Frequently Asked Questions

MASSACHUSETTS' DRUNK DRIVING LAWS

Why should I fight my OUI case?

Two reasons. First, Massachusetts recently adopted a lifetime look back period for drunk driving cases. This means that any Massachusetts OUI or other states OUI/DUI/DWI case can cause increased penalties for your lifetime. Second, we are successful in approximately 80% of our OUI/DUI/DWI cases.

How do I pick a lawyer?

Because operating/driving under the influence of alcohol cases in Massachusetts and other states involve specialized knowledge, the attorney you select should handle these cases regularly. This means more than a few cases a year. Our lawyers handle approximately 50 -100 OUI/DUI/DWI trials per lawyer/per year. These include OUI/DUI/DWI cases with accidents, blood tests, breath tests and breath refusals. We are successful in approximately 80% of our OUI/DUI/DWI cases. You should ask any lawyer how many OUI/DUI/DWI trials they have each year and what percentage of the operating/driving under the influence of alcohol cases are actually tried before a judge or jury.

What is a Continuance Without a Finding?

A Continuance Without a Finding or CWOF means you have plead to a first offense OUI. A CWOF is not a conviction but it carries the same penalty as a guilty finding. It is also considered a first offense if you get another offense it will cause enhanced penalties. It never comes off you record.

Blood Alcohol Content / BAC Calculation

Blood alcohol content is the estimated percent of alcohol in the blood by number of drinks consumed in relation to body weight. This percent can be estimated by:

1. Count your drinks (1 drink equals 1 ounce of 100-proof liquor, one five ounce glass of table wine or one 12-ounce bottle of regular beer).
2. Use the chart below and under number of "drinks" and opposite "body weight" find the percent of blood alcohol listed.
3. Subtract from this number the percent of alcohol "burned up" during the time elapsed since your first drink. This figure is .015% per hour. (Example: 180 lb. man - 8 drinks in 4 hours / .167% minus (.015x4) = .107 %

If I had just one drink after work, there should not be any worry, right?

No. The fact is that the days of the police officer letting you sleep it off without charging you are over. Even if you are ultimately found not guilty, the costs, financially and psychologically, are so great, the best course of action, even if you plan on having a single drink, is to have a designated driver or take a cab.

By having one drink after a long workday, traveling 10 miles an hour over the speed limit and being stopped by a police officer, you still run the risk of being arrested. Consider the following: It is late and you spent a good part of the day reading before going into a smoke-filled room. Hence, your eyes are bloodshot and glassy. Because you finished the drink a few minutes before getting behind the wheel of your car, the odor of alcohol is strong. You are one of nearly 30 percent of sober people who cannot successfully perform field sobriety tests. You take the breathalyzer.a machine as reliable as your car, washing machine and computer.and an ever-so-slightly false reading results. The outcome is an arrest and charge of operating/driving under the influence of alcohol, it is not worth it.

What do police officers look for when searching for drunk drivers on the highways?

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:

1. Turning with a wide radius
2. Straddling center of land marker
3. Appearing to be drunk
4. Almost striking object or vehicle
5. Weaving
6. Driving on other than designated highway
7. Swerving
8. Speed more than 10mph below limit
9. Stopping without cause in traffic lane
10. Following too closely
11. Drifting
12. Tires on center or lane marker
13. Braking erratically
14. Driving into opposing or crossing traffic
15. Signaling inconsistent with driving actions

Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety.

If I'm stopped by a police officer and he asks me if I've been drinking, what should I say?

Tell the officer you don't want to answer any questions until you speak to an attorney. It is important to be polite and respectful to the police officer. If you are rude to an officer you can be sure he will testify to that in front of a jury.

What is the officer looking for during the initial detention at the scene?

The traditional symptoms of intoxication taught at the police academy are:

• Flushed face
• Red, weary, 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

Do I have a right to an attorney when I'm stopped by an officer and asked to take a field sobriety?

Under Massachusetts operating/driving under the influence of alcohol laws you have no right to an attorney after being asked to take a field sobriety test.

What should I do if I am asked to perform field sobriety tests?

Under current drunk driving laws in Massachusetts, if you refuse to perform any field sobriety tests the prosecution is not allowed to introduce evidence of that refusal to a jury. The officer asks you to perform the field sobriety tests so he can use the evidence against you in court. Officers are often poorly trained at performing these tests. Most of the time telling the officer you do not want to perform them on the advice of your attorney is your best bet.

What should I do if I am asked to take a breath test?

Ideally, most people would like to take the test if they know they will blow under the legal limit for blood alcohol in Massachusetts, which is 0.08, and refuse the test if they know they will blow over the legal limit. If you are under 21, the Massachusetts legal limit is 0.02.

This decision is made difficult because most people are not going to judge very accurately what their alcohol level is, and breath machines are subject to a number of problems that can make them unreliable. If you refuse to take a breath test in Massachusetts that fact cannot be introduced against you at trial. Because of these factors, most experienced DUI lawyers will advise you to refuse the breath test.

What happens if I refuse the breath test?

If you refuse the breath test, your driver's license is suspended for a minimum of 180 days. If you fail the breath test, your license is suspended for 30 days.

The officer never gave me a "Miranda" warning: Can I get my case dismissed?

No. The officer is supposed to give a 5^th 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.

Can I represent myself? What can a lawyer do for me?

You can represent yourself-although it is not a good idea. Massachusetts operating/driving under the influence of alcohol laws are complicated, and you want someone who has experience in trials as well as constitutional and sentencing issues.

A qualified drunk driving lawyer 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. He can also 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 or obtain expert witnesses all in an effort to win your case at trial.

An experienced drunk driving lawyer who primarily does DUI cases will know the best strategies to employ to give you the best possible defense.

Do not make the same mistake that so many others now regret. Contact attorney Edward Sharkansky 24 hours a day, 7 days a week at 877-2WINDUI (877-294-6384) or via our contact form in the right-hand column for a free consultation on how your OUI/DUI/DWI case in Massachusetts can be won.