OUI defense in Massachusetts

It is a crime to operate a motor vehicle on a public way, or a place the public can access, at 0.08 or more, or while under the influence of alcohol, marijuana, or drugs defined in M.G.L. c. 94C § 1. To prove impairment, the Commonwealth need not show erratic driving, but it must prove a diminished capacity to operate safely. A result of 0.05 or less creates a permissible inference that you were not under the influence of alcohol.

A first OUI is a misdemeanor. A straight conviction carries:

Under § 24D, a first offender who consents may be placed on up to two years of probation with a driver alcohol education program, plus treatment if needed. The license suspension is 45 to 90 days (210 days if under 21), and you can apply for a 12-hour hardship license once the program starts.

An OUI can be continued without a finding (CWOF) only through § 24D. No guilty finding enters, and if you comply, the judge may dismiss the charge under § 24E. But the $250 and $50 assessments still apply, the 24D counts as a prior if you are charged again, and a CWOF counts as a conviction for a commercial license. 24D is not available if someone was seriously injured or killed.

Every prior OUI conviction or program assignment counts, from any state, with no time limit. A third offense is a felony. See our page on second and third offense DUI for more.

If a breath or blood test shows 0.08 or more (0.02 under 21), the officer takes your license for the RMV. The suspension lasts until the case is resolved, but no more than 30 days. If police did not take it, M.G.L. c. 90 § 24N requires the judge to suspend it at arraignment on a certified showing of the result, again for up to 30 days. Within 10 days, you can ask for a hearing on whether a timely blood test showed less than 0.08.

After a first conviction, you can seek a 12-hour work or education hardship license after three months and a broader one after six. You must show the causes have been brought under control, and the RMV decides. For a second offense, eligibility starts after one year and requires finishing a residential or 24D program. A fifth or later offense means no hardship license.

Melanie's Law, approved in 2005, added M.G.L. c. 90 § 24½. A repeat offender cannot get a license back until a certified interlock is installed on every vehicle they own, lease, or operate, for two years. An interlock is also required on any repeat-offense hardship license. For a first offense, the RMV may require one on a hardship license if your BAC was 0.15 or higher, and its program guide says it does. Removing the device or repeated readings above 0.02 can lead to revocation for an extended period or for life.

OUI complaints go to the District Court or Boston Municipal Court where the offense allegedly happened. After arraignment, the court must get your record from the Commissioner of Probation before any trial or plea, and the prosecutor may seek a new complaint adding prior offenses. Then come discovery and pretrial motions. You can have a six-person jury, waive in writing for a judge, or tender a plea with a requested disposition the judge cannot exceed without letting you withdraw.

The Commonwealth must prove operation, a public way or place, and impairment or a 0.08 result. We test each element against the reports and records. A test result is admissible only if you consented and had a reasonable chance, at your request and expense, to get your own test. A refusal cannot be used at trial. When the evidence has problems, we challenge it by motion or at trial. When it does not, we work toward the least damaging result, which may be 24D.