Defending your DWI Case In Massachusetts
There was a time when getting
pulled over for driving while intoxicated was no big deal. Often times the
police officer wouldn’t even arrest you but follow to your home or make you
park the car and call a cab. If you were arrested and hauled before a Massachusetts court many times on the first appearance the court would let you plead
guilty to speeding or another charge so you would have no history of a DUI
conviction in MA and the consequences of an alcohol related driving conviction.
Those days are long gone. Thanks
to public awareness and groups such as Mothers Against
Drunk Driving, today driving under the influence of drugs or alcohol is a
serious crime in Massachusetts. Depending on where you are charged, you could
be charged and / or convicted of an infraction, misdemeanor, enhanced or “aggravated”
misdemeanor, or a felony DUI. For example, the state of Arizona has 6 categories
of DUI, 2 felony counts and 4 misdemeanor counts. In Maine, even a first time
DUI conviction requires jail time. In Wyoming and numerous other states there
is a state law prohibiting the prosecutor offering a plea bargain, called
“anti-plea bargaining” statutes. Further, in many states having minors in
the vehicle when charged with DWI creates added charges if endangering the
welfare of a minor, enhanced charges, protective
orders, family court actions, and complains to the state’s child protective
Brief History of DWI laws
One of the first public service announcements advocating for sober driving,
DWI laws have been around for
a long time. In 1910 New York State was the first state to prohibit driving
under the influence. Other states quickly followed suit. Although on the books,
the early laws failed to define what the term "intoxicated" actually
meant so they were rarely enforced. In 1938 the American Medical Association
and the National Safety Council proposed establishing a
specific blood alcohol content (BAC) of .15%. A 1964 study called the
“Grand Rapids Study” indicated that there was a substantial increase in driving
related fatalities for drivers with a BAC of .08% and over. As such, states
began lowering their legal limit to below .15%. However, even with a lowered
BAC states still afforded the motorists significant rights in that the BAC
level only created a presumption that an individual might be
In 1972, Nebraska and New York
passed the first laws stating that driving with a .10 blood alcohol content
was conclusively illegal per se, meaning
that no evidence other than a BAC of .10 or more is necessary to show
that a motorist was impaired. In October of 2000, President Clinton signed
into federal law a mandate that all states to lower their permissible BAC
to .08% and if they failed to do so they would lose federal highway construction
funds. Consequently today all states prohibit driving with a BAC of .08 or
more. Moreover, all states have a “zero tolerance” law for persons under 21
– a lengthy license revocation for any level of a detectable blood alcohol content.
However, even before 2000, beginning
in the late 80’s, states began stepped up enforcement of its operating under
the influence (OUI) laws. The charge of DWI was slow to evolve from a “folk
crime” that was passively and rarely enforced to a perceived serious public
safety threat. Police departments across the nation began DUI units and patrols,
and creating checkpoints first on holidays and then randomly whether or not
on a holiday. Such roadblocks were challenged as unconstitutionally intrusive,
however, state after state ruled that the public safety consideration outweighed
justified the governmental intrusion. Further, the courts and state’s attorneys
began involving themselves counseling and treatment for even first time offenders.
In many states a motorist must submit to pre-conviction substance abuse screening
and treatment as a condition of bail or release on recognizance / promise
to appear. This counseling is in addition to the post-conviction counseling
that a motorist must undergo under their states Department of Motor Vehicle’s
Drinking Driving Program in order to re-obtain full driving privileges.
Varying State Laws and Standards for DUI in the United States
Illegal per se is not
the only way a person can be charged with alcohol related driving. Another
way is known as “common law DUI,” and there is no requirement that a driver
blow any level of BAC. While a typical common law statute, such as Missouri’s
DWI statute, states simply that a person commits the crime of DWI while operating
a motor vehicle while in an intoxicated condition, idiosyncrasies in states’
statutes and, especially, significantly different court interpretations, has
resulted in diversion as to what constitutes “driving while intoxicated.”
For example, jurisdictions disagree on what the terms "operating"
or "driving" mean. While many states require that the vehicle be
in motion in order for the offense of drunk driving to be committed, some
require proof of intent to operate if still stationary, and others such as
NY merely require that the motorist be seated in the driver’s seat and the
key in the ignition, even if the vehicle is not running.
States also differ on the definition
of what constitutes a “motor vehicle” for purposes of the state’s DWI statute.
For example, in Florida it is illegal to ride a bicycle while intoxicated.
In North Carolina, it is illegal to ride a horse under the influence of alcohol.
Contrast that with Missouri, where the DWI statute does not define motor vehicle.
Consequently, the in Missouri have defined a motor vehicle to be any vehicle
that is self-propelled and not used exclusively on tracks. This means that
even a golf cart is a "motor vehicle" for purposes of Missouri's
States also differ on whether
or not a person must be on a "public highway" to be charged for
operating under the influence. While in some states operating a motor vehicle
in your driveway in an intoxicated would be illegal, others such as West Virginia
require that the operation occur on a public roadway. Further,
many states such as Connecticut expand the meaning of a “public roadway” to
include private parking lots, gas stations, private garages, and the like.
Significantly, state laws differ
on what the terms "intoxicated" or "under the influence"
mean for purposes of common law DWI. In Arizona, it means impairment “[to]
any degree", "[to] some degree" or "[to] an appreciable
extent" for a finding a motorist was driving under the influence. Contrast
the standard with that of Missouri, which is “intoxication that in any manner
impairs the ability of a person to operate an automobile…” To prove a
common law OUI conviction evidence must be introduced that the driver
in question was, to whatever degree, impaired. This is done through Standardized
Field Sobriety Tests (SFSTs), driving prior to being
stopped, speech, appearance and confessions.
Retaining local counsel to defend your driving under the influence
If you were arrested for driving
while intoxicated in MA, you require local defense counsel that understands
Massachusetts’s DWI and OUI laws. In addition, a local attorney also knows
the state’s DMV rules and regulations for mandatory suspensions, conditional
driving privileges, counseling requirements, and diversion programs. A person
charged with DUI, even a first offense, as facing: