1

MELANIE’S LAWMELANIE’S LAWThe New OUI The New OUI

LawLawWHAT YOU NEED TO KNOW ABOUT THE NEW LAWWHAT YOU NEED TO KNOW ABOUT THE NEW LAW

Edward P. Ryan Jr.Edward P. Ryan Jr.O’Connor and Ryan, P.C.O’Connor and Ryan, P.C.

61 Academy Street61 Academy StreetFitchburg, MA 01420Fitchburg, MA 01420

978-345-4166978-345-4166

2

OFFENSE ELEMENTSOFFENSE ELEMENTS

Operation of MV Operation of MV On Public WayOn Public Way With a Blood Alcohol of .08 or With a Blood Alcohol of .08 or

greater, orgreater, or Operating while under influence of Operating while under influence of

alcohol. i.e., the ability to operate alcohol. i.e., the ability to operate safely is diminished by the safely is diminished by the consumption of alcoholconsumption of alcohol

3

IMPLIED CONSENT TO IMPLIED CONSENT TO BREATH TESTBREATH TEST

All operators are deemed to have All operators are deemed to have consented to a breath test administered consented to a breath test administered by a police officer by virtue of drivingby a police officer by virtue of driving

Applies if you are arrested for OUIApplies if you are arrested for OUI Refusals to take the breath test will Refusals to take the breath test will

result in license loss of anywhere from result in license loss of anywhere from 180 days to life.180 days to life.

The duration of license loss for BT The duration of license loss for BT refusal depends on prior convictions refusal depends on prior convictions and age of offenderand age of offender

4

Breath TestBreath TestRefusal PenaltiesRefusal Penalties

First Offender First Offender 180 days180 days Second Offender or Under 21Second Offender or Under 21 3 years3 years Third OffenderThird Offender 5 years5 years Fourth Offender or MoreFourth Offender or More LifeLife Prior offense includes prior OUI, OUI and Prior offense includes prior OUI, OUI and

serious injury and MV homicideserious injury and MV homicide No hardship license is available during any No hardship license is available during any

period of suspension for breath test refusalperiod of suspension for breath test refusal License may be restored after an acquittalLicense may be restored after an acquittal

5

Breath Test FailureBreath Test FailureConsequencesConsequences

Immediate loss of license to police officer Immediate loss of license to police officer for 30 days or until case is disposed of by for 30 days or until case is disposed of by plea or trial, whichever comes firstplea or trial, whichever comes first

Automobile is impounded for 12 hoursAutomobile is impounded for 12 hours Breath Test result of .08 or above is Breath Test result of .08 or above is

admissible in prosecution provided test is admissible in prosecution provided test is administered in accordance with law.administered in accordance with law.

Represents a “per se” violation of statuteRepresents a “per se” violation of statute

6

Penalties for Conviction Penalties for Conviction First Offense Over Age 21First Offense Over Age 21

Statutory penalty:Statutory penalty: Fine of not less than $500 nor more than $5,000, orFine of not less than $500 nor more than $5,000, or Imprisonment in jail for not more than 2 ½ years in House Imprisonment in jail for not more than 2 ½ years in House

of Correction, orof Correction, or Both a fine and imprisonmentBoth a fine and imprisonment License loss 1 yearLicense loss 1 year

Alternate Disposition for First Offenders under G.L. Alternate Disposition for First Offenders under G.L. c. 90, § 24Dc. 90, § 24D Two years probation, entry into approved OUI program, Two years probation, entry into approved OUI program,

pay program costs and assessments, probation supervision pay program costs and assessments, probation supervision feesfees

License loss of 45-90 daysLicense loss of 45-90 days Hardship license available after enrollment in program on Hardship license available after enrollment in program on

limited basislimited basis Fines and community service may be assessed.Fines and community service may be assessed.

7

Penalties for First Penalties for First ConvictionConviction

Under Age 21Under Age 21 A person under age 21 loses their license for 210 A person under age 21 loses their license for 210

days for first offense conviction for OUI even if days for first offense conviction for OUI even if they enter G.L. c. 90, § 24D program, but is they enter G.L. c. 90, § 24D program, but is eligible for 12 hour hardship license upon eligible for 12 hour hardship license upon enrollment in program.enrollment in program.

An additional license loss of 180 days is imposed An additional license loss of 180 days is imposed under G.L. c. 90, § 24P – this may be avoided by under G.L. c. 90, § 24P – this may be avoided by attendance at special underage drinking programattendance at special underage drinking program

If the Breath Test result for a person between the If the Breath Test result for a person between the age of 17 and 21 inclusive, is not less than .20, age of 17 and 21 inclusive, is not less than .20, the first offender program is not available and the first offender program is not available and the individual must attend a rehabilitation the individual must attend a rehabilitation program known as the program known as the “14 day second “14 day second offender in-home program.”offender in-home program.”

8

Penalties for ConvictionPenalties for ConvictionSecond OffenseSecond Offense

Fine of not less than $600 nor more than $10,000, ANDFine of not less than $600 nor more than $10,000, AND Imprisonment for not less than 60 days nor more than 2 ½ Imprisonment for not less than 60 days nor more than 2 ½

years years Minimum Mandatory Sentence of 30 daysMinimum Mandatory Sentence of 30 days License loss of two yearsLicense loss of two years Assessments and fees applicableAssessments and fees applicable Alternate Second Offender Disposition AvailableAlternate Second Offender Disposition Available

Mandatory in-patient treatment at a residential alcohol Mandatory in-patient treatment at a residential alcohol treatment facility for 14 days, with aftercaretreatment facility for 14 days, with aftercare

Two years probationTwo years probation Two year license lossTwo year license loss Hardship license available after twelve months with ignition Hardship license available after twelve months with ignition

locklock Program costs and assessments applicableProgram costs and assessments applicable

Prior Convictions more than 10 years old may render a Prior Convictions more than 10 years old may render a person eligible for first offender program once in a lifetime.person eligible for first offender program once in a lifetime.

9

OUI ProgramsOUI Programs Persons eligible for any of the programs are presumed Persons eligible for any of the programs are presumed

to be an appropriate candidate for the program.to be an appropriate candidate for the program. A judge may deny admission of an otherwise eligible A judge may deny admission of an otherwise eligible

defendant to a program, but must make specific written defendant to a program, but must make specific written findings that a defendant is not a suitable candidate.findings that a defendant is not a suitable candidate.

Defendant not eligible for first offender program if Defendant not eligible for first offender program if serious bodily injury or death was caused in the events serious bodily injury or death was caused in the events that gave rise to the conviction for OUI.that gave rise to the conviction for OUI.

Persons who are domiciled out of state may be allowed Persons who are domiciled out of state may be allowed to attend out of state programsto attend out of state programs

Defendants pay the costs associated with the programsDefendants pay the costs associated with the programs Probation fee of $250 in addition to program feesProbation fee of $250 in addition to program fees Court may impose a minimum of 30 hours of community Court may impose a minimum of 30 hours of community

serviceservice

10

Mandatory Alcohol Mandatory Alcohol AssessmentAssessment

G.L. c. 90, § 24QG.L. c. 90, § 24Q Mandatory Alcohol Assessment by Department Mandatory Alcohol Assessment by Department

of Public Health or court approved programof Public Health or court approved program All repeat offendersAll repeat offenders Any offender with BAC of .20 or aboveAny offender with BAC of .20 or above Must include assessment of the level of Must include assessment of the level of

addiction to alcohol or drugs and addiction to alcohol or drugs and recommended course of treatment.recommended course of treatment.

Additional fee will be charged for the Additional fee will be charged for the assessmentassessment

11

Penalties for ConvictionPenalties for ConvictionThird OffenseThird Offense

Fine of not less than $1,000 nor more than Fine of not less than $1,000 nor more than $15,000, AND$15,000, AND

Imprisonment for not less than 180 days, Imprisonment for not less than 180 days, nor more than 2 ½ years in House of nor more than 2 ½ years in House of Correction or,Correction or,

Imprisonment of 2 ½ - 5 years in State Imprisonment of 2 ½ - 5 years in State PrisonPrison

Minimum Mandatory Sentence of 150 daysMinimum Mandatory Sentence of 150 days License loss of 8 yearsLicense loss of 8 years Hardship Available after 2 years with Hardship Available after 2 years with

ignition lockignition lock

12

Penalties for ConvictionPenalties for ConvictionFourth OffenseFourth Offense

Fine of not less than $1,500 nor more Fine of not less than $1,500 nor more than $25,000, ANDthan $25,000, AND

Imprisonment for not less than 2 – 2 ½ Imprisonment for not less than 2 – 2 ½ years in the House of Correction or not years in the House of Correction or not less than 2 ½ - 5 years in State Prisonless than 2 ½ - 5 years in State Prison

Minimum Mandatory Sentence of 12 Minimum Mandatory Sentence of 12 monthsmonths

License Loss of 10 yearsLicense Loss of 10 years Hardship available after 5 years with Hardship available after 5 years with

ignition lockignition lock

13

Penalties for ConvictionPenalties for ConvictionFifth Offense or MoreFifth Offense or More

Fine of not less than $2,000 nor more Fine of not less than $2,000 nor more than $50,000, AND than $50,000, AND

Imprisonment of 2 ½ years to the House Imprisonment of 2 ½ years to the House of Correction, orof Correction, or

Imprisonment of not less than 2 ½ nor Imprisonment of not less than 2 ½ nor more than 5 years in State Prisonmore than 5 years in State Prison

Mandatory Minimum Sentence of 24 Mandatory Minimum Sentence of 24 monthsmonths

License Loss – LifetimeLicense Loss – Lifetime No hardship available No hardship available

14

Special Penalty Special Penalty ProvisionsProvisions

Any person under the age of 21, who Any person under the age of 21, who takes a breath test with a result of .02 takes a breath test with a result of .02 or greater, and who is not charged with or greater, and who is not charged with OUI, shall have his license suspended OUI, shall have his license suspended for 180 days immediately under G.L. c. for 180 days immediately under G.L. c. 90, § 24 P.90, § 24 P.

Lifetime revocation for persons who are Lifetime revocation for persons who are convicted of OUI, MV Homicide and convicted of OUI, MV Homicide and who have a prior OUI, OUI Homicide or who have a prior OUI, OUI Homicide or OUI serious injury. G.L. c. 90, § 24ROUI serious injury. G.L. c. 90, § 24R

15

Hardship LicensesHardship Licenses No hardship license from suspensions No hardship license from suspensions

imposed for Breath Test refusals, except imposed for Breath Test refusals, except in the case of a first offender who is in the case of a first offender who is enrolled in the OUI program. enrolled in the OUI program.

Hardship licenses are issued in the Hardship licenses are issued in the discretion of the registrar on such terms discretion of the registrar on such terms and conditions as are deemed and conditions as are deemed appropriate and upon a showing the appropriate and upon a showing the causes of the past and present violations causes of the past and present violations have been dealt with or brought under have been dealt with or brought under control.control.

16

Hardship LicensesHardship Licenses First offenders: 12 hour hardship license First offenders: 12 hour hardship license

is available upon entry into program.is available upon entry into program. Second offenders: 12 hour hardship Second offenders: 12 hour hardship

license for education or employment license for education or employment reasons after 12 months, provided reasons after 12 months, provided person has completed in-patient person has completed in-patient program. After 18 months may request program. After 18 months may request for a new license.for a new license.

New, as of January 1, 2006 vehicle must New, as of January 1, 2006 vehicle must have ignition lock to obtain hardship have ignition lock to obtain hardship licenselicense

17

Hardship LicensesHardship Licenses Third Offense: 12 hour hardship license for Third Offense: 12 hour hardship license for

education and employment purposes after education and employment purposes after two years and a new license on a limited two years and a new license on a limited basis after 4 years.basis after 4 years.

New, as of January 1, 2006 vehicle must have New, as of January 1, 2006 vehicle must have ignition lock to obtain hardship license.ignition lock to obtain hardship license.

Fourth Offense: 12 hour hardship license for Fourth Offense: 12 hour hardship license for education and employment purposes after education and employment purposes after five years and a new license in a limited basis five years and a new license in a limited basis after 8 years.after 8 years.

New, as of January 1, 2006 vehicle must have New, as of January 1, 2006 vehicle must have ignition lock to obtain hardship license.ignition lock to obtain hardship license.

Fifth offense or more – No hardship licenseFifth offense or more – No hardship license

18

Proof of Prior Proof of Prior ConvictionsConvictions

Certified or attested copies of original court Certified or attested copies of original court paperspapers

Certified or attested copies of defendant’s Certified or attested copies of defendant’s biographical and informational data from biographical and informational data from records of the department of probationrecords of the department of probation

Certified copies of any jail or house of Certified copies of any jail or house of corrections, the department of correction, or corrections, the department of correction, or the registry shall be prima facie evidence that the registry shall be prima facie evidence that a defendant before the court had been a defendant before the court had been previously convicted.previously convicted.

The documents are self-authenticating and The documents are self-authenticating and admissible, after conviction of primary offense. admissible, after conviction of primary offense. No live witnesses or other corroborating No live witnesses or other corroborating testimony is necessarytestimony is necessary

19

Manslaughter by Motor Manslaughter by Motor VehicleVehicle

New Crime: G.L. c. 265, § 13 ½New Crime: G.L. c. 265, § 13 ½ Imprisonment for not less than 5 nor Imprisonment for not less than 5 nor

more than 20 years, andmore than 20 years, and A fine of not more than $25,000A fine of not more than $25,000 Minimum Mandatory Sentence of 5 Minimum Mandatory Sentence of 5

yearsyears Manslaughter not defined in this statuteManslaughter not defined in this statute License loss 15 years minimum, but may License loss 15 years minimum, but may

be up to lifetime suspensionbe up to lifetime suspension

20

Ignition Interlock DeviceIgnition Interlock Device G.L. c. 90, § 24 ½G.L. c. 90, § 24 ½ The device prevents the vehicle The device prevents the vehicle

from operating if the BAC is from operating if the BAC is above .02.above .02.

Device must be installed on each Device must be installed on each vehicle owned, leased or operated vehicle owned, leased or operated by a person previously convicted of by a person previously convicted of OUI or similar offenses as a OUI or similar offenses as a condition of the issuance of a new condition of the issuance of a new licenselicense

The device is to be installed for a The device is to be installed for a period of two years (presumably period of two years (presumably from the date the new license is from the date the new license is issued).issued).

Device must be maintained and Device must be maintained and inspected in accordance with inspected in accordance with regulations yet to be enacted regulations yet to be enacted

The device will not permit operation The device will not permit operation of vehicle if BAC is .02 or aboveof vehicle if BAC is .02 or above

Registrar may revoke license for up Registrar may revoke license for up to life for two or more occasions of a to life for two or more occasions of a failure to maintain or two or more failure to maintain or two or more instances of attempted use with .02 instances of attempted use with .02 or above.or above.

New CrimesNew Crimes Operation MV in violation of Operation MV in violation of

interlock device restrictioninterlock device restriction Fine of $1000 to $15,000Fine of $1000 to $15,000 Imprisonment for not less than Imprisonment for not less than

180 days nor more than 2 ½ years, 180 days nor more than 2 ½ years, or or

Not less than 2 ½ nor more than 5 Not less than 2 ½ nor more than 5 years in State prisonyears in State prison

Mandatory Minimum of 150 days.Mandatory Minimum of 150 days. Tampering with Ignition lockTampering with Ignition lock

Not less than 6 months nor more Not less than 6 months nor more than 2 ½ years H/C orthan 2 ½ years H/C or

Not less than 3 years nor more Not less than 3 years nor more than 5 years in state prisonthan 5 years in state prison

Starting a MV equipped with Starting a MV equipped with Ignition lockIgnition lock

Fine of not less than $1000 nor Fine of not less than $1000 nor more than $5000 or more than $5000 or

Imprisonment for not less than 6 Imprisonment for not less than 6 months nor more than 2 ½ years,months nor more than 2 ½ years,

Second Offense:Second Offense: State Prison 3-5 yearsState Prison 3-5 years

21

Child EndangermentChild EndangermentWhile Operating MVWhile Operating MV

G.L. c. 90, § 24VG.L. c. 90, § 24V Punishes person who Punishes person who

violates G.L. c. 90, § violates G.L. c. 90, § 24(a) or section (a) of 24(a) or section (a) of 24G operating with a 24G operating with a BAC of .08 or more, orBAC of .08 or more, or

While operating under While operating under the influence of alcohol the influence of alcohol violates subsection (b) of violates subsection (b) of 24G, or 24L, G.L. c. 265, 24G, or 24L, G.L. c. 265, § 13 ½ § 13 ½

With a child under age 14With a child under age 14 Conviction carries 1 year Conviction carries 1 year

license loss for first license loss for first offense, 3 years for offense, 3 years for secondsecond

PenaltyPenalty Fine not less than $1,000 Fine not less than $1,000

nor more than $5,000, andnor more than $5,000, and Imprisonment in House of Imprisonment in House of

Correction for not less Correction for not less than 90 days nor more than 90 days nor more than 2 ½ years.than 2 ½ years.

Consecutive to Consecutive to underlying OUI offenseunderlying OUI offense

G.L. c. 276, § 87 does not G.L. c. 276, § 87 does not apply, No CWOF, cannot apply, No CWOF, cannot be placed on filebe placed on file

Second offense:Second offense: Fine of $5000 - $10,000Fine of $5000 - $10,000 MM 6 months MM 6 months 6 months to 2 ½ years 6 months to 2 ½ years

HC, orHC, or State prison 3-5 yearsState prison 3-5 years

22

Vehicle ForfeitureVehicle Forfeiture

For persons with three previous For persons with three previous convictionsconvictions

If they own the vehicle they are If they own the vehicle they are driving the same may be forfeited to driving the same may be forfeited to the Statethe State

District Attorney brings civil action District Attorney brings civil action for forfeiturefor forfeiture

23

Cancellation of Cancellation of RegistrationRegistration

Requires two or more previous Requires two or more previous convictionsconvictions

Registrar may cancel registration of Registrar may cancel registration of a motor vehicle owned by such a motor vehicle owned by such person for the period of any license person for the period of any license suspension.suspension.