Can You Get an OUI Even If You Weren’t Arrested?

In Massachusetts, the police are not required to arrest you in order for you to face the criminal offense of OUI. Although most OUI offenses result in an arrest, a police officer may instead issue you a citation. Generally, a citation is issued in lieu of arrest if you are involved in an accident or you are taken to the hospital.

There are very important distinctions between being placed under arrest and receiving a citation. If you are arrested, you have been charged with a crime based upon a probable cause determination made by a police officer. Probable cause exists where the facts and circumstances within the officer’s knowledge would lead a reasonable person to believe that you committed the offense. Commonwealth v. Jewett, 471 Mass. 624 (2015). This must be more than a mere hunch; rather, the officer must have objective evidence that indicates your responsibility for the offense. It does not, however, need to be enough to prove guilt beyond a reasonable doubt. In order for the officer to place you under arrest, they must allege that they have probable cause to do so, thereby charging you with a crime.

However, if you receive a citation for OUI, you are not yet charged with any criminal offense. The issuance of a citation does not require the officer to make any allegations of probable cause at the time of the incident. The citation is issued to provide you with notice that you may potentially be charged with a crime, and that the officer will be petitioning the court to criminally charge you through an application for a criminal complaint. Because the officer has not formally alleged probable cause to charge you when the citation was issued, you have a special right to a hearing before any criminal charges are issued against you by the court.

If you choose not to exercise your right to a hearing, you will receive a summons in the mail to appear in court for an arraignment. At the arraignment, you will be formally charged with OUI. If you fail to appear at the arraignment, a warrant may issue against you. As such, it is critical for anyone who thinks they may be subject to a charge to be mindful of checking their mail for a citation or summons and maintain good records. One can be charged with a crime anytime within the statute of limitations, which is generally six years for an OUI offense.

Citation Requirements

The law places stringent requirements on the issuance of a citation in order to protect your rights, and the failure on the part of law enforcement to abide by the requirements may lead to the dismissal of an OUI charge. The issuance of citations in Massachusetts is governed by G.L. c. 90C, § 2, commonly referred to as the “no fix” law. The “no fix” law requires a police officer who has allegedly observed an automobile law violation to issue a citation “at the time and place of the violation.” The statute states that failure to issue a citation is a defense against a criminal offense. Law enforcement must notify you if they are only issuing a written warning or if they are seeking to criminally charge you.

There are many different issues that may lead to a violation of your rights under this area of the law, such as receiving a citation weeks, days or even hours after the event. If you do not have proper notice of potential criminal charges, you lose your opportunity to obtain evidence of your innocence. Time is of the essence in operating under the influence cases because alcohol dissipates from your body, and it is imperative that you have an opportunity to obtain evidence of your blood alcohol level (BAC) before it is eliminated from your body. It is crucial that you have an experienced attorney examine your case to ensure that the police acted lawfully when citing you for OUI.


The Massachusetts DUI lawyers at The Law Offices of Joseph D. Bernard P.C. are experienced in ensuring law enforcement complies with the law regarding citations. If law enforcement failed to properly issue you a citation for OUI or your constitutional due process rights were violated, your OUI charge could be dismissed. It is imperative that you have a lawyer that is knowledgeable in this area of the law. Hire a firm that provides a strong defense from the very start by holding law enforcement accountable.

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