Written by attorney James D. Cormier

The DOs and DON'Ts of Getting Pulled Over for OUI in Massachusetts

DO Know What This Guide is About: The 'Classic' OUI Scenario

This guide is intended to address the so-called "classic" OUI scenario, where you are stopped by police, usually on the highway, after a police officer observes either erratic driving or another traffic offense that merits pulling you over. After the officer approaches your car and begins speaking with you, he observes indicia of intoxication, leading to a standard OUI road investigation and arrest. It is NOT intended to address more serious situations, such as when you have been involved in a serious collision or when someone has been seriously injured.

The tips in this guide presume that you have consumed some amount of alcohol recently. This guide is not intended to address the situation where a police officer suspects a sober driver of intoxication. Such false positives are not unheard of, but they are a different situation entirely and one usually solved when the driver, knowing he hasn't been drinking, agrees to take a breath test, which then exonerates him. In other words, if you get pulled over and an officer accuses you of being intoxicated when you really haven't been drinking, stop reading here. Explain that you have not been drinking and request a portable breath test, which the officer may have available in his cruiser. If the portable breath test is not available and the officer still believes you have been drinking, you may have to endure an arrest and transport to the police station so that you can take a breath test there. Either way, it is very likely that the breath test results will support your claim.

DO Realize That It Can Happen to Anyone

Being pulled over for OUI (also known as DUI, DWI, and drunk driving) is a very common occurrence. All kinds of people from all walks of life can wind up being stopped by the police, for both just and unjust reasons. While the situation is a serious one, being pulled over doesn't mean you're a bad person, and it doesn't mean you have to admit to anything. Knowing your rights is extremely important, because the police officer who pulls you over isn't going to remind you what they are.

Many people decide they're guilty long before the police officer does. Particularly for those who have no prior criminal history or experience with law enforcement, it can be very tempting to admit that you've been drinking. It's important to remember that legal guilt and moral guilt are two very different things: the fact that you realize you did something wrong and feel bad about getting behind the wheel shouldn't dictate your actions at this early stage. Protect your rights first. You'll always have the opportunity to admit your guilt later if that's really what you want to do.

DON'T Panic!

Being pulled over by a police officer can be scary, especially when it's nighttime and you know you've had a couple of drinks. Remember to relax: nothing says you're guilty better than acting like a nervous wreck. This advice will assist you through the entire process of being stopped, investigated, and arrested for OUI. Remaining calm will help you think more clearly and interact with the officer(s) in a more sensible manner, and will make you look less intoxicated if you have been drinking. Don't panic! This isn't the end of the world!

DO Be Polite and Courteous to Police at All Times

The police officer may not be friendly to you, but under no circumstances should you act in any way that is not polite, courteous, and respectful. You can assert your rights without being uncivil or argumentative. It will only help you, and many officers will make note in their police report that you were cooperative at all times.

DON'T Admit Anything!

When you're pulled over, the police officer will be observing you through your car window. He will be looking for the classic indicators of intoxication: bloodshot or glassy eyes, slurred speech, general confusion, and an odor of alcohol. If he observes any of these, he will ask you if you have been drinking. The most important thing to remember here is this: admitting you've been drinking can ONLY hurt you. Many people make the mistake of thinking that if you admit to having a couple of beers, the officer will reward your honesty by concluding that you were drinking but not intoxicated, and let you go. This is pure fantasy. Everything you say to the police officer will later be used against you, so keep your mouth shut. Tell the officer that your attorney has instructed you not to answer police questions of this kind. He can't make you answer. If you haven't been drinking, say so. The law in Massachusetts also doesn't require him to read you Miranda rights in a classic OUI stop, so you'll have to remember that you always have the right to remain silent.

This goes for later on, too: the officer will continually try to get you to talk to him about whether you've been drinking, where you were coming from, what you were doing, etc. Politely decline to answer any of these questions.

DO provide your license and registration promptly and without question.

DON'T Participate in Field Sobriety Tests (FSTs)

If the officer suspects you've been drinking, despite your denials or refusals to answer his questions, he will ask you to step out of the car. Ask him if you have to, and if he says yes, do as he asks. Remember that he will be watching you while you do so, to see if you stumble or fall. At this point he'll likely ask you to step to the back of your car, where he'll begin instructing you in how to perform a series of field sobriety tests. These are divided attention tests, designed to assist the officer in determining whether or not you are under the influence. You don't have to do them, but the officer probably won't ask if you want to or not. You'll have to KNOW that you don't have to, and you'll have to tell the officer that you refuse to participate. Do so politely, but firmly. Even if you haven't had much to drink, don't presume that you can pass these tests with flying colors: they are designed to be difficult and require focused attention, and roadside conditions are often not ideal. Perfectly sober people doing these tests in a controlled environment often have trouble with them, so don't think you'll ace them amidst the stress and anxiety of a roadside OUI stop.

DO Realize That You're Probably Getting Arrested

Here's the thing: you can do everything right and still get arrested. In fact, you almost certainly will be. If a police officer smells alcohol on your breath when he pulls you over, you're getting arrested. Accept it. Your main concern should be minimizing the evidence they have against you. As stated above, don't make the mistake of thinking you can prove your sobriety. Keep quiet, do as you're told, and don't take any tests. You might have to get arrested, but you don't have to get convicted.

DON'T Take the Breath Test

The police are required by law to offer a breath test (AKA the Breathalyzer) to you when they suspect that you have been driving under the influence of alcohol. They may ask you to take a portable breath test on scene, which you should refuse, but this test is not admissible in evidence at trial and can only be used to help the officers on scene. Most likely you'll be placed under arrest and transported in the police cruiser back to the police station. Your car will be towed, unless you have a passenger who can legally drive it home for you (and the officer's in a good mood). At the police station, the booking officer will ask you a series of questions about yourself. DO answer his questions regarding your demographic and biographical information (name, address, date of birth, etc.). DON'T answer any questions about whether you've been drinking or where you were coming from.

You have the absolute right to refuse to take a breath test, and the police have to inform you of your right to refuse. They'll have you sign a form either way, indicating your decision. Here's the thing: if you take the breath test and fail, your license gets suspended, admininstratively, by the RMV for 30 days. If you refuse the test, the RMV suspends your license for 180 days (six months). In effect, they're punishing you for not taking a breath test. The RMV can do this because of the implied consent law: when you get a driver's license in Mass., you impliedly consent to be breath-tested.

While losing your license for six months may seem extreme, you're still better off not taking the breath test. If you don't take it, your chance of beating the case at trial are astronomically higher. You'll have several opportunities to contest the suspension of your license, and it's possible that you will be able to successfully appeal the suspension. Moreover, if you win at trial before the six months suspension is up, you can petition the judge to reinstate your license, a motion which is usually allowed.

The question is, what's more important to you? Minimizing your license suspension, or keeping your criminal record clean?

DO Hire a Good Lawyer

After you take the breath test or refuse it, you'll be brought to a cell where you will await the arrival of a bail commissioner, who will determine whether or not you should be released on your personal recognizance or whether bail should be imposed. If you have no prior criminal history, there probably won't be any bail set on you. You will have to pay a $40 bail commissioner's fee, however, which is payable only in cash. You will also need a ride home from the police station, as your car will likely have been towed.

You'll probably be scheduled for an arraignment in the applicable district court the next day. If you are indigent (unable to afford a lawyer), the court will appoint a lawyer for you for a reasonable fee, but otherwise you'll have to hire your own attorney. DO find an attorney who is experienced in dealing with the intricate problems of OUI cases, and listen to his advice.

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