August 19, 2020
A question often asked is whether drunk driving is a felony or a misdemeanor. To answer that question, it’s important just to understand the difference between a felony and misdemeanor in Massachusetts.
The Difference With Massachusetts Law
The confusion often comes in because Massachusetts has kind of a weird definition. Most states, as well as the federal government, say that a felony is anything that’s punishable by imprisonment by a year or more. Massachusetts does it differently. So what Massachusetts law says is that anything that has a potential punishment in state prison is a felony and everything else is a misdemeanor. That doesn’t mean you are likely to get something in state prison, you’re getting charged, or getting sentenced to state prison. It basically says that the law says that anywhere in there that that’s one of the potential punishments for you, some term in state prison, then it’s considered a felony.
And if it doesn’t, if it just says the maximum sentence is a fine or a sentence to the house of correction or something like that, and never mentions state prison, then it’s considered a misdemeanor.
Different Charges and Offenses
In the context of drunk driving there are both. There are charges in the drunk driving law that some are misdemeanors and some are felonies. So for instance, a first-offense drunk driving charge is considered a misdemeanor. The maximum punishment is two-and-a-half years in the house of correction.
Likewise, a second offense, while there’s parts of that that are ratcheted up more than the minimum time you’d have to do, the maximum sentence is still two-and-a-half years in the house of corrections. So it is, in fact, a misdemeanor.
A third offense or above, those are state. Those have state prison potential to them. In fact, a third offense has a potential sentence of state prison of between two-and-a-half years to five years. So five is maximum state prison, with a minimum state prison of two-and-a-half years. So that’s important to understand that a third offense or above is in fact a felony.
There’s other types of drunk driving charges that have both felony components and misdemeanor components. Motor vehicle homicide caused by drunk driving has both the misdemeanor version, as well as a felony version. Same thing, if it’s a motor vehicle causing serious bodily injury, due to drunk driving, that also has a component in there where the person can be charged either with a felony or the misdemeanor.
It’s really important to take a look at the actual charge that you’ve been charged with. Review the law and the statute to know whether or not you’ve been charged with a felony or a misdemeanor.
If you have any questions about whether your charge is a felony or a misdemeanor or any questions about this or drunk driving at all, please feel free to give me a call or shoot me an email. I’d be happy to speak with you about it.
August 19, 2020
Did you know that an out-of-state case for drunk driving or driving under the influence of drugs can affect your Massachusetts drunk driving case, even if you weren’t convicted in that other state?
Let’s Dive Into an Example
Let’s assume you were in Connecticut 20 years ago, and you pick up a case of drunk driving. You go to court, they see you have a very clean record so they say, “We’re going to give you a break here. For a first offense, all we want you to do is go do an alcohol rehabilitation program. Once you do that, provide us with a certificate, we’ll dismiss this case.” This is often referred to as some type of deferred prosecution, sometimes referred to as a pre-trial probation. In Mass, we refer to it as a CWAF, a continuation without a finding. We have a similar thing.
The problem is with the Massachusetts Statute when determining what level drunk driving offense you have — A first offense, second offense, third offense, fourth offense, and so on. They determine whether you had a drunk driving case in any other state, whether you were convicted, meaning you have a guilty filing on your record, or whether you were assigned to any kind of alcohol or drug treatment program or rehabilitation program in deciding what offense this was.
So that Connecticut case from 20 years ago – where you weren’t found guilty- ultimately the case was dismissed if you did the alcohol rehabilitation program. However, your new case in Mass will be considered a second offense because Mass. counts the Connecticut case as your first offense. This means enhanced penalties.
It’s important to understand this when you’re approaching any type of deferred prosecution. Pretty much, if you didn’t get a true “not guilty” after trial in that other state or dismissal, most likely that out-of-state drunk driving conviction will count as an earlier offense, in this example a first offense. So if you pick up another case in Massachusetts, it will be considered a second offense.
If you have any questions about drunk driving or any other criminal matters in Massachusetts, please feel free to give me a call or shoot me an email, I’d be happy to speak with you about it.
August 18, 2020
A question I often get asked is, “How long is my criminal case going to take?” Unfortunately right now, I’ve got to give you the lawyer answer on this one, which is, “It depends.” And it’s going to depend on a number of factors, many of which actually depend on the client and what their goal.
What “It Depends On You” Means
A typical criminal case can take anywhere from a month or two up to a little more than a year, which is not that uncommon for a case to get all the way to a trial. Now, what I mean by, “It’s going to depend on you,” it’s going to depend on what your goals are, what do you want to have happen with the case? Many people that come through my door are stressed out about the case, but also feel like they have no options. They feel like they just want to get the case over with, take their punishment, their probation, whatever it may be, and just be done with it. They just want it over with, all right? And that happens a lot.
Sometimes we agree with the client. We look at the facts of the case, we look at what we have in front of us, and we say, “You know what? Taking a plea on this thing isn’t the worst idea.” And then we work to get them the best plea we can possibly get them under the circumstances with as little punishment as possible. Hard time speaking this morning. That’s our goal, obviously, is to make sure they have the least punishment possible in any case.
How We Approach a Case and Some Examples
Now, typically speaking, the way I approach a case and the way my firm approaches cases is — we want to take a look at everything, dissect it, and see if we can actually win the case. That’s goal number one for me, but it’s not always the goal for the client. I recently had a client with a drunk driving case, and he caused a small accident. He was very drunk, he did a lot of the things we tell people not to do, which is he took the field sobriety test, he took the breathalyzer, and it was going to be a really hard case to beat anyway, but he just wanted it over with. He understood what he did, he just wanted to take responsibility, take his punishment, and move on. So his case only took a couple of months.
Now on the flip side of that, we had a kid who just went to trial a few months back, before COVID, that just finished just before COVID. That case took over a year, and was a very complicated sexual assault case. There was a bunch of discovery, meaning documents, videos, other things that we had to get, and that all takes time. Also, just getting on the court’s calendar for an actual trial date and getting that trial done is a process. It can be a long process.
There also may be a case where maybe the person has a good motion in the case. What I mean by that is — a motion is just a fancy word for you’re asking the court to do something. Many motions are a great way to end a case. This typically works good with possession cases, possession of guns, possession of drugs. We had this other client who was a pharmaceutical sales rep, but unlicensed. So he was a drug dealer, let’s just say that, and he would sell pills. He got caught, he came to us, and we were able to finish his case in about four months. The reason for that is because he had a great motion what they call to suppress, meaning that the police searched him illegally. When they do that, we can file a motion to suppress, in other words, keep out of evidence anything they find, and that as a result ended his case.
The case is going to depend upon the facts of the case, good or bad, what we think we can do with them, how long it takes to get discovery, and if you have any good motions to the case. Sometimes you do, sometimes you don’t. But if you have to go all the way to a trial expect that the criminal case is going to take probably a year, sometimes a little bit more, depending on the case.
If you have any questions about your case, about how the criminal case process goes or any of this, please feel free to leave me a comment, give me a call, or shoot me an email. I’d be happy to discuss it with you. All right, thanks a lot. Have a great day.
August 18, 2020
I’m Attorney Mike Contant. Did you know there’s a way to overturn your old drunk driving conviction? If you had a drunk driving offense between June of 2011 and April 17, 2019 and you took the breathalyzer test and that was a significant factor in your decision to take a plea or in the judge or jury finding you guilty at trial, you have the ability to get that overturned. Let me tell you why.
The Ananias litigation
A couple of years ago in Massachusetts, there was this litigation called the Ananias litigation. It challenged the admissibility of the breathalyzer test on a couple of different grounds. The first was the scientific reliability of the machine. The second was the way the machines were being calibrated and certified with the Office of Alcohol Testing.
Unfortunately, the judge found the machines were scientifically reliable. However, during the litigation, it came out that the way the machines were being calibrated and certified, as well as the way the Office of Alcohol Testing was maintaining their records and providing them in response to requests for information for cases going to trial was suspect.
The Judge’s Ruling
Therefore, the judge made a ruling that any breathalyzer tests during the period of June 2011 through April 17, 2017, should not be admitted as evidence at trial. You might ask, “Well, June 2011 is a long time ago. If I took the test back then, my case is long over. If I was found guilty, I’ve probably done my probation. Everything is all over with.
Why You Should Challenge Your Old Case Now
Why would you want to challenge that now? The reason is Melanie’s Law. Melanie’s Law, since 2005, made it so that any drunk driving offense you have, any conviction, is cumulative. In other words, there’s a lifetime lookback period.
Even if it was a first offense, if you were to ever, even 20 years from now, pick up another drunk driving offense, it becomes a second offense or a third offense or a fourth offense, with harsher penalties as you go on.
However, the Ananaias litigation said, “For this period of time, a breathalyzer test should not have been admitted.” And so if it was a significant factor in your decision to take a plea, or to take some sort of probation or anything else, or if it significantly affected the jury or judge in finding you guilty at trial, it shouldn’t have been admitted.
An Example Scenario
An example might be that it was a really high breathalyzer test, maybe it was .20 or .15, i.e., significantly over the legal limit, and there wasn’t a lot of other evidence to show that you had done it. Maybe you didn’t do the field sobriety test, or maybe you did but you didn’t do too badly.
In cases like this, it’s possible to show to the judge that the breathalyzer test was a significant factor in your decision or the jury’s decision of finding you guilty. A motion for a new trial can be filed on your behalf. It could take this into account. And many of these cases, because of their age and other factors, are not even being retried. Many of these cases are just being dismissed.
What You Should Do If You Meet The Criteria
In late February of 2020, it was widely publicized that the registry was going to have to send out more than 27,000 letters to people who were in this exact same situation. And regardless of whether you received a letter or not, if you meet these criteria, you may be subject to having your drunk driving conviction overturned and getting a new trial. You may have gotten the letter or you may have not gotten the letter if you meet these criteria.
Let’s say you took a breathalyzer test in Massachusetts between June 2011 and April 17, 2019 and it was a significant factor in either the judge or the jury’s decision of finding you guilty, or in your decision to take a plea. In that case, you may have the ability to get that drunk driving conviction, even if it was just an offense and not a conviction, overturned and get a new trial. You could possibly even get the case dismissed.
If you have any questions about this, about drunk driving, traffic offenses or anything like that, please feel free to shoot me an email or give me a call. I’d be happy to speak with you about it.
August 18, 2020
I’m Attorney Mike Contant. Here’s a question I get asked a lot: “How long does a drunk driving offense or an OUI in Massachusetts stay on your record?” Now, that’s not really the right question. Because any criminal offense stays on your record forever unless you’re able to get it expunged.
The Old Rule
A lot of people know that it used to be possible that after 10 years, if you had stayed out of trouble for 10 years, any OUI offense would be set back to a first offense. This means that if you picked up a first offense when you were 20 and you stayed out of trouble, by the time you turn 30, if you did it again, it went back and still stayed a first offense and did not become a second offense.
However, in 2005, that changed. There was a law passed called Melanie’s Law. It was named after a 13-year-old girl, Melanie Powell, who was struck and killed by a drunk driver who had multiple drunk driving offenses on his record.
This law did several things. It made it easier to prosecute multiple offender drunk drivers. But it also created a lifetime look-back period for drunk driving offenses. As a result, you would never be reset back to a first offense. Let me tell you a little story to illustrate this point.
A Client Story
We had this client. He was 77 years old. He comes in with an OUI third offense. We got a little history from him. And he said that back in his 20s, he was a bit of a hellraiser and picked up two offenses for drunk driving. But then he grew up. He got married, had a family, and had a great job. And he hasn’t had any other criminal activity since.
Now, he’s 77 years old. And just a few months earlier, he had been at his sister’s house for a Christmas party. He might have had one glass of wine too many, and he got pulled over on his way home. I think he blew a stop sign. He didn’t cause any damage. He didn’t hurt anybody. But he blew a stop sign and he gets pulled over.
The Impact Of Melanie’s Law
The officer asks him to do a field sobriety test and a breathalyzer test and he’s over the legal limit. So he gets arrested. And, now, even though it’s been more than 50 years since his last drunk driving offense, he gets charged with an OUI third offense, which, in Massachusetts, is a felony.
But, more importantly, it also carries a mandatory minimum jail time. This means that you must serve at least 150 days in jail for an OUI third offense. The judge has no ability to lower the sentence. If you’re convicted of that offense, that’s how much time you have to serve.
Now, that’s why it’s so important to understand that this is a lifetime look-back period. Even though this guy had stayed out of trouble and had been a good guy for most of his life, Melanie’s Law made it so that this ended up being a third offense and he was facing a minimum of 150 days of actual jail time.
If You Have Questions
If you have any questions about drunk driving offenses, Melanie’s Law, or anything related, please feel free to give us a call or shoot me an email. I’d be happy to speak with you about it.
August 18, 2020
I’m Attorney Mike Contant. A question I’m often asked is, “How likely is it that I’ll go to jail for a first time drunk driving offense?” And unless it’s something particularly bad, in most cases, the answer is, “Not very likely.”
Now let me tell you what I mean by that. If you caused a serious accident at the time of the drunk driving offense or if you did something particularly egregious, like lead the police in a high speed chase, or if you have a bad criminal record prior to this first offense OUI, it’s possible you might do some jail time.
If It’s The First Criminal Offense…
But for most people where this is the first criminal offense they’ve ever had, or if they have a very minor record, it’s unlikely they’re going to have to go to jail as a result of this case. In most cases, we’re able to get our clients into what they call a first offender program, also referred to as the 24D program.
The First Offender Program
Now, that program involves a number of things. Typically, it looks like this: You’re on probation for about a year. You lose your license for somewhere between 45 days and 90 days. You have to attend a 16-week alcohol education program. Also, there are a lot of fines and fees. For a year of probation, all the fines and fees will amount to about $1380.
As for the alcohol education program I mentioned, you do have to pay for that separately. That’s not included in the amount above. However, once you start this alcohol education program, you can get what they call a hardship license. Some people refer to it as a Cinderella license.
The Cinderella License
This will allow you to drive for 12 hours a day, usually to get to and from work or other necessary appointments. You would have to go to the registry separate from the court to apply for this. But it’s all part of the first offender 24D program.
If you have any questions about any drunk driving issues or for the first offender program, please feel free to give me a call or shoot me an email. I’d be happy to speak with you about it.