Operating Under the Influence (OUI, DWI, DUI or Drunk Driving)

1. If a police officer stops me for operating under the influence (OUI), what must I do?

You must give your license and registration to the officer.  You need not submit to any field sobriety tests or take the breathalyzer or blood test.  Chances are great, however, that if you refuse to take any field sobriety test, you will be arrested for OUI.  On the other hand, the Commonwealth will have a more difficult time at trial proving your guilt if you have not taken any of the test.

IMPORTANT NOTE:  You may be “offered” the Portable Breath Test (PBT).  This is typically done when the officer quickly removes the PBT from its holster and places it in your face inches from your mouth and says: “Blow in this.”  While the PBT is inadmissible, you have a right to refuse this test as well by simply saying, “no”.

2. When a police officer stops me, what initial observations will be made?

Inevitably a police officer will testify to observing that the defendant had red, glassy, bloodshot eyes and was unsteady on his or her feet; that there was a strong odor of alcoholic beverages; and that the defendant’s speech was thick and slurred.

3. What are field sobriety test and what do they measure?

A field sobriety test is a divided attention test of coordination.  Allegedly, they measure one’s sobriety.  In reality, they truly measure one’s physical dexterity.  Persons fifty or more pounds overweight or wearing high heels or having suffered a leg injury often cannot pass such test regardless of their alcoholic intake, if any.  Indeed, many people who are not overweight or have not suffered any injury whatsoever cannot successfully perform the tests.

4. What are the common field sobriety tests I will be asked to perform?

A police officer will typically ask the defendant to perform three or more tests. The more common tests include reciting the alphabet, the nine-step walk-and-turn test and standing on one foot and counting.  Other tests include walking a straight line, the finger-to-nose test and the horizontal gaze nystagmus test.

5. Should I take the breathalyzer?

This is a subject of continuing debate among the defense bar.  Many advise to never take the breathalyzer.  Others say doing so is fine if you have had one or two drinks.  Bear in mind the following generalizations: one twelve-ounce beer equals 1.25 ounces of hard liquor equals one four ounce serving of wine.  One’s blood alcohol level generally increases .02 percent for each serving.  Over an hour, your body clears the alcohol, through metabolism and excretion, at a typical rate of .015 percent for males (the rate for women is 1.25 times greater).  However, many factors-e.g., what you had to eat, your basic body makeup, height, weight, state of health-affect the rate of alcoholic elimination.

If you take the breathalyzer and the reading is less than .05 percent, you will be released from the charge of OUI.  If the reading is .05 percent or above, you will be charged.  If the reading is .05-.07 percent, there is no inference of intoxication, one way or the other.  Rather, it is simply evidence that some alcohol was imbibed.  Under the per se law enacted in 2003, if the reading is .08 percent or above and determined to be accurate, you may be convicted on that evidence alone.  Absent a breath or blood test, the government would have to demonstrate from witnesses and other evidence that you were impaired while operating your car.

Many in the defense bar believe that the breathalyzers are inherently incapable of properly discerning one’s true alcoholic blood level.  The doubt exists not only because of flaws in the basic assumption of calculating alcoholic levels-the 2,100:1 ratio (that a person has 2,100 times as much alcohol in his or her blood as in his or her breath)-but also in the belief that breathalyzers, like all machines, often break down.

 

6. What happens if I do not take the breathalyzer?  Conversely, what happens if I do and flunk?If you do not take the breathalyzer, the Massachusetts Registry of Motor Vehicles will suspend your license for 180 days for a first offense, three years for a second offense, five years for a third offense, and a lifetime for a fourth and subsequent offense.  If you are subsequently acquitted at trial, you may have your license reinstated.  If you are convicted, the law requires that the suspension for the conviction will effectively run on and after the refusal suspension.If you take the breathalyzer test and “flunk” it-that is, you have a reading of .08 percent or higher-your license will be taken by the police.  Your license will be taken “until the disposition of the offense . . . but in no event shall such suspension . . . exceed thirty days.”  G.L. c. 90,  24N.  The suspension for blowing over a .08 percent will terminate on disposition, either by trial or plea.
7. What does the Commonwealth have to prove?  Does it have to prove that I was drunk?No. The Commonwealth must prove beyond a reasonable doubt that the defendant operated a motor vehicle on a public way (or a way to which the public has a right of access) while under the influence of intoxicating liquor or operated a motor vehicle on a public way while his or her blood alcohol level was .08 percent or greater.  The Commonwealth does not have to prove that you were drunk.  Rather, they must show, once again beyond a reasonable doubt, that you possessed a diminished capacity to operate your car or had a .08 percent blood alcohol level, regardless of evidence of impairment.  According to Instructions 5.10 of the District Court Model Jury Instructions,A driver is “under the influence” if that driver’s alertness, judgment and ability to respond promptly have been lessened by alcohol.  This would include someone who is drunk, but it would also include anyone who has consumed enough alcohol to reduce his [or her] mental clarity, self-control and reflexes, and thereby left him or her with a reduced ability to drive safely.  The amount of alcohol necessary to do this may vary from person to person.The Commonwealth is not required to prove the defendant actually drove in an unsafe or erratic manner, but it must prove that alcohol had diminished the defendant’s capacity or ability to drive safely.

   As might be imagined, public way and operation are typically not seriously contested.  The case usually comes down to whether the defendant was “under the influence,” the defendant’s “capacity to operate,” and, if there is a breath or blood test, the accuracy of the test.  Be aware that if there is a breath or blood test result of .08 percent or greater, the defendant can be convicted of OUI even if all the other evidence shows the defendant was not manifesting any symptoms of impairment.

8. If I am a first-time offender, what punishment can I expect?The so-called 24D disposition, so named as it refers to G.L. c. 90,  24D, is typically available to first-time offenders.  It calls for a loss of license from forty-five to ninety days (unless the defendant is under age twenty-one, in which case the loss of license is for 210 days); fines, fees, and costs (some of which may be waived if there is a finding of indigence or inability to pay); and assignment to an alcoholic rehabilitation/treatment program.  During the loss-of-license period, a defendant may be eligible for a hardship license, which permits operation during a specifically defined twelve-hour period, seven days per week.
9. What must my attorney know to successfully defend me?Your attorney must be thoroughly familiar with G.L. c. 90, 24 et seq. and 501 C.M.R.  2.00 ET seq.  The regulations were written in response to G.L. c. 90, 24K.  They contain a cornucopia of helpful and essential information for your lawyer.
10. If I had just a drink after work, there should not be any worry, right?No. Given the great damages to persons and property caused by drunk drivers; the days of the police officer letting you sleep it off without charging you are over; and the fact that even if you are ultimately found not guilty, the costs-financial and psychological-are so great, the best course of action, even if you plan on having a single drink, is to have a designated driver or take a cab.  By having one drink after a long work day, traveling ten miles an hour over the speed limit and being stopped by a police officer, you still run the risk of being arrested.  Consider the following: It is late and you spent a good part of the day reading before going into a smoke-filled room.  Hence, your eyes are bloodshot and glassy.  Because you finished the drink a few minutes before getting behind the wheel of your car, the odor of alcohol is strong.  You are one of the nearly 30 percent of sober people who cannot successfully perform field sobriety tests.  You take the breathalyzer-a machine as reliable as your car, washing machine and computer-and ever-so-slightly false reading results.  The outcome is an arrest and charges of OUI.  It’s not worth it.

Know your rights. At the Law Office of Michael Patrick Murray, P.C., we provide aggressive criminal defense for people accused of Operating Under the Influence of Liquor. I have effectively defended the rights of clients throughout Massachusetts for more than 18 years.

Call me now at: (508) 393-4162.

Emergency? Need immediate Assistance? Call My Cell Phone: (508) 709-5201.

 

* Counsel does not guarantee the same or similar outcome in your case *