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Operating Under the Influence of Alcohol

Operating Under the Influence of Alcohol / Driving While Intoxicated

Drunk driving is considered a serious offense in all states.  It can result in license suspension, fines, and even incarceration.

I’ve been defending clients charged with criminal offense, including drunk driving, since 2002.  I take cases seriously, and do not “roll over” to the prosecution.

If you retain me, I will thoroughly investigate your case.  In some situations, illegal traffic stops may have been made or improper sobriety tests administered.  In these cases, where the sole evidence is not admissible, prosecutors must dismiss the case.

You deserve a vigorous defense. I will challenge the prosecution’s theory of the case and evidence at every stage.  I will work with you to ensure that you fully understand the strategies and options available, and will work tenaciously on your behalf.

I regularly represent individuals charged with operating or driving under the influence in Massachusetts and Southern New Hampshire, including Lowell, Tewksbury, Wilmington, Andover, Ayer, Concord, Marlborough, Lawrence, Woburn, Boston, and Salem, New Hampshire.

What Constitutes Operating a Vehicle While Under the Influence in Massachusetts?

The crime of operating a vehicle while under the influence consists of operating a vehicle under one or more of the following substances:

  • Alcohol
  • Marijuana
  • Narcotic drugs
  • Depressants
  • Stimulants
  • Glue vapors

When does it become crime?

Generally speaking, three elements have to be proven for one to be convicted of OUI/DUI/DWI:

  1. A person was operating a motor vehicle;
  2. The motor vehicle was being operated on a public way; and
  3. The person was under the influence of alcohol.

The key to this crime is showing that the driver’s mental state was impaired enough to diminish the driver’s capacity to drive safely and effectively. If the government is missing any of these elements (operation, public way, impaired driving), the government’s case must fail. There is no defense for a sudden emergency; citizens are never allowed to operate while under the influence.

What does it mean to “operate a vehicle”?

Operating a vehicle, under this law, is not limited solely to driving a vehicle. A person can be considered to be operating vehicle even if the engine is not running.

What does it mean to operate on a public way?

A public way is generally a road or an area open to the public. The State typically can prove public way by introducing testimony that the State or Municipality maintains the road for use by the public. Public way has also been interpreted to include private parking lots for businesses that are open to the public.

What does under the influence mean?

To be under the influence does not mean that you must be drunk or passed out. A person only needs to have consumed enough of a substance to affect his/her ability to operate a vehicle safely.

There are two ways for the State to prove that a person is under the influence:

  1. Per Se: The laws state that a person is per se under the influence if a blood or breathalyzer test reveal that a person’s blood alcohol level is .08 or greater. In essence, a jury is instructed that a finding of .08 or greater satisfies the element of being under the influence.
  1. Impaired: If no breath or blood test result is admissible or available, the State must introduce evidence that shows an individual’s ability to operate a motor vehicle was impaired by the consumption of alcohol or use of drugs.

What is the punishment for OUI?

The text below is meant only as a guideline to punishments in Massachusetts and New Hampshire for an OUI conviction.  There are  often other factors present that could dramatically change the punishments below. As with the other information on presented in this website, this information should not be relied upon as legal advice, or the determinative outcome for your case.


In Massachusetts, punishments depend on the results of breathalyzer tests (or refusal to submit to a test) and the number of prior OUI/DWI convictions.

First Time Offenders

A first time offender can face up to:

  • 30 months in jail,
  • fines of $500-$5,000,
  • a fine of $50 that will be donated to the DUI Victim Trust Fund,
  • license suspension for up to 1 year, and/or
  • a court assigned treatment program.

As a first time offender, an individual is eligible to accept responsibility for the case and take a plea bargain under Massachusetts General Laws c. 90 Section 24(D). This law allows an individual to receive:

  • a continuance without a finding,
  • a one-year probation,
  • a forty five day loss of license,
  • enrollment in the 24(D) program,
  • miscellaneous fines and fees, and
  • typically, the one half day brains at risk program.

If an individual accepts a plea pursuant to M.G.L. c. 90 Sec. 24(D), an individual is eligible to apply for their hardship license (often times referred to as a Cinderella license).

Second Offenses

A second offense can result in:

  • a minimum 60 day jail sentence, which can extend up to 30 months,
  • a two week inpatient DPH alcohol program, fines of $600-$10,000,
  • a two year license suspension (which will only allow for a hardship license after 1 year of the suspension has been served), and
  • an installation of an ignition interlock device in the person’s motor vehicle.

If the arrest for this “second offense” is more than ten (10) years after the conviction for an individual’s first offense, an individual is eligible for an alternate first offender disposition as listed above, with a short loss of license (but the requirement to obtain an ignition interlock device for at least two years remains).

Third Offenses

Three convictions will mandate six months in jail (with a minimum of one hundred fifty days of jail to serve) up to a sentence of two and one half years (or up to five years if indicted). Additionally, the potential fines range from $1,000-$15,0000.

License suspension is extended for 8 years, with a hardship license available after two years for work and education, and a “general” hardship license available after four years. The ignition interlock device will also be required.

Fourth Offenses

A fourth offense has severe penalties. There is a minimum mandatory two years in jail (one year to serve) which can be extended up to five years if an individual is indicted. Fines range from $1,500 up to $25,000. License suspension is for 10 years with a hardship license available after 5 years for work and education, and a “general hardship” license available after eight years. On top of all that, an ignition interlock device will still be required in your motor vehicle.

Fifth Conviction

Five convictions result in a lifetime license revocation, a minimum jail sentence of two and one half years (which can go up to 5 years), and fines of $2,000 to $50,0000.

New Hampshire

Penalties for driving while intoxicated in New Hampshire are governed by RSA 265-A:18. Like Massachusetts, the penalties are more severe depending on the previous number of OUIs/DWIs for which an individual has previously received punishment.

First Offense

For a first offense, a person can receive a fine and lose his/her license for a period of time ranging from nine (9) months to two (2) years. A first offender disposition also requires the completion of the Impaired Driver Care Management Program (IDCMP) alcohol and drug abuse screening within fourteen (14) days with a full substance use disorder evaluation within thirty (30) days of conviction if necessary or determined by initial screening. Six months of this license loss can be suspended if the required program is completed within thirty (30) days.

Second Offense

For a second offense within two (2) years, a person can receive:

  • a fine,
  • three (3) year loss of license, and
  • a minimum sixty (60) days incarceration, with thirty (30) days suspended if evaluation is scheduled within thirty (30) days of release and completed within sixty (60) days of release.

For a Second Offense within Two (2) to Ten (10) years, a person can receive:

  • a fine, with a minimum seventeen (17) days sentence (with a mandatory five (5) days to serve and the remainder suspended if IDCMP is scheduled within thirty (30) days of release and completed within sixty (60) days of release), and
  • a minimum three (3) year loss of license.

Third Offense

For a Third Offense, a person can receive:

  • a fine,
  • a minimum one hundred eighty (180) days in the county facility (with one hundred fifty (150) days suspended if IDCMP evaluation scheduled within thirty (30) days of and completed within sixty (60) days of release), and
  • a minimum five (5) year loss of license.

Fourth Offense

For a Fourth Offense, a person can receive:

  • a fine,
  • imprisonment as mentioned above, and
  • an indefinite loss of license with the ability to apply for a license after seven (7) years of suspension.

Get Legal Help

If you have been charged with driving under the influence for the first time or a subsequent time you could face costly and life altering penalties. Don’t go it alone.

Please call me at (978) 851-5145 as soon as possible for a free consultation, and to learn about how I can help.

More Information About My OUI/DUI/DWI Practice

I would invite you to call me at (978) 851-5145 or fill out the contact form below to schedule a meeting at your convenience.

What Clients Are Saying About Paul King

“I was caught on Lidar traveling 83 mph in a 55 mph zone in Lowell, but against all odds, I won my appeal in traffic court, all thanks to Mr. King.

I called various law practices in search for the right lawyer. Some other lawyers I called made brief mention of how tricky my case would be, but then repeatedly emphasized their high overall success rate in traffic court instead of discussing my specific case, and I got the feeling I was speaking to a salesperson rather than someone who would have my best interests in mind.

Instead, on our initial phone call, Mr. King listened carefully to the details of the case. I knew I could trust him when, instead of trying to push me into paying for his services, he candidly discussed how he would be able to help and the different reasons why the case would be quite difficult to win, with or without his help.

Mr. King had me meet with him in person so we could discuss in greater detail my side of the story and what he would be able to do to help. He was as honest as possible in helping me understand what the cost of his services were, and what the benefits of his representation would be, so that I could then decide if it would be worth it. He was clear that I didn’t have much of a legal argument at my disposal, and the best I could hope for was the clerk’s sympathy and leniency given my otherwise clean driving record. Given that he teaches several courses at UMass Lowell Law School and that Lowell is his home court, Mr. King was also able to explain in detail the inner workings of the Lowell district traffic court and his track record with similar cases. All this information and advice was shared before the signing of any contracts or checks, which further convinced me that Mr. King truly had my best interests in mind and was not just trying to sell his services no matter what.

I was deeply impressed by Mr. King’s honesty, professionalism, expertise, and clear communication, so I decided to go ahead and enlist his help. I couldn’t be happier that I did, and I think the outcome of the case speaks for itself!”

Google Review 5 Stars – M.T.