Operating Under the Influence (OUI)
When stopped by a law enforcement agent, be it a local police officer or a State Trooper, keep two things in mind:
- The field sobriety tests that the officer asks you to perform are not mandatory, they are optional. This means that when they ask you to step from the vehicle and then ask you to perform the field tests you can say NO! Not taking the tests does increase your chance of getting arrested, but if you’ve had more than one alcoholic beverage, there’s a pretty strong chance you are getting arrested anyway, so why give them more evidence to use against you? At trial, the field tests carry a strong amount of weight in determining impairment, without these tests, the officer will only be able to testify to appearance, odor, and opinion. No field tests will increase your chances of acquittal.
- Taking a breathalyzer is not mandatory but if you do not take the test, you will lose your license for a longer period of time than if you do. That being said, if you do not take the test, there is again, not a lot of evidence that the officer can use against you. In Massachusetts, declining to take the breathalyzer will result in a longer loss of license should you be found guilty or plead guilty.
Take a look at these two scenarios, for example:
- John is driving down a local street and he crosses the yellow line more than once and is driving at a very slow rate of speed. A police officer is behind John and notices the vehicle cross the lines and the unusual speed so he decides to pull John over to see if he is under the influence.
As the officer approaches John’s car, he starts to form opinions based on his senses. Most police reports will say things such as, “his eyes were bloodshot and glassy. He spoke with a thick tongue. I could smell the odor of an alcoholic beverage emanating from the interior of the vehicle. He had trouble getting his license from his wallet and trouble with getting the registration from the glove box.” These remarks are common in police reports. In this example, John has a minor problem finding his registration from the glove box and the officer can smell alcohol coming from his person.
After the officer gets the license and registration, he will usually ask the driver to step from the vehicle. This is another test, he is watching to see if John needs help alighting from the vehicle or stumbles as he gets out.
In this example, John gets out of his car with no problems. The officer then asks John if he would perform some field tests. John answers that he will not perform the tests. The officer will then ask if he would take a breath tests with the portable breathalyzer. John states that he will not take the PBT.
At this time, based on the officer’s observations, the officer arrests John for operating under the influence of intoxicating liquor.
- John is driving down a local street and he crosses the yellow line more than once and is driving at a very slow rate of speed. A police officer is behind John and notices the vehicle cross the lines and the unusual speed so he decides to pull John over to see if he is under the influence.
As the officer approaches John’s car and asks for license and registration, John has a minor problem finding his registration from the glove box and the officer can smell alcohol coming from his person. He then asks John to step from the vehicle.
The officer then asks John if he will perform field tests and John says YES. He starts with the Horizontal Gaze Nystagmus test and determines that John’s eyes did not follow the stimulus smoothly and that his eyes jerked prior to deviation of the eyes by as much as 45°. Essentially, John has failed the HGN test.
The second field test is the alphabet test. John misses the letter N and therefore, fails the test.
The third test is the finger to nose test and John is asked to tilt his head back and take his index finger from each hand and place it on the tip of his nose with his arms outstretched. John places his finger on his upper lip, and therefore fails the test.
The fourth and final test is the nine step walk and turn. John is asked to walk in a straight line, placing the heel of his shoe to the tip of his other shoe and take nine steps that way, pivot around and walk back doing the same thing; he must keep his arms at his side. John steps off the line on step 3, 4 and 5 and does not pivot properly. Then he stumbles coming back and cannot complete the test. The officer notes that John kept his arms up and outstretched while trying to complete the test. Based on all the problems, he fails the test.
John is placed under arrest and asked if he would perform a breath test at the station. He blows twice and each test results in a .12 blood alcohol content.
So what is the difference in these two examples since John was arrested in both? In the first scenario, a skilled and experienced criminal defense attorney has a great case for trial that could very well result in a not guilty. In the second example, the attorney has a much more difficult chance at getting a not guilty. In the end, John was arrested. The better scenario is not to provide the state with more evidence that can be used against you.
If at trial, John is found not guilty, the attorney will have a motion prepared to have John’s license reinstated by the Department of Motor Vehicles and the loss of license period from the breathalyzer refusal will terminate at that time.
In Massachusetts, an attorney may be able to try an OUI case within a very short period of time from that of the arrest. A skilled and experienced attorney such a s Attorney Pamela Saia-Rogers can assist you with this.
Here is the current statute in Massachusetts for OUI.