What a Rhode Island Lawyer Should Know About Handling an OUI in Massachusetts, 1018 RIBJ, RIBJ, 67 RI Bar J., No. 2, Pg. 11

Position:Vol. 67 2 Pg. 11

What a Rhode Island Lawyer Should Know About Handling an OUI in Massachusetts

Vol. 67 No. 2 Pg. 11

Rhode Island Bar Journal

October, 2018

September, 2018

You have an OUI case in Massachusetts; you have a Massachusetts license but practice mostly in Rhode Island. What do you need to know to handle the case successfully?

Breathalyzer test results are not currently being used in Massachusetts

As of the date of this writing, the breathalyzer test is not currently being used in Massachusetts. This is the result of a discovery violation that occurred during the consolidated litigation challenging the reliability of the breathalyzer test source code. The litigation involved a number of issues, including whether the source code of the breathalyzer test was accurate, whether the 2100 to 1 partition ratio was scientifically reliable, and whether the Alcotest was specific enough for alcohol?

Ultimately, Judge Brennan ruled against the defense on all of the technical challenges to the accuracy of the breathalyzer test; however, he found that the Office of Alcohol Testing did not have a reliable way to annually certify the breathalyzer test machine prior to September 2014. This was an important ruling because the judge held that the Office of Alcohol Testing must have a procedure to certify the breathalyzer test machine. Prior to September 2014, the Office of Alcohol Testing in Massachusetts had no written procedure when conducting its annual certification. This resulted in breathalyzer test results being excluded from evidence prior to September 14, 2014.

Following that litigation, further discovery motions were filed which revealed that the Office of Alcohol Testing did not provide all the required documents during discovery in the breathalyzer test litigation. This was uncovered as a result of public records requests filed by Thomas Workman, an expert retained by the defense. As of the date of this writing, as a result of the litigation, the breathalyzer test has not come into evidence in Massachusetts. If your case is in Bristol County, you should write on the pretrial conference report that the Commonwealth will be proceeding under an impairment theory only to lock in that the breathalyzer test is not going to be admissible should the Commonwealth seek to introduce the results at a later date.

Explain to your client the license implications

If your client took a breathalyzer test, request a quick trial as it is uncertain when the tests will be used again in court. Also, advise your client that their license is only suspended for 30 days in Massachusetts as a result of the breathalyzer test being over .08. After the 30 days, the client can get their full license back with the payment of a $500 reinstatement fee.1

If your client refused a breathalyzer test, the license suspension is governed by the number of prior OUI offenses that the individual has in their lifetime. The suspension length will be as follows: No prior conviction or under 21: three years Two prior convictions: five years Three prior convictions: lifetime2

The client can appeal this suspension to the Registry of Motor Vehicles in Boston but must appear within 15 days, including weekends and holidays. The hearing officer will typically deny the request for reinstatement; the client can then appeal to the district court where the OUI charge is pending within 30 days. There are two arguments that have been successful at these hearings. First, Massachusetts OUI law states that the officer before whom the refusal was made must prepare a report of refusal under the pains and penalties of perjury.3 This report of refusal is typically given to the motorist at the initial hearing. The form is a preprinted form with no signature. Some judges have reinstated the license on the grounds that a form prepared under the pains and penalties of perjury must have a signature. Another argument that has been successful is that, since the breathalyzer test is currently not being used in court, the Registry of Motor Vehicles should not suspend a motorist for refusing a test that is not being offered in court as reliable. Unlike in Rhode Island, refusal appeals in Massachusetts are done based on the documents, and there is typically not live testimony on the issue of a breathalyzer test refusal.

Understanding what a CW0F is in Massachusetts

In Massachusetts, a client has two options: to fight the case to trial or accept a plea. It is rare for t he prosecutor to agree to reduce a charge to negligent operation in exchange for a dismissal of the OUI charge. It happens in very few counties. For an OUI drugs charge, prosecutors can agree to dismiss the OUI drugs in exchange for a plea on the negligent operation, though this is not a common occurrence. There is very little to negotiate on an OUI offense. Prosecutors can reduce an OUI 3rd offense so that the client avoids mandatory jail time; in Bristol County, this involves preparing a letter requesting a reduction to the First Assistant District Attorney who will make the decision on whether to reduce the charge.

On a first-time OUI, if the client elects to accept a plea of a continuance without a finding CWOF, the prosecutor will typically dismiss the remaining charges. Generally, a CWOF on an OUI first offense would involve the following: the client would have to complete a 24D alcohol education program, pay probation fees, and incur a 45-day license loss for a first-time offense.

A CWOF is technically not a conviction, though it does count as a first OUI offense if the client ever has a second offense in Massachusetts. With the reduction in the time period to seal a criminal record reduced from five years to three years,4 the benefit of a CWOF is somewhat reduced.

In Massachusetts, most judges will not penalize a client for going to trial even if there is a guilty verdict after the trial. Typically, the sentence will be the same as if the client took the CWOF, with the exception that a guilty verdict is a conviction whereas a CWOF is technically not a...

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