Understand Your OUI Rights.
I\’ve Been Charged with a DUI – What Will Happen to My Driver\’s License?
If you have recently been charged with an OUI here in Massachusetts, you are most likely facing some sort of license suspension. The duration of that suspension will depend on the particulars of your case, but are largely influenced by your prior OUI history (if any) and whether you took or refused the breath test.
In Massachusetts, we have what is known as an “Implied Consent Law.” That law essentially states that anyone who operates a motor vehicle on the roadways of the Commonwealth, regardless of whether or not they possess a Massachusetts-issued driver’s license, impliedly consents to a chemical analysis of their breath or blood upon being arrested and charged with an OUI.
Fortunately, we live in a state where the police cannot strap you to a gurney and force you to produce a blood sample, nor can they shove a tube down your throat and force you to produce a breath sample. Instead, they will hit you with an administrative license loss (or a suspension of your right to operate in Massachusetts if you hold a license issued by another state) when they deem you to have refused to provide such a sample.
With the passage of Melanie’s Law in 2005, the penalties associated with refusing a breath/blood increased dramatically, particularly for subsequent offenders. As an example, a person charged with a Second Offense OUI, even if their prior offense occurred 30-plus years ago, will incur a 3-year license suspension if they refuse to submit to a breath/blood test.
On the flip side, if that same person consents to and fails the breath/blood test, they will only incur a 30-day license loss. At first glance, it seems like an easy decision: take the test and in the worst case, you’re back on the road in 30-days. It’s not that simple though.
If you take the test and fail, you have provided valuable evidence of your guilt to the government, making it far more difficult to secure an acquittal at trial. It really puts the person in a “Catch-22” situation: “Refuse and lose my license for a long period of time” versus “take it and potentially provide the government with incriminating evidence.”
To make the decision even more difficult, the form that the police use when requesting that you take a breath/blood test, is vague at best when it comes to informing the person of the potential consequences. It simply states: “If you refuse this test, your license or right to operate in Massachusetts shall be suspended for at least a period of 180 days or up to life for such refusal. The suspension if you take the test and fail it is 30 days.”
As you can see, this language doesn’t provide much clarity for the person in the example above—there is a big difference between a 180-day suspension and a lifetime suspension. I don’t know about you, but if I were in that situation, I’d like to know where in that range of time I fall before making a decision.
Without more clarification, it is almost a natural reaction to assume that you are going to lose your license for life if you don’t take the test. Sounds pretty coercive to me. Unfortunately, that is how it is done in Massachusetts.
Below is a thumbnail sketch of what you can expect for a license loss depending on your prior OUI history:
- If you refused the breath/blood test and have no prior offenses: 180-days
- If you refused the breath/blood test and have 1 prior offense: 3 years
- If you refused the breath/blood test and have 2 prior offenses: 5 years
- If you refused the breath/blood test and have 3 or more prior offenses: Lifetime
If you take the breath/blood test and fail, you will incur a 30-day license loss, regardless of how many prior offenses you have on your record.
The suspension you suffer from either refusing or failing the breath test is completely separate from any suspension you may incur as a result of a conviction or admission to the charge. It is important to note that any suspension that comes as a result of a conviction or admission to the charge will be added to any suspension in place for refusing the breath/blood test.
Below is what you can expect for a license loss depending on your OUI history if you are either convicted of, or make an admission to, the charge:
- If you have no prior offenses: 45 days or up to a year. Usually 45 days.
- If you have one prior offense: 2 years (unless your prior offense occurred more than 10 years ago)
- If you have two prior offenses: 8 years
- If you have three prior offenses: 10 years
- If you have four prior offenses: Lifetime
While there is an exception for persons charged with a second offense when their prior offense occurred more than 10 years ago, generally speaking, refusal suspensions combined with conviction suspensions result in the following:
- If you have no prior offenses and you refused the breath/blood test, and were later convicted (or admitted to the charge): 180 days + 45 days (or up to a year)
- If you have one prior offense and you refused the breath/blood test, and were later convicted: 3 years + 2 years = 5 year suspension
- If you have two prior offenses and you refused the breath/blood test, and were later convicted: 5 years + 8 years = 13 year suspension
- If you have three prior offenses and you refused the breath/blood test, and were later convicted: Lifetime suspension + 10 year suspension
- If you have four or more prior offenses and you refused the breath/blood test, and were later convicted: Lifetime suspension + Lifetime suspension
These are the total suspensions for the various scenarios. It is important to note, that following the expiration of a refusal suspension, you may be able to apply for a hardship license for the remaining balance of the total suspension.
For subsequent offenders, any hardship license will only be issued if you have an ignition interlock device installed in your vehicle.
As you can see, the licensing ramifications can be far-reaching when you are charged with an OUI. It is important that you consult with an attorney well-versed in this particular area before you make any decisions how to handle your case.
