Operating Under the Influence of alcohol or drugs
Perhaps because so many tourists and vacationers visit Cape Cod, restaurants, pubs, and taverns flourish here. Many "drunk driving" cases come before the Cape's three District Courts. These cases are known by many names in various places. The formal Complaints in Massachusetts charge Operating Under the Influence, either of alcohol or any other intoxicating substance; hence the shorthand term OUI. But it is also well known as Driving Under the Influence or DUI, and Driving While Intoxicated or DWI. It is important for any driver to know that "drunk driving" is not an accurate term. To get a criminal conviction, prosecutors do not have to prove that a driver was "drunk" as that term is usually understood. Proving that a driver is severely impaired is not necessary. Proof that the ability to drive has been diminished to any degree by the consumption of alcohol is enough.
If are considering driving after socializing and consuming alcohol, think very carefully. If you are at all doubtful, do not drive! Even if you are later vindicated in court, an arrest for Operating Under the Influence will cause you a great deal of expense, inconvenience, and embarrassment. If you have previously been convicted of OUI, your troubles will be much worse. The best defense against this charge is pre-emptive. You should do all you can to avoid being charged in the first place.
If you do decide to drive a motor vehicle after consuming alcohol, or any drug or intoxicant, and if you are then stopped by a police officer, there are a few things you should keep in mind. First, you are not obliged to speak with the police or answer any questions. Whether it would be prudent or not is a very complicated question. The answer depends upon many things and cannot be given in a paragraph. It cannot be fully given in a document of any length. You can learn a little by clicking this button.
Second, you are not obliged to attempt any of the "field sobriety tests" police may propose. Neither your
silence in the face of police questions nor your refusal to attempt walking a straight line can be used as
evidence in court. You must, of course, produce your license and registration. Third, you should cooperate with the police in every reasonable way, such as complying with a request, or an order, to step out of the vehicle. And you should always be polite. But you need not give police your permission or consent to do anything. If an officer is standing at the window of a motor vehicle, he will surely be looking around to see whatever is visible. He may decide that he has seen enough to provide a legal basis to search your vehicle. Whether he really did have sufficient basis to conduct a search can be determined later in court. But the officer may instead ask, "Do you mind if I look under the passenger seat?" or "Would you mind opening the trunk?" If you agree, police will not need to justify the search. Your consent is all the justification needed.
If you are arrested for OUI, you will be taken to a police station for "booking." You should expect that everything you do or say at the police station will be recorded. That might not be the case, but you should expect it. The recordings might later be used as evidence in court. You want such evidence to be favorable. Do the best you can. Straighten up and fly right. Cooperate with the booking procedure. Provide your name, address, date of birth, and other such innocuous information. Speak as clearly as you can and as little as you can. Do not ramble. Do not protest your arrest. Listen to the police when they tell you you have certain rights, including a right to the assistance of a lawyer. If you make a phone call, remember that the police will overhear what you say and could use it against you in court. Do not discuss the circumstances of your arrest on the phone. You will be informed of your right to take a breathalyzer test. You will then be asked if you will submit to such a test or if you refuse. This may be the most important decision you will have to make. Certainly, when OUI is the topic, the question most often asked of criminal lawyers is, "Should I take the breath test?" If you refuse the test, you will incur an immediate suspension of your driver's license. But you face a dilemma. If you take the test and do not do well, you will also incur an immediate suspension of your driver's license and the unfavorable test results will be admissible against you in court. Estimating how well or poorly you would do on the breath test is very complicated. It depends upon many factors, including the amount of alcohol, the period of time in which you consumed each drink, your size, your metabolism, whether you have also consumed solid food, the amount of time that has passed since you stopped drinking, etc.
OUI cases almost always, but not invariably, begin with an arrest. In any case, after a formal Complaint for OUI has been issued against a defendant by a court, which is almost certain to happen on the first business day following an arrest, the defendant's first court appearance will be for purposes of arraignment. Click this button to learn about Arraignments.
Much more, of course, could be said on this topic, but this should be some help with the early phases of OUI cases. If the case is not resolved at the arraignment (most are not), the next court appearance, about three or four weeks later, will be for "Pre-trial." It is a very good idea to consult a criminal lawyer before going to court for Pre-trial. You can learn a little here.
Copyright 2014
Russell J. Redgate