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

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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A manufacturer of alcohol breath testing equipment used across the state of Massachusetts is conducting an inspection of several hundred breathalyzers following the discovery of a defect. On February 3, Draeger Safety Diagnostics testified that the machines in question were improperly programmed, resulting in the use of an incorrect value which may affect the accuracy of OUI-related breath tests. The admission, which was a surprise by all accounts, was made during a court hearing concerning reliability of the company’s Alcotest 9510 breath test model.

The court hearing was in response to multiple breath tests conducted between 2011 and 2015 that are alleged to include readings outside the allowable range. The Alcotest 9510 uses two sensors – an electrochemical cell and an infrared light – when measuring a person’s blood alcohol concentration (BAC). If the two sensors fall within the same range, it rules out the possibility that interfering substances may have mistakenly been detected in the person’s system. If the values given by the two sensors are too far apart, the device is designed to shut down due to the potential for inaccurate readings. However, according to reports, the device does not shut down when values are inconsistent, and the inaccurate readings are not subsequently flagged. If you feel that a defective breath test may have contributed to your charges, it is in your best interest to speak with a Boston OUI defense attorney as soon as possible.

MA Breath Test Defect May Have Resulted in False “Over-the-Limit” Readings

On February 3, a Draeger employee testified that the company’s breath test machines use an algorithm to determine whether the readings taken by the different sensors are within 0.008 percentage points of each other. The inspection of approximately 400 Alcotest 9510s did not turn up a single machine programmed with the appropriate value. The majority of the machines inspected actually used a stricter value, which would be favorable to defendants. However, approximately 20 percent used a lesser value, which would make the machine less sensitive to the presence of alternate substances on the breath. What does this mean? If interfering substances are not flagged, the machine could display an over-the-limit BAC reading when the individual’s BAC was, in fact, under the legal limit.

Hearing Stalls Thousands of OUI Cases

Draeger is cooperating with the Massachusetts Office of Alcohol Testing to quickly remedy this problem. A spokesperson for the company says he believes the mistake was a result of human error at the company’s Germany-based factory. According to prosecutors, the error only affected 15 of the 93,000 breath tests conducted in MA during that time period. Whether or not they are correct, the problems with Alcotest 9510 serve as a reminder that breath test machines can be unreliable. As a result of the Draeger case, several thousand OUI cases have been stalled. Continue reading

The thought of getting an OUI is an unpleasant one, regardless of the circumstances. However, depending on several factors including criminal history and previous OUIs, punishments can be quite severe, and a conviction could haunt you for years. Read on to learn more about different OUI scenarios and their potential long-term consequences.

To Plea or Not to Plea

If you are charged with OUI, you may be offered a plea bargain. If this plea bargain offers probation instead of jail, your first instinct might be to jump at the opportunity. But beware. Probation for OUI offenses typically lasts longer than a similar jail sentence, and if you violate any of your probation conditions, you may wind up in jail anyhow. If you’ve been charged with an OUI offense, contact a Boston criminal defense lawyer today.

So, it happened again? In a perfect world, we would all learn from our mistakes the first time…but it doesn’t always work that way. If you are facing charges for a second OUI offense in Massachusetts, you will need the help of a skilled OUI defense attorney to minimize the damage. While it is possible to fight a second OUI, it’s not easy, and it certainly isn’t something you want to attempt on your own. Read on for more information about second and subsequent OUI charges, and what options may be available to you.

Put simply, Massachusetts is hard on OUIs, and especially hard on second and subsequent OUIs. That being said, every case is unique. It’s possible that you have been unfairly accused, or that jail time and hefty fines aren’t the best remedy in your particular situation. If a serious alcohol problem is to blame, rather than sheer recklessness and disregard for the law, it’s possible that an alcohol treatment program is a preferable alternative to getting locked up. If you’ve been charged with an OUI, contact a Boston defense attorney today.

What Are the Penalties of a Second OUI Offense?

Every case is different, but the following penalties may apply if you are convicted of a second OUI:

  • Up to two-and-a-half years in jail
  • Fines of up to $10,000
  • License suspension of up to three years
  • Required installation of an Ignition Interlock Device when driving privileges are restored

With the help of experienced legal counsel, you will likely avoid any extended jail time. If alcohol addiction is the culprit, you may have the option of a plea deal with an inpatient alcohol treatment and two years of probation. Although inpatient treatment still requires you to take time off work, it will likely only be a two-week program. And the reality is, if you need help, you need help.

Benefits of Fighting a Second OUI Charge

You may win, you may lose, but with a skilled lawyer by your side, your chances are dramatically improved. And the bottom line is, there are multiple benefits to fighting OUI charges, even for second and subsequent offenses. For example, if you plead guilty to a second offense, you will automatically lose your license for up to three years. That’s a long time to be without wheels. Further, a guilty plea removes your chances of getting a hardship license before your suspension is up. Basically, if you fight the charges and lose, you probably won’t be any worse off. And if you win? Then your record is clean, you avoid jail time, and you don’t have to pay fines. If you are facing OUI charges, contact a MA defense lawyer today.

Treatment is a good option, if it’s available. This is especially true if treatment helps you avoid getting a third offense. The stakes are much higher with a third offense. For starters, a third OUI conviction is a felony. Beyond that, you’ll spend a mandatory 150 days in jail, and you could be behind bars for up to five years. You’ll pay up to $15,000 in fines, and your license will be suspended for up to eight years. To sum it up – don’t get a third OUI offense. Continue reading

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