office (978) 369-2252
fax (978) 369-6989
email: pdegel2@aol.com
Drunk Driving FAQ
What is a continuance without a finding?
A continuance without a finding means that you are not found guilty of the charge, and the complaint is dismissed upon the successful completion of probation. Ordinarily this is not available to someone with a previous record, but there are exceptions. There is no benefit in the terms of probation, license loss, or the costs, and even after the dismissal it is still considered a first offense if you are charged with OUI again. The one very real benefit to a CWOF comes when you fill out an application that asks “Have you ever been convicted of a crime?” – and you can honestly answer “No”.
What are the maximum and minimum penalties for operating under the influence of alcohol?
First offense:
Maximum: 2.5 years in the House of Correction and a fine of $5,000
Minimum: A CWOF (continuance without a finding), probation for 1 year, attendance at the Alcohol Education Program, a license loss of 45 to 90 days (usually in addition to any license loss for refusing the breath test, although the judge has the power to run them together). Total costs, program fees and fines averaging approximately $2000.Second offense:
Maximum: 2.5 years in the House of Correction and a fine of $10,000
Minimum: 14 day inpatient hospital treatment program and a 2 year license loss. The fines and costs are highly variable, and a common sentence would be two years of probation, with counseling, possibly both before and after the hospital stay.Third offense:
Minimum: 150 days in the House of Correction
Maximum: 5 years in State Prison, $15,000 fineFourth offense:
Minimum: 2 years in the House of Correction
Maximum: 5 years in State Prison, $25,000 fine
Do I get a break if my prior offense was a long time ago?
Unfortunately, effective July 1, 2003, the law changed and any prior OUI charge at any time during your lifetime is considered a prior offense (the previous "lookback" period was 10 years). The only "break" is if you have only one "prior" more than 10 years ago, the judge has the discretion to sentence you as a first offender.
Yes, but it is more difficult since July 1, 2003 because the prosecution no longer needs to prove that you were impaired by alcohol if they prove that your BT was .08 or higher. It is generally advisable to hire an expert to review the maintenance history and certification of the breath testing machine to see if the results can be excluded or questioned before the jury.
How long will I lose my license?
If you refused the breath test, you will lose your license for 180 days (1 year if is your second offense) even if you are acquitted of the OUI charge. If you take the breath test and register a .08 or higher, you will lose your license for up to 90 days or until the case is resolved, whichever comes first. (If you are under age 21 you will be suspended if the result is over .02). If it your first offense and you are convicted or receive a CWOF with assignment to the alcohol education program, there is an additional license loss of between 45 and 90 days, determined by the judge (210 days if you are under 21). The Registry of Motor Vehicles runs the breath test refusal suspension and this suspension consecutively, but if a judge signs an order that the suspensions run together, the Registry will abide by this ruling. For people with a record of multiple offenses, or a bad driving record, there are longer suspension terms.
Am I eligible for a hardship license?
If your arrest was on or after July 1, 2003, you will be eligible for a hardship license (valid for the same 12 hour period every day) three business days after your court case is resolved (six months for a second offense). You must go to one of the Registry offices that holds hearings with the following: a letter from the Alcohol Education Program confirming that you have completed your "intake interview"; a letter from your employer or school confirming the need for your license.
You should obtain professional help as soon as possible. If you do not know where to go, your attorney can help with a referral to a competent professional. You should do this for yourself whether or not you decide to fight the case. The Alcohol Education Program is an educational program, not a treatment program; although the staff of the program could give you a referral, it usually better to get in treatment by yourself, as soon as possible. If you do so, it is likely that you would be allowed to stay with a treatment provider of your own choice in the event that treatment is (or becomes) a condition of probation.
Your attendance at the Alcohol Education Program and any other conditions set by the judge will be monitored by a probation officer working at the local district court. If you were charged in a district that is distant from your home, the supervision is usually transferred to your local court. You may be required to report in by telephone or in person, or you may be told to mail in monthly report forms. You will be required to report any changes of address or employment to the probation officer, to give notification of any out of state travel plans, and to obey all laws. The probation department can also impose other conditions.
You violate probation by not fulfilling all of the conditions set by the judge or the probation officer. Common examples of probation violations: failing to pay fines/costs; getting into further trouble; failing to obtain counseling or to complete the Alcohol Education Program; not reporting to the probation officer as directed. If you are charged with violating probation, you will be given a summons and required to appear before the judge, who may: revoke a continuance without a finding, impose jail time, allow you to stay on probation, impose further probation conditions, or find that you did not violate probation as charged.
The Alcohol Education Program varies somewhat throughout the state, but generally it is a class that meets one night per week for about 6 months; there are numerous programs throughout the state, so you should not need to travel too far. If you live in another state, it may be possible to find an equivalent program that will satisfy the Court. Attendance is strictly mandated and missing a class is not tolerated. Typically the cost of the program is about $700. At the end of the program, there is usually an “exit interview” which is aimed at deciding whether you need to be in alcohol treatment.
What should I do if I am stopped again and suspected of operating under the influence?
Many people do not know that they have the right to refuse to perform the so-called "field sobriety tests", and the refusal cannot be mentioned to the jury. The "tests" are neither fair nor accurate; the police are attempting to obtain incriminating evidence, and the decision to arrest may have already been made. I recommend performing these tasks only if you are extremely confident regarding your ability to understand the instructions and to perform fairly complex, strange and new exercises under a great deal of pressure. If you are arrested, the more difficult question is whether to take the breath test, because there is a 180 day license suspension if you refuse (1 year if this is your second offense); if you take the test and blow over .08 (.02 if you are under 21), your license will be suspended for up to 90 days, but that suspension ends when the court case is resolved. If you are the type of person who is likely not to fight the case in Court, you should probably take the test. If you want the best chance to "beat" the case in Court and can live with the license loss, it is best to decline the test unless you have consumed very little alcohol.
