Can You Be Arrested for Driving Under the Influence the Next Day?

Operating under the influence (OUI) is a criminal offense, and if a police officer’s suspicion that you operated a motor vehicle while impaired is supported by probable cause, you can technically be arrested anytime within the statute of limitations. The statute of limitations for most crimes in Massachusetts runs for six years. So long as no one was seriously injured, this is generally the statute of limitations in effect for most OUI offenses.

However, the reality is that it is extremely rare to be arrested hours after the fact. Moreover, if you have not been stopped by the police at the time of any alleged operation, it may be very difficult to prove OUI. Evidence to support the charge of OUI often comes from the police’s real time investigation, such as observations of your driving, your performance on field sobriety tests, or a breath or blood test result taken close in time. OUI cases are particularly sensitive to the passage of time because alcohol dissipates through your body and its effects wear off. Therefore, if you are approached by the police much later, there may be little to no evidence of the elements, or the components that make up the charge of OUI, giving you a very strong defense.

It is important to keep in mind that even if you have not been arrested for OUI, you may receive a criminal citation for OUI.The citation process has different requirements and a different process than the arrest process that you can read more about here.

Probable Cause to Arrest

In order for the police to place you under arrest, they must have probable cause to charge you with a crime. Probable cause to arrest "exists, where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense." Commonwealth v. Jewett, 471 Mass. 624 (2015). Probable cause is more than mere suspicion, and must be supported by factual evidence.

In order for you to be placed under arrest for OUI, the police must have factual evidence to support the elements, or components, of OUI. Evidence of the crime of OUI generally comes from police observations, such as observations of your driving, your behavior and statements made during your interaction with the police, your performance on field sobriety tests, or a breath or blood test result taken close in time.

Elements of OUI

In order to be arrested for OUI, a police officer must allege evidence for each element. An element is a component of a crime, and usually there are multiple elements or components that make up a crime. If a police officer fails to or is unable to provide evidence of any one of the elements or components, they will not be able to meet their burden of proof under the law which may result in the dismissal of the complete charge.

In Massachusetts, a police officer must allege that they have probablce cause to believe that each of the following three elements has been fulfilled in order to arrest you for OUIOUI under G.L. c. 90, § 24:

  • Operation of a motor vehicle
  • On a public way
  • While under the influence of intoxicating liquor or drugs

Even if the police have met the probable cause standard, you are presumed innocent until proven guilty by the prosecution beyond a reasonable doubt. The reasonable doubt standard is a very high burden -- the highest in the court system. The government must produce evidence at trial to prove each of these elements. If they are unable to do so, you cannot be convicted of OUI.

The facts of every case are unique, and they are critical when evaluating whether proof of each of these elements exists. In some instances, there is simply no evidence of an element, while in others there may be little evidence that still provides for a very strong defense. There are many potential challenges to such evidence and possible defenses to each element. An attorney with expertise in OUI defense and in-depth knowledge of the law will be able to best evaluate your case for all of your possible defenses.


The Massachusetts DUI lawyers at The Law Offices of Joseph D. Bernard P.C. have an in-depth understanding of the criminal OUI process and what it takes to successfully defend a delayed OUI arrest. The specific facts and circumstances of your case must be closely evaluated to determine the best course of action. If you are charged with an OUI, it is imperative that you have experienced lawyers working to prepare your best possible defense.

Contact The Law Offices of Joseph D. Bernard P.C. for a free case consultation!