Veterans facing OUI charges in Massachusetts have a unique option: the BRAVE Act. Passed in August 2018, this law recognizes that service-related conditions can contribute to legal problems and offers an alternative to traditional prosecution for eligible veterans.
What Is the BRAVE Act?
BRAVE stands for Benefits, Rights, Appreciation, Validation and Enforcement. The law allows honorably discharged veterans and active service members to avoid prosecution for certain criminal charges when their offense stems from service-related conditions.
For OUI specifically, the BRAVE Act offers a path to dismissal through treatment rather than conviction through trial or plea deal. Successfully complete the required program, and your OUI charge is dismissed.
This isn’t a “get out of jail free” card. It’s recognition that veterans deserve treatment for service-related conditions rather than punishment for symptoms of those conditions. It maintains public safety through strict eligibility requirements while offering veterans a chance to address underlying issues.
Who Qualifies for the BRAVE Act?
Not every veteran charged with OUI qualifies. The eligibility requirements are specific and strict.
First, you must be honorably discharged or currently on active duty with the U.S. armed forces. Dishonorable discharges disqualify you.
Second, your OUI must stem from a service-related condition: traumatic brain injury, serious mental illness, or substance abuse disorder. The Department of Veterans Affairs must determine that these conditions resulted from your military service.
Third, your criminal history must be clean. You cannot have any prior adult convictions (after age 18) in Massachusetts or elsewhere. You cannot have any prior OUI arrests, even if those charges were dismissed or resulted in not guilty verdicts.
Finally, this must be a first offense OUI where no one else was injured. The BRAVE Act doesn’t apply to accidents involving injuries to others or to second or subsequent OUI offenses.
How the Process Works
If you think you qualify, inform the court immediately after your arrest. Don’t wait for your arraignment or first court appearance—tell someone as soon as possible.
The probation department confirms your eligibility and recommends a 30-day assessment period. During this assessment, the Department of Veterans Affairs evaluates whether you have service-related conditions qualifying you for the program and whether a treatment program would be appropriate.
If deemed eligible, you’re referred to an appropriate treatment program. This typically involves substance abuse counseling, mental health treatment, and support services tailored to your specific needs.
Upon successful completion of the program, the OUI charge is dismissed. No conviction appears on your record. From a legal standpoint, it’s as if the charge never existed.
Important Limitations
The BRAVE Act can only be used once. You get one opportunity to avoid prosecution through this program. If you’re arrested for OUI again, the BRAVE Act isn’t available.
Judges have complete discretion throughout this process. Nothing requires a judge to grant the continuance, accept the treatment recommendations, or ultimately dismiss the case. The BRAVE Act creates an option, not a guarantee.
The program only applies at the district court level. If the prosecutor indicts your case to superior court, the BRAVE Act doesn’t apply. This gives prosecutors leverage—they can threaten indictment if you don’t cooperate with treatment.
How It Differs from Standard First Offense Treatment
Standard first offense OUI dispositions in Massachusetts typically involve a CWOF (Continuance Without a Finding), probation, fines, license suspension, and an alcohol education program. While the CWOF isn’t technically a conviction, it counts as a prior offense if you’re arrested for OUI again.
The BRAVE Act results in complete dismissal—not just avoiding a conviction, but having the case dismissed entirely. This means better outcomes for employment, licensing, and potential future legal issues.
The BRAVE Act also provides more comprehensive treatment tailored to service-related conditions, going beyond basic alcohol education to address underlying mental health or substance abuse issues.
Why Veterans Should Consider This Option
For eligible veterans, the BRAVE Act offers significant advantages over traditional prosecution. You avoid a criminal record entirely. You receive treatment for service-related conditions rather than punishment. You maintain employment and educational opportunities that might be jeopardized by an OUI conviction.
However, you must be willing to acknowledge the underlying condition and commit to treatment. If you don’t believe you have a service-related mental health or substance abuse issue, the BRAVE Act might not be the right choice.
Discuss this option with an attorney experienced in both OUI defense and veterans’ issues. They can help you evaluate whether pursuing the BRAVE Act makes sense given your specific circumstances and whether you meet the strict eligibility requirements.
Service-Related Conditions Qualifying for BRAVE Act
Traumatic brain injury includes concussions and other head injuries from combat, training accidents, or blast exposure. These injuries can affect decision-making, impulse control, and judgment.
Serious mental illness includes PTSD, depression, anxiety disorders, and other psychiatric conditions that can contribute to substance use or impaired judgment.
Substance abuse disorder recognizes that military service can contribute to alcohol or drug dependency. Deployment stress, combat trauma, and military culture around drinking all play roles.
The key is that these conditions must be service-related. Pre-existing conditions or issues developing after military service generally don’t qualify.
The Importance of VA Assessment
The Department of Veterans Affairs assessment is crucial. VA professionals with expertise in service-related conditions determine whether you qualify and what treatment would be appropriate.
This assessment isn’t simply accepting your word that you have a qualifying condition. The VA reviews your service records, conducts examinations, and makes an independent determination based on evidence.
Be prepared to cooperate fully with this assessment. Provide complete information about your service history, any prior VA treatment, and current symptoms. The assessment determines whether you can use the BRAVE Act, so take it seriously.
Moving Forward with the BRAVE Act
If you’re a veteran facing first offense OUI charges, inform your attorney immediately that you want to explore BRAVE Act eligibility. Don’t assume they’ll think of it—raise it yourself.
Your attorney can research your service record, contact the VA to begin the eligibility process, and present your case to the court. They can also advocate for the continuance and treatment recommendations.
Remember, the BRAVE Act is an opportunity to address underlying issues while avoiding criminal conviction. It’s not a loophole or shortcut—it’s recognition that veterans who served their country deserve treatment over punishment when service-related conditions contribute to legal troubles.
Contact Milligan & Higgins for a free consultation or second opinion. Please send us an email: Intake@milliganhiggins.com or call 781-878-1231.
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