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

Drunk drivers beware! Those who feel they can “get by” driving after drinking alcohol should take a tip from some of the new advertisements put out by the Commonwealth.

As the holiday season fades into our rearview mirrors, we return to streets of ice, roads of varying  repair and some questionable drivers.  Most of the parties are over. This by no means means that no one is partying anymore.

And driving.

Recently, new advertisements from the Commonwealth have taken and interesting tact. Law enforcement realized that people know that to drive “drunk “ is a huge risk.  However, it seems to be human nature for someone who is perhaps “slightly intoxicated“ to misunderstand.  Such a person might assume that, because they are neither stumbling around incoherently or vomiting out the nights imbibement, that they are safe to drive.

Think about it. How many times have you heard people say something like, “I’m not drunk. I’m just a little buzzed.”

How many times have you heard yourself say it?

The new ads to which I refer tackle the misconception that driving while “just a little buzzed, is “ok”

It’s not ok.

    Attorney Sam’s Take On ”Buzzed Driving” And Other Distorted Thinking

Between my days as a prosecutor and my over over 20 years as a defense attorney, I have handled a great number of drunk driving cases. As common as this crime is, there are still misconceptions about it. This new ad campaign takes one of those misconceptions on.

Some folks think that they have to be falling down drunk in order to be intoxicated under the meaning of the OUI laws. They would be wrong. It really does not take all that much to hit the magic number to show intoxication on a breathalyzer. In fact, the breathalyzer itself is often misunderstood.

Continue reading

If you are at least 21, a blood alcohol concentration (BAC) of .08 percent or higher can result in an OUI arrest in MA. The limit for under-age individuals is .02 percent (basically, zero tolerance).  Licensed commercial drivers (CDL holders) have a limit of .04 percent. If police suspect that you are under the influence of drugs or alcohol during a traffic stop, you will likely be asked to submit to a breath test.

Different Strokes for Different Folks

Alcohol is metabolized at different rates for different people, and based on a variety of factors. These include your gender, weight, the type of alcohol you consumed, how quickly you consumed it, and whether or not you drank on an empty or full stomach. With so many variables, it is impossible to determine your BAC without a tool designed specifically for that purpose. Even one alcoholic beverage, consumed quickly by a person with a small build – on an empty stomach – can result in an unsafe level of impairment. The best way to avoid an OUI is to always have a designated driver if you plan to drink.

If a breath test indicates that you are above the legal limit, you may be placed under arrest. Although breath tests  – commonly referred to as breathalyzers – sometimes provide inaccurate readings, an over-the-limit result is compelling evidence that you were driving under the influence. This is especially true when a reading is particularly high.

Can I Refuse the Breath Test?

You can decline to take the test, but there are serious repercussions for refusing, including a minimum six-month license suspension. Even so, it may be in your best interest to refuse a breath test. Unfortunately, there is no one-size-fits-all solution to this problem. You will have a better chance of having your OUI charges dismissed if there are no incriminating breath test results and you have solid legal counsel. If the charges are thrown out, your attorney will likely be able to remove the penalties for refusing as well.

If you do submit to the breath test and your reading is over the limit, an experienced Boston OUI defense attorney may still be able to get your charges dismissed. Breath test results are frequently off by up to .02 percent in either direction. If you were barely above the legal limit, a skilled lawyer should be able to present multiple defenses against your charge. That being said, attempting to defend an OUI charge without legal counsel can have severely negative consequences. Don’t make the mistake of trying to go it alone. The right attorney can be the difference between a conviction and a clean record.

Per Se State

Under Melanie’s law, if a breath test registers higher than the legal limit, you are legally presumed to be impaired. MA is a “Per Se” state, which means that over-limit breath test results provide per se evidence of legal intoxication. Therefore, if you agree to the test and the results are over the legal limit, you are presumed to be operating under the influence. In such a case, it is essential to have an experienced Massachusetts OUI defense attorney by your side. Continue reading

If you get arrested on suspicion of OUI in Massachusetts, the law requires that you submit to a breath or blood test. This “implied consent” law states that if an officer arrests you for OUI – with probable cause – you must consent to a blood or breath test to determine your blood alcohol content (BAC). As such, there are consequences if you refuse.

If you refuse the breath test (commonly referred to as a breathalyzer), the officer will warn you that a refusal will result in a minimum 180-day license suspension. If you still refuse the test, the officer will automatically take your license and have your car sent to impound (although this will likely happen even if you don’t refuse the test).

In MA, refusing to submit to a breathalyzer test comes with the following consequences:

  • First offense: 180-day license suspension
  • Second offense: Three-year license suspension
  • Third offense: Five-year license suspension

There are some exceptions to the rules above, however. For example, if you are under 21 at the time of your arrest, you will receive an automatic three-year suspension. And if you refuse the test after causing serious injury to another, you will lose your license for 10 years if convicted of OUI. It’s a lifetime suspension if you refuse the breathalyzer after an OUI-related accident in which someone died. You will also lose your license permanently if you previously refused a breathalyzer in three separate OUI arrests.

Is Refusing a Breathalyzer Ever a Good Idea?

At first glance, refusing a breathalyzer may seem like a terrible idea. In some cases, this is likely the case. However, refusing a breathalyzer may also work in your favor. Unfortunately, there is no one-size-fits-all answer to this question. The help of an experienced Boston OUI defense attorney is crucial to a favorable outcome.

If, for example, this is your first offense, and your BAC is likely over the limit but not excessively high, you may improve your chances of avoiding an OUI conviction if you refuse the breathalyzer. However, a refusal should only be considered if no aggravating circumstances were present, such as having a child in the car, causing property damage, injury or death, or the presence of drugs, drug paraphernalia, or weapons. And even then, there are no guarantees.

An over-the-limit BAC is compelling evidence, even if it’s only just over. It’s easier to argue that you were not intoxicated if there is no BAC on record.

If your charges are dismissed, a skilled MA OUI defense attorney can likely help you get your license reinstated. But, as stated above, there are no guarantees. If you can show that a) the officer did not have probable cause to stop you, b) you were never officially arrested, or c) you consented to the test but it was never performed, you will likely get your license back. Continue reading

The holidays are notoriously one of the worst times of year for drunk driving. From just before Thanksgiving to just after New Year’s Day, people attend more alcohol-laden parties than at any other time of year. We eat more, drink more, and are generally more merry. This is all good news, unless you decide to get behind the wheel of your car. Don’t sabotage your cheer and joy with an OUI this holiday season.

Tips to Avoid Becoming an OUI Statistic

The only surefire way to avoid getting an OUI is to never drink and drive. If you plan on drinking, designate a sober driver before heading out for the evening. If you drink more than planned and don’t have a driver, call a taxi, an Uber, or a friend. And if you decide to drive after one drink, heed the advice below.

  • Be sure that you’re under the legal limit. In MA, a blood alcohol concentration (BAC) of 0.08 is above the legal limit. To help keep your BAC under this threshold, eat plenty of food while drinking, limit your consumption to no more than one drink per hour, and stop drinking long before you have to drive. Keep in mind, however, none of these suggestions guarantee that your BAC will remain under the legal limit. The only way to be certain is to stick to non-alcoholic beverages.
  • Use extra caution when driving. Safe driving practices are always important, but if you’ve had a drink, obeying traffic laws becomes crucial. Now is not the time to fail to come to a complete stop at a stop sign, or attempt to beat a yellow light, for example. And of course, don’t text or talk on your cell phone. An MA OUI defense attorney can help you protect your rights if you’ve been charged with an OUI.
  • Use an OUI app to reduce your risk. The following apps can help, but the only fail safe is to avoid drinking and driving altogether.
  • DrinkTracker: With this app, you can estimate your BAC based on the amount of alcohol you’ve consumed.
  • Intoxicheck: This app measures your reaction times, judgment, dexterity and memory through the use of multiple challenges. To get an accurate reading, the user must first perform the challenges sober to measure the differences after drinking.
  • BreathalEyes: Similar to the Horizontal Gaze Nystagmus test that police sometimes use to determine if a driver is intoxicated, this app tracks involuntary movements of the eyes.
  • BACtrack Mobile Breathalyzer: Although not an app, this breathalyzer device attaches to your smartphone and works with an app through which you record how much you drink throughout the night.

If you do get pulled over, be calm, cooperative, and respectful. You do not need to submit to a field sobriety or breath test, but refusing a breath test will likely result in an automatic six month suspension of your driver’s license. If your charges are dismissed, however, the six month suspension may also disappear. A Boston OUI defense attorney can help you determine how to proceed if you’ve been charged with an OUI. Continue reading

If you are stopped on suspicion of drunk driving, you are guaranteed certain constitutional rights. For starters, you have the right to remain silent if you are placed under arrest. Police will generally inform you of this right by reading the “Miranda warning” at the time of your arrest. But your rights don’t stop there.

Fourth Amendment Rights

The fourth amendment to the U.S. constitution protects against unreasonable search and seizure. When the search and seizure pertains to a motor vehicle, police are generally required to have probable cause in order to make a traffic stop. If the officer cannot show that there existed a reasonable suspicion that a law was being broken, any evidence obtained during the traffic stop may be thrown out. This includes breath and blood test readings. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with OUI.

Fifth Amendment Rights

The fifth amendment includes the right to remain silent, which also happens to be the first right of the aforementioned Miranda warning. But the fifth amendment also provides several other rights and protections, including a prohibition on double jeopardy, and the right to not self-incriminate. Police are not required by law to read you the Miranda warning, but anything you say may be inadmissible in court if they fail to do so. That being said, anything you say before you are arrested is fair game.
Sixth Amendment Rights

The sixth amendment guarantees the assistance of legal counsel to anyone who is placed under arrest. Basically, this means that if you can’t afford an attorney, one will be provided for you. That being said, it is generally a good idea to hire private counsel, even if you qualify for a public defender. The cost of a good OUI attorney can save you lots of money, and heartache, in the long run.

OUI Penalties in MA

If you get convicted of OUI, the penalties will depend heavily on the particulars of your case, whether it’s a first offense, and prior criminal history. Penalties may include:

  • First offense: Fines between $500 and $5,000, one-year license suspension, and up to 2.5 years in jail.
  • Second offense: Fines between $600 and $10,000, two-year license suspension, up to 2.5 years in jail w/ mandatory minimum of 30 days.
  • Third offense: Fines between $1,000 and $15,000, eight-year license suspension, up to five years in prison w/ mandatory minimum of 150 days. This is a felony charge.
  • Fourth offense: Fines between $1,500 and $25,000, 10 year license suspension, up to five years in prison w/ mandatory minimum of one year. This is a felony charge.

If you’ve been charged with OUI or any type of crime, a MA criminal defense attorney can help you protect your rights. Continue reading

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.

Continue reading

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

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