Of all the criminal charges we defend in Massachusetts, Operating Under the Influence charges — known as OUI, though you will also hear them called DUI or DWI in other states — are the ones we have worked with most extensively and studied most deeply. Attorney Milligan is board certified in OUI defense, which reflects years of focused study and practice in a field that is far more technically complex than most people — including many attorneys — understand.
In this article, we want to give you a genuinely thorough understanding of what an OUI charge involves in Massachusetts, what defenses are available, what the potential consequences are, and why the quality of your representation matters so much in these cases.
What Is OUI Under Massachusetts Law?
Under Massachusetts General Laws Chapter 90, Section 24, it is illegal to operate a motor vehicle on any way or in any place to which members of the public have access while under the influence of intoxicating liquor, marijuana, narcotics, depressants, or stimulant substances.
The law has two distinct ways of establishing guilt:
The Impairment Theory: The defendant’s ability to operate a motor vehicle was diminished by the effects of a substance. This is the traditional approach, and it focuses on the officer’s observations of the driver’s behavior, appearance, and performance on field sobriety tests.
The Per Se Theory: The defendant had a blood alcohol content (BAC) of .08 percent or greater at the time of operation — regardless of whether there was any observable impairment.
These two theories are related but not identical, and the distinction matters for defense strategy. A person can have a BAC at or slightly above the legal limit and still exhibit no observable impairment whatsoever. Conversely, a person can exhibit some signs of impairment and still have a BAC below the legal limit.
What Does “Operate” Mean in Massachusetts?
The term “operate” in Massachusetts OUI law is broader than most people realize. You do not necessarily need to be driving — or even have the engine running — to be found guilty of OUI. Massachusetts courts have held that a person can be “operating” a vehicle if they are in a position to control its movement.
This means that sitting in the driver’s seat with the keys in the ignition — or even sitting in the driver’s seat with a running engine while pulled over on the side of the road — can qualify as “operation” under the law.
This broader definition means that some people are charged with OUI in circumstances where they believed they were being responsible by pulling over and waiting until they were sober. If you or someone you know has been charged in this type of situation, it raises specific legal issues that deserve careful attention.
Milligan & Higgins is a premier OUI and criminal defense firm in Massachusetts, with over forty years of collective experience. If you or a loved one is facing criminal charges, we are here to help.
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Contact Milligan & Higgins for a free consultation or second opinion. Please send us an email: Intake@milliganhiggins.com or call 781-878-1231.
