Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Articles Posted in OUI/Drunk Driving

When a police officer stops your vehicle on suspicion of OUI, he or she will likely initiate a series of tests to determine if the suspicion is accurate. The officer will observe your eyes, your speech, and your overall demeanor. He or she will ask questions, such as have you had anything to drink.” If the officer believes there is probable cause, you will likely be asked to step out of the vehicle to perform a field sobriety test. You may also be asked to submit to a breath or blood test. These tests are performed to gather evidence, and any information obtained will be used against you in an OUI case. As such, it’s important to know your rights if you are ever stopped after having a few drinks.

 

  • Ask for a lawyer. There is very little information that you are required to give to police during an OUI stop. You must provide basic identifying information, such as your name and address, driver’s license and registration. But even a question such as have you had anything to drink tonight doesn’t require a response. Your best bet is to remain calm and courteous, and to politely ask to speak to your lawyer before answering any questions. A skilled Boston OUI defense attorney can help you determine how to proceed if you’ve been pulled over on suspicion of OUI.

 

  • Do not submit to the field sobriety test. Ok, before we move forward it’s important to note the following – you do have to get out of the vehicle if the officer asks you to do so. You do not, however, have to answer the officer’s questions or perform a field sobriety test. If asked to get out of your vehicle, do so politely, and then inform the officer that you do not wish to perform the field sobriety test, and that you would like to speak to your lawyer immediately. Field sobriety tests are designed to produce failures. People who are completely sober frequently fail these tests. Without the evidence of a failed field sobriety test, proving that you’re guilty becomes quite the hurdle.

 

Are there Consequences of Refusing a Field Sobriety test?

Well, refusal of a field sobriety test doesn’t carry the official consequences of refusing a breath test (we’ll talk about those shortly), but refusing a field sobriety test is a relatively surefire way of getting arrested. The same could be said for submitting to the test, however. In many ways, you’re damned if you do, damned if you don’t…but for one major exception; a failed field sobriety test may lead you to jail and – most likely – a conviction. A refused test may lead you to jail, but you’ll have a significantly better chance of having your OUI charge dismissed without that evidence to substantiate the charge.

Can I Refuse the Breathalyzer?

Breath and blood tests are an entirely different story. In MA, refusing a breath test carries an automatic 180-day license suspension. That being said, it may still be in your best interest to refuse the breath test. There is no one-size-fits-all answer to this problem. Your best course of action is to contact an experienced MA OUI defense attorney immediately if you find yourself in this situation. Continue reading

A misdemeanor is a minor criminal offense, but it’s a criminal offense nonetheless. As such, a misdemeanor conviction may result in hefty fines, jail time, and a criminal record. Facing a misdemeanor charge can be scary, especially when it originates somewhere other than your home state. If you were charged in MA but you live in another state, what do you do? Read on for more information about what to do, and what not t to do if you are facing an out of state misdemeanor charge.

Ignorance is Not Bliss

For starters, don’t ignore the charge. The criminal justice system will catch up with you eventually, and ignoring a criminal charge is the best way to ensure a conviction and additional charges. A MA criminal defense attorney can help you determine how to proceed if you’ve been arrested in MA but live out of state.

Penalties for Misdemeanor Offenses

Misdemeanors are not as serious as felonies, but that doesn’t mean you won’t face serious penalties. Misdemeanors includes crimes such as simple assault, petty theft, and some OUI offenses. If you are being charged with a misdemeanor offense, you may be facing the following penalties:

  • Jail You can face up to one year in jail for a misdemeanor offense.
  • Misdemeanor crimes carry fines from $50 all the way to $2,000 or more.
  • If your crime involved property damage or resulted in a loss of money for the victim, you may have to pay restitution to cover those damages.
  • Some misdemeanors include probation as an alternative, or in addition to, jail time.

Learn from Tom’s Mistake

Consider the following scenario, for example: Tom gets arrested for simple assault while on vacation in Boston. He was drunk and got into a bar fight. Tom spends the night in jail, and is released the next day. Tom is scheduled to appear in court in Boston, but he heads home to Oregon and vows never to return to the Bay State.

Not so fast, Tom. If you try to evade out of state charges, you’ll likely face additional penalties in the future. Even if you never return to MA, a simple traffic stop in your home state could reveal an out of state warrant, unleashing a snowball of consequences that generally far outweighs the penalties of your original offense.

You Need a Local Lawyer

But there are legal steps you can take to reduce or eliminate the cost of travel if you live far from the state in which you were arrested. For starters, you should hire a local lawyer. Depending on the circumstances of your case, you may be able to avoid returning to the state where you were arrested. Courts often allow the defense attorney to appear on behalf of the defendant. A skilled Boston defense attorney can help you protect your rights and reduce your travel expenses if you’ve been charged for an out of state misdemeanor in MA. Continue reading

Summer is time for relaxation and fun. If you take that fun too far, however, it can result in a number of less-than-fun consequences, including charges for criminal offenses such as OUI, disorderly conduct, or assault. You may even find yourself behind bars. Follow the tips below to have fun, and avoid getting charged with OUI, this summer season.

 

  • No open containers in the car. You don’t need to be drinking to get charged. It is illegal to have an open container in an unlocked compartment of your car. For example, a half-full bottle of rum in the center console, or in the back seat, can get you in big trouble. If you are traveling to a party and taking previously-opened containers of alcohol, make sure that they are all safely stowed in the trunk, where they can’t be reached while the vehicle is in use.

 

  • Zero tolerance for underage drivers. If you are under 21, you can get charged with an OUI offense for any amount of alcohol in your system. In MA, a driver is “over the limit” with a blood alcohol level of 0.08 or more. But even 0.01 can result in an OUI if you’re under 21. A MA OUI defense attorney can help you determine how to proceed if you’re facing charges for an underage OUI offense.

 

  • Even prescription drugs can lead to an OUI. If drugs – even prescribed medications – impair your ability to drive, you may find yourself facing charges for OUI. And the drugs in question don’t have to be controlled substances such as oxycodone or ADHD meds. Even antihistamines can result in an OUI if they impair your ability to drive safely.

 

  • Have a plan for how to get back to your home or hotel before the night begins. Prior to heading out for the night, talk to your friends and determine your end-of-night plan. Will you walk? Will you call an Uber? Is there a designated driver? And if you’re staying in an unfamiliar location, like a hotel, write down the address in case you aren’t as clear headed at the end of the evening.

 

  • If all else fails, contact your attorney. If you made a mistake and you’re facing OUI charges, a skilled Boston OUI defense attorney can help you fight them. Many OUI stops, especially during the busy summer season, are riddled with errors that can be used to your advantage. For example, a faulty breathalyzer test can result in inaccurately-high readings. It’s important to know your rights; you can refuse to take a breath test. However, there are some serious implications for doing so. Refusing a breath test carries an automatic license suspension of 180 days. There is no one-size-fits-all answer to whether or not you should refuse a breath test. If you have no prior OUIs and you passed the field sobriety test, you have a better chance of winning your case if you refused the test than if you took it and failed. But, as with most things in life, there are no guarantees.

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Yes. But that doesn’t mean you want to refuse. On the other hand, it also doesn’t mean you should submit to the test. This conflicting advice may leave you feeling a bit confused, but with good reason; there’s no one-size-fits-all approach to the decision to refuse (or submit to) a breathalyzer test in MA. If you decide to take the test and it reads .08 or higher, you will lose your license for 30 days if it’s your first offense. If you refuse to take the test, however, you will receive an automatic 180-day suspension.

At first glance, it may seem that taking the test is in your best interest. But a failed breathalyzer test is hard evidence to overcome at trial. You have a much better chance of beating an OUI charge if a failed breathalyzer test is not on the table. A Boston OUI defense attorney can help you defend yourself in court, whether you took and failed a breath test or refused the test altogether.

Assess Your Situation

If you refuse the test and a skilled attorney is successful in defending you against the OUI charge, your license will generally be reinstated in less than 180 days. Remember, this favorable outcome is only likely if the circumstances of your case are equally favorable. If, for example, this is your second or subsequent OUI charge, and / or several witnesses claim to have seen you driving recklessly before you were stopped, your chances of success will be seriously limited. However, if this was a first offense and there were no other aggravating circumstances present during your stop or arrest, penalties for refusing the breathalyzer are much more likely to be waived.

In MA, a blood alcohol concentration (BAC) of .08 or higher is above the legal limit. If your breathalyzer results indicate .08 or above, that evidence will be hard to fight in court. If, however, you refuse the test, there will be no evidence of your BAC at trial, and – even better – the jury will not be made aware of your refusal. If you are found not guilty, your MA OUI defense attorney will file a motion arguing for reinstatement of your license prior to the 180-day period. Unless the prosecution can prove that your license should not be reinstated, you are likely to get it back in relatively short order.

What if I’m Under 21?

If you are 21 or older and you fail a breath test, your license will be suspended for 30 days. That is just the initial suspension; you will likely receive a later suspension if you are found guilty. However, there are some circumstances in which a failed breath test carries an automatic 180-day suspension.

  • If you are between the ages of 18 and 21 and your BAC is .02 or higher, you will lose your license for 30 days plus 180 days. In some cases you can waive this suspension by enrolling in a Youth Alcohol Program (YAP).
  • If you are under the age of 18, you will face a one-year suspension if you fail a breathalyzer. If you enroll in an approved alcohol treatment program, this suspension may be reduced to 180 days.

This may seem like an easy choice – I’ll lose my license for 180 days no matter what, so I might as well refuse the test, right? But the reality is, it’s not that simple. Although a failed breath test has an extended suspension if you are under 21, so does a refusal. If you are under 21 and you refuse a breathalyzer, your license will automatically be suspended for three years.

What if this isn’t My First OUI?

Things get a bit more complicated with second and subsequent OUIs. If you’ve previously been convicted of one OUI, a breathalyzer refusal carriers an automatic three-year suspension. And if you have two previous convictions, that increases to five years. If this is your third or subsequent conviction, a refusal will result in a lifetime suspension. Continue reading

Tiger Woods was recently arrested on drugged driving charges after police found him asleep behind the wheel of his Mercedes. When police woke him up, the golf superstar was stopped in the right lane with his car running. Woods failed several field sobriety tests, but a breath test registered no alcohol in his system. Although this story is unfortunate, it does provide some valuable lessons about drunk, and drugged, driving.

  • You Don’t Have to Drink Alcohol to Get an OUI: In every state, including Massachusetts, drugged driving is included in OUI laws, and there are specific charges depending on whether the drugs were legal, illicit, or prescription. OUI stands for operating under the influence, and it doesn’t only apply to alcohol. Even if you are impaired by a legal, valid prescription medication you can be charged with, and convicted of, OUI. However, with the help of a skilled Boston OUI defense lawyer, you may be able to convince a prosecutor that the incident was an honest mistake. If no injuries or damages occurred as a result, you’ll have a much better chance of a favorable outcome.
  • You Can Get Charged with OUI Even if You Weren’t Driving: If you are in or around the car, you can still get charged with OUI. The case above is a perfect example; although Tiger wasn’t actively driving at the time of the arrest it was apparent that he had been driving. Even if he had pulled off the road, onto a shoulder or into a parking area, he would likely have been arrested. If Tiger had gotten out of the car and fallen asleep leaning up against it, the outcome would have almost certainly been the same. If police believe you were driving, or intended to drive, you can be charged with OUI. The moral to this story – if you are drunk or drugged, stay far away from your car, unless a perfectly-sober driver is driving. A MA OUI defense attorney can help you determine how to proceed if you’ve been charged with drunk or drugged driving.
  • Field Sobriety Tests are “Optional”: This is true; you can refuse both field sobriety tests and breath and blood tests. However, you may face harsh consequences for doing so. In most cases, field sobriety tests, such as saying your ABCs backwards and touching your nose with alternating fingertips, can be refused without consequences. But refusing a breath test comes with mandatory consequences. In MA, refusing a breath test will give you a mandatory 180-day license suspension. Despite this mandatory suspension, it is sometimes in an individual’s best interest to refuse the breath test. Unfortunately, there is no one-size-fits-all answer to this question; the decision to refuse or not to refuse must be based on multiple factors, including the severity of your offense, prior OUI convictions, prior criminal history, and personal-family-work-life situation.

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MA is tough on OUI. But if this is your first offense, there are multiple defenses and alternative sentencing options that may be available to you. A first offense conviction of OUI in MA can carry a penalty of up to two-and-a-half years in jail, a one-year license suspension, and a fine of up to $5,000. However, this is rarely the outcome. With the help of a skilled Boston OUI defense attorney, you can dramatically improve your chances of a reduced or dismissed charge.

As with most criminal offenses, penalties for OUI take into account prior criminal history, and the severity of your crime. For example, if you were arrested for OUI while driving a child under the age of 14, you may also face child endangerment charges. But in most cases, a first-offense OUI without aggravating circumstances will not land you behind bars.

Did You Refuse the Breath Test?

In MA, if you refused a breath test at the time of your arrest, you will face an automatic license suspension of 180 days. On the other hand, if you take the breath test and it registers a blood alcohol concentration (BAC) of .08 or above, your license will be suspended for a minimum of 30 days.

At first glance, it may seem like a better deal to submit to the breath test, even if you may be over the legal limit. But this isn’t always the case. That being said, it is impossible to give blanket advice about whether or not to refuse a breath test; this decision should be based on multiple factors, including your level of intoxication, prior criminal history, whether you have past OUI convictions, and your personal / work / home life situation. If you do choose to refuse the breath test, you are entitled to challenge the associated suspension at a hearing. You have 15 days following your arrest to appeal this suspension. Take advantage of this option.

Alternative “24D” Disposition

In MA, a first or second offense OUI is considered a misdemeanor. If you are facing charges for either offense, you may qualify for a program known as “24D,” or Alternative Disposition. 24D provides an alternative to the harsh penalties of an OUI conviction. If approved for 24D, you will be given one to two years of probation and will be required to complete an alcohol education program. Once you’ve enrolled in the class, you will likely receive a hardship license, even if you refused the breath test. A MA OUI defense attorney can help you determine if you are eligible for 24D.

Second and Subsequent Convictions

If you are facing a second or subsequent conviction, the penalties you are facing will understandably be more severe. However, individuals convicted of second offense OUIs may still be eligible for 24D, under certain circumstances. Penalties for second and subsequent offenses may include:

  • Second OUI offense: Up to two-and-a-half years in jail, license suspension of up to two years, a fine of up to $10,000, and the installation of an interlock ignition device at your own expense.
  • Third and subsequent OUI offenses: Up to two-and-a-half years in jail, a fine of up to $15,000, and a license suspension of up to eight years.

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OUI checkpoints pop up on heavily traveled roads throughout MA every weekend. You have rights if you are stopped at one of these checkpoints, but it’s important to keep the following in mind – the U.S. Supreme Court ruled that OUI checkpoints are legal. So, while you do have rights, you must stop at a checkpoint if directed to do so. Read on for more information about what to do, and what not to do, if you are stopped.

OUI Checkpoint Dos

  • If you are directed to stop, do so as soon as it is safe to pull over. The requested stops are usually done at random, so don’t panic if you are directed to pull over.
  • Stay calm, and politely follow the officer’s instructions.
  • Provide law enforcement with requested information, such as your driver’s license and vehicle registration. Failing to do so may cause suspicion and result in further complications, even your arrest.

OUI Checkpoint Don’ts

  • Avoid violating traffic laws when you are driving through a checkpoint. This may sound obvious, but it’s easy to make mistakes when you are panicking. Don’t make illegal U-turns, use excessive speed, or ignore an officer’s signals to pull over. These actions could give police reason to suspect you of OUI.
  • Don’t unnecessarily incriminate yourself. If police ask if you’ve had anything to drink, politely decline to answer the question. Although you may think it will help your case to say you’ve only had one or two beers, this statement can be used against you. In fact, other than providing police with identifying information, such as your license and registration, you should – politely – decline to answer any questions that police ask you.
  • Decline field sobriety tests. You are absolutely able to refuse field sobriety tests; politely decline and inform police that you know it is your right to refuse.
  • Do not volunteer to take a breath test. If you haven’ been arrested, you are not required to submit to a breath test. Once you have been arrested, there are penalties for refusing. However, in some cases these penalties are less severe than the potential penalties of an OUI conviction. It is impossible to give a blanket statement as to whether you should or should not refuse a breath test if arrested for OUI. This can only be determined on a case by case basis, incorporating factors such as prior criminal history and OUI convictions. A Boston defense attorney can help you understand how refusing a breath test might impact you, based on your personal circumstances.

Massachusetts is tough on OUI. Even first-time offenders may see jail time, have their license suspended, and be required to have an ignition interlock device (IID) installed. These devices require a driver to provide an alcohol-free breath sample before his or her engine will start, and periodically throughout the drive. Second and subsequent offenders will have even stiffer penalties. If you made the mistake of driving while intoxicated, don’t make another one by hiring the wrong attorney. A skilled MA OUI attorney can make all the difference in the world.

Altman & Altman, LLP – Boston’s Premier Criminal Defense Law Firm

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Many states are now requiring the installation of interlock ignition devices (IIDs) for those convicted of OUI offenses (even first-time offenders). Massachusetts is one of them. But it was a Pennsylvania mom, Angela Daywalt, who recently made national headlines after using her young daughter to bypass the device while she risked both of their lives. In MA, if you are charged with OUI, don’t make the mistake of hiring an inexperienced attorney. A skilled MA criminal defense attorney can position you for the most favorable outcome possible.

What is an Interlock Ignition Device?

An IID is a device that requires a driver to submit an alcohol-free breath sample prior to starting a vehicle. If your car is equipped with an IID, you must blow into the device to start the engine, as well as periodically throughout the drive. In the case of Ms. Daywalt, she was attempting to flee the scene of a drunk driving accident in which she had just been involved, but the intoxicated mom needed a fresh breath sample to re-start her vehicle. To solve her problem, Daywalt asked her eight year old daughter to blow into the device on her behalf.

In addition to drunk driving charges, Daywalt is also facing child endangerment charges and multiple traffic and summary violations. According to witnesses, the mom of the year was seen urging her child to blow into the IID. Although she made it home, police caught up with her shortly thereafter. A subsequent blood alcohol test revealed that she was, indeed, intoxicated. A Boston OUI offense attorney can be the difference between jail time and a full dismissal of your case. If you’ve been charged with OUI, it’s in your best interest to consult with skilled legal counsel immediately.

More Bad Moms

It may seem as though Ms. Daywalt took drunk driving to a new level, but she is not alone. The following mothers have also made some terrible choices that put themselves, and their children at risk.

  • A mom in New York is alleged to have beaten up her nanny when the nanny attempted to stop her from drunk driving with her toddler in the vehicle.
  • Shockingly, former Mothers Against Drunk Driving (MADD) president Debra Oberlin was convicted of drunk driving in Florida.
  • Another PA mom was charged with vehicular homicide after she was involved in a drunk driving accident that resulted in the death of her 14 year old son.
  • An Arizona mom is alleged to have driven away with her infant son in his child safety seat…on the roof of the car. She was allegedly stoned at the time of the incident.

OUI Penalties in MA

If you find yourself in this situation, you may be wondering what potential penalties you are facing. Although other factors, including aggravating circumstances and past criminal history come into play, here are the possible penalties:

  • First offense: License suspension of up to 90 days, $500 to $5,000 fine, jail time of up to 2-and-a-half years.
  • Second offense: License suspension of up to two years, up to $10,000 fine, and jail time of up to 2-and-a-half years.
  • Third offense: License suspension of up to eight years, up to $15,000 fine, and prison time of up to five years.

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It’s common knowledge that getting behind the wheel when you’re intoxicated is a bad idea. But determining whether you’ve had too much to drink isn’t always as cut and dried. In Massachusetts, a blood alcohol concentration (BAC) of 0.08 percent is above the legal limit. If a large man has three drinks with dinner, his BAC may be the same as that of a small woman who has one drink on an empty stomach. Without a breath or blood test, it’s impossible to know. Therefore, it’s always wise to err on the side of caution. If you’re going to drink, designate a sober driver. And if you think getting an OUI is no big deal, read on. The potential consequences of an OUI conviction may change your mind.

Consequence #1: Fines and Fees

Even for a first offense, you will likely find yourself paying fines and license reinstatement fees if you are convicted of an OUI. Fines range from $500 to $5,000, depending on the circumstances of your conviction, and you may have to pay a license reinstatement fee of up to $1,200. For a second offense, the fine can be as high as $10,000 and you may be out of pocket for up to $15,000 if convicted of a third offense.

Consequence #2: Jail Time

If this is your first offense, you probably won’t see time behind bars unless aggravating circumstances deem it necessary. But it’s a different story for second and subsequent offenses. For a second offense, you’re looking at between 30 days and two-and-a-half years in jail. For third and subsequent offenses, you could actually be sent to prison for up to five years.

Consequence #3: Ignition Interlock Device (IID)

Some first-time offenders get slapped with this requirement, but it’s mandatory for second and subsequent offenders. The installation of an IID requires the driver to blow into a device with alcohol-free breath before the engine of his or her car will start, and at periodic intervals while driving. In addition to being a hassle – and a bit embarrassing on a date – IIDs aren’t cheap. And guess who gets to pay for the installation? We all make mistakes. If you’ve been charged with an OUI, don’t make another one – consult with an experienced OUI defense attorney right away.

Consequence #4: License Suspension

From first-timers to serial-OUI offenders, everyone faces a license suspension. If it’s your first offense, you’re looking at up to 90 days without wheels. For second offenders, the suspension increases to two years, and it skyrockets to eight years for the third offense. Fourth offenders may have their license permanently revoked.

Having an OUI on your record is no laughing matter. This can impact future job and housing applications, as well as send your car insurance rates through the roof. In addition to the consequences above, you will likely be required to enroll in an alcohol education program at your expense. The bottom line is, OUI charges are serious. Your best line of defense if charged with an OUI is to consult with an experienced OUI defense attorney immediately. A skilled attorney can be the difference between dismissed charges and time behind bars. Don’t let a mistake ruin your life. Continue reading

In many ways, OUIs don’t discriminate. Rich or poor, young or old, male or female, white, black, Hispanic, or Asian, no group is immune to getting arrested for OUI. There is one group that accounts for more OUIs annually in the US than any other – young, white males. The facts and figures below shed some light on the “who, why, and where” of OUIs. If you’ve been charged with an OUI offense, don’t attempt to “go it alone.” An experienced OUI attorney can make all the difference in the world.

OUI Statistics

  • Nearly 30 people die in alcohol-related motor vehicle accidents in the US every day.
  • Alcohol-related crashes cost more than $59 billion annually.
  • In 2013, nearly one-third of all traffic-related deaths in the US involved alcohol.
  • Over 1.4 million drivers were arrested for OUI in 2010.
  • One of out of every three drivers with blood alcohol concentrations (BAC) above 0.08 percent involved in fatal crashes is between the ages of 21 and 24.
  • About 18 percent of motor vehicle driver deaths involve drugs other than alcohol.
  • In 2011, 17 percent of fatal crashes during the week involved drunk drivers, versus 31 percent on the weekends.
  • According to the National Highway Traffic Safety Administration (NHTSA), 8.3 percent of weekend drivers assessed in a 2013/2014 study had alcohol in their systems.
  • Males are more likely to drive drunk than their female counterparts (15.1 percent vs. 7.9 percent).

Some Good News and Some Bad News About OUI Statistics

Drunk driving actually seems to be on the decline. In fact, according to the NHTSA, the incidence of over-the-limit drivers decreased by about 80 percent between 1973 and 2014. That’s a significant drop. However, as these numbers decrease, the statistics on drugged driving has skyrocketed. Studies conducted by the NHTSA show that more than 15 percent of drivers tested positive for one or more illegal drugs. OUI charges apply to drugged driving just like drunk driving. If you made a mistake and got behind the wheel after a few too many drinks or after using recreational drugs, you may be facing OUI charges. The best line of defense is the help of a skilled Boston OUI defense attorney. Don’t let a mistake jeopardize a future job or housing. Get help today.

OUI Penalties

If you have been charged with an OUI offense, you may be facing the following penalties:

  • First offense: Driver’s license suspension of up to 90 days, fines of between $500 and $5,000, and up to two-and-a-half years in jail.
  • Second offense: Driver’s license suspension varies, mandatory installation of an interlock ignition device (IID), up to $10,000 in fines, and up to two-and-a-half years in jail.
  • Third offense: Driver’s license suspension varies, mandatory installation of an IID, possible felony charges, a license suspension of up to eight years, up to $15,000 in fines, and up to five years in prison.

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