Questions Frequently Asked About Drunk Driving Cases
Law Office of
Pacifico M. DeCapua, Jr.
Telephone (508) 473-7240
FAX (508) 478-7981
1. If a police officer stops me for operating under the influence (OUI), what must I do?
You must give your license and registration to the officer. You need not submit to any field sobriety tests or take the breath test or blood test. Chances are great, however, that if you refuse to take any field sobriety tests, you will be arrested for OUI. On the other hand, the Commonwealth will have a more difficult time at trial proving your guilt if you have not taken any of the tests.
2. When a police officer stops me, what initial observations will be made?
Inevitably a police officer will testify to observing that the defendant had red, glassy eyes; was unsteady on his or her feet; that there was a strong odor of alcoholic beverages; and that the defendant's speech was thick and slurred.
3. What are field sobriety tests and what do they measure?
Field sobriety tests are divided attention tests of coordination. Allegedly, they measure one's sobriety. In reality, they truly measure one's physical dexterity. Persons 50 or more pounds overweight or wearing high heels or having suffered a leg injury often cannot pass such tests regardless of their alcoholic intake, if any. Indeed, many people who are not overweight or have not suffered any injury whatsoever cannot successfully perform the tests.
4. What are the common field sobriety tests I will be asked to perform?
A police officer will typically ask the defendant to perform three tests. The more common tests include reciting the alphabet, the nine-step walk-and-turn test and standing on one foot and counting. Other tests include walking a straight line, the finger-to-nose test and the horizontal gaze nystagmus test.
5. Should I take the breath test?
This is the subject of a continuing debate among the defense bar. Many advise to never take the breath test. Others say doing so is fine if you have had one or two drinks. Bear in mind the following generalizations: one 12-ounce beer equals 1.25 ounces of hard liquor equals one four-ounce serving of wine. One's blood alcohol level generally increases .02 percent for each serving. Over an hour, your body clears the alcohol, through metabolism and excretion, at a typical rate of .015 percent for males; (the rate for women is 1.25 times greater). However, many factors, e.g., what you had to eat, your basic body makeup, height, weight, state of health-affect the rate of alcoholic elimination. If you take the breath test and the reading is less than .05 percent, you will not be charged with OUI. If the reading is .05 percent or above, you will be charged. If the reading is .05-.07 percent, there is no inference of intoxication, one way or the other. If the reading is .08 percent or above, there is an inference of intoxication.
Many in the defense bar believe that breath test are inherently incapable of properly discerning one's true alcoholic blood level. The doubt exists not only because of flaws in the basic assumption of calculating alcoholic levels-the 2,100:1 ratio (that a person has 2,100 times as much alcohol in his or her blood as in his or her breath) but also in the belief that breath test machines, like all machines, often break down.
6. What happens if I do not take the breath test? Conversely, what happens if I do and flunk?
If you do not take the breath test, the Registry of Motor Vehicles will suspend your license for 180 days if you are a first time offender (more for subsequent offenders). If you are subsequently acquitted at trial, you may have your license reinstated. If you are convicted, then current Registry regulations provide that the suspension for the conviction will run on and after the refusal suspension. However, this is ripe for a legal challenge.
If you do take the breath test and "flunk" it - that is, you have a reading of .08 percent or higher-your license will be taken by the police. Your license will be suspended.
7. What does the Commonwealth have to prove? Does it have to prove that I was drunk?
The Commonwealth must prove beyond a reasonable doubt that the defendant operated a motor vehicle on a public way (or a way to which the public has a right of access) while under the influence of intoxicating liquor. The Commonwealth does not have to prove that you were drunk. Rather, they must show, once again beyond a reasonable doubt, that you possessed a diminished capacity to operate your car. "The purpose of the statute is to protect the public from any driver whose alertness, judgment and ability to respond promptly have been lessened by alcohol. This would include someone who is drunk, but it would also include anyone who has consumed enough alcohol to reduce his or her mental clarity, self-control and reflexes, and thereby left him or her with a reduced ability to drive safely. The amount of alcohol necessary to do this may vary from person to person. The Commonwealth is not required to prove the defendant actually drove in an unsafe or erratic manner, but it must prove that alcohol had diminished the defendant's capacity or ability to drive safely." Instruction 5.10 of the District Court Model Jury Instructions. As might be imagined, public way and operation are typically not seriously contested. The case usually comes down to "under the influence" and "capacity to operate."
8. If I am a first-time offender, what punishment can I expect?
The so-called 24D disposition, so named as it refers to G.L. c. 90, § 24D, is typically imposed upon first-time offenders. It calls for a loss of license from 45 to 90 days (unless the defendant is under age 21, in which case the loss of license is for 180 days), fines (which may be waived if there is a finding of indigence or inability to pay) and assignment to an alcoholic rehabilitation/treatment program.
9. What must my attorney know to successfully defend me?
Your attorney must be thoroughly familiar with G.L. c. 90, § 24 et seq. and 501 C.M.R. § 2.00 et seq. The regulations were written in response to G.L. c. 90, § 24K. They contain a cornucopia of helpful and essential information for your lawyer.
10. If I had just a drink after work, there should not be any worry, right?
No. Given the great damages to persons and property caused by drunk drivers, given the fact that the days of the police officer letting you sleep it off without charging you are over, and given the fact that even if you are ultimately found not guilty, the costs-financial and psychological-are so great, the best course of action, even if you plan on having a single drink, is to have a designated driver or take a cab. By having one drink after a long workday, traveling 10 miles an hour over the speed limit and being stopped by a police officer, you still run the risk of being arrested Consider the following: It is late and you spent a good part of the day reading before going into a smoke-filled room. Hence, your eyes are bloodshot and glassy. Since you finished the drink a few minutes before getting behind the wheel of your car, the odor of alcohol is strong. You are one of the nearly 30 percent of sober people who cannot successfully perform field sobriety tests. You take the breath test -a machine as reliable as your car, washing machine and computer-and an ever-so-slightly false reading results. The outcome is an arrest and charge of OUI. Simply, it's not worth it.
Last modified: July 19, 2018