First Offense OUI in Massachusetts

A person arrested for a first offense OUI in Massachusetts faces three problems at once. The Commonwealth prosecutes a criminal charge in the district court or the Boston Municipal Court. The Registry of Motor Vehicles (“RMV”) suspends the person’s driver’s license before any judge hears the case, assuming the person refused the breath test or produced a breath test final analysis of .08 or greater. The person then decides, with counsel, between a trial and the first offender disposition under G.L. c. 90, § 24D, under which a judge places the person on probation with an alcohol education program and a short license suspension instead of entering a conviction.

Massachusetts calls the offense operating under the influence, or OUI. Other states and most people call the same offense DUI, DWI or drunk driving. The complaint reads “OUI-Liquor or .08%” and cites G.L. c. 90, § 24(1)(a)(1).

Most people charged with a first offense OUI have never been arrested before. They want to know whether they will go to jail, how long they will be without a license, whether they can drive to work in the meantime, and what the case leaves on their record. This page answers those questions in the order the case raises them, from the night of the arrest through the end of the case.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and tries OUI cases in the Boston Municipal Court and the district courts of Greater Boston. He handles the criminal case and advises the client on the RMV suspension, the RMV hearing and the hardship license application.

What the Commonwealth Must Prove in a First Offense OUI Case

The Commonwealth must prove three elements beyond a reasonable doubt. First, the defendant operated a motor vehicle. Second, the defendant operated the vehicle on a public way, meaning a way or place to which the public has a right of access, or to which members of the public have access as invitees or licensees. Third, the defendant was under the influence of intoxicating liquor at the time, or had a blood alcohol percentage of .08 or greater. G.L. c. 90, § 24(1)(a)(1). A first offense and a fifth offense have the same elements. Prior offenses change the sentence and the license suspension, as described below.

The Commonwealth proves “under the influence” by proving that the defendant’s consumption of alcohol diminished the defendant’s ability to operate a motor vehicle safely. The Commonwealth does not have to prove that the defendant drove badly. Commonwealth v. Connolly, 394 Mass. 169, 172-173. An officer’s testimony about an odor of alcohol, bloodshot eyes, slurred speech, unsteady balance and poor performance on the field sobriety tests is the usual evidence of impairment.

The Commonwealth can also prove the offense without any evidence of impaired driving by proving a breath test final analysis of .08 or greater. Lawyers call proof by the breath test final analysis alone the per se theory. The judge admits the breath test final analysis only after the Commonwealth lays the foundation of the breath test final analysis under 501 CMR 2.00, including the annual certification of the Alcotest 9510, the periodic testing of the device, and the fifteen-minute observation period before the test. The firm’s breathalyzer defense page explains each requirement.

Operation under § 24 includes starting the engine as well as driving. A person operates a motor vehicle by intentionally doing any act that sets the vehicle’s motive power in motion, such as starting the engine, even when the vehicle never moves. Commonwealth v. Ginnetti, 400 Mass. 181, 183-184, quoting Commonwealth v. Uski, 263 Mass. 22, 24. A person who starts the engine and stays in the parking space has operated the vehicle under § 24. The firm’s OUI defense page covers the elements, the field sobriety tests and the common defenses in more detail.

The License Before the Case Is Decided

The RMV suspends a driver’s license after an OUI arrest in two situations. The first is a refusal of the breath test. The second is a breath test final analysis of .08 or greater. An arrest by itself leaves the license in effect.

The RMV suspends the license of a driver who refuses the breath test for 180 days when the driver is 21 or older and has no prior OUI conviction or alcohol program assignment. G.L. c. 90, § 24(1)(f)(1). The arresting officer takes the license at the police station and gives the driver a written notice of suspension. The suspension starts that night. The RMV suspends the license of a driver under 21 who refuses for three years. The RMV issues no hardship license during a refusal suspension, with one exception, described below, for a driver who enters the § 24D alcohol education program. The driver may request a hearing before the RMV within 15 days of the suspension. The RMV decides only three questions at that hearing, whether the officer had reasonable grounds to believe that the driver was operating under the influence on a public way, whether the officer arrested the driver, and whether the driver refused the test. The RMV reinstates the license at once when the RMV finds against the officer on any one of those questions.

The defendant may ask the judge who took final action on the case to restore the license immediately after a not guilty verdict or a dismissal of the OUI charge, when no other alcohol-related charge is pending. The statute presumes that the judge will restore the license unless the Commonwealth proves by a fair preponderance of the evidence that restoration would likely endanger the public safety. G.L. c. 90, § 24(1)(f)(1).

The Commonwealth may not use the refusal as evidence against the defendant at trial. G.L. c. 90, § 24(1)(e). The Justices of the Supreme Judicial Court have concluded that admitting a refusal against a defendant would violate the privilege against self-incrimination in article 12 of the Massachusetts Declaration of Rights. Opinion of the Justices, 412 Mass. 1201, 1211. The jury in a refusal case hears nothing about a breath test, so the Commonwealth must prove impairment through the officer’s observations, the field sobriety tests and any video.

The RMV suspends the license of a driver who takes the breath test and produces a breath test final analysis of .08 or greater for up to 30 days. The suspension ends sooner when the court decides the case within those 30 days. G.L. c. 90, § 24(1)(f)(2). A driver under 21 with a breath test final analysis of .02 or greater receives that 30-day suspension and a separate suspension under G.L. c. 90, § 24P of 180 days, or one year when the driver is under 18. The RMV also records an incomplete breath test as a refusal under 501 CMR 2.16, so a driver who begins the test and does not complete it receives the refusal suspension. The firm’s OUI license suspension page and breathalyzer tests and license suspensions page describe each suspension and the RMV hearing in detail.

The First Offender Disposition Under G.L. c. 90, § 24D

Section 24D lets a judge place a first offender on probation, with an alcohol education program and a license suspension of 45 to 90 days, instead of entering a conviction that costs the person the license for a year. Judges and lawyers call this result the 24D disposition. The defendant must consent to the 24D disposition. The judge decides whether to grant it.

The defendant in most 24D cases admits that the Commonwealth has sufficient facts to prove the charge, and the judge then continues the case without a finding of guilt. A judge may also use § 24D after a guilty plea or after a guilty verdict at trial. The judge places the defendant on probation for up to two years. The defendant must complete a driver alcohol education program licensed by the Department of Public Health as a condition of probation. The program ordinarily meets once a week for about sixteen weeks. The judge also orders an alcohol treatment or rehabilitation program when the judge finds treatment necessary. G.L. c. 90, § 24D.

The judge orders a license suspension of 45 to 90 days. The suspension is 210 days for a defendant who was under 21 when the offense occurred. The program for that defendant is a youth alcohol program designed by the Department of Public Health. G.L. c. 90, § 24D. The RMV runs a refusal suspension and the 24D suspension from the same arrest one after the other, not at the same time.

The defendant pays the program its fee, which the Department of Public Health sets, and pays a $250 fee to the court’s probation department. G.L. c. 90, § 24D. The judge also imposes the $250 and $50 assessments that § 24 requires in an OUI case. A defendant who cannot pay may file an affidavit of indigency within ten days. The judge may then waive the $250 probation fee or allow payment in installments.

The judge holds a hearing under G.L. c. 90, § 24E between 60 and 90 days after the continuance to review the defendant’s compliance. The probation officer files a written report that includes a statement from the program about the defendant’s attendance and participation, and the RMV reports any new entries on the driving record. The judge may dismiss the charge, at that hearing or at the end of the probation term, on a finding that the defendant is complying with probation. The judge may notify the RMV on a finding that the defendant has not completed or is not complying with the program, and the RMV must then revoke the license. A defendant who violates any other condition of probation faces a probation violation hearing. The judge may then enter a guilty finding on the continued case and sentence the defendant.

Section 24D applies to a person who has never been convicted of OUI or assigned to an alcohol education or treatment program for a like offense, in Massachusetts or in any other state. A person with one prior OUI conviction or program assignment that occurred 10 years or more before the new offense may receive the 24D disposition once in a lifetime. The firm’s Cahill second chance page explains that rule and how the RMV counts the earlier case. Section 24D does not apply to a person who caused serious personal injury to or the death of another person during the events that led to the charge.

A first offender who is found guilty after a trial ordinarily still receives the 24D disposition. Section 24D presumes that a first offender convicted after trial is suitable for the program unless the judge finds in writing that the defendant is not. A first offender who loses at trial therefore usually receives the same probation, program and 45 to 90 day suspension that an admission would have produced.

The Hardship License After a 24D Disposition

A hardship license allows a driver to drive during the same twelve hours every day, seven days a week, for work, school or medical treatment. Clients often call it a Cinderella license. A driver who receives the 24D disposition may apply to the RMV for a hardship license as soon as the driver enrolls in the alcohol education program. The RMV may grant the hardship license even while a refusal suspension from the same arrest is still running, because § 24D creates an exception to the rule in § 24(1)(f)(1) that bars a hardship license during a refusal suspension.

The RMV hearings officer reviews the full driving record, the program enrollment letter on the program’s letterhead, a letter from the employer or school dated within 30 days of the hearing, and evidence that public transportation cannot meet the need. The hearings officer may deny the application. Only a Massachusetts license holder can receive a Massachusetts hardship license. The RMV revokes the hardship license at once when the driver fails to complete the program or violates probation. The firm’s hardship license page describes the RMV hearing and the required documents. The hardship license FAQs answer the questions clients ask most often.

The RMV revokes the license for one year after a conviction without the 24D disposition. The driver may apply to the RMV for a work or education hardship license three months after the conviction and for a general hardship license six months after the conviction. G.L. c. 90, § 24(1)(c)(1).

What Happens on a Conviction After Trial

A defendant convicted of a first offense OUI faces a fine of $500 to $5,000, up to two and one-half years in the house of correction, or both. G.L. c. 90, § 24(1)(a)(1). A judge who applies § 24D after the verdict imposes probation and the program instead of incarceration. Judges rarely sentence a first offender to jail when no one was hurt, in Attorney Serpa’s experience. A first offense OUI is a misdemeanor, because the statute provides no state prison sentence for a first offense and G.L. c. 274, § 1 defines a felony as a crime punishable by imprisonment in the state prison.

The RMV revokes the license of a defendant convicted of a first offense OUI for one year from the date of conviction, unless the judge applies § 24D, in which case the 45 to 90 day suspension applies instead. G.L. c. 90, § 24(1)(b) and (1)(c)(1). The hardship rules described above apply to the one-year revocation. The RMV requires an ignition interlock device after a first offense only when the breath test final analysis was .15 or greater, and only during the hardship license period.

A 24D Disposition Counts as a First Offense in Any Later Case

A continuance without a finding under § 24D counts as a first offense when the person is charged with OUI again. Section 24 counts a prior conviction and a prior assignment to an alcohol education program the same way. Massachusetts also counts a prior OUI regardless of its age, apart from the once-in-a-lifetime § 24D rule described above. A defendant convicted of a second offense OUI faces a fine of $600 to $10,000 and a house of correction sentence of 60 days to two and one-half years. The defendant must serve at least 30 days of that sentence, unless the judge imposes the two-year probation with a 14-day residential treatment program that § 24(1)(a)(4) allows for an eligible defendant. The RMV revokes the license for two years. G.L. c. 90, § 24(1)(a)(1) and (1)(c)(2). The refusal suspension for a driver with one prior offense is three years instead of 180 days. G.L. c. 90, § 24(1)(f)(1). A second offender must also install an ignition interlock device before the RMV issues a hardship license or restores the license. G.L. c. 90, § 24½. The firm’s second offense page covers each of those rules.

Trial or the 24D Disposition

The decision between a trial and the 24D disposition depends on the evidence and on what the client stands to lose from a conviction or a continuance without a finding. Attorney Serpa reviews the police report, the booking video and cruiser video where they exist, the breath test records, and the officer’s notes on the field sobriety tests before advising a client.

A not guilty verdict ends the case with no conviction, no continuance without a finding, no probation and no program. The judge may restore a license suspended for a refusal on the day of the verdict, as described above. The Commissioner of Probation seals the court record of a not guilty verdict without a petition, unless the defendant asks in writing that the record stay open. G.L. c. 276, § 100C.

The common defenses in a first offense case are the stop, the exit order, the field sobriety tests, the foundation of the breath test final analysis, and operation. A stop without reasonable suspicion of a traffic violation or a crime leads to a motion to suppress everything the officer observed after the stop. The field sobriety tests depend on the officer’s instructions, the surface, the lighting, the weather and the driver’s shoes, age, weight and injuries. A jury hears each of those facts. The judge excludes the breath test final analysis when the Commonwealth cannot prove the certification, the periodic testing or the observation period. The firm’s posts on how Massachusetts OUI cases are won at trial and how Attorney Serpa tries a breath test refusal case describe the trial itself.

The 24D disposition gives the client a known result, a 45 to 90 day suspension instead of a year, a hardship license at once, and a dismissal of the charge at the end of probation when the client completes the program. The same disposition also counts as a prior offense in any later OUI case, leaves a court record that shows the charge and its dismissal, and triggers the professional licensing, immigration and commercial driving rules described in the next sections.

Licensed Professionals, Students, Commercial Drivers and Drivers Licensed in Another State

Licensed Professionals

Many Massachusetts licensing boards require a licensee to report a criminal conviction, and some ask about a continuance without a finding or an arrest on the renewal application. A nurse, a teacher, a lawyer, a physician, a real estate broker and a financial adviser each answer to a different board, and each board asks a different question. What a professional must disclose depends on the wording of the question on the form, so a professional should bring the form to counsel before answering it. The firm’s page on criminal charges and professional licenses covers the reporting rules.

A first offense OUI conviction also disqualifies a person from holding a license to carry firearms. G.L. c. 140, § 121F(j)(i)(B) makes a person convicted of a misdemeanor punishable by imprisonment for more than two years ineligible for a license to carry, and ineligible for a firearm identification card for five years. A first offense OUI is punishable by up to two and one-half years, so the licensing authority must deny a license to carry to a person convicted of it. A continuance without a finding that ends in a dismissal is not a conviction under that section.

College Students

A college student arrested for OUI faces a student conduct proceeding at the school in addition to the court case. Most Boston area universities require a student to report an arrest or a criminal charge. The student conduct office may also act on the arrest before the court decides anything. A student who was under 21 at the time receives the 210-day § 24D suspension, and, after a breath test final analysis of .02 or greater, the separate § 24P suspension described above. A student on an F-1 or J-1 visa should also read the immigration section below. The firm’s student defense page covers the school side of the case.

Commercial Drivers

The RMV disqualifies a commercial driver’s license holder who is convicted of OUI in a personal car from driving a commercial motor vehicle for at least one year. G.L. c. 90F, § 9(A)(1). A refusal of the breath test disqualifies the driver for the same period, even without a conviction. G.L. c. 90F, § 9(A)(4). The 24D disposition does not protect the commercial license. The Supreme Judicial Court has held that an admission to sufficient facts followed by a continuance without a finding is a conviction under G.L. c. 90F, § 1, so the RMV disqualifies the driver after a 24D disposition as well. Tirado v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, 472 Mass. 333, 335-336. A hardship license does not permit commercial driving.

Drivers Licensed in Another State

The RMV suspends a nonresident’s right to operate in Massachusetts. The RMV also reports the arrest, the refusal and the result of the court case to the driver’s home state, which applies its own suspension rules. Only a Massachusetts license holder can receive a Massachusetts hardship license. The firm’s out-of-state driver page explains what the home state does with a Massachusetts OUI.

Immigration Consequences of a First Offense OUI

Federal immigration law imposes its own consequences on a conviction and on a 24D continuance without a finding. Federal law counts a continuance without a finding after an admission to sufficient facts as a conviction. 8 U.S.C. § 1101(a)(48)(A). A single OUI conviction with no injury, no drugs and no suspended license is generally not a crime involving moral turpitude. The State Department nevertheless revokes the visa of a nonimmigrant after a DUI arrest in many cases, before any court decides the charge. United States Citizenship and Immigration Services also weighs an OUI when it decides a discretionary application such as naturalization or a change of status. Disclosure of the arrest, and an officer’s questions at an interview about the arrest or the conduct described in the police report, can create obstacles of their own, so an immigration lawyer should review the exact question, the client’s immigration status and the court record before the client files a petition or sits for an interview. The firm’s page on the immigration consequences of a Massachusetts OUI covers lawful permanent residents and each visa category.

The Record After a First Offense OUI

The court record of a first offense OUI stays on the person’s CORI after the case ends. A continuance without a finding that ends in a dismissal appears on the CORI as a dismissed case, and a conviction appears as a conviction. The Commissioner of Probation seals a misdemeanor conviction on request three years after the case ends and after any period of incarceration, when the person has no new conviction during those three years. G.L. c. 276, § 100A. The Commissioner seals a dismissed case on the same three-year request. A judge may also order a dismissal sealed sooner, on petition, on a finding that substantial justice would best be served. G.L. c. 276, § 100C.

Sealing covers the court record only. The RMV keeps the driving record, including the suspension and the 24D entry. Employers and insurers who pull the driving record see those entries. A sealed case still counts as a prior offense in a later OUI case. The firm’s sealing and expungement page explains the CORI rules and the petition.

Two travel rules also depend on the court record. Canada may refuse entry to a person with an OUI on the court record. The firm’s page on traveling to Canada after an OUI explains the temporary resident permit and the criminal rehabilitation application. United States Customs and Border Protection may deny or revoke Global Entry, NEXUS and TSA PreCheck after an OUI arrest, as the firm’s Global Entry page explains.

Frequently Asked Questions About a First Offense OUI in Massachusetts

Related Serpa Law Office Resources

• Massachusetts OUI Hardship Licenses and Section 24D
• Massachusetts OUI License Suspensions and Reinstatement
• Breathalyzer Tests and License Suspensions in Massachusetts
• Incomplete Breath Tests and Refusals Under 501 CMR 2.16
• Breathalyzer Defense in Massachusetts
• Field Sobriety Test Defense in Massachusetts
• Second Offense OUI and the Cahill Disposition
• Boston OUI and DUI Defense Lawyer
• The Out of State Driver Charged with OUI in Massachusetts
• Traveling to Canada After a Massachusetts OUI
• Immigration Consequences of a Massachusetts OUI
• Massachusetts Criminal Charges and Professional Licenses
• Boston and Cambridge College Student Criminal Defense
• What a Continuance Without a Finding Means in Massachusetts
• How to Seal or Expunge a Massachusetts Criminal Record
• Massachusetts OUI and DUI FAQs
• Massachusetts OUI License Suspension FAQs
• Massachusetts Hardship License FAQs
• What Happens After a Massachusetts OUI Arrest
• How Massachusetts OUI Cases Are Won at Trial
• How I Try a Massachusetts Breath Test Refusal Case