In this Blog, Massachusetts OUI Lawyer Michael DelSignore explains common terms used in Court.  One of my goals as a lawyer is to make sure you understand the process.  You will hear these terms frequently used in Court and here is what lawyers mean when these terms are used in Court.

Common Terms used in Court when Facing an OUI

Like any industry, the legal profession uses certain terminology when discussing cases and court appearances. In this Chapter, I have defined common terms for people charged with drunk driving to help you understand the language used in court. 

What is the difference between an OUI and a DUI? 

When you are charged with drunk driving, you may hear the charge referred to in a number of different ways. In Massachusetts, the charge is referred to as an OUI- operating under the influence of alcohol. Many states refer to the charge as DUI- driving under the influence of alcohol; DWI- driving while intoxicated or an OWI- operating while intoxicated. The terminology means the same thing——that you have been charged with drunk driving. 

In Massachusetts, the correct term is OUI, but it is important to remember that any prior drunk driving charge in any other state, regardless of how the drunk driving charge is labeled, will count as a prior offense and have consequences for your license. 

Is an OUI a felony or a misdemeanor? 

In Massachusetts an OUI is a misdemeanor charge for both the first and second offense. Massachusetts law defines a misdemeanor offense as any offense where the maximum possible sentence is 2.5 years in the house of correction and when there is no possibility of State prison time. A Felony offense is any offense where a judge can impose more than 2.5 years in the house of correction or when the Judge could impose a State prison sentence if the case were indicted and brought to Superior Court.  

Many other states have different definitions of misdemeanor and felony offenses; however, in most States a first offense OUI is a misdemeanor.

An OUI offense can become a felony if it involves either of the two following situations:

1. It is a third offense or higher.  

Any OUI charge of a third offense or greater is a felony offense and can be brought to Superior Court.  It is unusual for a third offense to be brought to Superior Court.  If you are in Essex County, there is a greater chance of the case being brought to Superior Court as the DA’s office in that county can be over aggressive on OUI offenses.  Additionally, if your Third Offense involves an arrest at the Encore Casino, the case may be indicted as those cases are handled by the Attorney General.  While typically a third offense OUI would stay in District Court, charges of 4th and 5th offense OUI may be brought to Superior Court where the maximum sentence would be five years in the State prison.

 

• It involves death or serious bodily injury.

A charge of OUI serious bodily injury defined in Massachusetts General Laws Chapter 90 Section 24L is also a felony offense that carries with it the potential for State Prison time and carries mandatory jail time if the case remains in the district court. Additionally, a charge of operating under the influence causing death is a felony offense under Massachusetts OUI laws.

 

• What is a CWOF on a Massachusetts OUI Charge

A Continuance Without a Finding, known as a CWOF, is essentially an admission of guilt; however, the court will not impose a guilty finding, but instead continue the case without a finding for a period of time——typically one year——with the requirement that you abide by the conditions of probation set by the court. Those conditions include that you complete and alcohol education program, report to probation by mail and avoid picking up any new charges.  When you admit to OUI, there will also be an additional 45 day license loss on a first offense. 

While a CWOF is technically not a conviction under Massachusetts law, it is still an admission that you drove under the influence of alcohol. If you accept a disposition of a CWOF, the judge will ask you to admit to driving under the influence of alcohol and conduct a colloquy with you to make sure you understand that you are waiving your right to a trial. A CWOF therefore counts as an OUI conviction for the purposes of counting prior OUI offenses.  In some cases, a CWOF can be the best way to resolve the case.  

 

• Benefits of a CWOF, technically not a criminal conviction, allows you to have a gun license if that is an issue, possible early sealing, does not show up on low level background checks after the one year.  
• Downside of a CWOF, admission to OUI, counts as prior conviction if you ever get an OUI in the future, disposition is not much different from penalty you are likely to get after trial if convicted.  You should consider the impact of a CWOF if you have an out-of-state license as the license loss could be different in your home state from what Massachusetts would impose.  

 

What is the difference between a pretrial and arraignment date? 

The Arraignment is the term for the first court date where you are formally advised of the charges. Following the arraignment date, your case will be scheduled for a Pretrial Conference, which is an opportunity for your case to be discussed with the district attorney. You may have several pretrial conference dates prior to selecting a trial date, depending on the facts of your particular case. 

One important thing to understand is that the court process for an OUI takes time.  In any Massachusetts OUI case, the case proceeds through the following stages: 

1. Arraignment

The arraignment is when you are formally advised of the charges, a not guilty plea is entered, and the case is set down for a pretrial conference. If it is your first offense and you have little or no criminal record, you should be released on your promise to appear; in court, this is referred to as “personal recognizance.” If you are charged with a second offense or higher, bail could be an issue. Generally, even if you are charged with a second offense, you will be released on your promise to appear in court. 

• Arraignments on Third and Fourth Offense OUI 

OUI Charges of a third offense or higher often will involve a request for bail and could result in a request for pretrial detention; this is referred to as a “dangerousness hearing.” If you are held under Section 58A, you can be held for up to 120 days without bail.  On a third offense, you generally will be given a condition of your release of alcohol free with random testing and likely a minimal cash bail of between $ 500.00 and $ 1500.00 dollars. Most District Attorneys will not ask for a dangerousness hearing on a third offense OUI.   If your OUI offenses are from many years ago, a judge may not order alcohol free and or random testing; Attorney DelSignore is often successful in convincing the judge to allow AA or alcohol counseling instead of random alcohol testing with the SCRAM device.  

2. Motion

After the arraignment and pretrial, the next possible stage of the case is the Motion Stage.  This is an opportunity to hear live testimony on some aspect of the case. A motion can challenge the legal basis of the stop, the admissibility of statements made to the officer, the legality of the search of the vehicle, and the admissibility of breathalyzer test evidence. When a case is scheduled for a motion hearing, the officer will testify live as to some limited aspect of the case. If a motion challenging the lawfulness of a stop is successful, it will result in the dismissal of the case. Other motions will result in evidence being excluded from admission at the time of trial. 

Even if unsuccessful, a motion hearing provides a valuable opportunity to preview the Commonwealth’s case.  During some motion hearings, the arresting officer may testify to details that are not mentioned in the police report.  If they are helpful to the Commonwealth, knowing that the officer is likely to testify this way at trial, allows for a more effective cross examination at trial; in some cases, a lack of memory or unknown information may assist in the preparation of the case for trial.  

Types of Motions:  

• Motion Challenging the Stop of your car;
• Motion contesting the reason you were ordered from the Vehicle;
• Motion to Suppress incriminating Statements under Miranda;
• Motion to exclude alcohol found in the car or on your person;
• Motion To Exclude Breath Test Evidence or Blood Test Evidence.

 

4. Trial

A Massachusetts OUI trial is typically a one-day trial. In many cases, the Commonwealth’s case will consist solely of the testimony of the arresting officer; in other cases, there could be testimony from a civilian witness and/or testimony from other police witnesses, including the breathalyzer operator. Most police departments will have some video evidence of the arrest either in the form of a body-camera worn by the officer or a booking video.  Almost all Massachusetts State Police Officers will have body camera typically of the entire interaction with you.  

This evidence is obtained during the pretrial phase of the case and can be used at trial. An OUI trial could be before a judge or jury. The decision over which options is best depends on who the judge is and the facts of the case.  The decision whether to elect a bench or jury trial is something Attorney DelSignore will spend discuss during the pendency of the case.

Hopefully this discussion of common court terms helps you understand the Court process you face when charged with OUI in Massachusetts.  To Learn more about your defenses to an OUI cases reach out to Attorney DelSignore through his website, DelSignoreDefense.com, commonly regarded as the most comprehensive authority on Massachusetts OUI Laws

You can also call or text at 781-686-5924.  You can also find the most comprehensive information about almost every court in Massachusetts and many commonly asked questions on his YouTube Channel.