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Massachusetts OUI Court Procedures


Your first court appearance after your OUI arrest is known as an "arraignment".  It is usually held the first business day after your arrest. The judge will explain the charges to you and you will have an opportunity to either plea guilty or not guilty.  If you plea guilty, you will be sentenced at the arraignment hearing.  If you plea not guilty, the judge will give you a second court date to allow you the opportunity to consult with an attorney.  You should never plea guilty at the arraignment because in doing so you give up any opportunity you may have to defend yourself against the charges and protect your record.

Pre-trial Conference

The pre-trial conference is the next court hearing which you will be required to attend. It is an opportunity for you and your attorney to meet with the prosecutor on the case and have a meaningful conversation about your case.  It is usually when the prosecutor and your defense attorney start negotiating a plea.  If a plea can be reached, the judge will enter it into the record.  If a plea cannot be negotiated, the judge will set your case for trial.


Just like in other criminal cases, there are times when a motion will need to be filed to suppress certain evidence to keep that evidence from being heard by the court and/or a jury.  If a motion to suppress or a motion to dismiss is appropriate, your attorney will file the motion and a hearing date will be set.  Your attorney will call witnesses to testify on your behalf and cross-examine the police officers in your case to try to get improperly gathered evidence excluded from your trial.


A defendant charged with an OUI offense in Massachusetts has the right to a trial before a judge or a six-person jury.  If you elect to have a judge (or bench) trial, the trial will likely be held in the same courthouse where your pre-trial conference was held.  However, if you choose to have a jury trial, your case may be transferred to another courthouse.  Whether you have a bench trial or a jury trial is a strategic decision which should be discussed with your attorney.


Sentencing usually occurs immediately after a guilty plea or conviction.  After the jury's verdict is read and the jury is released, the prosecutor makes a sentencing recommendation to the judge and then your attorney offers a recommendation and presents any personal or factual evidence which the judge may consider in support of that recommendation.


Following a guilty verdict in an OUI trial, you have the right to an appeal.  You must file your request for an appeal in a timely manner, otherwise you will be deemed to have "waived" or given up the right to an appeal.

OUI Defenses

Even if you were arrested and charged with OUI/DUI, you may have defenses.

  1. How and why your vehicle was stopped by the police.
    • Police must have witnessed you breaking the law (usually a traffic violation, like speeding).
    • Police must have had a legitimate reason to detain and arrest you.
    • Police must read you your Miranda rights and warn you of enhanced penalties should you refuse to submit to a chemical test.
  2. If you did submit to a breath test, you could still have a defense.  For example, was the breath tech properly trained how to use this machine?
  3. You submitted to FSTs. Just because you did not do well on FSTs does not mean you don't have a defense.  There can be several reasons why you failed an FST. For example, if you are over 65, overly tired or nervous, or more than 50 pounds overweight, or have a physical disability you cannot be expected to perform well on the one leg stand.

Massachusetts Zero Tolerance Law / Under 21

Massachusetts has a "zero tolerance" policy for drinking and driving while under the age of 21.  The RMV will consider you failed at 0.02% BAC instead of the 0.08% BAC legal limit for those over 21.  While the RMV considers you over the limit at 0.02%, the limit for prosecution is still 0.08% for those under 21.

Under 21 Penalties

  • Penalty for Refusing a Breath or Chemical Test:  License suspended for 3 years for refusal.
  • Penalty for Failing a Breath Test:  License suspended for 30 days for failure.

Melanie's Law

Melanie's Law, which was passed in 2005, was named after a 13 year old girl who was killed by a drunk driver.

  • Increases penalties for DUI/OUI charge.
  • Changed the law to require an ignition interlock device, a longer driver's license suspension for underage drivers, and consecutive license suspensions for an OUI conviction and breath test refusal.  The law now requires that any offender with 2 or more prior OUI convictions install an ignition interlock device on all vehicles in his or her name.
  • Driver's license suspension period for refusing a chemical test has been substantially increased for drivers under 21 who refuse to take a breath test. For a first offense, an underage driver faces a 3 year suspension.
  • Melanie's Law changed the law to require that license suspensions run consecutively. That means that the suspensions imposed by the RMV and those imposed by the criminal court now run back-to-back and not at the same time.

Because of the tougher penalties under Melanie's Law, if you are arrested and charged with an OUI, you should contact an experienced OUI attorney immediately.  Attorney Grantham will evaluate your case and build a defense to get your charges dismissed or reduced.

Blood Alcohol Content and the Per Se Rule

Effective July 1, 2003, a defendant's Blood Alcohol Content (BAC) of .08 or higher can be considered as 'per se" evidence of intoxication.  This means that the Commonwealth can prove OUI by proving beyond a reasonable doubt: (1) the operator's right to operate was impaired by the alcohol they consumed, and/or; (2) the defendant's BAC was .08 or higher and therefore he was intoxicated by law.  Prior to the change in the law, the Commonwealth had to prove beyond a reasonable doubt that the defendant's ability to operate a motor vehicle safely was impaired by the alcohol they consumed.  The revision in the law makes it much easier for the Commonwealth to prove their case against you.

Lifetime Lookback

On November 29, 2002, the 10 year lookback period for subsequent OUI offenses charged under M.G.L. C 90, s 24 was revised to a lifetime lookback period.  This means that if you have an OUI conviction or Continuance Without a Finding (CWOF) anywhere in your lifetime history, a new OUI charge may be enhanced to the appropriate subsequent offense and can subject you to a more serious sentence.  If your first offense is more than 10 years old, you may qualify for a 24D disposition, which can reduce some of the penalties and license loss.  It is important to consult an experienced OUI defense before you go to court on your current OUI to see if old charges can be vacated.

OUI Sentencing

This section briefly summarizes the judicial and administrative (Massachusetts Registry of Motor Vehicles) penalties for the criminal offense of OUI.  Non-judicial penalties following an admission to sufficient facts plea, guilty plea, or conviction, such as increased insurance costs, job loss, and possible loss of professional credentials and certifications will not be covered in this summary. 

An OUI conviction plea of "guilty" or admission to sufficient facts will be a permanent part of your driving history.  A guilty plea or admission to sufficient facts plea will not fall off your driving record after a certain period of time and can be used against you later if you are arrested for another OUI.  Additionally, if you are convicted of OUI in Massachusetts and are not a resident, the Massachusetts Registry of Motor Vehicles may report your conviction to the National Driver's License Registry, which in turn will report the conviction to your state's driver's license agency.

First Offense


  • Incarceration: Not more than 2 ½ years House of Correction
  • Fine: $500-$5,000
  • License suspended for 1 year, work/education hardship considered in 6 months, general hardship in 6 months

Under 21

  • The minimum loss is 210 days, run on/after the above suspensions. The 2nd 180 day suspension is waived if the defendant enters the program. Net result is 390 days if they enter a program.
  • The operator can get the first 180 days cleared if they get an order from the court. They still must serve the 2nd 180 days unless they enter a program.

Second Offense

  • Incarceration: Not less than 60 days (30 day mandatory), not more then 2 ½ years
  • Fine: $600-$10,000
  • License suspended for 2 years, work/education hardship considered in 1 year, general hardship in 18 months
  • A condition of any hardship license is the installation of an ignition interlock device for at least 2 years. The device requires that the operator have a breath alcohol level of less than .02 for the car to start.

Third Offense

  • Incarceration: Not less than 180 days (150 day mandatory), not more than 5 years State Prison (Felony status)
  • May be served in a correctional facility treatment programs
  • Fine $1,000-$15,000
  • License suspended for 8 years, work/education hardship considered in 2 years, general hardship in 4 years
  • A condition of any hardship license is the installation of an ignition interlock device for at least the hardship period. The device requires that the operator have a breath alcohol level of less than .02 for the car to start.

Fourth Offense

  • Incarceration: Not less than 2 years (1 year Minimum Mandatory), not more than 5 years (Felony status)
  • Fine $1,500-$25,000
  • License suspended for 10 years, work/education hardship considered in 5 years, general hardship in 8 years
  • A condition of any hardship license is the installation of an ignition interlock device for at least the hardship period. The device requires that the operator have a breath alcohol level of less than .02 for the car to start.

Fifth Offense

  • Incarceration: Not less than 2 ½ years (24 mos. Minimum Mandatory), not more than 5 years (Felony Status)
  • Fine $2,00-$50,000
  • License for life, no possibility of hardship

Administrative License Suspension/Revocation Penalties

In addition to any judicial criminal penalties which may be imposed for an OUI charge in Massachusetts, civil or administrative penalties may be imposed in addition to criminal penalties.  Under Massachusetts' Implied Consent Law, every driver is deemed to have given their consent to submit to a chemical test to measure your blood alcohol content (BAC).  Law enforcement will ask you to take a blood/breath test.  You have the right to refuse to submit to a blood/breath test, however you must be advised of the possible consequences which may result if you refuse. The police officer must read you the "Implied Consent" law and failure to do so may affect the admissibility of your test results or refusal. 

Penalties involve suspension or revocation (meaning provisional or permanent removal) of the driver’s license by the Massachusetts Registry of Motor Vehicles.

First offense:  the mandatory suspension is 180 days;

Second offense: the mandatory suspension is one year;

Third offense: the mandatory suspension is three years.

Massachusetts Registry of Motor Vehicles OUI Suspension Review Procedure

If you are arrested for DUI/OUI and your chemical test result was .08 or higher, or if you refused to submit to a chemical test, your license will be suspended either by the arresting officer or the judge at your arraignment. You are entitled to a Registry hearing for a chemical test refusal, but you must request a hearing within 15 days of the refusal.  Issues which can be challenged during the hearing are:

  1. The police officer did not have reasonable grounds for the OUI arrest.
  2. You were not placed under arrest.
  3. You did not refuse the Breathalyzer.

Hardship Licenses


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