Mike Bowser of Bowser Law discusses the first offense DUI penalties in Massachusetts and New Hampshire. He describes the major differences between the states’ enforcement and how arraignment works in DUI cases in both MA & NH.

John Maher: Hi, I’m John Maher. I’m here today with Mike Bowser, a board certified DUI defense lawyer, practicing in Massachusetts and New Hampshire. Today we are talking about first offense DUI penalties in Massachusetts and New Hampshire. Welcome, Mike.

Mike Bowser: Nice to see you.

John: Mike, what are the penalties for a first offense OUI in Massachusetts?

Mike: Typically in Massachusetts, it’s—no, I shouldn’t say typically, the routine penalty that is imposed on any first offender in Massachusetts for an OUI–which is Operating Under the Influence–is an assignment to what’s called the 24D program under Massachusetts’ General Laws chapter 90 section 24D: a first offender is allowed to receive from the court a disposition that includes a loss of license of either 45, 60, or 90 days that includes one year of supervised probation.

They need to pay statutory fees and fines. The fines and fees are about $600. There’s a $65 a month probation/supervision fee. They have to pay for the program itself. All of that adds up to about $2000. The most common disposition on an OUI if it is plead out–meaning the person has admitted to the facts and the evidence–the court will generally continue the matter without a finding of guilt entering. And the importance of that is the continuance without a finding which is typically referred to as a CWOF, C-W-O-F, is not a criminal conviction under Massachusetts law.

However, it does count as your first offense for the rest of your life because the drunk driving law in Massachusetts referred to as Melanie’s Law has a lifetime look back component; meaning if you receive a guilty finding any time in your life it’s counted forever or if you’ve ever been assigned to an alcohol education program by a court, that counts as your first offense. So although the CWOF isn’t a conviction because there’s no guilty finding entered, you do receive the assignment to the alcohol program, so it does count for the rest of your life as a first offense. That’s the typical sentence that’s imposed.

If you go to trial, and there’s a verdict returned of guilty, it cannot be continued without a finding as that finding has been made, but the sentence that is imposed is identical: 45-day loss of license, one-year probation. You pay the same fees and fines, and you have the ability to get a hardship license as well.

John: Did you say that there were different possible amounts of time that you can lose your license for? How does that got determined?

Mike: The 45, 60, or 90. You almost always see the minimum penalty of a 45 day loss license. Now that’s the court imposed loss of license on the OUI charge. You could also have a 180 day loss of license if you had refused the breath test at the time of the arrest–that’s an administrative suspension through the Registry of Motor Vehicles–or you could have a 30 day loss of license from the registry of motor vehicles if you took a test at the time of the arrest and you were over the legal limit of a .08. But the 45, 60, 90, those are periods of time that can be imposed by the court.

Sometimes if the facts of the case are worse than better–if there’s an accident, if the behavior of the driver was egregious or outrageous–the court may seek to impose a longer period of suspension. So they might give you 60 or 90 as opposed to 45. And the CWOF is not automatic, it happens routinely but the court does not have to grant you the Continuance without a Finding. If the facts of the case are egregious, really bad driving, there’s an accident, horrible behavior, or if you have a prior record or a very bad driving history the court may not be inclined to give you the Continuance without a Finding.

John: Okay. How does that differ from Massachusetts? What are the penalties for a first offense DWI in New Hampshire?

Mike: In New Hampshire, and they refer to the offense as Driving While Intoxicated because that’s what the statute says as opposed to Massachusetts [where] the statute says Operating Under the Influence. In New Hampshire, DWI is a Class B misdemeanor. It’s a misdemeanor in Massachusetts and it carries up to two and a half years in jail as a maximum penalty in Mass. You’re entitled to a jury trial in Massachusetts. In New Hampshire, a DWI is a Class B misdemeanor. A B misdemeanor is criminal offense but carries no jail, so there’s no potential for incarceration. Therefore you’re not entitled to an attorney, they will not appoint one for you, you cannot have a jury trial and every first offense DWI charge in New Hampshire goes before a single judge in what’s called the bench trial for purposes of the trial.

The penalty that is imposed in New Hampshire can be up to a two-year loss of license but what you typically see as a mandatory minimum penalty is a nine-month loss of license or privilege. From the court, they order that you do an alcohol education as well program. They call it the Impaired Driver Care Management plan, and if you do everything that you supposed to do in terms of the program, the court will take the nine-month loss of privilege or license and reduce it to a period of three months. And what’s new in New Hampshire this past year is they’ve also for the first time created the ability to get a limited license on a first offense.

That limited license though, if you do obtain it, is for purposes of work, medical treatment, but it does require an ignition interlock device. Massachusetts, you can get a hardship license on a first offense OUI without an interlock but New Hampshire now requires that interlock on a first offense with the limited license.

John: That limited license again it just allows you to drive your car with the interlock device for certain activities that you’re doing: going to work, going to school, things like that?

Mike: Exactly. The New Hampshire is limited to education, medical, employment, or counseling and treatment.

John: Okay. Did you say that the– as a first offense you’re not entitled to an attorney at that trial or not? It’s not even a trial, you’re going before the judge?

Mike: In New Hampshire, if you’re before the district court in New Hampshire, the court will not appoint a lawyer for you. Even if your indigent and you can’t afford a lawyer, they’re not going to appoint one for you because the condition precedent to getting an attorney appointed in New Hampshire is whether you face incarceration. If they can’t put you in jail, you’re not entitled to an attorney, so if you’re going to defend a DWI in New Hampshire you absolutely have to go out and find your own attorney–

John: So you can hire an attorney, you just aren’t going to be automatically appointed one?

Mike: Exactly.

John: Right. Okay, so when should a person who has been arrested for the first time for a DUI call an attorney?

Mike: Well, what’s interesting in Massachusetts, if you’re arrested for an OUI offense, you’re brought to a barracks or police station. A bail commissioner will come in, meet with you, release you typically on personal recognizance–meaning you pay a $40 fee to the bail commissioner–and they instruct you to go to court the next day. You’re released on your promise to appear, and most people have to be at their arraignment the next day if it’s a business day in Massachusetts.

New Hampshire, they typically release you in a similar fashion through a bail commissioner, and they usually give you a couple of weeks before you have to appear for your arraignment. And what people tend to do which is disturbing to me is they immediately look for an attorney and they feel that they have to have somebody at the arraignment.

Literally, the arraignment is a very procedural administrative type of thing. You go in, you check into the probation department of Massachusetts and you go before the arraignment session, and the court will literally say to you, “Commonwealth versus Maher. Mr. Maher we’re entering a not guilty plea on your behalf. Please come back here with the attorney of your choosing if you’re going to hire one,” or they will appoint you a lawyer, but almost nothing happens at the arraignment. You don’t need to rush to find a lawyer necessarily for the arraignment.

In fact, I wish people would take more time and be more selective in who they’re hiring because the arraignment is not a critically important date for purposes of the OUI in Massachusetts. In New Hampshire, you have a couple weeks typically and people are almost always calling within a day or two of their arrest and more often than not, I’m able to get in. I’ll have them come in and meet with me before that scheduled arraignment date. It’s very difficult in Massachusetts to find a lawyer before your arraignment the next morning but at the same time, it’s not critically important on a typical first offense that you actually have an attorney for the arraignment.

John: You tend not to, even in New Hampshire, do you tend not to go to those arraignments?

Mike: In New Hampshire, I’m almost always retained prior to the arraignment. We end up waiving it. Literally, I file an appearance on behalf of the driver and I tell the court to enter a not guilty plea on their behalf which saves them a trip to court just to do that to enter a not guilty plea and then I don’t have to appear either.

Massachusetts, people are…as I said it’s usually the next business day that you’re facing an arraignment in Massachusetts, so it’s difficult to get a lawyer in place. It’s not critically important that you have a lawyer necessarily for your first offense OUI arraignment.

John: All right, and you said in Massachusetts because it’s typically the next morning, people have the tendency to maybe jump at the first lawyer that they can get and that lawyer may not have the right type of experience to handle that case?

Mike: Or they’re frantically searching for a lawyer for purposes of the arraignment and it’s two o’clock in the morning, they’ve just been released from custody, they have to be in court at nine o’clock that same morning, so it’s…it is very difficult that– find somebody and again, at an arraignment in Massachusetts if it’s a first offense without any real aggravating factors, they’re going to be processed through the probation department, put before the court and the court will automatically enter a not guilty plea on their behalf. They won’t be asked to say anything or do anything other than return for the next date which is the pre-trial in the Massachusetts district court.

John: Okay, all right. That’s great information, Mike. Thanks again for speaking with me today.

Mike: Very well.

John: For more information about Mike Bowser visit bowserlaw.com or call 888-526-9737.