I try to talk my clients out of a guilty plea in most cases, at least until we are able to see and evaluate all of the evidence. The main reason for that is because a few years ago in Massachusetts the legislature passed a bill called Melanie’s Law, which did a lot of things to make OUI a much more serious offense including a lifetime look back period. Prior to Melanie’s law, if you went 10 years without another OUI on your record and you picked one up, it would be considered as a first offense. Now that look back period has gone from ten years to the person’s lifetime.

This can be particularly bad for a person who is now older and maybe picked up an OUI or two in their 20s when they were drinking in college or whatever the case may be. Now this person is in their 50s or 60s, maybe they had a little too much to drink at the office Christmas party, and they get pulled over. That person would be facing a 3rd offense OUI. In Massachusetts that is a felony and requires mandatory jail time of at least 150 days, if the person is found guilty. That will severely impact every aspect of this person’s life. Especially for someone who may have made some mistakes when they were much younger but has otherwise led a very good life since then.

A Brief Timeline of Events Following an OUI Stop in Massachusetts

Obviously, if you see blue lights behind you, the first thing you will need do is pull over to the roadside as safely and quickly as possible. The police are looking to see whether or not you are noticing the blue lights, whether or not you are pulling over to a safe location and how quickly you are doing it. This all goes to your awareness and reflexes. At that point in time, they are going to approach your driver’s side window. They will want your license and registration. The best thing to do is to have these ready for them by the time they are at your door. By doing that, you take away something else they are looking for: someone who fumbles around looking for their license then fumbles in the glove box to find the registration.

Keep in mind that it is not just field sobriety tests or breath tests that determine if you have been drinking too much: the police are looking for every little clue they can find that might indicate that you don’t have the ability to drive safely due to alcohol. Other ways of determining if you have been drinking include the smell of alcohol on your breath, glassy eyes and slurred speech; if they notice any of those things, they will ask you to step out of the car. In Massachusetts you do not have a choice. You cannot just say no to stepping out of the vehicle. You should be cooperative and compliant and step out of the car but do and say as little as possible because they are looking for every little clue that they can.

As you exit the car, the police will note whether you are holding onto the door for balance. Are you having a hard time walking from the front of the car to the back of the car where they usually do the field sobriety tests? Are you swaying against the car or holding onto it for balance? These are all clues they are trained to look for that are an informal sobriety test of sorts.

I would advise everyone to refuse the field sobriety tests. You will be asked to do them, and you can just politely decline. I say “politely” because belligerence can be a factor the police will use to suggest that you are intoxicated. Just politely say no and, at that point, request a lawyer. Don’t say much else.

If you decline a field sobriety test in Massachusetts, the refusal cannot be used against you. The judge or the jury hearing the case – should it go all the way to trial – will never know that you declined the test.

Once you are arrested, you will be brought back to the station where you will be advised of certain statutory rights, including your right to take a breathalyzer test, and the consequences if you do not take it. Massachusetts has an implied consent law that basically says that by operating a motor vehicle on the roads in Massachusetts, you agree that you will consent to a breath test. If you refuse, there are severe penalties with regard to your license. In particular, refusal of a breath test will result in a six-month license suspension. However, the breath test provides some of the most damning evidence against you in most OUI cases. So, I advise people to take the hit on the license so you do not have that evidence used against you later on when it comes to court.

In Massachusetts, the police do not offer a blood test and they are not allowed to take you to a medical facility to do that. But you do have a right to get your own breath or blood test at a medical facility, and the police must advise you of that right. They do not have to take you there, but they cannot impede your ability to get there. In other words, they are required to book you as quickly as possible and then you can try to get someone to bail you out, so you have the ability to exercise the right should you so choose. As long as you do not have a serious criminal record or some other reason, like an outstanding warrant for your arrest, you should be released the same evening you get arrested.

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