When you are arrested for drunk driving (OUI/DWI) the first 24 hours will look like this. You will be put in handcuffs; placed in the back of a police car and taken to the police station. You will be booked at the police station. During the booking procedure, they will take basic biographical information, your name, your address, your employer, date of birth, relevant medical history/medications, etc. You will be notified of certain rights that you have, such as the right to a telephone call; the Miranda Rights which include the right to remain silent and the right to an attorney.
When you are arrested for OUI/DWI you should also be notified that you have a right to obtain an independent medical exam. The independent medical exam usually involves you going to a doctor or other medical facility after your release from police custody to have blood drawn and tested for alcohol content or other tests of your choosing. This would be to preserve them to be used in your defense. It is important to note that the police are not required to take you for such an exam. It is something you would need to arrange for yourself. However, the police are required to complete their booking, tests and contact a bail commissioner in a reasonable amount of time, so that you can seek out an independent medical examination.
The police will also give you the option to take a breathalyzer test. A breathalyzer test is a scientific test to determine your blood alcohol level (also known as BAC). You will be asked blow into this machine which takes certain measurements based upon your breath and gives computation as to your blood alcohol content (BAC). While it is your choice whether to take breathalyzer test or not, you will be notified of your consequences if you refuse to take the test. If a first-time offender decides to take the test and fails (BAC of .08 or above for adults over age 21 and BAC of .02 or above for those persons under age 21), then there will be a thirty (30) day loss of license. If a first-time offender refuses to take the test, the license loss will be for one-hundred and eighty (180) days. The period of license loss will be longer for people under the age of twenty-one (21) and for people who have past OUI/DWI’s. We frequently counsel our clients to refuse the breathalyzer test.
After that, the police will then contact the local bail commissioner. That person will come to the police station. The bail commissioner will make the determination as to whether or not you should be released with little or no bail; whether there should be a higher bail; or whether you will be held until you go to court on the next day court is open. Most people, with little or no prior criminal record are usually able to be released with a $40.00 payment to the bail commissioner. However, this will depend on the circumstances of each person and their case.
How Does Refusing A Chemical Test Impact an OUI Case?
Refusing the breath test after being arrested for OUI/DWI does not have a negative effect on your criminal case. If you go to trial, the jury hearing the case is not allowed to consider or even know that you refused to take the test. Refusing the test can have a positive impact on the case. In many cases, the most damning evidence the prosecutor has against you is the results of the breathalyzer test. Your refusal will take this evidence away and, in many cases, strengthen the case.
As noted above, the downside to refusing the breathalyzer test is the long loss of license period, which takes effect immediately upon your refusal. For a first offense, the loss of license for refusing the breathalyzer test is one-hundred and eighty (180) days. This period is longer if you are under the age of twenty-one (21) or if you have had multiple drunken driving offenses.
What Sort of Documentation Does Someone Get When They Are Released from Jail?
After release from jail, you will be given certain forms which concern your rights and applicable loss of license (if any). Assuming you were bailed out, you will also receive what they call a recognizance slip. This is proof that you have been released and under what bail or conditions. You will not receive a police report or any other court documentation. You or your lawyer will get those when you appear in court for the first time, which is known as an arraignment.
Does Someone Have to Deal With RMV/DMV Hearings After An OUI Arrest in Massachusetts?
If you lose your license for failing the breathalyzer test or refusing to take it, you will have the option to appeal this license suspension at a hearing before the Registry of Motor Vehicles. These hearings are done on a walk-in basis and you do not need an appointment. However, you must go within two weeks of being notified that your license is being suspended. To have your license reinstated at one of these hearings, you would have to convince the hearing officer of at least one of the following things:
- The police did not have reasonable grounds for the OUI/DWI arrest; or
- That you were not placed under arrest; or
- That you did not actually refuse the test.
The problem with these hearings is there is not a lot that the police will have to show in order to suspend your license for a breathalyzer failure or refusal. Further, the police do not have to appear at this hearing. The hearing officer will obtain a copy of the police report and use this to help determine whether the police were justified in suspending your license. You are free to bring in any relevant evidence that you may have. These hearings can be very difficult to win. Oftentimes, the hearing officers are just willing to believe what is in a police report regardless of what you say.
The other type of RMV/DMV hearings would occur after the person has taken a plea to end the case or had a trial and lost. These are hardship hearings at the DMV/RMV to seek what they refer to as a hardship license. Hardships may include that the person needs their license for work, for school, or because they are the caretaker for an elderly parent or child. Once a person is on probation, they may be eligible for a hardship license once certain conditions are met.
The most common type of hardship license we see are those granted to first time offenders. If they receive a particular type of disposition or probation, they can be eligible to obtain a hardship license right away. One of the things they would need to do to qualify for a hardship license, is to take an alcohol education class. It is important to note that the class does not have to be completed before the person can apply for the hardship license. It is enough that they signed up. Another condition would be to demonstrate that there is a hardship. The most common circumstance is that the person needs the license for work. This requires a letter from an employer which spells out the need for a license. We would also have to show that public transportation in the applicable area is not sufficient for the person to get to their job or complete their duties. For instance, a builder who needs to carry a lot of tool or materials would have a hard time taking a bus to different job sites.
If granted, this type of hardship license would allow the person to drive for a specific twelve (12) hour period. The twelve (12) hour period is set by the hearing officer but will take into account the hours for which the person needs it. In the case of a hardship for a person’s job, the particular shift they work will be a guide to determine the appropriate period of the hardship license.
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