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If you’ve been charged with a second offense count of drunk driving in Massachusetts, the stakes are quite a bit higher than for a first offense. Most people I talk to are very nervous about the consequences, and many are concerned about the risk of spending time in jail.

If you are found guilty, it’s very unlikely that you will be sentenced to jail time, although it is not impossible. Most likely, your penalty will be the minimum alternative disposition, below. It’s still quite harsh, and you’ll end up not driving for 3 years, and you’ll be spending 2 weeks in an alcohol treatment center.

Should I Take the Case to Trial? Can I Win?

DUI Attorney Russell Matson on Fox25For most people you should absolutely fight the case rather than plead guilty to a 2nd offense OUI charge. When we speak, I’ll talk to you about your specific situation, go over the facts of your case, review the police report, and give you my assessment of your chances to beat the OUI charges at trial. Generally, I win more than 2/3′s of the cases I fight, but every case is different.

The reasons to fight it are as follows:

  1. Pleading Guilty doesn’t have any quick upside. You have no chance of getting your license back quickly after a second offense, or getting a hardship license anytime soon.
  2. If you lose, you probably aren’t any worse off than if you had pleaded. Most judges will give you the minimum, or something very close to it after a guilty verdict. So all you are risking is the time invested in the court dates and disruption to your life, and some extra legal fees. But if you win your case and are found not guilty, you’ve avoided all the serious penalties and inconveniences to your life, and you are back on the road with a reinstated drivers license after any suspension for a breath test refusal is expired.

When does it make Sense to Consider Pleading Guilty on a 2nd offense DUI?

If your previous DUI conviction is over 10 years old, then you may be eligible for what is called a Second Chance 24D Disposition. I will enter a motion before a judge to request that your case be treated as a first offense DUI, with a 1st offense penalty. Most judges will agree to this, although some will not. And even if it is agreed upon, the registry will still treat you as a second offender, and require you to get an interlock device on your car. But for many people, doing this makes sense. At least they can drive again fairly quickly.

Other times it may make sense to consider a plea are:

  1. If the prosecutor can’t prove the prior offense, so he/she is offering a first offense penalty deal.
  2. If there are other charges involved that increase the risk of a sentence of jail time. If we believe there is a significant risk of you going to jail if convicted, then a second offense penalty plea without jail may not look so bad.
  3. If you are absolutely agonizing over the idea of a trial, and feel you can live with the consequences and penalties you’re facing if you plead.

Second Offense OUI Law & Penalty

  • Jail time: From 60 days to not more then 2 1/2 years  (30 day mandatory to be served if the judge requires jail time in the sentence)
  • Fines: $600-$10,000.
  • License suspended for 2 years. (Note: In almost every case, with a breath test refusal or failure you won’t be eligible for a hardship or full license restoration for at least 3 years total.)
  • When your license suspension ends, and you are eligible for reinstatement, the registry will require that an Ignition Interlock Device is installed in your car (or any car you drive) for 2 years. This applies for either a hardship license or full license reinstatement.

Alternative Disposition (2nd Offense OUI)

  • 2 years Unsupervised Probation
  • 14 day confined (2 week inpatient) alcohol treatment program
  • Fine: $600. Total court imposed fees & fines including alcohol education program, 24 months of probation supervisions fees, OUI state fee, victim assessment, head injury fee, victim witness fee, and license reinstatement fees – over $4000 (not including interlock fees and increases to you car insurance rates
  • License suspended for 2 years. (Note: In almost every case, with a breath test refusal or failure you won’t be eligible for a hardship or full license restoration for at least 3 years total.)
  • When your license suspension ends, and you are eligible for reinstatement, the registry will require that an Ignition Interlock Device is installed in your car (or any car you drive) for 2 years. This applies for either a hardship license or full license reinstatement.
  • If your prior offense is over 10 years ago, you may be eligible for a 24D disposition, which would only be the penalties of a first offense. The Registry, however, would still treat you as a 2nd offender for license reinstatement.

Second Offense DUI – Frequently Asked Questions

My Prior Offense is More than 10 Years Old. Can I Get it Treated as a First Offense?

In many cases, yes, although it is not a guarantee. If you have a previous offense that is more than 10 years old, we may be able to negotiate a deal where the court will treat you as a first offender. This is known as a 24 D Disposition. The judge has complete discretion as to whether or not to offer you this deal, but we will always make the argument that is is the fair way to go.

The Registry of Motor Vehicles will still treat you as a 2nd offender, and you will be required to have an ignition interlock device in your car, but at least you will be able to drive, which would not be the case without this deal and with a regular 2nd offense conviction, where you might not be able to drive for 4 years.

Should I fight the case or work out a deal?

Most people charged with a second offense have very little to lose when fighting the case and a lot to gain. If you refuse the breath test then you are going to lose your license for three years and if you are found guilty for a second offense there is an additional two year loss of license and you will only be eligible for a hardship license a year into the two years. That means you won’t be eligible for a hardship license for four years into the five years. I have a number of cases that I have fought and won and the judge then reinstated my client’s license after a not guilty verdict so a day after the trial my clients were back out on the road.

For clients that have failed the breath test there is a thirty day loss of license but then the clients can get their license reinstated after that thirty days. If we win the case then we avoid the two-year loss of license as well as a minimum two-week inpatient alcohol education program, the guilty finding on your record and having to install the ignition interlock device.

If you have been charged with a second offense and your prior offense is more then ten years old then for some clients it does make sense to work out a deal if we can get the alternative disposition where the court will place you in a first offender alcohol education program and you can get back on the road within a few weeks.

What happens if I 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.

Here is a bench trial I recently won on a 2nd offense case:

What is an ignition interlock device?

An ignition interlock device is an in-car alcohol breath screening device that prevents a vehicle from starting if it detects a blood alcohol concentration (BAC) over a pre-set limit. The device is located inside the vehicle, near the driver’s seat, and is connected to the engine’s ignition system.

If I fight the case can I get a hardship license while I’m waiting for my case to go to trial?

No, The Registry does not allow someone to get a hardship license while your case remains unresolved.

Am I going to jail?

It is rare to get jail time for a second offense OUI, but it is not impossible.

Russell Matson
(781)380-7730 – 24 hours a day

 

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