1.29.10 Criminal Defense Newsletter

OUI Statute

In the past two newsletters we have learned about drug possession crimes. This week we will learn about another common crime: drunk driving. In Massachusetts, drunk driving is commonly referred to as OUI or Operating Under the Influence. Many people will refer to this crime as DUI or DWI. Different states call drunk driving different things, but in Massachusetts it is called OUI. In any event, it is the same crime. Many people are curious about OUI because it is one of the most common crimes occurring in the Commonwealth, and it can affect anyone.

In the Commonwealth, drunk driving is governed by Massachusetts General Laws Chapter 90 Section 24. Although many people may think of this as a drug or alcohol crime, it is actually classified as a motor vehicle violation. In order for someone to be convicted of OUI, the Commonwealth must prove beyond a reasonable doubt that:

  • The individual operated the motor vehicle;
  • The vehicle was operated on a public way or on a place where the public has access;
  • While operating the vehicle, the individual was either

The first 2 elements of the crime are fairly easy to understand. Operating a motor vehicle is fairly self–explanatory. This element is rarely contested and almost always refers to driving a car, but it should be noted that other motor vehicles apply as well. Under the second element of the crime, the statute only applies to a public way or a place where the public has access. As you can imagine, the vast majority of cases under this statute involve people driving their cars or trucks on public streets. Unlike the first 2 elements, the third element needs some explanation.

The Commonwealth may attempt to prove either that the individual was “under the influence of alcohol” while operating the motor vehicle OR that the individual had a blood alcohol level of at least .08 (.02 for individuals under the age of 21) at the time that he or she was operating the vehicle. The Commonwealth DOES NOT have to prove both.

There may be some confusion about the term “under the influence of alcohol.” To begin with, it does not mean that you are drunk. An individual is considered under the influence of alcohol if he or she has consumed enough alcohol to reduce his or her ability to safely operate a motor vehicle. This means that the person has decreased alertness, judgment, and ability to operate a motor vehicle. It is important to remember that the Commonwealth only needs to prove that the individual is under the influence of alcohol while operating a motor vehicle. The Commonwealth does not have to prove that the individual was driving erratically or swerving in and out of lanes. Another important thing to remember is that alcohol affects everyone differently. Therefore, the amount of alcohol necessary to impair an individual’s ability to drive varies with each individual.

The second part of the third element is fairly straightforward. If an individual blows a .08 (.02 if the individual is under the age of 21) or higher on the breathalyzer, he or she is considered guilty per se. Most people believe that if they blow less than a .08 they cannot be convicted of OUI, but this is false. A reading of below .08 can still be used as evidence to prove that an individual was “under the influence of alcohol” and can be used to convict him or her under the first part of the third element of the statute. Therefore, if someone blows a .07, they may still be convicted of OUI.

Breathalyzer/Blood Test

Most people do not realize that as a condition of receiving their motor vehicle driver’s license, they have consented to submit to a breathalyzer test or a chemical test of their blood if they are arrested for OUI. Refusing a breathalyzer or blood test will result in the immediate suspension of an individual’s driver license. Many people wonder if they should refuse to take the breathalyzer if they think that they might be intoxicated. Unfortunately, there is no correct answer to this question. Each OUI incident is different, and the decision is extremely subjective. It is also a difficult decision to make because there are serious consequences for whichever decision an individual makes. Also, an individual does not have a right to consult with an attorney about whether or not to take a breathalyzer test.

If an individual refuses to take a breathalyzer, his or her license will be taken away immediately by a police officer. If an individual fails the breathalyzer, his license will also be taken away immediately. An individual who refuses a breathalyzer or blood test is subject to a minimum 120–day suspension of his or her motor vehicle license. If the individual is under the age of 21, his or her license is suspended for 3 years.

Unlike a breathalyzer or blood test, an individual may refuse to take a field sobriety test. Although the individual will be charged with OUI, it is usually more difficult to be convicted at trial if there are no test results.


For a first offense, an individual can be punished by a fine between $500.00 and $5,000.00 and/or imprisonment of up to 2.5 years. The punishment increases based on the number of offenses. Massachusetts has a lifetime look–back period, which means that no matter how long ago an individual may have committed their first offense, it will always count as one offense. The individual’s driver’s license will be suspended for between 45 and 90 days, however the individual may apply for a hardship license to go to work or school. A hardship license is a limited license allowing the individual to drive for a certain 12 hour period each day.

The punishment for a second offense increases to a fine of $600.00 to $10,000.00 and imprisonment for between 60 days and 2.5 years.

The punishment for a third offense increases to a fine of between $1,000.00 and $15,000.00 and imprisonment for between 180 days and 2.5 years OR by a fine of between $1,000.00 and $15,000.00 and by imprisonment in the state prison for between 2.5 and 5 years.

The punishment for a fourth offense increases to a fine of between $1,500.00 and $25,000.00 and imprisonment for between 2 and 2.5 years OR by a fine of between $1,500.00 and $25,000.00 and by imprisonment in the state prison for between 2.5 and 5 years.

The punishment for a fifth offense increases to a fine of between $2,000.00 and $50,000.00 and imprisonment for a minimum of 2.5 years OR by a fine of between $2,000.00 and $50,000.00 and by imprisonment in the state prison for a between 2.5 and 5 years.

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