Massachusetts OUI 1st Offense: Your Questions Answered

A first offense OUI is a misdemeanor in Massachusetts. It only becomes a felony if it's a third offense or involves serious injury to another person.

A first and or second offense OUI is a misdemeanor which can be sealed in Massachusetts in three years. OUI will not stay on your record permanently; if you are found not guilty, the charge will be automatically sealed after the verdict within 10 days.

Jail would be very unusual for a 1^st offense OUI; the typical punishment after trial is very similar to what someone would receive on a plea; meaning one year probation with the requirement of completing the 24D program. While the law allows for a maximum penalties of 2.5 years in the house of correction, jail time is generally not a likely punishment for a 1^st offense OUI.

The police do not notify your employer of the arrest; most employers will not find out unless they run your record or you have to drive as part of your employment or have a CDL license.

The average case will take 5 to 9 months depending on legal issues in the case; breath test cases can take longer because there are generally extra court hearings called motion hearings to exclude the results from evidence.

You should only accept a CWOF, which is an admission you drove under the influence after understanding all your defenses and the possible license implications. You should not rush into a plea; a CWOF can impact your license if you have an out-of-state license or impact your immigration status so make sure to understand all the implication of admitting to an OUI.

You should not accept a plea without speaking to an immigration lawyer as a 1^st offense OUI can impact your immigration status. Generally, a noncitizen should fight the case because a CWOF will count as a conviction for immigration purposes so for most it is worth taking the case to trial.

Yes — Attorney DelSignore has won case with failed breath test results many times. Breath test machines and the officers operating them are not infallible, and there are numerous grounds to challenge the reliability of a breath test result, from maintenance records to how the test was administered. A number over .08 does not end the case; you should still look into fighting the case even if there is a failed breath test as these results are not always admissible in court. This means of the result can be excluded from evidence it will not be a factor in the outcome of the case.

You can get your license back in 30 days if you took the breath test; you need to scheduling a hearing right away so that you do not wait any additional time. You can schedule your reinstatement prior to the time of the suspension expiring but the hearing/phone call should be after the time expired. If you refused a breath test, you can reinstate in 6 months even if the case is still pending on a 1^st offense. If you admit to the OUI on a first offense, there is an additional 45 day suspension.

The Commonwealth will generally not reduce or dismiss an OUI even if you have no record; the District Attorneys in most Courts are told they have not authority to negotiate or dismiss an OUI charge. There are a few courts where this is possible.

Most District Attorneys will not reduce an OUI to negligent operation; there are a few courts where this is possible but most District Attorneys will not agree to a reduction of the charge.

Yes. These cases are winnable, but only if someone is challenging the field sobriety tests, the stop itself, and the breath test evidence — not just accepting the Commonwealth's version of events. Attorney DelSignore has been highly successful over the years helping people avoid OUI convictions. Attorney DelSignore has spent years attending seminars on OUI defense, cross examining witness, writing books on OUI defense and taking cases to trial—this experience is a major benefit to you and will provide insight into your case that would be hard to gain without a lawyer or with a less experienced lawyer.

No, in Massachusetts it would be unconstitutional and a violation of your privilege against self-incrimination for the Commonwealth to make an argument that had you been sober you would have taken the breath test. In other States, this can be a proper argument but not in Massachusetts under our State Constitution.

A second offense carries enhanced penalties; if you refuse on a second offense, there is a three year license loss; additionally while jail is often not imposed for a second offense, it is something that needs to be considered as a possibility. When charged with a second offense, if you OUI offenses are separated by more than 10 years you have the possibility of what is called a Cahill Disposition. Second offense OUI are more complex and Attorney DelSignore has written extensively about Second Offense OUI so there are no quick answers but you can reach out for a free consultation.

It is generally better to refuse because the Commonwealth does not have the breath test evidence to prosecute the case and the Commonwealth cannot argue you are guilty because you refused. However, the license loss is longer for a refusal so everyone circumstance is different. At this point, you should focus on making the best decision going forward rather than rethinking the arrest.

A breath test refusal on a first offense carries a 180-day license suspension. That's separate from any suspension tied to the criminal case itself. If there is an admission of conviction on the OUI charge, there is an additional 45 day suspension from the date of the conviction. If you have a prior conviction, the suspension is three years and the penalties increase if you have additional prior convictions or if you refuse and are under 21. If you are found not guilty prior to the 180 day suspension running, you can apply to get your license back early; however it generally will take about 4 months to get a case to trial at minimum.

Accident case can still be won at trial; the Commonwealth has to prove you were impaired beyond a reasonable doubt; it cannot rely on assumptions. Often, there is no witness to how the accident occurred and in many cases the fact you were injured in an accident makes any field sobriety testing that was done unreliable. In some accident cases, there can be very little evidence of impairment so do not assume you cannot win your case because you were in an accident.

The pen test formally known as the HGN or Horizontal Gaze and Nystagmus test is not admissible in Massachusetts so the judge or jury will not consider that test as part of your case. So it does not matter whether you followed the pen or not; The Massachusetts Supreme Court has held that officer are not quailed to evaluate your eyes so the evidence is excluded in almost all cases.

It's a separate action the RMV can take, apart from your criminal case, when police report that your continued driving poses a threat to public safety — most often after an accident where alcohol or drugs are suspected. It's an indefinite suspension with no hardship license available while it's in place, and it typically takes about six months to resolve. DelSignore Law handles these RMV and Board of Appeals hearings regularly and have gotten many overturned or lifted.

The only time you would ever speak if you testify at trial and most clients do not testify; you will never be asked to speak about the case at any Court date without preparation. Attonrey DelSignore will let you know if anything will be asked of you, but one thing is for sure; you will never be asked about the incident or what happened unless you are testifying at trial. You do not need to worry about the judge asking you what you drank at the arraignment or pretrial.

The first date is the arraignment. You will check in with probation and be in front of the Judge for about 30 seconds in a typical 1^st offense OUI; you will be released on your promise to appear at your next court date. If it is your second offense, often you will also be released without bail if you showed up for court on your prior case. Most 1^st and or Second Offense OUI cases do not involve any cash bail.

Often, yes — police cruiser dash cameras and station booking video are common in OUI cases. All Massachusetts State police cases will have body camera of the entire incident; most local departments either have a booking video or body camera so there should be some video evidence in the case.

An arrest is public record, so local police logs or news sites can pick it up. Unless you are a public figure or known in the community, most people arrested for OUI do not have the arrested reported in the media. It would be rare to have your picture posted in print or written media unless you are a public figure or there was something unusual about the arrest. In some Courts, a local paper listed the arrest and would put your name in a local paper; however, this does not happen often.