If you’ve been arrested and charged with a DUI in Massachusetts, I know you’ve got a lot of questions about what could happen to you, and what you should do next. Here are some of my collected answers. If you can’t find an answer to your question, please call me about your case.
All cases are a little different, so I recommend you call me if you have specific questions about your situation. But please feel free to read through some of my collected answers. and if you can’t find an answer to your question, please call me about your case. I’ve handled hundreds and hundreds of drunk driving cases in almost 20 years of practice. I’ve really heard it all before and helped countless people just like yourself.
- I just got arrested for a DUI. What should I do?
- Am I going to jail?
- Should I fight the case or work out a deal?
- What happens if I fight the case, and how long will it take?
- How long did I lose my license for?
- What will happen if I work out a deal rather than going to trial?
- How long will a CWOF for OUI stay on my record?
- What is the difference between a Continuance without a Finding and a Guilty?
- How would an OUI conviction affect me other than the criminal penalties and the license loss?
- How does having an OUI on my record affect owning a firearm or my right to carry?
- How and when am I able to get my full license back?
- Is a DUI / OUI charge considered a felony or a misdemeanor in Massachusetts?
- Can they charge me with a breathalyzer refusal, even though I tried to blow into it?
- The Police Videotaped me! Is that bad for my case?
- Can I represent myself? What can a lawyer do for me?
- If I lose, can I appeal?
- What will it cost to hire a DUI lawyer?
- Is my name going to be in the paper and what can I do about it?
- If I take the case to trial, isn’t it the cops word against mine?
- Will I have to testify at trial?
- Why should I hire Mr. Matson?
- Should I Hire a Local Attorney for that District Court or an Experienced DUI Lawyer?
- If I am convicted, what is the worst thing that can happen to me?
- If I fight the case and lose, do I get any money refunded on legal fees?
Your rights in a DUI arrest.
- The officer never gave me a “Miranda” warning: Can I get my case dismissed?
- The police officer missed court, Can I get my case dismissed?
- Do I have a right to an attorney when I’m stopped by an officer and asked to take a field sobriety test?
- Are there any special considerations or concerns for an underage or teen DUI arrest?
- I actually passed the breath test, but they still arrested me!?! How is that possible.
- I Was Stopped in A DUI Roadblock. Can I Fight it?
- I’m worried about my police report. The police officer lied! (Or just made it sounds awful).
- I wasn’t arrested, but I received a criminal summons/citation to appear in court on an OUI. What should I do?
- I have an old outstanding OUI Charge that I was never Convicted of. How can I fix it and get my license again?
- Is there a statute of limitations on OUI Charges?
- How far back do the records go in searching for old OUI charges that can be considered prior offenses?
If you haven’t been to court yet, you will need to be arraigned, which is usually the next business day. Please read my page on What You Need to Know Before a DUI Court Arraignment. I or one of my highly-trained associate attorneys can represent you at an arraignment, so call me at (781) 380-7730 anytime, 24/7.
If there isn’t time to have an attorney in court that day, don’t worry. Follow the instructions and you should be fine. Very little actually happens at an arraignment if you don’t have an attorney with you.
Just remember not to talk about your case with anyone until you speak with a lawyer. Your name will be called at the arraignment session, you’ll plead “not guilty” to Operating Under the influence of intoxicating liquor, and you’ll get another court date for a pre-trial conference.
Remember to ask for a copy of the police report so we can discuss it with you in detail.
If you’ve already been arraigned, and your next court date is a pretrial, here is my OUI pretrial FAQ.
No. Not on a first offense OUI. Or even a second offense, except in very rare cases.
- People virtually never get jail time for a first offense OUI, but it is “theoretically possible” for a very tough Massachusetts judge to sentence you to jail on a 1st offense.
- But in my almost 20 years of practice, and approaching a thousand OUI clients, I’ve never had a client go to jail on a first offense.
- Jail time is rare but possible for a second (2nd) offense charge. I’ve had it happen once in a particularly bad circumstance.
- There is a mandatory minimum 5 months in jail for a 3rd offense OUI conviction in Massachusetts, and 1 year for a 4th offense. But those can sometimes be avoided if we can work out a deal to plead to a 2nd offense.
This is a decision that only you can make, but for many people, we recommend that you fight the case if you can get by without a driver’s license for a few months. For second or third offenses, fighting the case is virtually always the way to go, since you don’t have much to lose. The penalties for being found guilty at trial on a 2nd or 3rd offense are not usually any worse than the plea deal you would get.
I win over 2/3’s of the cases I fight. Winning means no conviction on your record, and all the consequences of that conviction – career restrictions, travel restrictions, and more. Winning means no fines, no alcohol education classes, or probation. And winning means you don’t risk future consequences or restrictions the state may decide to add on for anyone with an OUI.
However, many people choose to plead their case out to move on with their lives and get back on the road. In most cases, we can work out a deal for the minimum sentence allowed by law, a Continuance without a finding. And most of the time we can work with you to make sure you get a hardship license within a week and can get your life back to normal.
But we will still evaluate your case if you can consider fighting. If you can manage alternate transportation without a driver’s license for a few months, it could be strongly in your best interests to do so.
I can help you go through all the pros and cons in my free consultation. If I think it makes sense for you to agree to plead guilty (or CWOF) I will absolutely tell you that. As a lawyer, my primary responsibility is to do what I think is in the best interests of my client.
Also, see my 14 reasons to fight the case.
We will take the case to trial in front of either a judge or a jury and it will take us some number of months. There may be 2 or 3 court dates before a trial, which will probably be 6 months out. For a jury trial, it could take a total of 6 months to a year for the case to be resolved.
In some circumstances, it is possible to skip preliminary motions and schedule a bench trial immediately. This usually limits our defense options, so it does have disadvantages, but it may give you a chance to resolve the case in 2 months or less.
More on how long it takes to resolve a drunk driving case.
If you failed the breath test, your license is suspended for 30 days, whether it is a 1st offense or multiple prior offenses.
If you refused the breath test, you immediately lose your license for 180 days (6 months) on a first offense OUI charge.
For a 2nd offense OUI charge, the license loss is 3 years if you refused to take a breath test.
For a 3rd offense OUI charge, the license loss is 5 years if you refused to take a breath test.
If we decided to work out a plea deal on a first offense, we can very often help you get your license restored on a limited basis with hardship license, and get you back on the road within a week or so. I
In a first offense case, it is very likely that we can work out a deal for the minimum penalty available under the law. The case will be continued without a finding (CWOF) for one year.
The judge will suspend your license for an additional 45 days consecutive with the 180-day breath test refusal. If you took and failed the breath test, the 30-day administrative (Registry) suspension immediately ends and the 45-day judicial suspension begins. You will also have to pay a number of fees and fines and be on probation. The conditions of your probation will be that you attend and complete the alcohol education program.
If you hire me to appear at your arraignment, I can often get the deal worked out that day, so you don’t have to come back a month (or more) later. That way, you can get back on the road with a hardship license as quickly as possible. There are other good reasons why most people choose to work out a deal when charged with an OUI.
The fact that you agreed to a CWOF will come off your record after a year, so most employers can’t see it. However, it will never go off the RMV record, and if you get arrested again it will be used against you as a prior offense.
If you have a misdemeanor conviction that isn’t a CWOF, it will show on a CORI for 5 years. And in some cases, employers will a high level of CORI access can see CWOFs that have ended after the continuance period.
In addition, volunteer organizations with high-level access (Level 2 required) can see a CWOF indefinitely. These groups include youth sports, little league, soccer, etc, scouting (girl scouts, boy scouts), Boys and Girls Club, and public and private schools. Even just for one-off volunteering, these groups will run a CORI.
While a CWOF for an OUI won’t necessarily disqualify you from volunteering and coaching with your kids, some parents choose to get their record sealed after the continuance period ends. You need to petition the court for this and make an argument in front of a judge for the seal. We can prepare the documents and make the argument for record sealing in court.
They are very similar for most purposes but a continuation/ continuance without a finding (CWOF) is not considered a conviction.
Therefore, you can honestly say you have never been convicted of a crime, even after a CWOF. But a CWOF does mean that you agree that there are “sufficient facts to establish your guilt. It will absolutely count as a prior offense or probation violation if you get in trouble with the law again.
A conviction could potentially affect employment. If someone decides to run a background check on you, it will appear on your record. A CWOF will disappear from standard background checks after a year.
Also, Canada is very strict about letting people into their country; even with a continuation without a finding, Canada will ban you from entering.
On a 1st offense, if you have a Massachusetts License, you are able to get your full license after your license suspension ends. It depends on if it was a breath test refusal or a breath test failure.
If you refused the breath test, it would typically be a total of 225 days (180 for refusal + 45 for conviction) from the date of the incident before you can get your full license back.
If you failed the breath test, it is just 45 days from the date of the conviction, which is your last the last court date. The previous 30-day suspension for the breath test failure is erased.
To get your license reinstated after any OUI related suspension costs $500 from the Registry.
These are the simplest cases. If you have an out of state license, or if the Registry thinks you have a prior DUI conviction that the court doesn’t know about or can’t prove, it is much more complicated.
For most people, the answer is no. Some newspapers will publish arrest news and sometimes at the arraignment, you can find a sympathetic Clerk and you can ask them to not give your name to a newspaper.
Sometimes police have what is called a police log. Some police departments will also publish their arrest logs online or in the town paper. There is nothing that can be done (that we know of) to stop this from happening.
If you are found guilty or plead out, criminal convictions are considered public records. It is very possible that your conviction could show up online at some point in the future. The state of Connecticut is already publishing all convictions since 2000 on a state website.
Currently in Massachusetts, someone would have to do an online background check to find out about your record. But it is certainly possible that in the future if someone does a google search on your name, a drunk driving conviction could show up.
If you are found guilty of an OUI you will forever lose your license to carry concealed weapons and you will lose your FID card for 5 years. If your case is continued without a finding, it does not affect your ability to own a firearm. So for some people, working out a deal for a CWOF is a very high priority.
A first (1st) or second (2nd) offense OUI /DUI is considered a misdemeanor.
Only a third (3rd) or subsequent (4th, 5th) offense is considered a felony and includes mandatory jail time if found guilty.
Many people tell me that they can’t plead guilty to a felony charge because it would affect their job, other areas of their life that would be impacted by a felony conviction on their record. However, the vast majority of DUI charges in Massachusetts are misdemeanor offenses.
And most of the time, when someone asks if their charge is a felony or a misdemeanor, they are really trying to figure out how much trouble they are in, and how serious the consequences could be. I am happy to help answer that question, but it usually requires a short conversation so I can better understand your exact circumstances.
See my drunk driving laws & penalties page for more information on misdemeanor and felony OUI charges.
No, there is no difference between an “OUI vs DUI”. Most people call it a “DUI” but the Massachusetts statutes formally uses the term “OUI”. But it is the exact same thing, there aren’t two different laws. We use DUI and OUI interchangeably.
No, we don’t want it to come down to that.
I look for evidence to prove that the police officer was mistaken, didn’t follow proper procedures, or I provide reasonable explanations to cast doubt on the officer’s claims.
I will fully investigate your case, go to the scene of the crime with you and walk through the officer’s behavior to find mistakes in administering the Field Sobriety tests or other parts of the stop. And police make plenty of mistakes.
I will take pictures at the scene to show evidence of unfair road conditions. I also look into any client’s medical records that might show a condition making you unable to perform any of these tests.
Also, any police video evidence from the arrest can often make you look better than the officer describes.
It is very unlikely, I rarely have my clients testify at OUI trials. But once in a while, if there is a strange fact in the case that I feel could hurt us, I might put a client on the stand to explain it. Generally, it is not a good idea or helpful to the case for you to testify.
But rest assured, on the rare occasions when I have a client testify, my team and I will fully prepare you. We will work on practice questions, so you know exactly what to expect.
In most cases, experience in DUI law is more relevant than any local court connections or advantage. However, our law firm has appeared in every district court in Massachusetts, and our attorneys are well known to the judges and prosecutors in many cases.
See my full article on District Court Experience vs. OUI Case Experience.
Mr. Matson has the experience, training, single-minded focus, and record of results in beating OUI charges that you need if you are serious about keeping your record clean. Please review his experience and compare it with other attorneys. All the attorneys of Law Offices of Russell J. Matson, PC are completely focused on drunk driving and criminal defense law.
Drunk driving defense is a complicated and technical area of the law. If your lawyer doesn’t represent people in these cases every day, he may not understand the legal complexities, and defense strategies that the top DWI attorneys are using, both nationwide and here in Massachusetts, to great success. In most situations, having an attorney with specific OUI experience is far more important than having a local courthouse regular. There is no “home court advantage” in criminal cases.
See my page on the reasons why OUI experience should be the priority when hiring a defense lawyer.
The Maximum Penalty for a first offense OUI conviction is 2 ½ years in jail, fines up to $5000, and a 1-year license suspension.
Again, I’ve never had a first offense client get jail time. Presumably, it would take an extreme set of circumstances for that to ever happen.
No. Unlike personal injury cases in which an attorney can agree to accept a percentage of any financial recovery in a civil case, the Massachusetts Bar prohibits “contingency” fees in criminal cases. Doing so would be unethical.
With a surgeon, not every operation is a success. Yet, would you go back and ask for a refund of fees paid? No. An attorney (like a surgeon) is compensated for his/her time, knowledge, expertise and legal acumen. That is our “product.” In addition, we set a fixed fee — not hourly — so you will know how much you will pay for legal services.
No. The officer is supposed to give a 5th Amendment warning after he arrests you. Often, however, they do not.
The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest. Your best bet is to politely tell the officer you don’t want to speak to him until you have spoken to your lawyer.
I get this question all the time because police are sloppy and things happen. But just because you did not get properly read your Miranda rights, it does not mean your charge will simply be dismissed outright. We can still win the case, just not for that reason, typically.
Usually not, at least not on the first try, although I will definitely argue for a dismissal. See my page on all the factors that go into a judge’s decision to dismiss an OUI charge after a police witness misses court.
No, often it is actually a good thing! Video evidence is an objective source that will often make you look better than the police witnesses describe. See my page on police video evidence.
You can represent yourself, but it is not a very good idea. Massachusetts DUI laws are complicated, and you need someone to help you who understand the intricacies of the law and has experience in trials as well as constitutional rights and sentencing issues.
What can a lawyer do? A qualified attorney can review the case for defects, suppress evidence, subpoena field sobriety training manuals and cross-examine the officer on his failure to follow his training, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses, and may be able to win your case at trial.
A lawyer who primarily does DUI cases will know the best strategies to employ to give you the best possible defense.
You can appeal, but OUI appeals are tough to win, and usually not worth the effort. See my OUI appeals page for details.
Attorney fees vary widely, depending on the experience of the lawyer. You may find a general practitioner that will charge you as little as $1,500, a well-known expert in Massachusetts DUI law or high-powered, big-name Boston criminal defense attorney may charge you $10,000 or more.
My fees depend on the complexity and seriousness of the case. After I speak with you, I’ll tell you exactly what I would charge you to represent you in court.
You can also hire my junior attorneys for considerably less than I would charge to represent you myself. They are all very good, or they wouldn’t be working for me.
In general, it makes sense to hire the best lawyer you can afford. It may be risky to hire someone just because they are cheaper. OUI laws are very complicated, and an experienced lawyer will identify issues that can help you right away. Some issues to consider are:
How much experience does the attorney have successfully fighting OUI charges?
Is the offense a misdemeanor or felony? (A 1st or 2nd offense OUI is a misdemeanor)
If prior convictions are alleged, the procedures for attacking them may add to the cost. A first offense Massachusetts DUI will be less expensive than a second offense DUI.
The fee may or may not include trial or appeals.
The lawyer may have a fixed fee or an hourly rate.
Expert witness fees, independent blood analysis, service of subpoenas, etc., may be extra. Make sure you ask for a written agreement and understand all of the terms.
More on my DUI fees here.
If you are under 21, the OUI laws are a little different. According to Massachusetts Laws, there is a “zero tolerance” policy for minors driving after drinking alcohol. Minor or underage drunk driving charges are taken very seriously. The Massachusetts legal limit for minors is .02 BAC. There may also be other license issues if the driver had a junior operators license.
Under Melanie’s Law, if you refuse the breath test as an under 21 driver, your license is suspended for 3 years. (It is a 5-year suspension for a 2nd offense under 21).
Also, if you are under 21 and fail the breath test with a BAC result of .20 or higher, you will be required to attend a 2-week inpatient alcohol education program if you are found guilty.
Make sure your attorney lays out all the possible consequences of a DUI conviction or CWOF, including the effect of a criminal record, and registry & license considerations, if you have a teenage or under 21 Mass DUI case. Also, see my underage OUI laws page.
Yes, the police will still arrest and charge you if you blew a .06 or .07 BAC, under the legal limit. Under Massachusetts law, it is their discretion to do so and they can still argue that you were too impaired to drive.
While this is still highly annoying and upsetting for you, it is good news for your court case. For one thing, your license isn’t suspended, since you neither refused nor failed the breath test.
And many, if not most, judges will dismiss or do a quick bench trial and find you not guilty. However, some judges will be tough and make us jump through hoops to fight the case, and it is still possible to be found guilty, so it depends.
But these are excellent cases to fight, and my batting average is nearly perfect on these low BAC cases. So call me at (781)380-7730 and I’ll let you know exactly what I can do for you.
I know it is frustrating and crazy that you have to go through this, and I sincerely sympathize with you. All I can tell you is that a .07 BAC case is much better than a .08 BAC, and I’ve won plenty of both cases.
Yes, DUI roadblock or drunk driving sobriety checkpoint cases are often easier to fight and win than other OUI arrests. They stopped you randomly, and not because they had a good reason to believe you were drunk.
See my DUI roadblock page for more defense options.
This is a very common concern, but it is almost certainly not as big a worry as you may think.
A police report is from the officer’s point of view, and it was his point of view that you should be arrested, so it’s not surprising if it sounds bad.
They arrested you, so they are gonna make it sound like they had to do it.
But there are many things we can do to explain, discount, and eliminate many statements in the report, and much of it will never be heard by a jury. See my page on fighting the police report for details.
You’ll want an experienced defense lawyer to represent you if you’ve been summonsed to a Clerk’s Magistrate’s hearing, or “show cause” hearing, but the good news is that you may have an opportunity to beat the case at the hearing if there is insufficient evidence for them to charge you.
I wrote a book on winning criminal cases at clerk magistrate’s hearings.
The police may issue you a criminal citation for OUI instead of arresting you in cases where alleged facts about an OUI come out after the incident, or if there was an injury and you are taken to a hospital for medical treatment. Read my full post on OUI citations and what to do when you get one.
Often we can get these old charges dismissed easily. But they won’t go away by themselves. There is no statute of limitation on unresolved outstanding OUI cases if you were charged or arrested but fail to appear in court.
In many cases, we can clear up this problem, which will allow you to get your driver’s license back. See my old DUI cases information page.
No, there is not. See my answer above. Old DUI charges never go away by themselves, but often we can get them resolved.
Regarding prior OUI convictions, as of 2002 Massachusetts law now allows for the court to consider an OUI conviction from any time in the past (aka lifetime lookback), where the old law did not recognize a conviction from more than 10 years ago.
If you have an old conviction and have been charged again recently, you definitely need to speak to an experienced Massachusetts OUI lawyer to help you work through the best possible outcome.
Aside from the penalties, the courts impose for an admission to sufficient facts plea (aka a CWOF, or Continuation without a Finding), conviction, or guilty plea, an OUI creates other problems in one’s life. Five points are added to insurance, as well as a loss of good driver credit for the year. It can make it much more difficult to get a job and can affect the ability to obtain or keep various professional licenses.
But there are options for very old convictions where it is possible to be treated as a first offender with a 24D Disposition.
No, you have no right to an attorney after being asked to take a field sobriety test. However, you do have a right to refuse to perform the tests (see below).
Yes, even if you try but it doesn’t register on the machine, they will still call it a refusal. This can happen if you have asthma, reduced lung capacity, other problems blowing into the breath test machine, or if the machine itself is broken. We can argue this in the case.
No, you have no right to an attorney after being asked to take a field sobriety test. However, you do have a right to refuse to perform the tests (see below).
Yes, even if you try but it doesn’t register on the machine, they will still call it a refusal. This can happen if you have asthma, reduced lung capacity, other problems blowing into the breath test machine, or if the machine itself is broken. We can argue this in the case and dispute the claim that you “refused” and in fact were simply unable to complete the test for good reasons beyond your control.
Are you wondering what you should do or say if you are ever stopped for a DUI? Or are you curious how police investigate DUIs? See my General DUI issues FAQ.
Call me anytime, 24 hours a day for a free phone consultation about DUI laws in Massachusetts and how they may apply to your case. I’ll tell you exactly what I can do to help you, and answer any questions you may have. No obligation!
Attorney Russell Matson (781)380-7730
The Law Offices of Russell J. Matson, PC
Braintree, MA 02184