of license to police officer for 30 days or until case is disposed of by plea or trial, whichever comes first
• Automobile is impounded for 12 hours
• Breath Test result of .08 or above is admissible in prosecution provided test is administered in accordance with law.
• Represents a “per se” violation of statute

 Penalties for Conviction

First Offense Over Age 21

• Statutory penalty:
  • Fine of not less than $500 nor more than $5,000, or
  • Imprisonment in jail for not more than 2 ½ years in House of Correction, or
  • Both a fine and imprisonment
  • License loss 1 year
• Alternate Disposition for First Offenders under G.L. c. 90, §24D
  • Two years probation, entry into approved OUI program, pay program costs and assessments, probation supervision fees
  • License loss of 45-90 days
  • Hardship license available after enrollment in program on limited basis
  • Fines and community service may be assessed.

Penalties for First Conviction

Under Age 21

• A person under age 21 loses their license for 210 days for first offense conviction for OUI even if they enter G.L. c. 90, § 24D program, but is eligible for 12 hour hardship license upon enrollment in program.
• An additional license loss of 180 days is imposed under G.L. c. 90, § 24P – this may be avoided by attendance at special underage drinking program
• If the Breath Test result for a person between the age of 17 and 21 inclusive, is not less than .20, the first offender program is not available and the individual must attend a rehabilitation program known as the “14 day second offender in-home program.”

Second Offense

• Fine of not less than $600 nor more than $10,000, AND
• Imprisonment for not less than 60 days nor more than 2 ½ years
• Minimum Mandatory Sentence of 30 days
• License loss of two years
• Assessments and fees applicable
• Alternate Second Offender Disposition Available
  • Mandatory in-patient treatment at a residential alcohol treatment facility for 14 days, with aftercare
  • Two years probation
  • Two year license loss
  • Hardship license available after six months with ignition lock
  • Program costs and assessments applicable
• Prior Convictions more than 10 years old may render a person eligible for first offender program once in a lifetime.
• Persons eligible for any of the programs are presumed to be an appropriate candidate for the program.
• A judge may deny admission of an otherwise eligible defendant to a program, but must make specific written findings that a defendant is not a suitable candidate.
• Defendant not eligible for first offender program if serious bodily injury or death was caused in the events that gave rise to the conviction for OUI.
• Persons who are domiciled out of state may be allowed to attend out of state programs
• Defendants pay the costs associated with the programs
• Probation fee of $250 in addition to program fees
• Court may impose a minimum of 30 hours of community service
• G.L. c. 90, § 24Q
• Mandatory Alcohol Assessment by Department of Public Health or court approved program
• All repeat offenders
• Any offender with BAC of .20 or above
• Must include assessment of the level of addiction to alcohol or drugs and recommended course of treatment.
• Additional fee will be charged for the assessment

Penalties for Conviction

Third Offense

• Fine of not less than $1,000 nor more than $15,000, AND
• Imprisonment for not less than 180 days, nor more than 2 ½ years in House of Correction or,
• Imprisonment of 2 ½ – 5 years in State Prison
• Minimum Mandatory Sentence of 150 days
• License loss of 8 years
• Hardship Available after 2 years with ignition lock

Fourth Offense

• Fine of not less than $1,500 nor more than $25,000, AND
• Imprisonment for not less than 2 – 2 ½ years in the House of Correction or not less than 2 ½ – 5 years in State Prison
• Minimum Mandatory Sentence of 12 months
• License Loss of 10 years
• Hardship available after 5 years with ignition lock

Fifth Offense or More

• Fine of not less than $2,000 nor more than $50,000, AND
• Imprisonment of 2 ½ years to the House of Correction, or
• Imprisonment of not less than 2 ½ nor more than 5 years in State Prison
• Mandatory Minimum Sentence of 24 months
• License Loss – Lifetime
• No hardship available

Special Penalty Provisions

• Any person under the age of 21, who takes a breath test with a result of .02 or greater, and who is not charged with OUI, shall have his license suspended for 180 days immediately under G.L. c. 90, § 24 P.
• Lifetime revocation for persons who are convicted of OUI, MV Homicide and who have a prior OUI, OUI Homicide or OUI serious injury. G.L. c. 90, § 24R

Hardship Licenses

• No hardship license from suspensions imposed for Breath Test refusals, except in the case of a first offender who is enrolled in the OUI program.
• Hardship licenses are issued in the discretion of the registrar on such terms and conditions as are deemed appropriate and upon a showing the causes of the past and present violations have been dealt with or brought under control.
• First offenders:  12 hour hardship license is available upon entry into program.
• Second offenders:  12 hour hardship license for education or employment reasons after 12 months, provided person has completed in-patient program.  After 18 months may request for a new license. Vehicle must have ignition lock to obtain hardship license
• Third Offense:  12 hour hardship license for education and employment purposes after two years and a new license on a limited basis after 4 years.  Vehicle must have ignition lock to obtain hardship license.
• Fourth Offense:  12 hour hardship license for education and employment purposes after five years and a new license in a limited basis after 8 years. Vehicle must have ignition lock to obtain hardship license.
• Fifth offense or more – No hardship license
• Certified or attested copies of original court papers ACCOMPANIED BY 90:24(4)
• Certified or attested copies of defendant’s biographical and informational data from records of the department of probation
• Certified copies of any jail or house of corrections, the department of correction, or the registry shall be prima facie evidence that a defendant before the court had been previously convicted.
• The documents are self-authenticating and admissible, after conviction of primary offense.  No live witnesses or other corroborating testimony is necessary.
• New Crime:  G.L. c. 265, § 13 ½
• Imprisonment for not less than 5 nor more than 20 years, and
• A fine of not more than $25,000
• Minimum Mandatory Sentence of 5 years
• Manslaughter not defined in this statute
• License loss of 15 years minimum, but may be up to a lifetime suspension
• G.L. c. 90, § 24 ½
• The device prevents the vehicle from operating if the BAC is above .02.
• Device must be installed on each vehicle owned, leased or operated by a person previously convicted of OUI or similar offenses as a condition of the issuance of a new license
• The device is to be installed for a period of two years (presumably from the date the new license is issued).
• Device must be maintained and inspected in accordance with regulations yet to be enacted
• The device will not permit operation of vehicle if BAC is .02 or above
• Registrar may revoke license for up to life for two or more occasions of a failure to maintain or two or more instances of attempted use with .02 or above.
• New Crimes
  • Operation MV in violation of interlock device restriction
    • Fine of $1000 to $15,000
    • Imprisonment for not less than 180 days nor more than 2 ½ years, or
    • Not less than 2 ½ nor more than 5 years in State prison
    • Mandatory Minimum of 150 days.
  • Tampering with Ignition lock
    • Not less than 6 months nor more than 2 ½ years H/C or
    • Not less than 3 years nor more than 5 years in state prison
  • Starting a MV equipped with Ignition lock
    • Fine of not less than $1000 nor more than $5000 or
    • Imprisonment for not less than 6 months nor more than 2 ½ years,
    •    Second Offense:  State Prison 3-5 years

For assistance with this or any other legal problem contact Attorney Richard Sweeney at 617-328-6900 or at RSweeney@Rsweeneylaw.com

What does it cost to hire a lawyer?

The cost of hiring a good lawyer varies by jurisdiction and by area of expertise.   Most attorneys charge by the hour with fees ranging from $125 to $450 depending on many variables.  You should expect to pay more in larger cities than you do in neighboring towns. A large firm with a downtown office has larger overhead than a smaller firm in the suburbs.  Certain cases such as personal injury cases are generally in the range of 1/3 of the settlement plus whatever fees the firm incurred during the course of the representation.  Divorce and lawsuits are almost always billed by the hour and you should inquire of several reputable attorneys as to what the hourly rate would be.  In criminal cases you can often find an attorney who will quote you a fixed rate based upon the nature of your case and the level of experience the attorney has in dealing with these cases.  Here is where an educated consumer should be interviewing several attorneys who have expertise in the type of situation you are facing.   In a DUI case you should expect to pay more for a second offense than a first. You should expect to pay more for a felony case than for a misdemeanor or a Superior Court case over a District Court case.

With that in mind, you will find a wide range of fees. The top lawyers will charge more than new lawyers, or lawyers with lesser skills or reputations. However, there are many good attorneys who have smaller practices, less overhead and a great deal of experience handling your type of case.  These firms can afford to charge less and still make a profit.  This allows you to get a top rated (AV Rated) attorney with an excellent reputation and the level of skill necessary to resolve your problems successfully.  For this reason, price alone should not be your main criteria when selecting an attorney to represent you. As a general rule, when it comes to legal representation, you should not expect anything for free.  The best way to get a feel for attorneys’ fees in your area is to call around and get several quotes.  Go online (as you are now) and look for an AV Rated firm from http://lawyers.com and search for an attorney who has handled similar cases, is recognized by his peers  and is willing to talk with you briefly about your case and the possible costs involved.  If you are heading to court choose wisely and at least speak with an AV Rated firm and discuss your finances as well as their payment plans and select the best lawyer you can.  Don’t be afraid to ask what the cost willbe of the entire representation.  An experienced attorney can almost always give you the right answer or at least give you the names of some other reputable attorneys that can meet your needs.  Look for knowledge, skill, experience and reputation in the community.  These are hard earned and are good indicators of the quality of your attorney.

If you are having difficulty finding an attorney, or you are not sure what it will cost please call  Sweeney & Associates at 617-328-6900 or click on this link  http://Rsweeneylaw.com to contact us by email or for further information.  We can always help.