Massachusetts DUI Attorney Blog

A Weymouth, Massachusetts man, Omar Hernandez faces a second offense Massachusetts OUI charge as a result of his arrest over the weekend. According to news accounts, Hernandez led the police on a high speed chase, resisted arrest, stopped in the middle of the road and tossed his keys out of the car.

News accounts indicate that Hernandez was previously admitted to sufficient facts regarding an OUI charge in 2006 and received a continuance without a finding, referred to as a CWOF in court.

While technically a CWOF is not considered a conviction, for license suspension purposes and counting prior OUI offenses, the CWOF counts as a prior offense, meaning that Hernandez will face a second offense DUI.

If a motorist pleas guilty to a second offense DUI, most courts will impose what is referred to as an alternative disposition where the motorist receives a suspended jail sentence with the requirement of completing a 14 day in-patient program. However, the registry will revoke a motorist's license for two years and require the installation of the ignition interlock prior to reinstatement of a any driving privileges.

It appears as through Hernandez also refused a breathalyzer test which would result in a three year license suspension by the Massachusetts Registry of Motor Vehicles. A motorist who refuses a breathalyzer only has 15 days, including, weekends and holidays to appeal to the Registry in Boston to request a hearing challenging the refusal suspension.

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In Massachusetts, if you refuse the breathalyzer, it is important to contact a DUI lawyer immediately because there is a strictly enforced 15 day period in which the Registry of Motor Vehicles will allow you to challenge any license suspension for breathalyzer refusal. The 15 day period includes weekends and holidays. All motorists challenging any breathalyzer refusal suspension must go to the Registry of Motor Vehicles in Boston to request a hearing, regardless of location of the offense within the Commonwealth.

Breathalyzer refusal suspensions can be quite substantial depending on the age of the motorist, if under 21 there is a three year license loss, and the number of prior OUI convictions. In some refusal cases, the motorist attempted to take the breathalyzer but was unable to give a sufficient sample. This could be caused by a number of reasons, including error by the breathalyzer operator, flaws with the breathalyzer machine or medical issues that preclude a motorist from giving a sufficient sample. Typically, a police officer will deem a motorist to have refused in these situations where the motorist made a good faith attempt to take the breathalyzer.

While a refusal suspension can be challenged on a number of grounds, a case involving a motorist attempting to take a breathalyzer and being unable to deliver a sufficient sample, should be contested by the motorist at the Registry and the district court on appeal. These cases are referred to as constructive refusals and there are court decision that may support a claim that the officer was incorrect in deeming the failure to provide a breathalyzer sample as a refusal to justify a license suspension.

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