What is an OUI?

In Massachusetts and elsewhere it is illegal to operate a motor vehicle while under the influence of intoxicating liquor. Under M.G.L. c. 90, § 24, a person who operates a motor vehicle in a public area while under the influence may be found guilty.

This post will answer some frequently asked questions about OUIs.

What is OUI Alcohol?

Under Commonwealth law, it is illegal to operate a motor vehicle while under the influence of intoxicating liquor. This means the defendant is allegedly operating a motor vehicle with a blood alcohol level of .08 percent or greater.

What does the government have to show to prove someone guilty of OUI Alcohol?

In order to prove the defendant guilty of the offense of operating under the influence of intoxicating liquor, the Commonwealth must prove beyond a reasonable doubt that:

  1. The defendant operated a motor vehicle

2. The defendant operated a motor vehicle either:

  • On a public way
  • In a place where the public has a right of access
  • In a place where members of the public have access as invitees or licensees

3. While operating the vehicle, the defendant was under the influence of intoxicating liquor

What does it mean to be “under the influence” of alcohol?

It is not illegal to drive after consuming alcohol as long as the operator is not under the influence of alcohol. However, neither does a person necessarily need to be drunk to be under the influence of alcohol.

Legally, a person is considered to be under the influence of alcohol if he or she has consumed enough alcohol to reduce his or her ability to operate a motor vehicle safely, by decreasing his or her alertness, judgment and ability to respond promptly. Such a person has consumed enough alcohol to reduce his or her mental clarity, self-control, and reflexes, leaving him or her with a reduced ability to drive safely.

The Commonwealth does not need to specifically prove the three factors of “mental clarity, self-control, and reflexes” in an OUI-alcohol case, but the jury may take these factors into consideration in determining whether the defendant’s capacity to operate safely was impaired.

The Commonwealth also does not need to prove that the defendant actually drove in an unsafe or erratic manner, but it is required to prove that his or her ability to drive safely was diminished by alcohol. Remember that the amount of alcohol necessary to diminish a person’s ability to drive safely may vary from defendant to defendant.

It is incorrect to state that the defendant only needs to be influenced in some perceptible degree to be under the influence of liquor.

What kinds of evidence can be considered at trial to show someone was drunk driving?

Jurors can consider any believable evidence about the defendant’s alleged consumption of alcohol, as well as his or her appearance, condition, and behavior at the time in considering whether or not a defendant is guilty of an OUI of intoxicating liquor offense.

Can a breath or blood test be used as evidence against me?

Jurors may also consider whether a breath or blood test showed that the defendant consumed any alcohol.

However, note that no matter what the reading is, the breath or blood test is NOT sufficient by itself to prove that the defendant was under the influence of alcohol. In order for this evidence to be admitted in court expert testimony must be provided establishing a relationship between the test results and intoxication. This is required because without establishing this relationship, the jury would be left to guess at the meaning of the test results. It is ultimately the decision of the judge to determine whether or not to strike any breath or blood test evidence absent expert testimony.

What is a stipulation?

A stipulation is an agreement between the parties to a lawsuit. For example, if the parties enter into a stipulation of facts, neither party will have to prove those facts: the stipulation will be presented to the jury, which will be instructed to accept them as undisputed evidence in the case.

When a defendant is charged with OUI of intoxicating liquor and the parties have stipulated one or more of the three elements (or sub-elements) of the crime, the Commonwealth only has to prove beyond a reasonable doubt the remaining elements that have not been stipulated to prove a defendant guilty of the offense.

Note that if there are no stipulations, the Commonwealth must prove beyond a reasonable doubt the above three items (including their sub-items) that constitute an OUI of intoxicating liquor offense.

Is someone's opinion on if I was drunk evidence against me?

Any opinion or opinions about the defendant’s sobriety can be heard and ultimately accepted or rejected by jurors. It is to the discretion of the jury whether or not to accept or reject such evidence. Remember that it is the jury’s duty to ultimately decide whether the defendant was under the influence of intoxicating liquor.

Can the court consider if I did not take a breathalyzer test?

Jurors are NOT allowed to mention or consider in any way whatsoever, either for or against either side, that there is no evidence of a Breathalyzer. They are forbidden to speculate or guess about it simply because there is no evidence about it.

Note though that testimony about the defendant’s performance or non-performance regarding a breath (and/or also a blood test) is admissible in court without a preliminary ruling of admissibility by the court.

Can field sobriety tests be used as evidence against me?

If there is evidence that the defendant performed field sobriety tests or roadside assessments, it is up to jurors to decide if those tests or assessments demonstrate that the defendant’s ability to operate a vehicle safely was diminished.

Jurors may chose to accept or reject such evidence and may give it such weight as they think it deserves. In evaluating evidence of field sobriety tests or roadside assessments, jurors may consider any of the following:

  • The nature of the tests
  • The circumstances under which the tests and/or assessments were given and performed
  • All other evidence available in the case in question

What if I was not offered a field sobriety test?

Jurors will typically consider three questions with respect to evidence that the defendant was not offered a field sobriety test and/or a roadside assessment:

  • Whether the omitted tests were standard procedure or steps that would otherwise normally be taken under the circumstances
  • Whether the omitted tests could reasonably have been expected to lead to significant evidence of the defendant’s guilt or innocence
  • Whether the evidence provides a reasonable and adequate explanation for the omission of the tests or other actions

If jurors find that any omissions in the investigation were significant and not adequately explained, they may additionally consider whether the omissions tend to affect the quality, reliability, or credibility of the evidence presented by the Commonwealth.

Remember that it is the discretion of the jury to determine how much weight, if any, to give to any evidence that the defendant was not offered a field sobriety test and/or a roadside assessment.

Note that a motorist’s refusal to perform field sobriety tests when requested to do so by the police may not be admitted in evidence, since such evidence would violate the privilege against self-incrimination under Article 12 of the Massachusetts Declaration of Rights.

What if I was using both alcohol and drugs at the same time?

The defendant can be found guilty of OUI of intoxicating liquor if his or her ability to operate a vehicle safely was diminished, and alcohol was one contributing cause of that diminished ability. Remember that it is not necessary that alcohol was the only or exclusive cause

If the defendant’s ability to operate safely was diminished by alcohol, then he or she has committed the offense in question even if some other factor tended to magnify the effect of the alcohol or contributed to his or her diminished capacity to operate safely.

Note that a legally prescribed drug may have been the cause of the defendant’s involuntary intoxication. However, where a defendant suffers intoxicating effects from prescription medication, the defendant had legal reason to know that his or her use of alcohol might combine with his or her prescription medication to impair her mental faculties. If such a combined effect were in fact the cause of his or her diminished abilities, the defendant would be deemed criminally responsible for his or her actions.

It is the burden of the Commonwealth to prove that a defendant’s intoxication was voluntary.

Can my blood-alcohol percentage be used against me?

In any OUI of intoxicating liquor case, evidence of the percentage, by weight, of alcohol in the defendant’s blood at the time of the alleged offense, as shown by chemical test or analysis of his or her blood or as indicated by a chemical test or breath analysis, is admissible and relevant to the determination of the question of whether the defendant was at the time under the influence of an intoxicating liquor.

What happens if my breath test results in my blood-alcohol level being .05 or less?

If the percentage of alcohol by weight in the defendant’s blood was .05 percent or less and a record of this is admitted as evidence in court, jurors may use this to infer that the defendant was not under the influence of intoxicating liquor. They may consider the test result along with all other evidence in the case to determine whether the Commonwealth has met its burden of proving beyond a reasonable doubt the defendant was under the influence of intoxicating liquor.

However, note that even with this evidence, jurors are not required to reach that conclusion.

What happens if my breath test results in my blood-alcohol level being .06 or .07?

If the percentage of alcohol by weight in the defendant’s blood was .06 percent or .07 percent and a record of this is admitted as evidence in court, jurors may consider this in determining whether the defendant had consumed any alcohol.

However, jurors may not draw any inference from those results as to whether or not the defendant was under the influence of alcohol. All evidence in the case must be considered in the case in determining that.

To be convicted of a second offense OUI, does the first conviction need to come before the date of the second offense?

YES, to be convicted of a second offense OUI, the first conviction must have preceded the date of the second offense and not merely the date of the second conviction.

Note that while Commonwealth law states that defendants convicted of motor vehicle offenses should be given a written statement by the District Courts of statutory provisions applicable to any subsequent violation, failure to give a defendant such notice is NOT considered a defense against a subsequent charge as a second offender.

Can videotapes be evidence used against me?

Videotapes are admissible in court in an OUI-alcohol case if they:

  1. Are relevant to the case in question
  2. Provide a fair representation of what they appear or claim to depict
  3. Are not otherwise barred by an exclusionary rule

Note that a videotape of the defendant being booked in an open area of a station house does not offend any of the following US constitutional amendments:

  • The Fourth Amendment, because no “search” is involved
  • The Fifth Amendment, since the defendant’s condition and actions are not “testimonial”
  • The Sixth Amendment, where the right to counsel has not “attached” at the time of arrest

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH AN OUI, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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