In my DUI practice, I get asked the same questions all the time. Here are some of my collected answers. If you can’t find an answer to your question, please call me about your case.
- I just got arrested for a DUI. What do I do?
- 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 then going to trial?
- How long will this 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 then the criminal penalties and the license loss?
- Am I going to jail?
- 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?
- If I am convicted, what is the worst thing that can happen to me?
- Is a DUI / OUI charge considered a felony or a misdemeanor in Massachusetts?
- If I’m stopped by a police officer and he asks me if I’ve been drinking, what should I say?
- 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 fight the case and lose, do I get any money refunded on legal fees?
- What do police officers look for when searching for drunk drivers on the highways?
- What is the officer looking for during the initial detention at the scene?
- Do I have a right to an attorney when I’m stopped by an officer and asked to take a field sobriety test?
- If an officer asks me to perform field sobriety tests what should I do?
- What should I do if I am asked to take a breath test?
- What happens if I refuse the breath test?
- Can they charge me with a breathalyzer refusal, even though I tried to blow into it?
- The officer never gave me a “Miranda” warning: Can I get my case dismissed?
- The Police Videotaped me! Is that bad for my case?
- The police officer missed court, Can I get my case dismissed?
- 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?
- What is the difference between a DUI / OUI / DWI / Drunk Driving Charge?
- 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. Myself or my associate 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 don’t talk about your case with anyone until you speak with a lawyer. Your name will be called, 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.
If you’ve already been arraigned, and your next court date is a pretrial, here is my OUI pretrial FAQ.
This is a decision that only you can make, but for most people we recommend that they fight the case if at all possible. 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.
The reason most people plead guilty is to be able to drive again immediately with a hardship license. But for the above reasons, everyone should at least consider fighting. If you can somehow manage alternate transportation 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.
If you failed a breath test, your license is suspended for 30 days regardless of the number of the OUI offense.
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 deal in exchange for a continuance without a finding, or a guilty plea, in many cases we can 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.
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 for one year. The judge will suspend you license for 45 days (consecutive with the 180 day breath test refusal or 30 day failure suspension), and you will pay a number of fees and fines. 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.
It will never go off of your record. And if you get arrested again it will be used against you as a prior offense.
They are very similar for most purposes but a continuation/ continuance without a finding (CWOF) is not considered a conviction, and therefore you can honestly answer if anyone asks you if you “Have ever been convicted of a crime?”, the truthful answer is no. A CWOF does mean that you agree that there are “sufficient facts to establish your guilt. It also will absolutely count as a prior offense or probation violation if you get in trouble with the law again.
It could potentially affect employment, if someone decides to run a background check on you, it will appear on your record. Also, Canada is very strict about letting people into their country; even one continuation without a finding, Canada will ban you from entering.
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.
Jail time is rare, but possible on a second (2nd) offense charge.
There is a mandatory minimum 5 months in jail for a 3rd offense OUI conviction in Massachusetts, and 1 year for a 4th offense.
On a 1st offense, if you have a Massachusetts License, you are able to get your full license after your license suspension ends. It will vary depending on the charges. It would typically be a total of 225 days (180 + 45) from the date of the incident if you refused the breath test. If you failed the breath test, it is still 45 days from the date of the conviction, plus the 30 from the date of the incident. So if your plea date is within the 30 days, the 45 is tacked on after that for a minimum of 75 days total.
However, 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 web site.
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, 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 officers 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’s describe.
It is very unlikely, I rarely have my clients testify at trial. 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 with practice questions, so you know exactly what to expect.
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 that 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.
In most cases, experience in DUI law is more relevant that any local court connections or advantage. However, our law firm has appeared in
virtually 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.
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.
The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Safety Administration (NHTSA):
- Turning with a wide radius
- Straddling center of lane marker
- Appearing to be drunk
- Almost striking object or vehicle
- Driving on other than designated highway
- Speed more than 10 mph below limit
- Stopping without cause in traffic lane
- Following too closely
- Tires on center or lane marker
- Braking erratically
- Driving into opposing or crossing traffic
- Signaling inconsistent with driving actions
Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety. Some of these accusations may also result in other Massachusetts criminal traffic charges, such as Operating to Endanger, or Reckless Driving. I frequently defend against these charges also, when in conjunction with drunk driving arrests.
Tell the officer you don’t want to answer any questions until you speak to an attorney. This does mean that if the officer suspects your driving is impaired by your drinking, you will be arrested. But the less you say, the less evidence they have against you.
It is important to be polite and respectful to the police officer if this happens, since if you are rude to an officer, you can be sure he will testify to that in front of a jury.
Check out my article Should I Talk To the Police?
The traditional symptoms of intoxication taught at the police academies are:
- Flushed face
- Red, watery, glassy and/or bloodshot eyes
- Odor of alcohol on breath
- Slurred speech
- Fumbling with wallet trying to get license
- Failure to comprehend the officer’s questions
- Staggering when exiting your vehicle
- Swaying/instability on feet
- Leaning on car for support
- Combative, argumentative, jovial or other “inappropriate” attitude
- Soiled, rumpled, disorderly clothing
- Stumbling while walking
- Disorientation as to time and place
- Inability to follow directions
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).
If you refuse to perform any field sobriety tests the prosecution is not allowed to introduce evidence of that refusal to a jury. The reason the officer asks you to perform the field sobriety tests is so he can use the evidence against you in court.
Officers are also often not well trained in performing these tests and frequently make mistakes which seriously calls into question any scientific validity that they may have . Most of the time, telling the officer that you do not want to perform any tests on the advice of your attorney is your best bet.
Ideally, most people would like to take the test if they know they will blow under the legal limit for blood alcohol which is .08, and refuse the test if they know they will blow over the legal limit. If you are under 21, the Massachusetts legal limit is .02.
This decision is made difficult because most people are not going to judge very accurately what their blood alcohol level is, and breath machines are subject to a number of problems that can make them unreliable, and will sometimes result in a person who has is not legally intoxicated having blood alcohol reading over the legal limit.
If you refuse to take a breath test, that fact can not be introduced against you to a jury under Massachusetts law. Because of these factors, most experienced lawyers will advise you to refuse the breath test. It leaves you the most & best possible options to fight the case.
If you refuse the breath test, Massachusetts will suspend your drivers license for a minimum of 180 days for a first offense DUI charge. If you fail the breath test then your license is suspended for 30 days. If you choose to plead out, you can get a hardship license in most cases, and minimize the period which you cannot drive.
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. 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.
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 judges 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 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.
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.
There is no difference. In Massachusetts, the specific criminal legal statute refers to “Operating Under the Influence of Intoxicating Liquor”, or OUI for short.
Different state laws call the same act “Driving Under the Influence” (DUI) or “Driving while Intoxicated” (DWI), but they all essentially mean the same thing: a drunk driving accusation and charge. And some states do differentiate between the two, or classify a DWI as a lesser offense from a DUI.
But again, none of that applies in Massachusetts, it is all the same.
For most people, DUI is the most commonly used abbreviation, but courts refer to them technically as an “OUI-Liquor”.
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 for 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.
This is still highly annoying to you, but 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
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 question, but it is probably not as big a concern as you 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.
But there are many things we can do to explain, discount, and eliminate many statements in the report, and much of it will never been 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 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. 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 is an injury and you are taken to a hospital for medical treatment.
I have an old outstanding OUI Charge that I was never Convicted of. How can I fix it and get my license again?
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.
How far back do the records go in searching for old OUI charges that can be considered prior offenses?
Regarding prior OUI convictions, as of 2002 Massachusetts law now allows for the court to consider an OUI conviction from anytime 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.
(Some of the material above is reproduced courtesy of California DUI attorney Lawrence Taylor, author of DRUNK DRIVING DEFENSE, 5TH EDITION. Much of the material has been altered to reflect Massachusetts law.)
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
44 Adams St, Suite 5
Braintree, MA 02184