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

A former Michigan prosecutor recently injured a man in a drunk driving accident. Having prosecuted many drunk drivers, Joshua Kuiper should have known better. He was charged with felony reckless driving after he crashed into Daniel Empson, who was retrieving something from a parked car. Kuiper was driving the wrong way on a one way street at the time of the incident. The former attorney was out in celebration of another prosecutor’s retirement.

Dram Shop Laws

In addition to the dangers of drunk driving, Kuiper should have known about dram shop laws. Named after the traditional term for a unit of liquor, dram shop laws hold bars liable for injuries caused by patrons they’ve over-served. Empson has filed an injury lawsuit against three bars that he alleges over-served Kuiper before the accident.

In MA, as in all states, operating a motor vehicle while intoxicated is illegal. When it comes to land vehicles, passengers are also prohibited from consuming alcohol while in the vehicle. But what about boats? Can boat passengers imbibe? The answer is yes. Passengers can drink alcohol on a boat, but the operator cannot. And as with cars and trucks, a blood alcohol concentration (BAC) of 0.08 or higher is above the legal limit.

Consequences of BUI

Although boat passengers can drink alcohol on the boat, they cannot become intoxicated. In fact, it is illegal for both the vessel owner and operator to allow anyone on board to become intoxicated while boating. If your boat is stopped by the Coast Guard or Harbor Patrol, you may face the following consequences if you are boating under the influence (BUI):

 

  • Coast Guard or Harbor Patrol may ask you to submit to a breath test and field sobriety test. You can refuse both, but if you refuse the breath test, you will likely face the consequences of refusal.
  • A refusal may result in an automatic 120-day driver’s license suspension. There are no boat licenses in MA.
  • A refusal may also result in a 120-day revocation of your boat registration.
  • If you are convicted of BUI, you may face jail time and fines in addition to the penalties above. BUI sentences are similar to OUI sentences.
  • A first offense BUI may result in up to two-and-a-half years in jail and fines of up to $1,000. If you have a prior criminal history or past BUI or OUI convictions, you may face more severe penalties.

As stated by the U.S. Coast Guard, “a boat operator with a blood alcohol concentration above .10 percent is estimated to be more than 10 times as likely to die in a boating accident than an operator with zero blood alcohol concentration.” As such, the Commonwealth is tough on boating under the influence. A Boston BUI defense attorney can help you determine how to proceed if you’ve been charged with BUI.

If convicted of BUI, the offense will go on your criminal record, you may face jail time and hefty fines, and you may be civilly liable for any resulting injuries or property damages. The best advice is to avoid drinking any alcohol if you are operating a boat in MA. But if you’ve made a mistake, a MA BUI defense attorney can help you protect your rights.

Serious Bodily Injury or Death

If your BUI offense caused the serious injury or death of another, you will likely face much stiffer penalties.

  • Serious bodily injury: Up to two-and-a-half years in jail and fines of at least $3,000. If reckless or negligent operation was also a factor, the offender may face up to 10 years in jail and fines of up to $5,000.
  • Death: If negligent or reckless operation was a factor, the offender may face up to 15 years in jail and fines of up to $5,000.

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In short, yes. In MA, a blood alcohol concentration (BAC) of 0.08 percent or higher is above the legal limit. However, there are certain circumstances under which you can be charged with OUI with a lesser BAC. Some of these scenarios are listed below.

Zero Tolerance Laws

In Massachusetts – and across the nation – “zero tolerance” laws prohibit underage drivers from having any alcohol in their system. For this reason, even negligible traces of alcohol can result in a OUI conviction if you are under the age of 21. Zero tolerance laws may also come into play when of-age adults are driving drunk with children in the vehicle.

Obvious Impairment

Alcohol isn’t the only substance that can impair your ability to drive safely. Prescription, over the counter, and illicit drugs can be just as dangerous. If you washed down a prescription pain killer with a glass of wine, you may be visibly impaired even though your BAC is under 0.08.

The Passing of Time

If you are stopped on suspicion of OUI, a breath test may not be administered for several minutes or more. If, for example, 20 minutes pass before you submit to the breathalyzer, and the test registers a BAC of 0.07, it could be argued that your BAC had been 0.08 while driving and simply dropped due to the passage of time.

Commercial License (CDL)

If you have a CDL, your legal limit is significantly lower. A BAC of 0.04 percent or higher will result in a OUI charge, even if you weren’t driving a commercial vehicle at the time of the offense. If, however, you were in a commercial vehicle, you will likely face an additional one-year CDL suspension. Further, if you receive a second OUI conviction, your MA CDL will be permanently revoked.

Penalties for OUI Conviction in MA

Keep in mind that MA is tough on OUI charges; juries are rarely sympathetic to those charged with this particular offense. Having a skilled Boston OUI defense attorney is crucial to a favorable outcome. If you are convicted of OUI, you may face the following penalties:

  • First offense: 30 days to a max of 30 months in jail, fines of up to $5,000, and license suspension of up to one year.
  • Second offense: 30 days to a max of 30 months in jail, fines of up to $10,000, license suspension of up to two years, installation of ignition interlock device (IID).
  • Third offense: 150 days to up to five years in jail, fines of up to $15,000, license suspension of up to eight years, installation of IID.
  • Fourth offense: One year to up to five years in jail, fines of up to $25,000, license suspension of up to 10 years, installation of IID.
  • Fifth offense: Two years to up to five years in jail, fines of up to $50,000, permanent license revocation.

Third and subsequent OUI convictions are considered felony offenses. A MA OUI defense attorney can help you determine how to proceed if you’ve been charged with OUI. Continue reading

It’s common knowledge that hand-held electronics, such as smart phones, pose a serious distraction when we’re behind the wheel. But is that distraction as dangerous as intoxication? Can technology actually affect our sobriety? A new Washington law aims to treat cell phone use while driving in much the same way as drunk driving. The law would ban the use of all electronic devices when driving, even when stopped at a red light.

Electronic Driving While Impaired

According to Washington Governor Jay Inslee, the bill is called “electronic driving while impaired,” and the new offense would be called a DUI-E. “When you are driving with a cell phone,” said Inslee, “you are a more dangerous driver than if you are driving drunk with a .08 blood alcohol level.” And these aren’t just empty words; research backs up Inslee’s statements.

The answer to this question is that of the answer to most legal questions, it depends. An OUI can be a misdemeanor or a felony, depending on multiple factors. Was this your first OUI or your fourth?  Was anyone injured? Were there any aggravating circumstances, such as drug possession, at the time of your arrest? Third or subsequent OUIs are considered felony offenses. In MA, convicted felons are prohibited from obtaining a gun permit or Firearm Identification Card. Read on for more information about OUIs and their impact on your ability to purchase and carry a gun.

A felony is any crime punishable by at least one year in a state prison. Even if a person’s sentence is reduced to less than one year, he or she may still be classified as a felon. Although third and subsequent OUI offenses are automatic felonies, first and second offenses can be felonies under certain circumstances. For example, if someone is seriously injured or killed in an accident because you were driving under the influence, your first OUI may be elevated to a felony conviction. A Boston criminal defense attorney can help you determine your rights to purchase or carry a gun if you were previously convicted of an OUI offense.

What About My Second Amendment Rights?

A felony conviction results in the loss of many rights, including your second amendment rights. Although the Second Amendment of the U.S. Constitution guarantees U.S. citizens the right to bear arms, it excludes those convicted of felonies. Although a felony is a surefire way to remove your right to possess a gun, there are other situations in which U.S. citizens are prohibited from purchasing or carrying firearms. These may include:

  • Anyone convicted of domestic violence, even a misdemeanor offense
  • Individuals convicted of juvenile crimes
  • Anyone with an outstanding warrant
  • Individuals residing in mental health hospitals or addiction treatment centers
  • Individuals under the age of 18 who are in the U.S. illegally

What About My Spouse?

Unless your spouse is also a convicted felon, he or she can possess a gun after your felony OUI conviction. Unfortunately, this can present a sticky situation. Let’s say your wife owns a gun and you’re a convicted felon; if she puts the gun anywhere accessible to you – including the family home – she would be in violation of the law. Further, if you were unaware that the gun was in the home and it was discovered by law enforcement, you could be charged with unlawful possession.

What are the Penalties for Gun Possession Following a Felony OUI Conviction?

In MA, unlawful possession of a firearm is punishable by a minimum of two-and-a-half years in prison, with a maximum of five years in prison. To prove unlawful possession, the following circumstances must be proven:

  • The individual was in physical possession of the firearm, and was aware that he had possession of the firearm.
  • The firearm was a revolver, pistol, or other weapon from which a bullet can be discharged.

If you were convicted of a misdemeanor OUI offense, your right to purchase or carry a gun is unlikely to be impacted. However, an application and background check will provide confirmation. A MA criminal defense attorney can help you determine how to proceed if you’ve been charged with unlawful possession of a firearm following an OUI. Continue reading

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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