Massachusetts Intoxicated Driving FAQ

Blood alcohol content (BAC) is a measurement of the amount of alcohol found in the blood expressed as a percentage. It is calculated in grams per 210 liters of breath, and a BAC of 0.08 means there is 0.08% alcohol by volume. Measuring BAC is a way for law enforcement to calculate the amount of alcohol someone has had and their ability to drive a motor vehicle.

If you are pulled over due to suspicion of drunk driving or pulled over for a traffic stop and then the police officer suspects intoxicated driving, you should remember you have certain rights as a U.S. citizen. Namely,

1. The driver and any passengers have the right to remain silent (except you must show the police your driver's license, registration, and proof of insurance upon request); and
2. If you are a passenger, you are free to leave.

If you are arrested or detained, you have additional rights, including Miranda warnings.

1. You can say you wish to remain silent and ask for a lawyer immediately.
2. You have the right to make a local phone call.

If you believe your rights were violated in any way, try to write down everything you remember, including the police officer's agency (state police, county police, etc.), badge number, and patrol car number.

You can refuse a breathalyzer test. These are portable instruments police have with them to test your breath for alcohol. The results of these tests are typically not admissible if you are, in fact, arrested and charged with an intoxicated driving offense.

Refusal, however, carries with it significant consequences. Those consequences depend on your jurisdiction, but you can expect any of the following:

• Your license may be suspended.
• You may be sentenced to jail time.
• You may still face a DUI/OUI charge based on other criteria, such as field sobriety test results, witness testimony, and the police officer's observations.
• You may be fined.

Also, if you refuse, the police officer may request a warrant to take a blood sample. Blood tests are more reliable than breath tests, and they can be more challenging to defend against if a case is filed against you.

Standardized field sobriety tests (FSTs) are tests approved by the National Highway Traffic Safety Administration (NHTSA). These tests are allegedly designed to help police determine whether a driver is intoxicated or not.

There are three standardized FSTs:

1. the Horizontal Gaze Nystagmus Test (HGN test)
2. the One-Leg Stand Test (OLS test)
3. the Walk-and-Turn Test

The results of these tests may be used as evidence against you in an intoxicated driving case. In Massachusetts prosecutors cannot introduce the observations during the NGN test without the use of an expert. As such, HGN test results generally are not admitted at trial. Non-standardized tests, on the other hand, are not validated by NHTSA and are typically not admissible as evidence.

Non-standardized FSTs include:

• finger to nose test
• the finger count test
• the hand pat test
• the alphabet test
• the reverse counting test
• the coin pickup test

The ability to refuse a field sobriety test is allowed in Massachusetts and most importantly you will have no consequences for refusing field sobriety tests in Massachusetts. In addition, the fact that you refused these tests cannot be introduced at trial.

There are two different types of suspensions. The first is an administrative suspension, if you refuse a breathalyzer or have a BAC 0.08. This means you can lose your driving privileges even when you have not been found guilty of driving while intoxicated or under the influence of a chemical substance.

The other suspension occurs if you are convicted of an intoxicated driving offense.

If you are arrested for drunk driving, what happens next depends on the facts and circumstances. It's important to know that DUI/OUI arrests result in two processes after an arrest: (1) the administrative hearing, which results in civil penalties, like driver's license suspension; and (2) the criminal process, which can result in a conviction in the absence of a strong DUI/OUI defense. A conviction can lead to fines, driver's license suspension/revocation, imprisonment, ignition interlock device (IID) installation, and other penalties.

Yes! It is possible to beat a drunk driving charge, although it is not typically an easy process. It will require a thorough understanding of the law and a thorough understanding of the technical nature of field sobriety tests, breath tests and blood tests. Understanding the latter tests is critical to identifying errors (technical or human-made errors) to highlight the unreliability of the results.

Aside from errors or unreliable test results, an alleged DUI/OUI offender may have had their constitutional rights violated. This happens more often than you might imagine. A violation can lead to the inadmissibility of some or all evidence. Without sufficient evidence, the case will be dismissed, or a jury may return with an acquittal.

You will need a drunk driving defense attorney to help you beat an intoxicated driving charge. These cases can be highly technical, as much as legally complex.

An arraignment is a hearing where the defendant can plead guilty, no contest, or not guilty. You can plead guilty, but the real question is whether you should or not. It would be a mistake to plead guilty at this time, especially without the counsel of a drunk driving lawyer in Massachusetts, and there are multiple reasons for this.

1. If you plead guilty immediately, you lose any opportunity to fight the DUI/OUI charge.
2. If you plead guilty immediately, you also lose any opportunity for a plea deal, if that is what would be best in your unique circumstances. Admittedly, a plea deal means you would plead guilty, but the process can render a better outcome than an immediate plea of guilty. In some jurisdictions, you may be able to plead down to a lesser offense.

If it's your first drunk driving charge, it can be tempting to plead guilty right away so that you can get the case over faster and get on with your life. But if you do not fight to get the charge dismissed or to get yourself acquitted, it will be your first drunk driving charge. With the latter on your record, you want to keep in mind that subsequent DUI/OUI convictions will assuredly lead to harsher penalties.

If you plan to fight your drunk driving charges, it is in your best interest to have an attorney represent you. The law can be complex. The evidence can be highly technical and scientific. Police and state expert testimony can be damaging. All these things can lead to a conviction, unless you have the necessary skills and knowledge to successfully counter them. Most alleged DUI/OUI offenders do not have that kind of knowledge and skills.

At Gilman Law, P.C., we know the law and the technical, scientific make-up of field sobriety tests, blood tests and breath tests. We also know how to identify and proactively address any constitutional rights violations to benefit your case. Contact our DUI/OUI defense team at 978-612-6447 to schedule a free and get honest advice on your best legal options.