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OUI, or “Operating Under the Influence”, is a driving offense in which the driver is under the influence of some inhibiting substance (alcohol or drugs).

Under Massachusetts law both are treated similarly and carry varying criminal penalties. Please see Massachusetts General Law M.G.L. Chapter 90 § 24, or follow this link: , to view penalties and the rules regarding OUI

In Massachusetts you need the following:

In order to successful convict someone of OUI, the prosecution must be able to prove three things or elements:

1. You were operating a motor vehicle

2. You were operating that motor vehicle on a public way; and

3. At the time you operated that motor vehicle on a public way, you were under the influence of alcohol or drugs

In order to be considered “under the influence” of alcohol, someone does not have to be drunk to be under the influence of alcohol. A person is under the influence of alcohol if he or she has consumed enough alcohol to reduce his or her ability to operate a motor vehicle safely, by decreasing his or her alertness, judgment and ability to respond promptly. It means that a person has consumed enough alcohol to reduce his or her mental clarity, self-control and reflexes, and thereby left him or her with a reduced ability to drive safely.

All three elements must be proven beyond a reasonable doubt, or you are entitled to a not guilty verdict.

How do police officers determine if someone is under the influence of drugs or alcohol?

Generally police officers will examine three things before determining whether an arrest is warranted:

1. How the operator is driving – the officer is looking for cues of impairment in the manner of operation of the motor vehicle. For instance; is the car swerving, failing to signal, or driving too fast/slow?

2.How the operator is behaving – the officer must pay close attention to the subject’s outward appearance, looking for visible signs of impairment. For example, an officer might look to see if the driver has bloodshot eyes, poor balance, slurred speech, smells of alcohol, etc.

3.Pre-arrest screening – if the officer suspects that the driver is impaired, the officer may administer tests such as standardized field sobriety tests and/or a portable breath test device to assist in developing probable cause to show the subject is impaired by alcohol, drugs or a combination of the two.

With the consent of the driver, the officer can measure the defendant’s blood alcohol content (BAC). This can be done by either a breath test (Breathalyzer) or by a blood test.

If the driver is taken to a hospital and refuses to consent to a blood test, the officer may still be able to obtain a BAC reading. When a driver is brought to the hospital his blood is drawn for medical purposes, the medical records of the treatment facility should contain a BAC from blood tests taken and can be summonsed to court.

What constitutes impairment?

  • .08% BAC or higher - Drivers 21 years and older
  • .04% BAC or higher - Commercial vehicles/Licensees
  • .02% BAC or higher - Drivers under 21 years old
  • .08 PER SE

    In 2003 legislation was enacted which makes having a BAC of .08% or greater a per se violation. This means that it is against the law to operate a motor vehicle with a BAC of .08% or greater. No evidence of actual impairment is necessary for a defendant to be found guilty under this theory of culpability

    How many drinks are too many?

    What constitutes too many drinks varies greatly from person to person based on a variety of factors including: gender, weight, genetics, how much you have had to eat, what type of alcoholic beverage you have consumed, etc. One should never drink and drive, nor should they operate heavy machinery after drinking. The following calculator is meant for educational purposes, and by no means endorses drinking and driving.

    Blood Alcohol Concentration (BAC) Calculator

    Please complete the following items, then press calculate to obtain the BAC estimate.

    Note: it's illegal to operate a motor vehicle with a blood alcohol concentration (BAC) of .08 and above in all states.


    Number of Drinks



    The calculations provided here may not represent your true BAC and should not be relied on as an indicator of whether you are capable of driving. Without belaboring a point made many times before, the best approach is to avoid driving after you drink.

    What penalties do you face for OUI?

    First Offense
    • License suspension for 1 year
    • $500 -$5,000 fine
    • Jail time up to 2 ½ years
    • Possible Education program (depending on the age of the driver)
    • Second Offense
    • License suspension of 2 years
    • $600-$10,000 fine
    • Jail time between 60 days and 2 ½ years
    • Possible alcohol education program (depending on the age of the driver)
    • Third Offense
    • Felony charge
    • License suspension of 8 years
    • $1,000-$5,000 fine
    • Possible jail time between 180 days and 2 ½ years or prison time between 2 ½ years and 5 years
    • Possible alcohol education program (depending on the age of the driver)
    • Mandatory installation of an ignition interlock device
    • Possible vehicle registration revocation
    • Melanie’s Law

      The Commonwealth passed “Melanie’s Law” in 2005, which, among other things, allows for certified court records to be introduced to prove prior convictions. It can also provide a lessor sentence to first time offenders based on the facts and circumstances of the charge. It also calls for harsher penalties for repeat offenders and those who refuse a Breathalyzer.

      For more specific information on possible penalties you may face, call Attorney MacLachlan today at 978-745-9569!


      Although you are not required to submit to a field or sobriety test, it is important to note that by refusing to submit to a Breathalyzer test, you are automatically subjected to certain penalties, including license suspension.

      Suspension Chart for Refusal taken from Massachusetts RMV website (


      You may request a hearing with the Registry of Motor Vehicles within 15 days of when the officer took your license. At the hearing, you must prove that it was unreasonable for the officer to think you were intoxicated; that you were never placed under arrest; or that you actually consented to the test. If you can demonstrate any one of those points, then your license may be returned to you. All hearings are conducted at the Boston Registry Office, on Washington St. If the RMV rules against you at the hearing, you may appeal within 30 days to the district court.

      The penalties are much more severe if you are involved in an accident that caused serious injury or death. If you cause a serious injury, refuse to take a test, and later are convicted of a DWI, then your license will be suspended for ten years. If you cause a death, refuse to take a test, and later are convicted of a DWI, then your license will be suspended for life.

      To read more about the penalties for refusing a test, see Mass General Laws Chapter 90 §24(f)


      If charged with an OUI, you can face license suspension, large fines and even jail time making it important to take these charges very seriously. Penalties depend on wide range of factors. It is important to have an attorney who is experienced in handling OUI cases, like John MacLachlan.

      GETTING CHARGED WITH AN OUI OR DWI can be a stressful and intimidating experience whether it’s your first or fifth offense. It is crucial to have a strong, knowledgeable, and aggressive defense attorney when you are facing criminal charges.

      MacLachlan & Allen, LLP THE OUI AND DWI LEGAL SPECIALISTS will protect your rights every step of the way. Contact us today if you have been charged with an OUI/ DWI.