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Thomas A. Dougherty, III
Criminal Defense Attorney
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Drunk Driving Defense Attorney Bristol County, Plymouth County, Norfolk County, Suffolk County, Middlesex County, Worcester County

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OUI TEST REFUSALS

BREATH TEST FAILURES AND REFUSALS

Alert!!! Melanie's Law took effect on October 28. It increased refusal periods, increased waiting periods for hardship licenses and requires an ignition interlock device for reinstatement for ALL SUBSEQUENT OFFENDERS. Changes are outlined below in red.

All license losses on a case are added to each other.

If you are found not guilty or the case is dismissed, there is a presumption that your license will be reinstated for the rest of the refusal suspension period.

Note: Operators under age 21 face additional penalties to the following under c.90, 24P (see elsewhere in these materials)

CHEMICAL TEST FAILURES:

A breath test of .08 for operators over age 21, or .02 for operators under age 21 incurs a 90 day suspension. Note: This suspension terminates at 90 days or with the disposition of the case, whichever is earlier.

CHEMICAL TEST REFUSALS:

  • Suspensions for Chemical Test Refusals increase when the operator has had previous OUI convictions within 10 years prior to the new arrest. Contrary to the popular opinion, the enhanced suspensions are not based on previous refusals.
  • 3 years: Operator over age 21 who refuses and has no prior OUI convictions in 10 years
  • 5 years: Operator over age 21 who refuses and has one prior OUI conviction in 10 years, or operator under age 21 with no or one prior OUI conviction in 10 years.
  • Lifetime: Operator who refuses and has two prior OUI convictions in 10 years.

UNDER 21 OUI ISSUES

The new OUI has created a separate, complex set of rules that affect drivers under 21 differently from their adult counterparts. These issues have come up more and more frequently lately, Use the following as a guideline in handling some of these issues.

NOTE: See "Junior Operator" section for additional under age 18 penalties

CHEMICAL TEST REFUSALS

BEFORE DISPOSITION: (assuming first offense)

  • 180 day suspension under M.G.L. c.90, 24 (1)(f)(1)
  • 180 day suspension under M.G.L. c.90, 24P (run on/after the above suspension)

NOTE: The 2nd 180 day suspension under 24P is waivable upon ENTRY into the alcohol program. Unlike the statue for conviction, completion is not required. If they do not complete the program, we have the authority at that time to reinstitute the suspension.

AFTER DISPOSITION: (assuming first offense)

  • GUILTY/CWOF FINDING: The minimum sentence is 210 days, run on/after the above suspensions. The 2nd 180 day suspension is waived if the defendant enters the program. Net result is 390 days if they enter a program.
  • NOT GUILTY/DISMISSAL: The operator can get the first 180 days cleared if they get an order from the court. They still must serve the 2nd 180 days under 24P unless they enter a program on their own accord.

CHEMICAL TEST FAILURES

The new law calls for suspension actions even when the BAC reading is under the limit that would result in an OUI charge (which must be .06 or above). Any youth having a reading of .02 or above falls under M.G.L. c.90, 24 (1)(f)(2) and 24P EVEN IF THEY ARE NOT CHARGED WITH OUI.

IF THERE IS NOT AN OUI CHARGE: (assuming first offense)

180 day suspension under M.G.L. c.90, 24P

NOTE: The 180 day suspension under 24P is waivable upon ENTRY into the alcohol program. Unlike the statue for conviction, completion is not required. If they do not complete the program, we have the authority at that time to reinstitute the suspension.

IF THERE IS AN OUI CHARGE: (assuming first offense)

  • 90 day suspension under 24 (1)(f)(2), or until the case ends in court (whichever is shorter)
  • 180 day suspension under 24P (on/after), waivable upon entry into the program.
  • 210 days minimum if convicted, on/after the above.

NET RESULT: A youth in this case entering the program must serve 210 days (first offense), as the 90 days ends with the case, and the 180 days ends with the program entry.

YOUTH ALCOHOL PROGRAM SUSPENSIONS

OPERATORS UNDER AGE 18

  • Applies To: Any person under age 18. Does NOT require the offender to hold a JOL.
  • Provisions: An additional suspension that applies to any driver under age 18 who REFUSES or FAILS (.02 or above) a breath test.
  • Penalties: 1 year suspension, in addition to the initial refusal or failure suspension.
  • EXAMPLE: Youth under age 18 who is a first offender and refuses a chemical test faces:
    180 day Suspension for refusal pursuant to M.G.L. c. 90, 24(1)(f)(1) and 1 Year Suspension for the Youth Alcohol Program requirement pursuant to M.G.L. c.90, 24P

NOTE: Entry in a Youth Alcohol Program will reduce the YAP suspension to 180 days.

OPERATORS AGES 18 TO 21

  • Applies to: Any person ages 18 to 21. Does NOT require the offender to hold a JOL.
  • Provisions: An additional suspension that applies to any driver ages 18 to 21 who REFUSES or FAILS (.02 or above) a breath test.
  • Penalties: 180 day suspension, in addition to the initial refusal or failure suspension.
  • EXAMPLE: Youth under age 18 to 21 who is a first offender and refuses a chemical test faces:
    180 Day Suspension for refusal pursuant to M.G.L. c. 90, 24(1)(f)(1) and
    180 Day Suspension for the Youth Alcohol Program requirement pursuant to M.G.L. c.90, ¤24P

NOTE: Entry in a Youth Alcohol Program will waive the YAP suspension.

ADDITIONAL PROVISIONS FOR C. 90, S.24 CONVICTIONS

  • Applies To: Any person under age 18. No JOL required.
  • Provisions: Any person convicted of a charge under M.G.L. c. 90, 24, 24G, 24I or 24L that has NOT received a Youth Alcohol Program suspension from the same incident.
  • Penalties: 1st Offense: 180 Days, 2nd Offense: 1 Year