The Out of State Driver Charged with OUI in Massachusetts

Massachusetts police regularly charge drivers licensed in other states with operating under the influence on Massachusetts roads. The criminal case proceeds in a Massachusetts court. Massachusetts law governs the Massachusetts license consequences. Massachusetts law also requires the Registry of Motor Vehicles to report a conviction to the driver’s home state. The home state then applies its own licensing law. An out-of-state driver therefore must address one criminal prosecution and two licensing authorities.

The Right to Operate in Massachusetts

Massachusetts does not suspend a license issued by another state. The Registry of Motor Vehicles instead suspends the person’s right to operate in the Commonwealth. G.L. c. 90, § 24 expressly applies to both a Massachusetts license and the right to operate. The license-suspension provisions of § 24 therefore apply to a driver who has never held a Massachusetts license.

Police follow a different procedure for an out-of-state driver whose breath test final analysis meets the legal threshold. Under G.L. c. 90, § 24(1)(f)(2), an officer takes custody of a driver’s license or permit issued by the Commonwealth after a breath test final analysis of .08 or greater, or .02 or greater for a person under 21. An out-of-state licensee has no Massachusetts license to surrender. The Registry nevertheless records a suspension of the person’s right to operate until the case ends or for 30 days, whichever period is shorter.

Suspension for a Breath Test Refusal

After a person refuses the breathalyzer, the Registry imposes a suspension that is separate from the criminal case. Under G.L. c. 90, § 24(1)(f)(1), the period is 180 days for a person age 21 or older with no prior OUI offense, three years for a person under 21 or a person with one prior OUI offense, five years for a person with two prior OUI offenses, and lifetime for a person with three or more prior OUI offenses. A driver with three prior offenses who is arrested again faces a potential fourth offense. A prior OUI offense includes an OUI conviction, an admission to sufficient facts followed by a continuance without a finding, or assignment to an alcohol or controlled-substance education, treatment, or rehabilitation program for a like offense. A disposition in another state for a like offense also counts as a prior offense.

In counting a person’s prior offenses, the court or the Registry may include a conviction for a like offense or a court-ordered alcohol education program assignment from another state. Counsel should compare the certified record of the out-of-state disposition and the other state’s statute with the Massachusetts statute before arraignment or Registry action.

A driver who refuses the breath test after an earlier conviction for OUI causing serious bodily injury under G.L. c. 90, § 24L loses the right to operate for 10 years.

The Registrar revokes a Massachusetts license or the right to operate for life after a conviction for homicide by motor vehicle while under the influence of an intoxicating substance under § 24G(a), homicide by motor vehicle based on an alcohol percentage of .08 or greater or operation under the influence of intoxicating liquor under § 24G(b), or manslaughter while operating a motor vehicle under G.L. c. 265, § 13½.

Disposition Under Section 24D

When a person is eligible for a disposition under G.L. c. 90, § 24D, the court may place the person on probation for no more than two years. A judge who places the person on § 24D probation must assign the person to a driver alcohol education program and suspend the person’s license or right to operate for 45 to 90 days.

For a person who was under 21 at the time of the offense, the suspension is 210 days. The court also assigns that person to the Department of Public Health program for drivers under 21. Section 24D separately provides that a person aged 17 to 21, inclusive, whose blood alcohol percentage was .20 or greater is assigned to the 14-day second-offender in-home program.

A judge may dispose of the case under Section 24D when the person has no prior conviction or alcohol education program assignment for a like offense. Once during the person’s lifetime, a judge may also use Section 24D when the person has exactly one prior conviction or program assignment for a like offense entered 10 years or more before the current offense. Section 24D does not apply if the current incident caused serious personal injury or death.

Out-of-State Driver Alcohol Education Programs

A person who qualifies for Section 24D and, at disposition, is legally domiciled outside Massachusetts or is a full-time student residing outside Massachusetts may ask the court for assignment to an out-of-state driver alcohol education program. The judge may approve or deny the request. The appropriate authority in the other state must license the program.

If the out-of-state program provides fewer treatment-service hours than the Department of Public Health requires, the person must obtain enough additional service hours to satisfy the Massachusetts requirement. Before disposition, the person should submit documentation showing that the other state licenses the program and that its hours satisfy, or will be supplemented to satisfy, the Massachusetts requirement.

Hardship Licenses for Out-of-State Drivers

Section 24D permits an eligible holder of a Massachusetts driver’s license to apply to the Registrar for a discretionary hardship license immediately after entering the required program. If the Registry grants the application, the person may drive during the same fixed 12-hour period each day, seven days a week. The Registrar determines whether the applicant has established hardship and satisfied the current requirements.

The Registry of Motor Vehicles issues a Massachusetts hardship license only to a holder of a Massachusetts driver’s license. A driver licensed in another state instead must determine when the Massachusetts suspension of the right to operate ends and what action the home-state licensing authority may take against that license. Counsel should address both questions before the defendant selects a Massachusetts disposition.

Home-State License Consequences

Massachusetts participates in the Driver License Compact under G.L. c. 90, § 30B. A party state’s licensing authority reports an out-of-state licensee’s conviction to the home-state licensing authority. The licensing authority includes in the report the person’s identity, violation, governing statute, court, and plea. A Massachusetts court or agency authorized to suspend or revoke a license must also report its action to the Registrar within 14 days.

The home state gives the reported conduct the same effect it would give comparable conduct committed there. Party states apply this rule to convictions for driving under the influence, manslaughter or negligent homicide resulting from the operation of a motor vehicle, and any felony in which a motor vehicle is used. When the home state’s offense has a different name, the home state treats a Massachusetts conviction for substantially similar conduct as a conviction for its own offense.

A party state will not issue a license while another party state’s suspension remains in effect. After another party state revokes a driver’s license, the compact ordinarily bars a party state from issuing a new license until one year after the revocation.

Counsel should evaluate the home-state consequences at the beginning of the Massachusetts case. Another state may treat a Massachusetts continuance without a finding differently from Massachusetts. A lawyer licensed in that state should advise how that state’s law classifies a continuance without a finding. The firm’s interstate-license-consequences guide explains the Massachusetts reporting rules in more detail. The defendant should consider the verified home-state consequences before selecting a Massachusetts disposition.

Court Appearances for an Out-of-State Defendant

The court with jurisdiction over the place of the alleged offense hears the case. Examples include Framingham District Court for a Turnpike arrest, Woburn District Court or Newburyport District Court for some border-area arrests, and the East Boston Division of the Boston Municipal Court for a Logan Airport case.

A defendant ordinarily must appear for arraignment. A judge may excuse the defendant from some later pretrial dates, but the defendant generally must appear for an evidentiary hearing or trial unless the court orders otherwise.

A defendant who fails to appear when required may be defaulted and may become subject to an arrest warrant. The home state may also take action against the defendant’s license because of a Massachusetts default warrant. Avoiding a default is ordinarily simpler than later seeking removal of the warrant.

First- and Second-Offense Penalties

A person convicted of a first offense under G.L. c. 90, § 24(1)(a)(1) faces a fine of $500 to $5,000, imprisonment for up to two and one-half years, or both. A person convicted of a second offense, including a second offense based on a prior conviction or program assignment for a like offense in another state, faces a fine of $600 to $10,000 and imprisonment for 60 days to two and one-half years.

On a second-offense conviction, the judge may not reduce the jail sentence below 30 days or suspend the first 30 days of the sentence. The defendant is ineligible for probation, parole, furlough, or good-conduct deductions until serving 30 days.

Defense of the Massachusetts OUI Charge

The Commonwealth must prove the same elements, and the driver may raise the same defenses, whether Massachusetts or another state issued the driver’s license. Counsel may challenge the stop, exit order, horizontal gaze nystagmus evidence, walk and turn, one leg stand, other field sobriety evidence, and breath-test evidence under the same Massachusetts rules. The defendant may elect a jury trial, and the Commonwealth must prove every element beyond a reasonable doubt. Counsel should obtain and review the same categories of discovery required in a case involving a Massachusetts license.

Defense counsel plans the case around the consequences Massachusetts imposes and the consequences the home state may impose after receiving the Massachusetts report. The defendant should evaluate both sets of consequences before selecting a disposition.