Prior OUI Offenses & Lifetime Lookback
Defending Against a Subsequent OUI Offense
If you were arrested for OUI and it is not your first offense, you are likely concerned about how your current charges may be affected by a prior OUI offense. Each state has different laws about a “lookback period,” or how long a prior OUI conviction may be used to enhance the potential penalties for a new OUI charge. Massachusetts has a lifetime lookback period, which permits a prosecutor and the Registry of Motor Vehicles (RMV) to consider all prior OUI convictions when determining the penalties to assess against you.
Even if you have a prior OUI conviction, it does not automatically mean that it can be used against you in your new OUI case. Both a prosecutor and the RMV are required to meet certain statutory hurdles before the prior conviction can be used to treat you as a subsequent offender. Moreover, there may have been serious legal issues with the conviction itself that may permit you to petition the court to vacate the conviction. Many prior OUI convictions involving problematic breath test results, for example, have been successfully vacated by our firm, resulting in a significant decrease in the penalties our clients have faced in their new OUI case. Each prior OUI conviction is unique, and it is imperative that you hire an attorney who will investigate these prior convictions for all possible avenues of defense.
The Lifetime Lookback in OUI Cases
Melanie’s Law & OUI Penalties
In 2005, Melanie’s Law was enacted in Massachusetts which enhanced the penalties and RMV consequences for OUI offenders, especially those with second or subsequent offenses. Commonwealth v. Malone, 447 Mass. 577 (2006). This law established the lifetime look-back for OUI offenses which permits increased penalties to be imposed against you depending on evidence of a prior OUI conviction.
If a prosecutor is able to prove that you were previously convicted of OUI, you may be treated as a subsequent offender. For this to happen, the prosecutor must introduce evidence of your prior conviction(s) as well as enough biographical or identifying information to properly identify you as the person who received the prior conviction. G.L. c. 90 § 24(4). You are entitled to constitutional protections, however, that limit the type of evidence that the prosecutor can use against you to prove your prior conviction.
Most often, the prosecution will attempt to use some sort of documentation as evidence of your prior conviction(s). But not all documents are created equal. Some are admissible in court while others can be challenged based on your right to confront witnesses against you. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). For example, certified court records of conviction, such as the docket, are generally admissible as business records. G.L. 233 § 78, G.L. c. 233 § 79J. These types of court records are considered business records because they are maintained in the regular course of business and not simply for the purpose of prosecuting you in court. RMV records may also be admissible as business records for similar reasons, as the RMV regularly maintains your driving record. Commonwealth v. Ellis, 79 Mass. App. Ct. 330, 335 (2011).
However, there are still challenges to these and the other types of evidence the prosecution may attempt to use to prove your prior conviction. For example, a prior OUI conviction may have happened a long time ago, and court records may no longer exist as proof of the conviction. If your prior OUI conviction occurred in a state other than Massachusetts, it may be difficult for a prosecutor to even obtain the out of state court records as proof. Without proper records, it will be very difficult for a prosecutor to meet their burden under the law. Our attorneys have successfully used this lack of evidence to the advantage of our client, forcing a prosecutor to significantly minimize the penalties you may be facing as a multiple OUI offender.
Facing an OUI charge, however, does not mean you are guilty of OUI. There are many ways to not only challenge the evidence that may be presented against you, such as a breath test or a blood test, but to challenge your OUI charge all together. If you have a strong case, it is possible to have your case dismissed after your lawyer negotiates with a prosecutor, or by having your lawyer argue a motion in court. Even if a prosecutor is not willing to negotiate, it is possible to take your case to trial and obtain a not guilty verdict. In the event of a dismissal or not guilty verdict, the OUI charge cannot be used against you in the future.
Additionally, if you have a single prior OUI conviction that is over ten years old, it may be possible to be treated as a first offender even though you have a prior conviction. G.L. c. 90 § 24D provides for the possibility for an alternative disposition for individuals facing an OUI charge who have a single prior OUI conviction that is over ten years old. This alternative disposition allows for you to be treated as a first offender, giving you a “second bite at the apple.” This would mean that rather than face the second offender two week inpatient treatment program and a 2 year loss of license, you would be required to undergo the first offender Driver Alcohol Education Program and lose your license for a period of 45 days. Our office examines each case and each prior conviction in detail to determine if you are eligible for this very favorable alternative disposition.
Fighting Prior Convictions
Sometimes the most effective defense is to challenge your prior OUI conviction in order to minimize the penalties that you are currently facing in court and at the RMV. There are various different legal reasons that your prior conviction may be challenged, such as ineffective assistance of counsel, the entry of an illegal sentence, or newly discovered evidence.
Our firm is at the forefront of challenging convictions based on newly discovered evidence about problematic breath test results. In Commonwealth v. Ananias, Attorney Bernard challenged the scientific reliability of the Draeger 9510 breathalyzer in a statewide consolidated litigation. After an extensive Daubert-Lanigan hearing on the scientific reliability of the breathalyzer, the Court found that the Office of Alcohol Testing (OAT) failed to follow any standardized written protocol to calibrate the breathalyzers, and without a standardized protocol, there was no way to know that each chemist was calibrating the breathalyzers properly. It wasn’t until September 14, 2014 that OAT actually adopted a written calibration protocol. Because OAT failed to assure the scientific reliability of breathalyzers before this date, the Court allowed the consolidated defendants’ motion to exclude breath test results from any Draeger 9510 breathalyzer that was calibrated from June 2011 through September 14, 2014. Because these breath test results were not scientifically reliable, they should not have been used as evidence to prosecute OUI cases. If you were prosecuted with a breath test during this time, you may be eligible to vacate your prior conviction.
Moreover, during the course of this statewide litigation, it was discovered that the OAT intentionally withheld exculpatory documents from the consolidated defendants showing that the calibration of a number of the breathalyzers had failed. This serious misconduct was investigated by the Executive Office of Public Safety and Security, and ultimately the Technical Leader for OAT was terminated. The Court also imposed sanctions against OAT, ultimately excluding breath test results obtained on Draeger 9510 machines calibrated between June 2011 through April 17, 2019. This means that these breath test results are now considered unreliable and should never have been used as evidence to prosecute OUI cases. If your prior conviction was based on a breath test result from a breathalyzer that was calibrated during this time period, you may be eligible to vacate your prior conviction.
In addition to problematic breath test results, there are other potential reasons to vacate a plea. The OUI attorneys at the Law Offices of Joseph D. Bernard will thoroughly examine your prior convictions to see what other challenges may exist. For instance, there may have been potentially helpful evidence that was never turned over by the prosecution, such as a booking video. The video could show you steady with coherent speech, which could counter any claims by police that you were stumbling or slurring your words. This could be considered newly discovered evidence and earn you a new trial. Alternatively, there may have been evidence that should have been suppressed in your case but was not, such as statements you made to police. As much as we believe that attorneys zealously advocate for clients, attorneys are human and therefore not infallible. There are times where an attorney may miss a large piece of the puzzle, thereby depriving you of a valid defense or challenge in your case. This is called ineffective assistance of counsel, and if you experienced ineffective assistance in your case, it could potentially earn you a new trial. Such a claim is not entered into lightly, and you need an experienced attorney to assess any potential issues in your prior representation.
Due to the potentially serious consequences that result from the Massachusetts lifetime lookback law and other strict policies laid out in Melanie’s Law, it is important that you have effective representation to thoroughly examine your case, including your prior convictions in order to achieve the best outcome for your and minimize the impact on your life.
The RMV & the Lifetime Lookback
The lifetime lookback in Massachusetts not only impacts the criminal penalties for OUI, it also impacts the potential suspension of your license. Melanie’s Law has not only increased the length of license suspensions for subsequent offenses, it also requires that any subsequent OUI offender have an Ignition Interlock Device installed in their vehicle.
Before choosing to resolve your OUI case, it is imperative that you know how the RMV operates. Simply because an OUI offense may be reduced in court and the court imposes a reduced license suspension does not guarantee that the RMV will treat you the same way. The RMV is obligated by law to impose particular license suspensions based upon your driving record and prior OUI convictions. It is crucial that you hire an attorney with a deep understanding of the RMV to ensure that you are aware of all potential license consequences at the time of a plea.
What Qualifies as a “Prior Conviction” for the RMV?
The RMV will aggressively analyze your driving record for triggering offenses that may constitute a prior conviction. Prior to the enactment of Melanie’s Law, only a guilty plea or guilty verdict constituted a conviction that could be used in determining the length of a license suspension.Souza v. Registrar of Motor Vehicles, 462 Mass. 267 (2012). However, the legislature then amended the law to include admission to sufficient facts to support a finding of guilt. Callahan v. Board of Appeal on Motor Vehicle Liability and Bonds, 90 Mass. App. Ct. 196 n.5 (2016). Thus, now a conviction for RMV purposes can include a prior guilty verdict on an OUI charge, a continuation without a finding (CWOF), or assignment to a driver alcohol education program.
This law applies retroactively, meaning that any prior CWOF or admission to sufficient facts, no matter how long ago, is now considered a prior conviction, allowing the RMV to impose harsher penalties. The RMV will even count out of state OUI/DUI convictions or other dispositions that are substantially similar to the Massachusetts charge. However, issues frequently arise regarding erroneous entries on driving records, especially with incidents that occurred prior to electronic record keeping. Our attorneys will thoroughly examine your driving record to determine if you can challenge the triggering offense identified by the RMV to potentially minimize or eliminate the impact on your license.
Defending Against a Lengthy License Suspension
Generally the best way to defend against a potential license suspension is to vigorously defend your OUI charge. If you and your attorney are successful in dismissing the OUI charge prior to trial, or if you are found not guilty after trial, no new criminal OUI suspension can be imposed against you. It may also open the door for you to challenge a breath test refusal suspension.
If you are able to successfully vacate a prior OUI conviction in court, the RMV may be legally obligated to reduce or eliminate your license suspension. For example, if you are facing a second offense OUI and refused to submit to a breath test, the RMV will suspend your license for a period of 3 years without the possibility of a hardship license. But if you were able to successfully vacate your first offense OUI conviction, the RMV is required by law to reduce the three year license suspension for refusing the breath test from 3 years to 180 days. This is a drastic reduction in the license suspension period! Our firm has been at the forefront to pave the way for this path of defense at the RMV and the BOA. It has been extremely effective for our clients who wish to obtain their license or reduce their suspension.
Even beyond providing a fierce defense in the courtroom, there are other ways to challenge a license suspension through the RMV and the Board of Appeal (BOA). Although the RMV aggressively analyzes your driving history for prior OUI convictions, RMV records are not infallible and may be misinterpreted. All too often human error plays a role, particularly with respect to older OUI convictions recorded prior to the use of electronic court records.
With many old cases containing only handwritten records, it is not uncommon for a dismissed OUI charge that does not qualify as a conviction to have been recorded incorrectly as a conviction on a person’s driving record. If the RMV has improperly recorded a dismissed OUI charge as a qualifying conviction, the RMV will treat you as a subsequent offender and impose a more severe license suspension against you. Moreover, in some instances with older OUI convictions, documentation may simply no longer exist to prove that the offense occurred and that the disposition in fact qualifies as a prior conviction. Our firm has successfully researched and identified these problematic triggering events that were in fact not accurate, drastically reducing or eliminating suspension periods for our clients.
Appealing a License Suspension
If your license is suspended due to OUI, you can seek a hearing at the RMV to challenge the suspension and request that your license be reinstated. Hearings are held at certain RMV locations on a walk-in basis. If, after the hearing, you disagree with the RMV’s decision, you have the right to appeal that decision to the BOA. Our Massachusetts DUI attorneys have extensive experience representing and successfully advocating before the BOA to restore our clients’ licenses.
Lawyers Who Can Help Minimize the Impact of an OUI Charge
The Massachusetts DUI lawyers at The Law Offices of Joseph D. Bernard P.C. have an in-depth understanding of both the potential criminal penalties and potential license suspensions you may face as a result of a subsequent OUI offense. The specific facts and circumstances of your case as well as your criminal and driving history must be closely evaluated to determine the best course of action. If you are charged with a subsequent OUI offense, it is imperative that you have experienced lawyers working to minimize the impact of your charges on your life.
Contact The Law Offices of Joseph D. Bernard P.C. for a free case consultation!
Trained Breath Test Machine Operator
Attorney Joseph D. Bernard is the only lawyer in Massachusetts to have completed the breath test training conducted by the state police.
Certified Field Sobriety Test Administers
Our attorneys are certified administers of the field sobriety test by the National Highway Traffic Safety Administration.
Former Assistant District Attorney
We understand OUI cases from both sides of the fence and know exactly how to defend our clients.
Unique Certification & Expertise
Attorney Joseph Bernard is the only lawyer in Massachusetts to be certified by the internationally acclaimed Borkenstein drug and alcohol courses. Attorney Bernard is also the only lawyer in Massachusetts who is a member of the American Chemical Society.