NICASTRO LAW, L.L.C.

HAVE YOU OR A LOVED ON HAD THIS UNPLEASANT EXPERIENCE?

OUI/DWI DRUNK DRIVING COMPLAINTS

OPERATING UNDER THE INFLUENCE

LICENSE SUSPENSION FOR "CTR" BREATHALYZER REFUSALS

HOW NICASTRO LAW, L.L.C., CAN HELP YOU

Here at NICASTRO LAW, L.L.C., You will be in the hands of experienced OUI Attorneys who can not only help you with your criminal OUI/DWI case; but also with any civil ramifications, including the license suspension with the Registry of Motor Vehicles.  We can also assist you with your decision as to whether to take your case to trial or to take advantage of statutory provisions under M.G.L. Chapter 90 for alternative dispositions with a plea bargain.  We will not only advise you on the particulars of your case; but also show you how the elements of the crime may lean a certain way as it applies to your particular case facts as OUI/DWI are very fact driven cases.

WHAT IS THE 24D PROGRAM

In Massachusetts, a person charged with a drunk driving offense, may get what is known as a 24D disposition for the first drunk driving (DUI) offense. Mass. 24D first offender dispositions are granted pursuant to G.L. c. 90 § 24D which allows for the case to be continued without a finding and the placement of the defendant on probation for not more than 2 years. It also requires the enrollment in and successful completion of a driver alcohol education program.  One of the major benefits of the 24D program is that the statutory one year DUI license suspension may be reduced to 45 to 90 days, with the possibility of obtaining a hardship license during the suspension period.  Also, a DUI First Offender disposition will generally make the first offender eligible for consideration for a hardship license during the breathalyzer refusal suspension,  if there is one.  The goal of the First Offender Drunk Driving program is to reduce alcohol related highway fatalities and for DUI first offenders to take responsibility for their previous drinking and driving behaviors so that they  stop driving after drinking. The Massachusetts 24D program replaces incarceration and punishment with treatment and alcohol education, to prevent future DUI arrests.

DUI first offenders must take an approved and certified driver alcohol education program.  The program costs approximately $600.00 and it generally consists of an intake interview, 32 hours of group therapy over a 16 week period, an introduction to self-help groups such as AA, and a powerful victim impact session with speakers from MADD.  The last part of the program consists of an exit interview where participants receive recommendations for any necessary aftercare and support. Massachusetts First offenders are eligible to be considered for a hardship license upon enrollment into the program; it is not necessary to wait until the program has been completed. However, failing to attend the program will result in the immediate revocation of any hardship license. DUI First Offender programs are located throughout Massachusetts.

The RMV has stated that “although an applicant may meet all requirements, issuance of a hardship license is only granted at the reasonable discretion of the RMV, based on the facts of the case.” Therefore, it is advisable to have an attorney review your case. Our License Suspension Lawyers provide this free service, all you have to do is call or e-mail.
 
The First Offender program is only available to those who have no prior convictions or program assignments, or those who have a conviction or alcohol program assignment that is more than ten (10) year old. Contact a license suspension lawyer for more information. Also, the Mass. Registry requires proof of completion of the appropriate  DWI/OUI program for the issuance of a hardship license.

MASSACHUSETTS LICENSE REVOCATION PENALTIES FOR OUI/DWI

Here are the Massachusetts License Revocation Penalties for the Operating Under the Influence offenses.

For a 1st offense Massachusetts DUI, your license will be revoked for a period of one (1) Year, unless you get a 1st offender 24D disposition as permitted by Massachusetts General Laws Chapter 90 Section 24D, which a qualified OUI/DWI attorney would advise you according to the circumstances of your case. You can apply for a hardship license for work or education after 90 days of the suspension. You can apply for a general hardship after 6 months of the suspension.

For a 2nd offense Massachusetts DUI, your license will be revoked for a period of two (2) years. If your 1st Massachusetts DUI offense was more than 10 years ago, you may qualify for a 1^st offender second-chance disposition. On a 2-year license suspension for DUI, you are eligible to apply for a work / education Hardship License after serving one (1) year and a general hardship license after serving 18 months.

For a 3rd offense Massachusetts DUI, your license will be revoked for 8 years. Generally, you must serve at least 2 years before you can apply for a Hardship License for work or education. You must wait 4 years before you can apply for a general hardship license.

For a 4th Offense Massachusetts DUI, your license will be revoked for 10 years. You are eligible to apply for a work / education hardship license after serving 5 years. You must serve 8 years before you can apply for a general hardship license.

For a 5th offense, your license will be revoked for life. There is no provision in the law to obtain a hardship license and the Registry of Motor Vehicles will NOT grant you one. However, you MAY be able to get a hardship license by going through the Board of Appeals.　

HOW TO CALCULATE PRIOR OUI/DWI OFFENSES

When counting Massachusetts DUI offenses, it usually does not matter how old they are.

Under Melanie's Law, there is a lifetime look-back period. Also, if the Massachusetts RMV is aware of out of state convictions or alcohol program assignments, those out of state OUI charges will also count against you. The law requires the Registry to treat out of state motor vehicle offenses as if they had occurred in Massachusetts.

If your Massachusetts License was suspended or revoked because of a drunk driving arrest, there is no automatic entitlement to a hardship license. The Registry of Motor Vehicles and Board of Appeals have complete discretion regarding the issuance of hardship licenses. This is why it is important to be represented by a qualified lawyer.

These Massachusetts penalties for OUI/DWI are in addition to any license suspensions imposed for refusing the breathalyzer suspension.  Also, you should be aware that if you have a Commercial Drivers License (CDL), you might have to deal with additional CDL suspensions.  Massachusetts DUI convictions can have lifelong consequences and all hardship license clients should use a lawyer who is educated and experienced with the every changing laws in Massachusetts concerning OUI/DWI law.  They should have a very grounded knowledge of the current OUI laws.  As with a medical decision, when making a legal decision in this regard, which has major life consequences, a person needs accurate and up to the minute legal advice to make the best informed decision. 

WHAT SHOULD YOU DO NOW

If you have been arrested for OUI, operating under the influence of alcohol, or DWI, Driving while intoxicated or DUI, Driving under the influence, then you need to call your attorney immediately.  The Commonwealth of Massachusetts will have an attorney assigned to prosecute you.  It is the Office of the District Attorney who prosecutes criminal cases for the Commonwealth of Massachusetts. You do not want to "go it alone."   

WHAT ARE YOUR OPTIONS

Once arrested, you could be held on a bail  until you are actually arraigned in court, which is generally, on the next business day after the arrest.  It will be the assistant district attorney who will be making a bail request amount to the Judge while you are in the courtroom.  You will have an opportunity to be heard on bail at the first court hearing.  Your attorney will likely argue to the judge that you be set free on your own personal recognition or that bail be set at a low or reasonable amount depending on your unique circumstances.  The purpose of setting a bail is to insure that you will come back to court.  The Office of Probation will have a probation officer at the court for your hearing, who will be there to report to the judge as to whether or not you have a criminal record.  The judge will look at your prior criminal record, prior defaults on such record, and whether you are a flight risk, which means the judge will want to know about YOU and your past and current ties to the local community to determine how much bail should be set to insure you will return to court without defaulting. If you have a history of prior defaults on your record, the judge may keep the bail amount so high that it is unattainable for you to obtain the amount of money necessary to be set free.  This is to insure you will be there in custody when the case is called at the next hearing.  The next court hearing will likely be within 30 days.

Also, at that first court hearing, the arraignment, the court will automatically enter a plea of not guilty.  This is because a person is presumed to be innocent until and unless the person is proved guilty beyond a reasonable doubt.  Once a person is charged with operating under the influence, the person charged is ultimately the one who must decide whether or not to admit to the charge or to maintain his or her innocence.  This is best done with the assistance of competent experienced and effective counsel.   After arraignment in the district court, the case will proceed down a path, towards a trial day.  The accused by his or her counsel will often file certain motions in order to obtain information prior to trial or to keep certain evidence out of hearing at trial.  Depending on the result of the motions, the case either ends or proceeds forward.  The case will go to a pretrial hearing and the accused, will have an opportunity to decide if he or she wants to exercise his or her right to a jury trial or whether he or she will give up the right to a jury trial and will proceed to a "bench trial" which is a trial before a judge.  The accused can also offer to tender a plea of guilty with a proposed recommendation of sentencing or disposition.  A "joint recommendation" is one where the assistant district attorney and the accused (or by his attorney) agree on a certain disposition.  This recommendation is presented to the judge in writing on what is called a plea sheet.  The accused, referred to as the "defendant", and his or her attorney, and the prosecutor, will each sign the terms and present or tender the plea sheet to the judge.

Before making any determination, the judge will conduct a colloquy with the defendant.  The purpose of the colloquy is for the judge to determine and establish that the defendant is pleading guilty or admitting to sufficient facts for a finding of guilty voluntarily and not due to certain promises outside what is tendered on the plea sheet. The judge will also inquire as to whether the plea is intelligent and whether the defendant understands the charges and the meaning to the charges, what the elements of the charges are and what would have to be proved by the Commonwealth of Massachusetts to establish guilt.  The judge will want to make sure that aside from willingly and voluntarily giving up his right to a jury trial and a bench trial, that the defendant is tendering this plea freely, willingly and without coercion, threats or promises to induce the plea.  The judge will want to determine by asking the defendant if there is anything including mediation that might impair the defendant's ability to understand what he is doing.  The law also requires the judge to advise the defendant that if he or she is not a United States citizen, that the conviction may have the consequences of deportation, exclusion of admission or denial of naturalization. The Judge must make a determination that the defendant understands that a conviction may have an effect on his alien status before the judge can accept or reject the defendant's plea.  The judge may then  accept or reject the tendered plea. 

If the judge accepts the tender of plea, the case is disposed of by whatever the terms were agreed to on the sheet.  If the judge rejects the tendered plea, the judge can make an alternate recommendation and the accused can discuss this with his or her attorney and make an informed decision on whether to accept the alternative disposition.  If the Defendant chooses not to accept the alternative recommendation, the defendant can withdraw his plea and it cannot be used as evidence against him or her at trial.  The defendant can then have the option to proceed to a jury trial or a bench trial. 

WHAT IS MELANIE'S LAW 

Background of Melanie's Law

On the afternoon of July 25, 2003, 13-year old, Melanie Powell, and her friends were walking to a beach in her hometown of Marshfield, Massachusetts. As the friends crossed Route 139, Pamela Murphy, who had been drinking at a local bar, came barreling down the road. The rest of the persons in the group were able to get out of the way but Melanie was not. State Police estimated the red Buick was traveling between 45 and 50 miles per hour, and said the impact threw Melanie 100 feet. Melanie was transported to South Shore Hospital in Weymouth, and then to New England Medical Center in Boston where she died the next day.

The driver, Ms. Murphy, was arrested and charged with drunken driving. Police testified they smelled alcohol on her breath, but said that she refused to take a breathalyzer test. Ms. Murphy had been previously convicted in Plymouth District Court in Jan. 1993 for drunk driving.

On Oct. 21, 2004, Ms. Murphy was convicted of vehicular homicide and drunken driving in Brockton Superior Court by Judge Carol Ball, after a jury-waived trial. Ms. Murphy was sentenced to 2 1/2 years in state prison - the minimum sentence required under the old law - plus two years probation following her release.

Following the 2004 conviction, Melanie's parents, Tod and Nancy Powell, with the help of her grandfather Ron Bersani, pushed lawmakers to toughen penalties against repeat drunk drivers. On May 27, 2005, Governor Romney filed Melanie's Bill, officially titled "An Act to Protect the Citizens of the Commonwealth from Drunk Drivers." Five months’ later, on October 28, 2005, Melanie's Law, became the law; and increased the minimum sentence for vehicular homicide to five years.

Before the law, prosecutors had to prove the defendant was convicted previously through witnesses who would identify them. Now, only a certified document of the previous conviction is needed. The law also eliminates a block that defendants were previously granted, where convictions more than 10 years old would not be presented in court. Under the new law, all convictions are counted as "previous offenses," no matter how long ago they occurred.

One of the new penalties enforced by Melanie's Law went into effect on Jan. 1, 2006, whereby, any operator with two more convictions was required to have an ignition interlock device installed in their car. The handheld device, which is connected to the vehicle's ignition, requires offenders to pass a breath test before starting the car. If the blood alcohol content reads greater than .02, the vehicle will fail to start. The legal limit is .08. Operators who pass the test are required to periodically blow into the device while driving. The device would not shut down the vehicle but will send a message that the operator has failed the test. The devices are regulated through the Registry of Motor Vehicles (RMV). Operators must first meet with an RMV hearings officer to gain approval for installation. After approval, the operator must contact an installation site certified by the state. The operator is required to pay for the $125 installation, plus $85 monthly maintenance fees. According to the RMV, the operator must return to the installation site every 30 days for a service visit. The law also imposes harsher fines and longer mandatory minimum sentences for convicted repeat offenders. Under the new law, a person operating under the influence with a suspended license now receives a mandatory one-year minimum jail sentence, a one-year license suspension and a $2,500-$10,000 fine if convicted.

New and harsher penalties are also assessed to offenders who refuse an onsite breathalyzer test. First-time offenders who refuse to take the optional chemical test receive an automatic 180-day license suspension; an operator with three or more prior convictions will permanently loose driving privileges. Previously, refusing a chemical test earned the operator a 15-day grace period before suspension. Under the new law, the temporary license is no longer awarded and the operator's car is impounded for 12 hours. The law also comes down hard on underage offenders. Operators under the age of 21 with no prior convictions who refuse a breathalyzer test, receive an automatic three-year license suspension, and are required to complete an alcohol education course at the cost to the offender. Community Services also offers a similar program for second-time offenders. Melanie's Law also created a range of new clauses, often making for a more complex procedural system. Now, employing or knowingly allowing an unlicensed operator to operate a motor vehicle, earns an automatic $500 fine, and a second offense carries possible jail time.
New crimes were also introduced in association with the interlock ignition device, such as breathing into the device for someone else, or knowingly lending a vehicle to someone who must operate with a device. Melanie's Law also penalizes operators who drive with a child in the car. Convicted offenders are now charged with two crimes: an OUI and child endangerment. A first offense carries a minimum 90 days in jail.