Operating Under the Influence
Table of Contents
Under Massachusetts criminal law, a driver of a motor vehicle is criminally liable for his or her conduct while on the road. It is unlawful for a person to operate a motor vehicle while under the influence of intoxicating liquor or drug such as marijuana, narcotic drugs, depressants or stimulant substances, or while under the influence from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors.
Under Massachusetts criminal law, the crime of Operating Under the Influence (OUI) may be found at Massachusetts General Laws, Chapter 90, Section 24(1)(a)(1).
If OUI charges include serious injury go to OUI causing serious injury page.
If you have been arrested and charged with OUI call (508) 213-9113 to schedule a free consultation with the experienced Massachusetts Criminal Defense Lawyers of the Law Office of John L. Calcagni III, and learn the best way to proceed with your case.
Legal Elements of Operating Under the Influence
In order to be convicted of Operating Under the Influence of Alcohol under Massachusetts criminal law, there must exist strong evidence of the following legal elements:
- that the defendant operated a motor vehicle
- the defendant did so on a public way or in a place where the public has a right of access or in a place where members of the public have access
- that at the time of operation, the percent of alcohol in the defendant’s blood was .08 or greater or that while operating the vehicle the defendant was under the influence of intoxicating liquor or that while the defendant was operating the vehicle, he or she was under the influence of a drug or toxic substance
What Does it Mean to Be Under the Influence?
A person is under the influence of alcohol if he or she has consumed enough alcohol to reduce his or her ability to operate a motor vehicle safely, by decreasing his or her alertness, judgment, and ability to respond promptly. It means that a person 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 law allows a defendant’s blood alcohol level to be shown by a chemical test or analysis of his or her breath or blood. If blood alcohol content is .08 or higher, a defendant is presumptively under the influence or alcohol.
A defendant also may be convicted of OUI without any evidence of blood alcohol content. The crime may be proven based on other forms of evidence such as officer observations as to the manner of operation and the motorist, statements by the motorist, and circumstantial evidence such as the presence of open containers of alcoholic beverages in the vehicle at the time of an arrest, and the existence of a motor vehicle accident.
A person may also be convicted of OUI on the basis of drugs. This may be proven by expert testimony from police officers who are trained and certified drug recognition experts and blood analysis, which can be used to confirm the presence of an intoxicating drug and its quantity in a motorist’s system.
Expert testimony from a toxicologist may then be used to offer an opinion that the blood test results support a conclusion that the motorist was under the influence of the drug at the time of operation.
What Evidence May be Offered Against Me in an OUI Prosecution?
In an OUI prosecution, there are five categories of potential evidence that may be offered against you:
- officer observations of a vehicle’s operation
- officer observations of the motorist after the vehicle is stopped
- statements by the motorist
- performance on field sobriety or roadside agility and coordination tests, if you voluntarily take these tests
- chemical breath test evidence, if you voluntarily elect to participate in this test.
The fewer categories of evidence available to the prosecution, the stronger will be your criminal defense.
Officer Observations of the Vehicle’s Operation
This may include speeding, swerving, striking an object such as a parked car, curb or sign, rapid acceleration, or rapid deceleration, failing to use turn signals and breaking the solid line by traveling in the wrong lane.
These manners of vehicle operation may give rise to a lawful motor vehicle stop by police for issuance of a traffic citation. Police may stop a motor vehicle when they observe a traffic violation or if they have reason to believe that either a crime has been committed by occupant(s) of the vehicle or the vehicle contains evidence of a crime.
Officer Observations of the Motorist
These observations may be such things as bloodshot and watery eyes; a detectable odor of an alcoholic beverage emanating from either the motorist or inside the vehicle; slowed response to either answer questions by police or to retrieve items requested by police such license and registration; slurred speech.
Once a motorist is asked by police to exit the vehicle, the officer may observe the motorist to be unsteady on his or her feet; swaying stumbling; falling; or holding on to the vehicle or other object for balance.
Statements by the Motorist
By nature, people become anxious and even fearful when pulled over by police. It is always in the best interest of a motorist to remain silent and avoid making any incriminating statements.
Any statements made to police can and will be used against you. In the context of a motor vehicle stop and possible OUI investigation, police may ask questions such as your destination, where you are coming from, if you consumed any alcohol prior to driving, and if so, what and in what quantity. You are not obligated to answer these questions and should avoid doing so for your own protection.
If you elect to make any statement(s), such as the fact that you were recently at a bar, club, restaurant, party, etc., or that you only had one or two glasses of wine, these statements will be used by the officer to build an OUI case against you.
It is best that you remain polite and respectful but refrain from saying anything or making any statements to police that can later be used to as evidence to in an OUI prosecution.
What are Field Sobriety Tests?
Almost all OUI investigations involve police asking a motorist to step from his or her vehicle. This enables the officer to make further observations of the motorist that he or she will associate with physical impairment. In most cases, the purpose of the exit order is also to have the motorist participate in a series field sobriety tests.
These tests are designed to determine if a motorist is impaired from an intoxicating substance by testing your physical agility and coordination. A person is not under any legal duty or obligation to participate in field sobriety tests.
However, most motorists are unaware of this fact. Police are not obligated and often do not advise a motorist that field sobriety tests are not mandatory. This is the reason why many motorists submit to the tests.
It is impossible to pass a field sobriety test, even if you have not consumed any alcohol whatsoever. These impassable tests are designed for use by law enforcement to collect evidence for OUI criminal prosecutions.
The tests come with standardized instructions and performance standards. When administered, police are required to observe the test performance by the motorist for signs or clues of impairment.
No one passes the tests, so if you want to maximize your chance of an OUI conviction, do not participate in the tests. You may politely and respectfully decline to do so without any penalty or punishment. This is your legal right.
There are three standardized field sobriety tests which were developed by the National Highway Traffic Safety Administration that all Massachusetts law enforcement officers are trained on and taught to administer during every OUI investigation.
The three standardized field sobriety rests, The Horizontal Gaze Nystagmus test, 9-Step Walk and Turn Test and Standing on One Leg Test, are discussed below.
Horizontal Gaze Nystagmus Test (HGN)
“Nystagmus” refers to an involuntary, jerking movement of the persons pupil which occurs because of alcohol consumption. In other words, the more alcohol a person drinks, the more jerking that will be present in the eyes.
For the HGN test, the officer will first ask the motorist stand still with their feet together and with their hands down by their side. The officer then takes a pen or other object and asks the person to follow the tip of it with their eyes while keeping their head still.
Depending on how much jerking there is in the persons eyes, the more jerking the higher the persons intoxication, the officer is able to use this test to build probable cause to arrest the person.
9-Step Walk and Turn Test
The 9-Step Walk and Turn test is used to evaluate a motorist’s cognitive and physical abilities to operate a motor vehicle. The officer generally will ask the motorist to stand at the base of an actual white line or imaginary line on the roadside.
The person then will start, with their feet one foot in front of the other (i.e. heel-to-toe) on the line. Once the officer says the person may begin the test, the person must keep their arms remaining at their side, and then walk 9 steps while counting aloud and continuing the “heal-to-toe” movement. After 9 steps, the person will turn and take another 9 steps back in the same manner.
During the test, there are several clues the officer looks for an indicative of impairment. These include loss of balance while being instructed on the test; starting the test before told to do so; miscounting steps aloud; failing to touch heel to toe; stepping off of the “line”; using arms to keep balance; losing balance during the test or during the turn; turning improperly; and taking more or less than 9 steps.
The standards laid out by NHTSA state that if a person demonstrates two of these clues during the test, there is a 68% probability the person impaired and has a Blood Alcohol Content (BAC) of .08 or higher, which exceeds the legal limit.
Standing on One Leg Test
The Standing on One Leg test also is used to evaluate a person’s cognitive and physical abilities. The officer asks the motorist to stand with their feet together, remaining perfectly still with their hands down by their side.
The motorist then will be required to stand on one foot, at least six inches off the ground, while counting aloud until the motorist is told to stop. The officer looks for several clues that indicate the person is impaired. These clues include swaying while trying to remain balanced; using arms to stay balanced; hopping to maintain balance; and putting the foot down before completion of the test or being told to do so.
The standards state that if an officer observes two or more of the above clues, there is a 65% probability that the person is impaired and has a BAC of .08 or higher, which exceeds the legal limit.
Aside from the three standardized field sobriety tests, there are non-standardized field sobriety tests that police often use during the course of OUI investigation.
These tests include asking a motorist to touching his nose with a finger; reciting the alphabet; counting down aloud in reverse; or picking up a coin off the ground.
Like standardized field sobriety tests, a motorist has no obligation to participate. He or she may politely and respectfully decline without any penalty or legal consequence.
What is a Preliminary Breath Test (PBT)?
A Preliminary Breath Test (PBT) is performed with a portable breathalyzer device that many police officers carry with them on the road in order to measure motorists’ blood alcohol content (BAC) in the context of OUI investigations.
The officer must be certified to operate and administer the PBT for the results to be valid. A motorist may decline to participate in any chemical breath test, whether preliminarily on the roadside or officially at the police station.
In Massachusetts, when a law enforcement officer has reason to believe that a person is driving or in actual physical control of any motor vehicle while under the influence of alcohol, the officer may ask require the person to submit to a preliminary breath test.
What is an Official Chemical Breath Test?
In any criminal prosecution for OUI, evidence as to the amount of liquor in a motorist’s blood is usually shown by a breath test or blood test. A chemical test is what police use to measure a person’s blood alcohol content (“BAC”). A person may refuse to submit to a chemical test, but the refusal has legal consequences.
Under Massachusetts law, a chemical test is not valid unless the test was performed by a certified operator and was done with an infrared breath-testing device using specific methods that have been approved by the secretary of public safety. These methods can be found under Massachusetts General Laws, Chapter 90, Section 24K.
The methods set out by the secretary of public safety that must be used is as follows:
- that the chemical analysis of the breath of a person charged be performed by a certified operator using a certified infrared breath-testing device in the following sequence:
- one adequate breath sample analysis;
- one calibration standard analysis;
- a second adequate breath sample analysis;
- that no person shall perform such a test unless certified by the secretary of public safety;
- that no breath testing device, mouthpiece or tube shall be cleaned with any substance containing alcohol.
If the chemical test was done by way of a blood test, the test must have been performed at a medical treatment facility by a physician, registered nurse or certified medical technician.
Potential Punishment if Convicted of OUI in Massachusetts
The potential consequences for Operating Under the Influence of Alcohol, if convicted in the Commonwealth, may be found at Massachusetts General Laws, Chapter 90, Section 24. However, there are, for first time offenders, alternative options available that may be found at Massachusetts General Laws, Chapter 90, Section 24D.
Penalties for First Offense OUI
A defendant convicted of Operating Under the Influence of Alcohol, for a first offense, shall be punished by a fine of not less than $500 nor more than $5,000 or by imprisonment for not more than 2 ½ years or both.
In addition to these penalties, the defendant will be required to pay assessment and fees totaling $300. The defendant’s license will also be suspended for one year and he or she will not be eligible for a hardship license until after three months of suspension.
The defendant will also be placed on probation for a maximum of 2 years with a monthly supervision cost of $65.
Alternative “24D Program” for First Offense OUI
A defendant convicted of a first offense OUI in Massachusetts may resolve the case under the alternative “24D Program” so long as the incident did not involve a death or serious bodily injury.
The defendant may be placed on probation for up to 2 years and be required to attend an alcohol education treatment program at the defendant’s expense.
The defendant’s license will also be suspended for 45 days, but he or she may obtain a hardship license, if eligible. Finally, even with the 24D Program, the defendant must pay $300 in assessments and fees as well a $250 fee for the 24D Program and $65 for the monthly probation supervision fee.
Penalties for Second Offense OUI
A defendant convicted in Massachusetts of Operating Under the Influence of Alcohol, for a second offense, shall be punished by a fine of not less than $600 nor more than $10,000 and will be imprisoned for a mandatory term of not less than 30 days nor more than 2 ½ years in a house of corrections. In addition to these penalties, the defendant will be required to pay assessments and fees totaling $250.
The defendant’s license will also be suspended for 2 years and he or she will not be eligible for a hardship license until after 1 year of suspension has occurred. The defendant will also be placed on probation for a maximum of 2 years with a monthly supervision cost of $65.
Alternative Dispositions for Second Offense OUI
A defendant convicted of OUI second offense under Massachusetts criminal law may available himself of two possible alternative dispositions. The first alternative disposition is referred to as a “Cahill” disposition. A defendant is eligible for this disposition if his or her first offense OUI was more than 10 years prior to his or her second offense.
If eligible for a “Cahill” disposition, the defendant may avoid incarceration and be placed on probation for a period of two years, with the condition that he or she enter and complete the Driver Alcohol (or controlled substance) Education Program (DAEP), and satisfy other statutorily required conditions, which include approximately $600 in mandatory fines and fees, sustain a two (2) year loss of license from the time the case is resolved i and must pay the mandatory $65 monthly probation supervision fee.
The second alternative disposition for a second offense OUI under Massachusetts criminal law allows for the defendant to participate in a fourteen (14) day residential alcohol treatment program.
There is no ten year rule associated with this alternative and it may be ordered by a judge in any case. This disposition also requires participation in an outpatient counseling program, approximately $300 in assessments and fees, 2 years of probation, license revocation for a period of 2 years and payment of a $65 monthly probation supervision fee.
Penalties for Third Offense OUI
A third offense OUI in Massachusetts is considered a felony. A convicted offender shall be punished by mandatory imprisonment for not less than 6 months nor more than 2 ½ years in a house of corrections or may be imprisoned for not less than 2 ½ years nor more than 5 years in state prison and a fine ranging from $1,000 to $15,000.
In addition to those penalties, the defendant will be required to pay assessments and fees totaling $250. The defendant’s license will also be suspended for 8 years and he or she will not be eligible for a hardship license until after 4 years of suspension unless a breath test refusal was involved.
Penalties for Fourth Offense OUI
A fourth offense OUI in Massachusetts is considered a felony. A defendant convicted of Operating Under the Influence of Alcohol, for a fourth offense, shall be punished by a fine of not less than $1,500 nor more than $25,000 and by imprisonment for not less than 2 years nor more than 2 ½ years, or by a fine of not less than $1,500 nor more than $25,000 and by imprisonment in the state prison for not less than 2 ½ years nor more than 5 years with a mandatory minimum sentence of 1 year.
In addition, the defendant will be required to pay an assessment and fees totaling $250. The defendant’s license will also be suspended for 10 years and he or she will not be eligible for a hardship license until after 5 years of suspension has occurred.
Penalties for Fifth and Sixth Offense OUI
A fifth and sixth offense OUI in Massachusetts is considered a felony. A defendant convicted of Operating Under the Influence of Alcohol, for a fifth or sixth offense, shall be punished by a fine of not less than $2,000 nor more than $50,000 and by imprisonment for not less than 2 ½ years or by a fine of not less than $2,000 nor more than $50,000 and by imprisonment in the state prison for not less than 2 ½ years nor more than 5 years with a mandatory minimum sentence of 2 years to be served. In addition, the defendant will be required to pay an assessment and fee totaling $250. The defendant’s license will also be suspended for life and no hardship license may be obtained.
Penalties for Seventh and Eighth Offense OUI
A seventh and eighth offense OUI in Massachusetts is considered a felony. A defendant convicted of Operating Under the Influence of Alcohol, for a seventh or eighth offense, shall be punished by a fine of not less than $2,000 nor more than $50,000 and by imprisonment for not less than 3 ½ years nor more than 8 years with a mandatory minimum sentence of 3 years to be served. In addition to those penalties, the defendant will be required to pay an assessment fees totaling $250. The defendant’s license will also be suspended for life and no hardship license may be obtained.
Penalties for Ninth Offense or More OUI
A ninth offense or more OUI in Massachusetts is considered a felony. A defendant convicted of Operating Under the Influence of Alcohol, for a ninth or more offense, shall be punished by a fine of not less than $2,000 nor more than $50,000 and by imprisonment for not less than 4 ½ years nor more than 10 years with a mandatory minimum sentence of 4 years. In addition, the defendant will be required to pay an assessment fees totaling $250. The defendant’s license will also be suspended for life and no hardship license may be obtained.
Penalties for a Minor Defendant Under the Age of 21
A defendant convicted of Operating Under the Influence of Alcohol, who is under the age of 21, may have different penalties depending upon the circumstances.
If the defendant, after submitted to a chemical breath test, had a BAC of .02% but less than .08%, the defendant shall be punished by a mandatory minimum loss of license for 210 days. The defendant will also be required to enroll in an alcohol treatment and rehabilitation program.
If the defendant’s BAC was .08% or higher, than the standard first offense penalties may be imposed. However, a defendant under age 21 shall be punished by a fine of not less than $500 nor more than $5,000 and by imprisonment for no more than 2 ½ years.
The defendant’s license will also be suspended for 1 year. These penalty provisions are more severe than standard OUI first offense penalties for those age 21 or older. The stiffer penalties account for the underage consumption of alcohol, as well as the driving while intoxicated.
More About OUI Charges
OUI Case Result
OUI Charge: OUI (2nd Offense), Negligent Operation of a Motor Vehicle and Unlicensed Operation of a Motor Vehicle: Not Guilty After Trial.
Police discovered a man sleeping behind the wheel of a vehicle parked in a lot in Swansea, Massachusetts. It had recently snowed and there were fresh tire tracks leading from the main road to where the vehicle was in the lot. Police approached the vehicle and knocked multiple times on the window to wake the motorist. The driver awoke, appeared to be startled and was unable to follow directions. One of the officers reached through the window to place the transmission into park. Police then smelled a strong odor of alcoholic beverage emanating from both the man’s mouth and inside the vehicle. When asked by police if he knew where he was, the man did not respond. Police learned the man did not have a driver’s license. The officer then asked the man to step out of the car. While exiting the vehicle, the man was unsteady on his feet and leaned against the car for balance. Police noticed the man’s eyes were bloodshot and watery, and his speech was slow and slurred. In the backseat, police discovered a case of beer containing seven empty bottles. Police then administered to the man a series of field sobriety tests (Horizontal Gaze Nystagmus (HGN), Walk-and-Turn and One-Leg Stand), all of which he failed. He also declined to participate in a chemical breath test. Based on the totality of these facts, police arrested the man and charged him in Fall River District Court with OUI (2nd Offense), Negligent Operation of a Motor Vehicle and Unlicensed Operation of a Motor Vehicle. The man hired the Massachusetts Criminal Defense Law Office of John L. Calcagni III, Inc. to defend him. Unable to negotiate a favorable pretrial disposition, the matter proceeded to jury trial. At trial, Attorney Calcagni’s team (Attorney John Pensa) successfully negotiated for dismissal of the unlicensed operation charge. Following presentation of Commonwealth’s case and aggressive cross-examination of its police officers, the Court granted the Defense’s motion for a directed finding of not guilty on the negligent operation charge. The OUI (2nd Offense) charge went to the jury. After one hour of deliberations, it returned a not guilty verdict.
If you have been arrested and charged with OUI any call (508) 213-9113 to schedule a free consultation with experienced Massachusetts Motor Vehicle Lawyers of the Law Office of John L. Calcagni III, and learn the best way to proceed with your case.