John L. Calcagni III
OUI Massachusetts Brave Act

The brave men and women who serve in our military make the ultimate sacrifice.  Veterans go to some of the harshest places on earth to engage in conflicts that protect the rights and freedoms of all Americans. While they may return to a hero’s welcome, the scars and stresses of their service may never fully disappear.  As a result of these obstacles, and the difficulties of readjusting to civilian life, many veterans rely on alcohol or other substances as a crutch to cope.  These substance abuse issues can then lead to inevitable brushes with the law. 


The Valor Act was created in 2012 to help provide support and various benefits to returning veterans and their families.  One of the ways it did so was to allow veterans who had been charged with a criminal offense to resolve their case under the Valor Act and receive mental health or substance abuse treatment, rather than allowing their case to proceed through the criminal justice system.  However, concern began to arise that under the Valor Act veterans were getting diverted for serious charges, such as assault and battery with a dangerous weapon and other crimes of a dangerous nature. 

By 2018, Massachusetts passed the Criminal Justice Reform Law which expanded the availability of diversion for adults and juveniles, but also eliminated some diversion opportunities for veterans under the Valor Act, in response to the abuses described above.  However, with these changes, veterans who were charged with a first offense Operating Under the Influence (OUI) were now no longer eligible for diversion.  Later that same year, the legislature responded to this concern by inserting a provision into the pending Brave Act, that allowed veterans and active duty military members charged with an OUI to become eligible for pre-trial diversion once again. 

Eligibility for OUI’s Under the Brave Act

While the Brave Act restored the opportunity for diversion to veterans who have been charged with a first offense OUI, there are additional requirements that must be met in order to be eligible under the Act:

  • You must be a veteran or active military with the armed forces of the United States;
  • You must be charged in a District Court or the Boston Municipal Court;
  • You mustn’t have any prior adult convictions (after age 18), in the state of Massachusetts or elsewhere;
  • You mustn’t have any open criminal cases, warrants, or appeals;
  • You are being charged with a first offense for operating a motor vehicle under the influence of alcohol or drugs, without having ever been charged or arrested in Massachusetts or elsewhere with this offense; AND
  • You must have been clinically diagnosed with
    • A traumatic brain injury;
    • Serious mental illness; or
    • Substance abuse disorder; AND
  • This diagnosis is connected to your military service or active duty

How Does the Brave Act Work?

If you meet all the eligibility requirements under the Brave Act, you should notify the Probation Department when you first get to court on the date of your arraignment.  Probation will then seek to confirm your military service through the Department of Veteran’s Affairs (VA) and notify the Court.

At that point, you may request a 14-day continuance of your arraignment.  During this continuance, you need to undergo an assessment by the VA, Veteran’s Services, or another suitable state or federal agency.  This assessment is to determine whether you would benefit from a diversion program.  Probation will assist you with setting up this appointment.  However, a criminal defense attorney will be able to assess whether you meet the various eligibility requirements and can then assist you in this process, as well.

Once the assessment is performed, the Court will review the proposed treatment plan and recommendations made by the VA (or similar agency) at your next court date.  At this time, the Court may stay, or continue, the case for another 90 days, in order for you to comply with the proposed treatment plan.   Prosecutors will have the opportunity to object or make an alternative recommendation to the Court; however, under the Brave Act, the judge will have full discretion as to whether you may participate in the diversion program. 

Upon your return to court after the 90 days, the judge will review a written progress report to determine whether you’ve demonstrated compliance with the treatment program.  At that time, the judge may dismiss your case, or order another 90-day continuance to complete the program.

Again, if you successfully complete the program, the judge may then dismiss your case.  If the judge finds that you have failed to comply with the rules of the program, or that you have been charged with any new crime(s), you may be expelled from diversion and the original charges may now be prosecuted by the Commonwealth. 

Keep in mind that the provisions of the Brave Act are not mandatory and that the judge has full discretion throughout this process.  This means that nothing in the Act requires the judge to accept the treatment or diversion recommendations, grant a continuance, or ultimately dismiss the case.

Furthermore, this program only applies to the District Court.  If the District Attorney chooses to indict you on one or more of your charges, that case may proceed in the Superior Court even if you received diversion on the same charge(s) in the District Court.  However, in the event that you are not successful in diversion and your case continues to be prosecuted, nothing that you have said or done while seeking diversion or in your assessments/treatment can be used against you in the prosecution of the charges.  

If you or someone you love has a military background, and has been charged with an OUI, the Brave Act provides a unique opportunity for diversion, which could result in the dismissal of the case.  However, it’s critical that you consult with an experienced criminal defense attorney as soon as possible to determine whether your case qualifies for this opportunity.  Call the Massachusetts Law Office of John L. Calcagni III, Inc. today at (508) 213-9113 for a free consultation.   We have a proven track record of success, spanning more than a decade, throughout the Commonwealth of Massachusetts.  Let us help you!