Between the flashing lights and panicked thoughts, a first DU/OUI offense is always a stressful experience. But even if you’re arrested and charged with DUI, it doesn’t mean you’ll be found guilty in a court of law. You’re innocent until proven guilty. Not even a failed breathalyzer test is conclusive evidence of guilt since any number of variables could produce invalid results.

There is a wide range of defenses available to a DUI/OUI first offender. Here are the steps to defending yourself:

Table of Contents:

Think Ahead—You’ve Got Rights
Don’t Panic If You Fail a Breath Test
Find an Attorney
Prepare for Court
Consider a Plea Bargain
Challenge the Evidence
Don’t Give Up

7 Steps to Defending a Massachusetts DUI First Offense:

1. Think Ahead—You’ve Got Rights

It is not a crime to decline field sobriety tests, breathalyzer tests, or questions at a traffic stop for DUI. You have a right to avoid self-incrimination—and from a legal standpoint, it’s always best to provide as little evidence as possible that could be turned against you in a court of law. The less evidence the state has, the harder it will be for the charges to meet the burden of proof for conviction.

However, the implied consent law in Massachusetts does impose administrative penalties for declining a chemical test of your blood alcohol content (BAC) percentage, most commonly through a breathalyzer test. By getting behind the wheel with intent to operate a motor vehicle, the law states that drivers are consenting to be tested for intoxication. Declining these tests will lead to an automatic administrative suspension of your drivers’ license by the RMV for 180 days for a first offense, but it will also help your defense against conviction for a Massachusetts DUI first offense.

The best approach is generally to be cooperative with law enforcement but to avoid volunteering any information that could incriminate you. Officers are allowed to ask questions during a routine traffic stop—this is not a violation of your rights. You might choose to politely decline to give incriminating details or submit to tests, knowing such refusals can’t be held against you in a court of law. However, refusing to cooperate will provide the officer with justification to arrest you for your first DUI offense.

2. Don’t Panic If You Fail a Breath Test

Drivers have many valid reasons to accept a breathalyzer test. They might be unaware of their rights, trying to be cooperative, hoping to avoid the administrative license suspension, or confident that they’ll pass the test. If they pass, great; this will decrease the likelihood of an arrest and incur no direct consequences.

However, registering a BAC at or over 0.06% may get you arrested and charged with a Massachusetts DUI first offense. If you’ve failed a test, don’t panic. The best approach at this time will be to remain respectful and honest but decline any further questions or field tests. You’ll be arrested, but apologizing and confessing to additional details cannot help your case at this point.

Make sure to carefully save all papers, citations, or other documentation around the arrest. An attorney can review these details to aid you in constructing an effective defense. A failed breath test is not conclusive evidence of your guilt, and in the right circumstances, its validity can be successfully challenged in court.

3. Find an Attorney

It’s urgent that you retain experienced legal counsel as soon as possible after the arrest. There’s no time to waste on constructing an effective defense.

That said, you can’t simply entrust the first attorney you find with a case like a Massachusetts DUI first offense. A specialized Massachusetts DUI lawyer will have deep familiarity with local nuances in DUI law. You’ll also want to prioritize a long track record of success. Go into your consultation armed with a list of questions that will clarify what to expect and help you evaluate the attorney’s qualifications.

4. Prepare for Court

Your lawyer will help you get the lay of the land and explain the possible outcomes and courses of action in your case. That first court date will come quickly, so it’s essential to educate yourself and prepare mentally for the next steps.

Part of the preparations will consist of gathering all possible details around the incident that led to your arrest.

What did you eat that day?
Do you have any health conditions?
Did you consume alcohol at any point?
What happened before you were stopped?
How about after?
What time was it?
How long did the traffic stop last?
What exactly did the police ask you?
How did you react?
Do you have convictions of any sort on your criminal record?
Has anything like this happened before?

If there’s anything you can’t remember, just say so. Your attorney is here to help—the more accurate and complete information you can equip them with, the better they’ll be able to defend you. Be honest about what you remember and be clear about what you don’t.

5. Consider a Plea Bargain

Unless you’re found not guilty or the case is dismissed, a Massachusetts DUI first offense has the potential to result in harsh consequences. Jail time is included in the state’s standard penalties for a conviction, although there’s no mandatory minimum for first offenders. In general, the law sets the following guidelines for sentencing:

Up to 2.5 years in jail
$500 to $5000 in fines and other costs
Suspension of your driver’s license for 1 year
DUI on both your driving record and criminal record (as a misdemeanor)

In practice, however, jail time for a first DUI offense in Massachusetts is relatively rare. Most drivers are ultimately sentenced under a more lenient “alternative disposition” reserved for a Massachusetts DUI first offense. A plea bargain is a common way to achieve these lesser consequences.

Alternative Dispositions, CWOFs, and the 24D Program

If eligible for an alternative disposition—and most first offenders are—you’d first need to “admit to sufficient facts,” and then enter a 24D first offender’s program (including enrollment in an alcohol education course). In return, you wouldn’t be convicted or sentenced to jail time unless you violate the terms of the program and the probation period. There would still be legal penalties, including:

1 year of probation
45-90 day license suspension
A 16-week alcohol education program
A first DUI offense on your permanent RMV driving record
Random alcohol testing (dependent on your age and BAC level)
Fines and fees (usually averaging around ~ $1,380)

First offenders can often avoid conviction by admitting that the court has sufficient facts to establish a verdict of guilty (without actually admitting guilt) and accepting these penalties along with a Continuance Without a Finding (commonly called a CWOF). The case would be “continued” during the probation period, then dismissed once probation ends and all terms have been satisfied.

This isn’t a perfect solution for everyone, though. The best-case scenario is to win in court and suffer no court-imposed consequences as a result of the criminal case. Plea bargaining for a CWOF and alternative disposition can help you avoid jail time and a conviction on your criminal record. However, it will still count as a prior offense on your driving record, and the terms of the 24D program can still be a significant interruption of your life.

6. Challenge the Evidence

Even if you don’t opt to accept a plea deal, including a CWOF and alternative disposition, there’s no real advantage to pleading guilty. First offenders are often able to earn the same alternative penalties even if they are found to be guilty by the court. In other words, it’s generally in your best interest to fight the case. This means challenging the evidence against you.

Your attorney will start by examining the facts of the case for any possibility that the state’s evidence—or the process used to attain it—may have been illegal, inaccurate, irrelevant, uncertain, mishandled, influenced by other variables, or even inadmissible in court. Here are some of the most common and successful areas of defense against a Massachusetts DUI first offense:

The Traffic Stop

The police can’t pull you over without a legitimate reason. Unless there is a civil motor vehicle infraction, officers are required to have reasonable suspicion to believe that you have committed, are committing, or are about to commit a crime. Signs of intoxication that might arouse suspicion could include:

Speeding, rapid braking, or very slow driving
Driving at night with the headlights off
Ignoring traffic signals (or delayed response)
Swerving or floating across lanes of traffic
Tailgating

All of these actions are not only possible signs of intoxication but dangerous in their own right. Even if the police stop you for a violation unrelated to DUI—such as a broken tail light—the office may determine that your behavior or other signs (the smell of alcohol) are signals of potential intoxication.

If a defense attorney can establish that there was no reasonable suspicion or “specific and articulable” facts to merit the stop, then the traffic stop would become unlawful. Watching you drive away from a bar at night (or just “having a hunch”) is not legally sufficient evidence to establish reasonable suspicion. The Fourth Amendment protects you from unlawful stops and seizures.

If the traffic stop is found to be illegal, any evidence obtained through the stop will become inadmissible in court.

The Breathalyzer Test

Breathalyzers are imperfect. They can be maintained poorly, operated improperly, or influenced by other factors like mouthwash, burps, the margin of error, physical conditions, or the presence of mouth alcohol. If your attorney can establish that other factors inflated or skewed the readings, the results could be thrown out.

Police are also required to observe you for 15 minutes before administering a breath test. Law enforcement may claim this procedure was followed, but other evidence may prove that it was not. Improper testing procedure can also make failed test results inadmissible as evidence.

Recent legal proceedings around the Draeger Alcotest 9510 (the device used by MA police) may also invalidate the test if you are one of the 27,000 people convicted of drunken driving between June 2011 and April 2019. The state has recently given everyone in this category notice that they may be “entitled to have those convictions vacated as a result of improperly calibrated breath test machines — and efforts by now-former state officials to hide the true scope of the problem.”

Other Factors

Skilled attorneys will cast a wide net. There are many other effective avenues of defense against a Massachusetts DUI first offense, such as:

Lack of probable cause for the arrest
Improper or unlawful interrogation (you must be read your rights when taken into custody)
Questionable authenticity of evidence
Scientific proof or precedent that shows field sobriety tests to be unreliable
Improper handling of evidence
Inconsistencies between elements of evidence
Hearsay or irrelevant character evidence
Mishandling or improper storage of collected evidence

All of these are potential angles for a defense to have a DUI/OUI dismissed in court—or at least to weaken the charges against you or build reasonable doubt that you were DUI in the first place.

7. Don’t Give Up

Experienced DUI/OUI lawyers have many ways to defend you from a Massachusetts DUI first offense. There are, truth be told, more than we can list here. For example, some drivers may have underlying health conditions that impact their performance on BAC or sobriety tests when they’re actually safe to drive.

If you’ve been arrested for a Massachusetts DUI first offense, reach out to a reputable law office immediately to have an attorney review the details of your case. A local specialist will be best equipped to navigate the relevant precedents and evolving legal regulations around DUI/OUI in your area. For example, if you were arrested in the Norfolk Country of Massachusetts, you’ll want a DUI/OUI lawyer with direct experience on a series of cases in Norfolk County Court.

An arrest for DUI/OUI is frightening, but don’t give up. And don’t wait, either—get in touch today! We’re here to help.

How to Defend Against a Massachusetts DUI First Offense