With the passage of Melanie’s Law on October 28, 2005, the penalties for Operating Under the Influence of Alcohol were dramatically enhanced. Under the “lifetime look-back” provisions of the law, persons convicted of Operating Under the Influence of Alcohol face the following maximum penalties: A First Offense includes a maximum fine of $5,000.00, up to 2.5 years in jail and a one (1) year loss of license. A Second Offense includes a maximum fine of $10,000.00, up to 2.5 years in jail with a mandatory minimum sentence of 30 days and a two (2) year loss of license. A Third Offense includes a maximum fine of $15,000.00, up to five years in prison with a mandatory minimum sentence of 150 days and an eight (8) year loss of license. A Fourth Offense includes a maximum of $25,000.00, up to five years in prison with a one year mandatory minimum sentence and a 10 year loss of license. A Fifth Offense includes a maximum fine of $50,000.00, up to five years in prison with a mandatory minimum sentence of 2 years and a lifetime loss of license.

Under the Implied Consent Law, refusing a breath test after being arrested for Operating Under the Influence of Alcohol will result in the automatic suspension of your driver’s license. This suspension is imposed by the Registry of Motor Vehicles and is separate and distinct from any court-imposed suspension that may result from a conviction. The length of the refusal suspension will depend on the number of prior offenses as follows: A refusal on a First Offense will result in a suspension for 180 days. A refusal on a Second Offense will result in a suspension for 3 year. A refusal on a Third Offense will result in a suspension for 5 years. A refusal on a fourth offense (or greater)will result in a suspension for life. What the police will not tell you is that in Massachusetts your refusal to take a breath test cannot be used against you. More importantly, once you are found Not Guilty, the Court can order that your license be reinstated immediately. A person whose license has been suspended as a result of their refusal to take a breath test has fifteen (15) days to appeal that suspension to the Registry of Motor Vehicles.

After a person has been arrested on the charge of Operating Under the Influence of Alcohol they will be offered a breath test to determine their Blood Alcohol Concentration (“BAC”). For individual’s age 21 and older, any breath test reading of .08 or above will result in an immediate loss of license. Those individuals will also face prosecution under the so-called “Per Se” theory of the drunk driving law.

For individuals under the age of 21, any breath test result of .02 or greater will result in an immediate administrative suspension. For court purposes, however, the legal limit of .08 still applies.

The traditional charge of Operating Under the Influence of Alcohol (“OUI”), the Commonwealth must prove three (3) things Beyond a Reasonable Doubt: 1) that the accused operated a motor vehicle.; 2) that he operated a motor vehicle on a public way; and 3) that while operating the motor vehicle he/she was under the influence of alcohol. The Commonwealth is not required to prove that the accused actually operated in an erratic or unsafe manner, but it must prove that the consumption of alcohol reduced his or her ability to operate the motor vehicle safely.

It is illegal for anyone to operate a motor vehicle while having a blood alcohol concentration (“BAC”) of .08 or greater, regardless of whether or not the consumption of alcohol reduced that person’s ability to drive safely. In cases involving breath and/or blood test results, the Commonwealth can prosecute an individual under the traditional approach, the Per Se theory, or both. A conviction under either theory of prosecution will result in the imposition of the penalties referenced above.

A breathalyzer test is an indirect method of testing a person’s blood alcohol concentration (“BAC”). In essence, it attempts to predict a person’s blood alcohol concentration by analyzing a sample of their breath. The breathalyzer machine currently utilized in Massachusetts in the Alcotest 7110 Mk 111-C, which is manufactured by the Draeger Corporation.

Field Sobriety Tests (“FST’s”) are roadside maneuvers designed to assist police officers with detecting motorists who may be impaired by the consumption of alcohol. The National Highway Traffic Safety Administration (“NHTSA”) has developed the following three (2) standardized field sobriety tests for use throughout the United States: 1) The Horizontal Gaze Nystagmus Test; 2) The Walk-and-Turn Test; and 3) The One-Leg Stand Test. In Massachusetts, a person is not required to submit to these tests when asked, and their refusal to do so cannot be used against them.

According to studies published by the National Highway Traffic Safety Administration, the HGN test is the most reliable of all field sobriety tests. If administered properly, the HGN test can reliably predict a blood alcohol concentration of .10 or above 77% of the time. However, because the HGN test has a scientific basis that is generally beyond the expertise of police officers, the results of this test are inadmissible in the courts on Massachusetts without expert testimony.

The One-Leg Stand Test is a “divided attention” test which attempts to measure a person’s ability to follow the officer’s instructions, and then stand on the leg of their choosing for 30 seconds. There are four (4) standardized clues that the police are trained to look for when scoring this test. If administered properly, the One-Leg Stand Test can reliably predict a blood alcohol concentration of .10 or above 65% of the time.

The Walk-and-Turn Test is another “divided attention” test used by law enforcement to help detect impaired drivers. The officer is trained to look for eight (8) specific clues when evaluating a suspect’s performance on the test. According to NHTSA, when administered properly, the Walk-and-Turn Test is a reliable indicator of a blood alcohol concentration of .10 or above 68% of the time.

An Ignition Interlock Device (“Interlock”) is a breath testing device that is electronically connected to a vehicle’s ignition. It requires the driver to pass a breath test prior to starting the car, and it also requires the driver to submit to random re-tests while operating the vehicle. Anyone who receives a second or subsequent conviction for Operating Under the Influence is required to install and maintain an Interlock device for a minimum of two (2) years.

A Portable Breath Tests (“PBT”) is a handheld breath testing device that is usually administered to the suspect at roadside as part of the Field Sobriety Testing protocol. Although these tests can be used by law enforcement to determine if there is probable cause to make an arrest, the results of these roadside tests cannot be introduced in Court due to the questionable reliability of the technology.