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

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.

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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

If you’ve been charged with operating under the influence of alcohol or drugs (OUI), there are multiple steps you can take to fight the charges. But you’ve got to act fast. It may seem easiest and most appealing to take a plea bargain, but once you’ve admitted guilt, your options are limited. If you want to “win” your OUI case, follow the steps below to improve your chances of reduced charges, a not guilty, or an outright dismissal.

Step One: Hire an Experienced OUI Trial Attorney

If the prosecution knows that your defense attorney is willing to go to trial, they are more likely to bend under pressure. Prosecuting attorneys know that a good trial attorney will fight tirelessly to protect a client; filing every possible motion available to them, challenging each and every piece of evidence, and calling on the best experts.

Step Two: What is the Evidence?

Solid evidence against you can be damning, but in a significant number of OUI cases, the evidence is less than compelling. In many situations, evidence such as breathalyzer results has to be thrown out for various reasons – inconclusive readings, the breathalyzer wasn’t calibrated, the officer wasn’t trained, or the reading was obtained during an illegal search. If hard evidence, such as a breathalyzer result, is thrown out, your chances of an outright dismissal increase dramatically.

Step Three: Was the Traffic Stop Legal?

If it can be shown that the officer lacked probable cause to stop your car in the first place, you might be home free. When this occurs, all evidence is generally thrown out. In any situation, the help of a skilled OUI defense attorney is crucial to a positive outcome. If you have been charged with OUI, or any other type of criminal offense, contact a Boston defense attorney today.

Do I Really Need an Attorney for an OUI?

Well, let’s see – if you want to avoid jail time, hefty fines, and the loss of your license, the answer is yes. You absolutely need an attorney, and a skilled one at that. Having an attorney doesn’t guarantee that your case will be dismissed, but it significantly increases your chances. Not to mention, OUI convictions aren’t taken lightly in Massachusetts. A first offense can carry fines of up to $5,000, license suspension of up to one year, and up to two-and-a-half years in jail. A second offense can cost you up to $10,000 in fines, and you might lose your license for two years.

Even if you aren’t facing a $10,000 fine and 30 months in jail, an OUI attorney can minimize the damage, helping you navigate the legal system and offering alternative options such as a hardship license. Further, an attorney can help you sentence bargain, reduce penalties and fines, and go to trial if necessary. Attempting to handle an OUI case on your own can spell disaster. This is especially true if aggravating circumstances were present at the time of the incident, such as when the defendant is under 21, was in possession of narcotics, was driving through a school zone, or was in possession of a weapon. Continue reading

Oh the weather outside is frightful…and so is the nationwide uptick in crime during the holiday season. But it shouldn’t be a surprise. Most holiday crimes are related to theft or excessive alcohol. Theft is often a result of a lack of funds for Christmas presents or the knowledge that cars and houses are loaded with aforementioned presents. And alcohol-related crimes are often a result of too much holiday partying. Either way, it’s good to know how to safeguard yourself this December. And if you happen to be the one facing criminal charges this holiday season, contact a skilled defense lawyer if you want to avoid jail time and hefty fines.

  • Shoplifting: The most obvious reason for an increase in shoplifting during the holiday season is lack of funds. We are under more pressure than ever to surround the Christmas tree with boxes and boxes of holiday cheer. Unfortunately, not everyone can afford such a display. For this reason, among others, some people turn to shoplifting around the holidays. Theft is never “right”, but we understand that even good people make mistakes, especially when financial stress is particularly overwhelming. If you are facing shoplifting charges, contact a Boston defense lawyer today.
  • Vehicle break-ins: For much the same reason as shoplifting increases during the holidays, so do vehicle break-ins. Car burglars expect to find gifts in cars. This is especially true of cars parked near shopping centers. Parking lot thieves will often watch for people who drop a load of purchases in their car and walk back to the store to finish shopping.
  • Porch theft: Since Amazon and other online shopping sites first allowed us to spend more time at home in our pajamas, porch theft has skyrocketed. Many of our online orders are delivered by UPS, FedEx, or the US Postal Service while we’re at work during the day. A stack of boxes by the front door and no car in the driveway makes you an easy target this holiday season. To prevent porch pirates from ruining your Christmas, have packages delivered to work or to the residence of a friend who is home during the day.
  • Drunk driving: The holiday season often feels like one never-ending party. Many families have two or more office parties, family parties, parties at friend’s houses, fundraisers, and other festive gatherings to attend during Christmas and New Years. Although good friends and good eggnog can make for a lovely evening, don’t get behind the wheel if you’ve had a few drinks. To protect yourself and everyone else on the road, don’t drink and drive, and have a designated driver if you opt for too much cheer this holiday season. Beyond being dangerous, driving while intoxicated can impact your current or future employment, and even a first offense can cost you thousands of dollars. Not to mention, nobody wants to get an OUI for Christmas.

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