OUI FAQs

In Massachusetts you are considered to be driving under the influence of alcohol if you have a blood alcohol concentration (BAC) of 0.08% or higher. If you are under the age of 21 you may not operate a vehicle if you have a blood alcohol concentration of 0.02% or higher. If the Commonwealth can prove that you operated a vehicle with a BAC of 0.08% or higher this will be per se evidence that you were operating under the influence of alcohol.

If you are stopped by police for suspicion of OUI, you will be given the opportunity to take a breathalyzer test. You are not required to submit to this test. If you do perform the breathalyzer and you have a BAC of 0.08% this will serve as presumptive evidence of your impairment. Further, if you choose to take the breathalyzer and fail your license will be suspended for 30 days. However, if you do not submit to a breathalyzer your license will be immediately suspended for 180 days. If you refuse to take a breathalyzer any evidence of this refusal will not be admissible at trial.

If you are stopped by police for suspicion of OUI the police may request that you perform a number of different field sobriety tests. You are not required to perform these tests. If you refuse to perform these tests any evidence of this will not be admissible at trial. Thus, if you do not perform the tests there can be no mention of the tests at all or your refusal to participate in these tests during your trial.

If you do decide to perform field sobriety tests when requested by the police evidence about your ability to perform these tests may be admissible at trial. However, there are limitations on which field sobriety tests are admissible. These tests also must be properly administered, under appropriate conditions and the officer must follow very specific guidelines pertaining to the administration of these tests in order for the results to have any evidentiary value. It is crucial to consult with an experience OUI attorney who is familiar with these tests and will have the knowledge and ability to challenge these tests and the results at trial.

It is not illegal to drive after having consumed some alcohol. As discussed above, if you perform a breathalyzer and are found to have a BAC of 0.08% or higher this will be presumptive evidence of your impairment. However, if there is no breathalyzer in your case the Commonwealth must prove that you were “under the influence” of alcohol. This means that the Commonwealth must show that you had consumed enough alcohol that it impaired your ability to operate your motor vehicle safely.

Massachusetts takes OUI offenses very seriously. If you are convicted of a first offense OUI and you are over the age of 21 you could face up to 2 ½ years in jail. If it is your second offense OUI you will have to serve a minimum of 60 days and up to 2 ½ years in jail. A third offense conviction requires a minimum 180 day sentence and up to 5 years in state prison. The greater the number of prior convictions that you have on your record the more jail time that you will be facing. However, if it is your first, or in some cases even your second offense, there are possible dispositions available that would not require you to go to jail and may even be able to help preserve your criminal record. An experienced OUI attorney can help you explore your options and defenses.

Yes. If you are charged with operating under the influence of drugs or alcohol you will likely lose your license for some period of time. As discussed above, if you refuse or fail a breathalyzer this will result in a loss of license. Additionally, if you are convicted of a first offense OUI you may lose your license for up to 1 year. If you plead guilty or if you receive a 24D disposition for your first offense OUI you will only lose your license for 45 days. If this is your second offense OUI you may lose your license for 2 years, and for up to 8 years for a third offense. As with the jail sentence, the loss of license duration will increase based upon the number of prior convictions on your record.

You will not be able to get your license reinstated until after the proscribed statutory period, based upon the nature and circumstances of your case and the number or prior convictions on your record. However, you may be eligible for a hardship license prior to your reinstatement period. This would allow you to drive on a limited license during certain hours of the day.

Once you are arraigned in the district court the charge of operating under the influence will appear on your criminal record. A first offense OUI is a misdemeanor and you may petition the court to have your record sealed or apply for sealing your record administratively after 3 years from your date of conviction.

If you have been charged with an OUI in another state that record will be available to the court and the prosecutors in your current case. If you were convicted on this prior charge, even if it occurred in another state, it will be treated as a prior conviction and your current case will be proceed accordingly. As such, if you had one previous conviction for an OUI in New York State and you are subsequently charged with an OUI in Massachusetts, Massachusetts will treat that charge as your second offense. In limited circumstances exceptions may be made for OUI convictions that occurred more then 10 years prior.

If you are charged with an OUI and you are under 21 years old you will face harsher penalties, particularly when it comes to your loss of license. For a first offense OUI under 21 there will be a mandatory 210 day loss of license even under a 24D disposition. Additionally, if you took a breathalyzer and your BAC was greater then 0.02% you will be required to enroll in a special alcohol treatment and rehabilitation program.

Under Melanie’s Law, the legislature imposed the ignition interlock device program for all second and subsequent OUI offenses. This requires that if you are granted a conditional hardship license after being convicted of a second or subsequent OUI offense, you must install an ignition interlock device in your vehicle for the entire duration of the hardship license. Further, the device must remain in your vehicle for a period of 2 years following the full reinstatement of your license.

If you were involved in an accident while operating under the influence it is not uncommon that you may be charged with other offenses arising out of this incident, such as reckless or negligent operation of a motor vehicle. If you were operating under the influence of drugs or alcohol and you were involved in an accident where someone else was killed you may be charged with motor vehicle homicide and could face a mandatory minimum sentence of 5 years and up to 20 years in state prison. An experienced criminal defense attorney can you help you defend against your OUI and all other serious criminal charges that may result.