With the passage of Melanie’s Law on October 28, 2005, the penalties for Operating Under the Influence of Alcohol were dramatically enhanced. Under the “lifetime look-back” provisions of the law, persons convicted of Operating Under the Influence of Alcohol face the following maximum penalties: A First Offense includes a maximum fine of $5,000.00, up to 2.5 years in jail and a one (1) year loss of license. A Second Offense includes a maximum fine of $10,000.00, up to 2.5 years in jail with a mandatory minimum sentence of 30 days and a two (2) year loss of license. A Third Offense includes a maximum fine of $15,000.00, up to five years in prison with a mandatory minimum sentence of 150 days and an eight (8) year loss of license. A Fourth Offense includes a maximum of $25,000.00, up to five years in prison with a one year mandatory minimum sentence and a 10 year loss of license. A Fifth Offense includes a maximum fine of $50,000.00, up to five years in prison with a mandatory minimum sentence of 2 years and a lifetime loss of license.

Under the Implied Consent Law, refusing a breath test after being arrested for Operating Under the Influence of Alcohol will result in the automatic suspension of your driver’s license. This suspension is imposed by the Registry of Motor Vehicles and is separate and distinct from any court-imposed suspension that may result from a conviction. The length of the refusal suspension will depend on the number of prior offenses as follows: A refusal on a First Offense will result in a suspension for 180 days. A refusal on a Second Offense will result in a suspension for 3 year. A refusal on a Third Offense will result in a suspension for 5 years. A refusal on a fourth offense (or greater)will result in a suspension for life. What the police will not tell you is that in Massachusetts your refusal to take a breath test cannot be used against you. More importantly, once you are found Not Guilty, the Court can order that your license be reinstated immediately. A person whose license has been suspended as a result of their refusal to take a breath test has fifteen (15) days to appeal that suspension to the Registry of Motor Vehicles.

Suspensions for Failing the Breathalyzer: After a person has been arrested on the charge of Operating Under the Influence of Alcohol they will be offered a breath test to determine their Blood Alcohol Concentration (“BAC”). For individual’s age 21 and older, any breath test reading of .08 or above will result in an immediate loss of license. Those individuals will also face prosecution under the so-called “Per Se” theory of the drunk driving law.

For individuals under the age of 21, any breath test result of .o2 or greater will result in an immediate administrative suspension. For court purposes, however, the legal limit of .08 still applies.

If you’ve just been arrested on a charge of impaired operation, it is critical that you act fast to protect your rights and to preserve your right to a fair trial. In a typical DUI case evidence that can prove your innocence can disappear quickly. For example, you may lose the opportunity to obtain favorable medical evidence, take photographs that can refute the officer’s version of the event, obtain witness statements or preserve other types of exculpatory evidence. Also, in cases of a breath test refusal for example, you have only fifteen (15) days to appeal your license suspension to the Registrar of Motor Vehicles. These are just some examples of why it is important to seek experienced legal help as soon as possible.

No. Unfortunately, if your license is under suspension as a result of your refusal to submit to a breath test, you are not eligible for any form of Hardship and/or Work License. What the police won’t tell you is that, if you are found Not Guilty during the period of that suspension, you can ask the Court to immediately restore your driving privileges. In one case, our client supposedly lost his license for six (6) months after refusing a breath test, but he was driving 23 days later after being found Not Guilty.

In Massachusetts, the decision to refuse a breath test will result in an automatic loss of license and the length of that suspension will depend on the person’s prior driving history. However, because breath test evidence is often the most difficult obstacle to defend against, I strongly urge people not to submit to a breath test if there is ANY possibility of failing. The problem with the .08 legal limit is that it virtually impossible for the average person to know whether they are over the limit or not. For that reason, when asked to take a breath test, the best approach is to refuse and then ask to call an attorney.

Remember: cheap lawyers aren’t good, and good lawyers aren’t cheap. That being said, every drunk driving case is different, and the price to defend a case can vary greatly depending on the facts of a case, the individual’s prior driving record, the number of prior offenses (if any) and the experience of the attorney you chose. However, when you begin to consider the financial penalties resulting from a conviction, together with the long-term, collateral consequences of having a conviction on your record (e.g. increased insurance premiums, loss of employment, loss of license), you can’t afford not to fight it.

As the old saying goes: the person who represent himself has a fool for a client. Despite an often well-deserving reputation to the contrary, lawyers have specialized training that can assist you through this process. A trained and experienced eye can often see potential defenses that a lay person may not. More importantly, an attorney who specializes in drunk driving defense can often see potential defenses that other lawyers may not ( I can’t tell you how many cases I’ve won for people who were told by other lawyers that their case was hopeless). Since drunk driving convictions remain on your record forever, if you decide to represent yourself you may regret it for the rest if your life.

A Continuance Without a Finding (“CWOF”) is a pre-trial disposition in which the defendant admits that there are sufficient facts to warrant a finding of guilty. However, rather than impose a Guilty finding, the court will continue the case for a set period of time (usually, 1 year), with the understanding that the case will be dismissed at that time provided the defendant complies with the required conditions of the probation. The problem is that, even after a successful probationary term and the resulting Dismissal, the case will ALWAYS count as a prior conviction if you’re ever arrested again. For that reason, a CWOF really offers very little benefit for the average individual.

Now that you have been charged with drunk driving, you have TWO choices: plead guilty or fight it! Due to the severity of the drunk driving penalties, the punishment is often the same whether you plead guilty or fight the case and lose. No attorney can ever guarantee a successful defense but, if you plead guilty, you will lose…THAT I can guarantee!

Your first scheduled appearance before the court is called an Arraignment. At that time, the court will formally notify you of the charges, address any issues of bail, and ask whether or not you intend to hire an attorney to represent you. The typical first-offender will be released upon his promise to return to court as ordered (“personal recognizance”), however the Court can also impose conditions to the pre-trial releases such as no driving, no drinking, AA attendance and the like. What takes place at the arraignment can often shape the outcome of the remainder of the case and for that reason, you should have an attorney there to assist you through the process.