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Posted by David Newton | Mar 20, 2013 | 0 Comments

How many of us have had a few drinks at the bar, at a friend's house, or at a work event and thought I have only had a few so I am OK to drive home.  For some this ends up being a costly decision and they find themselves charged with Operating under the Influence (OUI).

What you should know about OUI charges are that if an experienced attorney is engaged early it can make a world of a difference.  In an OUI case the state's prosecutor has to prove several things beyond a reasonable doubt, we call these parts elements of the crime.  In an OUI case the elements of the crime are that the 1.) accused, 2.) operated a motor vehicle, 3.) on a pubic way and 4.) while his/her ability to do so was impaired or his/her blood alcohol content is above .08.

We will take these elements of OUI one at a time.  It may sound like a no brainer, but it must be proven beyond a reasonable doubt that they have the right person before the court.  This is simple enough to prove but does require some sort of identification or circumstantial evidence; normally a police officer's testimony or a civilian's testimony that was at the scene of the alleged crime will suffice.

Secondly to prove an OUI, the prosecutor must prove beyond a reasonable doubt that you had operated a motor vehicle.  Again proving this element is normally not that difficult, however a trained experienced attorney maybe able to exploit this area to your advantage.  The specific facts of your case will be determinative of the viability of mounting a defense on this issue.

Thirdly to prove an OUI, the prosecutor must prove beyond a reasonable doubt that the operation of the vehicle occurred on a public way.  Again, this may seem like an easy thing to prove, but for an inexperienced prosecutor they may overlook this element allowing an experienced OUI attorney to secure a directed verdict or a not guilty.  Simply put the prosecutor must prove that the operation occurred in an area generally open to other members of the public to operate their vehicles.

Finally, the state's prosecutor must prove that your ability to do so was impaired or that your blood alcohol content was above a .08.  If the individual facts of the case permit the prosecutor can proceed on both theories.

Starting with the latter, whether you have a blood alcohol content of .08 will be proven either by a blood test or more commonly a breathalyzer test.  However, if you had refused to take either type of test this theory of prosecution will be unavailable and additionally the fact that a refusal occurred is inadmissible at trial in Massachusetts.    It is important to have an experienced OUI defense attorney especially a former prosecutor because they are well aware of the potential issues that may bar this evidence from being used at trial or how to negate it if it does come into evidence at trial.

With proving the first theory of whether your ability to operate said motor vehicle was impaired, many factors will ultimately play into the outcome.  They often include, but are not limited to, observations of driving behavior, (was the driving erratic), observations of you at the time of the alleged offense (slurred speech, ability to stand, blood shot glassy eyes, ability to comprehend), whether field sobriety tests were performed and what where the results (commonly the one legged stand, or the nine step walk and turn).  It is important to remember that refusals of field sobriety tests cannot be used as evidence against you.   An experienced drunk driving defense attorney knows the manual on how these field sobriety tests are to be performed and can often poke holes into the administering officer's testimony at trial.

Of some final consideration is whether this is a subsequent OUI, Massachusetts allows for lifetime look back, thus if you have ever been found guilty or received a continuance without a finding for OUI in any state in your lifetime you can be charged with the appropriate subsequent offense and have enhanced penalties, I have listed the potential penalties below.  In practical terms this means that the prosecutor must have a second trial if you are found guilty of an OUI at the first trial, this is what is referred to a bifurcated trial.   The prosecutor at this second trial has to prove beyond a reasonable doubt that it is in fact you that has been previously convicted of a previous drunk driving crime.  Proving the subsequent portion is often done through certified court documents, live testimony and registry of motor vehicle records.  Again, this element tends to be hyper technical and requires an experienced attorney to combat it.

David C. Newton
The Newton Law Firm
Serving Eastern and Northern MA



Incarceration in the House of Corrections:Not more than 2 ½ years House of Correction Fine: $500-$5,000

License Suspension: For 1 year, hardship license considered in 3 months for work or school and a general hardship in 6 months

Alternative 1st offense disposition:

  • Probation with a mandatory participation in the 24d alcohol-drug education program paid for by the offender
  • License suspended for 45 to 90 days, a hardship license is usually available upon completion of an intake for the 24d program.


Incarceration in the House of Corrections: Not less than 60 days, not more than 2 ½ years Fine: $600-$10,000

License Suspension: For 2 years, work/education hardship considered in 1 year, general hardship in 18 months

  • Condition of hardship license is the installation of an ignition interlock device for at least 2 years.

Alternative 2nd Offense disposition:

  • Probation with a14 day confined treatment program paid for by the offender.
  • Eligible for 1st offense disposition if have had only one prior offense that is over 10 years old


Incarceration in the House of Corrections:  Not less than 180 days, not more than 5 years State Prison

  • May be served in a correctional facility treatment programs

      Fine: $1,000-$15,000

License Suspension: For 8 years, work/education hardship considered in 2 years, general hardship in 4 years

  • A condition of any hardship license is the installation of an ignition interlock device for at least the hardship period.


Incarceration in the House of Corrections:   Not less than 2 years (1 year Minimum   Mandatory), not more than 5 years

      Fine: $1,500-$25,000

License Suspension: For 10 years, work/education hardship considered in 5 years, general hardship in 8 years

  • A condition of any hardship license is the installation of an ignition interlock device for at least the hardship period.


Incarceration in the House of Corrections:  Not less than 2 ½ years (24 mos. Minimum Mandatory), not more than 5 years (Felony Status)

Fine: $2,00-$50,000

License Suspension:For life, no hardship


  • First Offense $500.00
  • Second Offense $700.00
  • Third Offense $1,200.00

About the Author

David Newton

I served in the U.S. Marine Corps for five years. After serving honorably in the U.S. Marine Corps, I graduated magna cum laude from State University of New York College at Brockport with a B.S. in Business and Economics. I then continued on to obtain my law degree cum laude from Boston Universit...


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