Defending an OUI Case in Massachusetts

DUI LawyerOUI, DUI, DWI, impaired driving or however you refer to it; a drunk driving charge is a serious issue. If you were arrested for operating under the influence it is important to understand what the Commonwealth needs to prove at trial to obtain a conviction in order to assist your attorney whose job it is to properly evaluate your case. OUI cases have unique statutory elements. Knowing what to look for and how to handle the evidence is crucial to a successful outcome.

If you have been arrested, you should prepare a detailed timeline of the events leading up to your arrest. This is an easy way for you to see what evidence may be missing and a good starting point for your attorney to begin his evaluation of the strengths and weaknesses of your case. Your attorney will review your timeline and analyzes the evidence in your case so as to develop a case theory. By being involved in your case you will be better positioned to confront both the positive and negative aspects of what the Commonwealth must prove.

Drunk driving offenses in Massachusetts are governed by General Laws c. 90, § 24, which provides in part:

Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one hundredths or greater, or while under the influence of intoxicating liquor . . . shall be punished . . . .

What this breaks down to is that the Commonwealth must prove three separate and distinct elements beyond a reasonable doubt should your case go to trial. These three elements are:

1. Operation of the motor vehicle,
2. On a public way,
3. While under the influence of liquor or with a .08 percent or greater blood alcohol level

The elements of the offense are straight forward, but proving them at trial and the ramifications you may experience if convicted must be understood when analyzing the strength, or weakness of your defense. Drunk driving laws continue to get tougher. Chapter 90 § 24 was significantly changed in 2005 with the passage of Melanie’s Law, which went into effect January 1, 2006. Melanie’s Law substantially increased the length of suspension for refusing to take a breath test; established the use of interlocking devices by all second and subsequent offenders; created new offenses, such as manslaughter by motor vehicle; a per se law that makes operating a motor vehicle with a .08 percent or greater blood alcohol level a separate crime; eliminated the look-back period for considering prior OUIs; and created new mandatory minimum sentences that carry the possibility of incarceration in state prison for certain OUI offenses.

As a result, very analysis of an OUI charge must begin with a proper understanding of these three elements.

What is operation?

Massachusetts courts have defined operation of a motor vehicle as not only by what we would generally understand what a person would do to operate a car (when we think of a person driving on a road or street), but also when that person does any act which directly tends to set the vehicle in motion. What that means then is all the Commonwealth has to prove to a jury regarding this first element is that a person is “operating” a motor vehicle whenever he or she is in the vehicle and intentionally manipulates some mechanical or electrical part of the vehicle—like the gear shift or the ignition—which, alone or in sequence, will set the vehicle in motion. It is important to note that the element of operation is not automatic but can be rebutted at trial if the officer cannot testify to seeing you in motion in the motor vehicle.

Situations where a defense to operation should be explored are when an intoxicated individual is discovered asleep behind the wheel with the keys in the ignition. These facts alone establish the element of operation but the defendant can rebut the fact that he operated the motor vehicle if there is no evidence that he had operated the motor vehicle at the relevant time.

What is public way?

The first test to determine if this second element can be established is to look at the police report to determine where the officer stopped you. General Laws c. 90, § 24(1)(a)(1) defines operation on a public way in three ways:

• any way,
• any place that the public has a right of access, or
• any place to which the public has access as invitees or licensees.

Public way is normally an easy issue for the Commonwealth to prove at trial. The officer will typically be asked to describe the roadway and whether it is open to the motoring public. Testimony will be elicited from the officer regarding the presence of paved roads, street lines, curbing, homes, fire hydrants, etc. with the goal of establishing that the area in question is maintained by a municipality, city, or the state. Public way, however, becomes an issue if the roadway is closed to the public or if it is under repair and not open to motor vehicles, or if the person is stopped in a private parking lot or found in a park or field. Think of it this way. If an individual is intoxicated and spinning donuts in center field of Fenway Park, he is not guilty of drunk driving because Fenway Park is not a public way or way in which the public has a right of access.

What is impairment?

Ninety-five percent (95 %) of all drunk driving cases are litigated on the third element – impairment. The question you must ask then is, “What is impairment?” In Massachusetts a person is impaired if he has consumed enough alcohol to reduce his ability to operate a motor vehicle safely, to even the slightest degree, by decreasing his alertness, judgment, and ability to respond safely. It means that a person has consumed enough alcohol to reduce his mental clarity, self-control and reflexes, and thereby left him with a reduced ability to drive safely.

After the passage of Melanie’s Law, this third element can also be proved if:

At the time of operation, the percent of alcohol in the defendant’s blood was eight one-hundredths or greater, by weight.

Being impaired does not mean that the Commonwealth has to prove that you were drunk or even drove in an unsafe manner. A popular misconception of what the Commonwealth has to establish in order to prove impairment is that it has to prove that you were so-called smashed or a falling down drunk. This is not the case. To prove the third element Commonwealth only has to prove to a jury that you drank enough alcohol to impair your ability to operate a motor vehicle safely.

The reason it is sometimes difficult to prove that an individual is impaired in an OUI case is because the evidence is primarily based on opinion evidence from police or civilian witnesses. Opinion evidence relies on the subjective interpretations of the facts rather than objective evidence, unless a breath or blood test is available. This type of evidence is vulnerable to misinterpretation and attack. In most OUI cases, the key to a successful defense depends on how your attorney handles the arresting officer’s testimony, and whether he can neutralize it.

Should you take the Breathalyzer?

The answer to this question has been complicated with the passage of Melanie’s Law. By statute every motorist impliedly consents to submit to a Breath Test, otherwise the motorist will face a suspension of his or her driving privileges. Refusing to submit to a breath test may result in a lifetime license suspension if an individual has three prior OUI convictions. Providing a breath test however may prevent such a license suspension but may produce incriminating evidence which might make it impossible to beat the charge at trial under the per se portion of the law if the reading is .08 percent or greater.

Following is a list of Melanie’s Law changes for a refusal to take the Breathalyzer:

License suspension rules for refusing a breath test:
• First offender: 180 days
• First offender under the age of 21: 3 years
• Second offender: 3 years (but a continuance without a finding does not count as a prior conviction for these purposes).
• Second offender (if first offense was OUI with serious bodily injury): 10 years.
• Second offender (if first offense was OUI motor vehicle homicide or manslaughter by motor vehicle): Lifetime
• Third Offender: 5 years
• Fourth offender: Life.
License suspension for failing a breath test with a BAC of .08 or higher:
• Loss of license for 30 days or until the case is disposed of by trial, plea or dismissal, whichever comes first.
• If under the age of 21, a loss of license of 180 days for breath test result of .02 or greater.
• Automobile impounded for 12 hours following arrest, regardless of who comes to pick it up.
• Breath test failure is considered a “per se” violation of the law and is admissible in the prosecution as long as it was conducted properly.

Should you perform field sobriety tests?

Field sobriety tests are employed by police to gather evidence of impairment so as to give them the ability to form an opinion as to your sobriety. Before an officer can arrest you for DUI he must have enough evidence so as to determine that probable cause exists to believe that you are impaired. Until he determines probable cause to arrest, the OUI charge does not exist.

These field sobriety tests, such as the horizontal gaze nystagmus, walk-and-turn and one-leg stand test are typically used by police at roadside to evaluate you if the officer suspects that you are impaired. Field sobriety tests are completely voluntary. Refusal to perform the tests, unlike refusing to submit to a breathalyzer, cannot be used against you at trial. There are no collateral consequences for refusing to submit to field sobriety tests that can be used against you in court.
Refusing to perform the field sobriety tests for the police will most certainly upset the officer and may result in you getting arrested, but you will certainly deny the Commonwealth precious evidence that it would have used against you at trial.

Steven J. Topazio is an experienced and accomplished attorney that has been successfully representing persons charged with drunk driving and criminal law issues in the Commonwealth of Massachusetts for over 25 years.

For more information about defending an OUI case, visit Boston Criminal Attorney Steven J. Topazio at