I was charged with a second DUI in June (not arrested because of my medical condition). I received a citation and have my arraignment at the end of this month. Does the time my immediate suspension from June 26 count as time served for suspension?
It will not count. The current suspension, whether for a refusal or failure of the breath test, or for an immediate threat, is an administrative suspension imposed by the RMV. The 2 year suspension, if you are found or plead guilty, will be a judicially imposed suspension. The administrative suspension will not affect the judicially imposed suspension.
You should consult with a MA attorney for this for a certain answer. But if MA is like other states, like NC, your immediate suspension would not count towards your 2 year suspension if convicted of the second DUI. Think about it this way: one DUI defense strategy is to postpone a DUI trial as long as possible in the hopes that the arresting officer retires, dies, moves, or is otherwise unavailable to testify against you. I find it hard to believe that the MA legislature would allow you the benefit of having your suspension run while attempting to avail yourself of a trial strategy such as this. Good luck.
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The only suspension time that starts running from the date of the incident is the mandatory time for taking AND failing a BT or for refusing a BT test. All other suspensions will be imposed AFTER a guilty verdict or plea. You have the possibility of being found not guilty if you take the case to trial. In that case, there is no suspension to serve.
More importantly, I notice you have arraignment coming up. I hope, for your sake, that you have retained counsel by now. A conviction for a 2nd OUI carries penalties that will substantially limit your personal liberty, and very hefty fees and fines. You should absolutely consult with an attorney (if you do not have one already) and talk about strategy on how to proceed.
Hope this helps and best of luck!
Ilir Kavaja, Esq.
The above is NOT legal advice, and is NOT intended to be legal advice. No Attorney-Client relationship is created through the above answer.
You say you were not arrested. My question to you is why was your license immediately suspended? The suspension for a breath test refusal only applies to persons who are "arrested". Another important question is how long ago was your first offense. You need to get a good DUI lawyer. Your situation presents a number of ins and outs that you need to discuss with an experienced criminal lawyer who does DUI cases.
Attorney Robert D. Lewin
LEWIN & LEWIN, CRIMINAL LAWYERS
Offices in Malden and Andover, MA
Email: [email protected]
No, there are two different types of suspension at work here. One is your suspension for either failing the breath test of refusing the breath test. The other suspension if you plead or are found guilty at trial is the suspension for the conviction. These two suspension run consecutively of each other.
This is not intended as legal advice and does not create an attorney-client relationship.
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