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Does your record matter in a DUI case?

January 15, 2012

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No single factor determines the sentence imposed in a DUI matter more significantly than a driver’s prior record. Whether you are facing a drunk driving prosecution in Massachusetts or New Hampshire the sentencing Court will insist upon reviewing your prior criminal record, if any, your prior driver’s history, if any, and most importantly, your prior history for DUI convictions.

DUI, OUI, DWI, is all the same. The three (3) letter acronym typically used to describe a drunk driving offense in Massachusetts or New Hampshire is a simply a function of the statutory language that criminalizes the offense, whether it be “driving while intoxicated” (DWI) in New Hampshire, or “operating under the influence of liquor” (OUI) in Massachusetts.

Massachusetts now utilizes a “lifetime look back” period to determine penalties for a subsequent OUI offense. Gone is the ten (10) year look back period of decades past. If you plead out, or were found guilty of, any drunk driving offense, in any jurisdiction, at any period in your life, the Massachusetts Courts and the Massachusetts Registry of Motor Vehicles will treat you a second offender. The exception to this rule is the Cahill disposition. Once, and only once, can a repeat drunk driving offender in Massachusetts be given a second chance at a first offense sentence, only if there is a single prior drunk driving offense, and only if it is more than ten (10) years old. All other repeat offenders will be charged as second, third, or fourth offenders, etc… depending on their actual record of prior offenses. All subsequent offenses in Massachusetts (non-Cahill) carry mandatory periods of incarceration, probation, interlock device. A second offense is a Misdemeanor in Massachusetts, a third offense and higher is a Felony. A first offense in Massachusetts typically carries a minimum loss of license between 45-90 days, one (1) year probation, completion of the sixteen (16) week alcohol education class and statutory fees, assessments and fines that will top $2600. A second offense, whether treated as a Cahill disposition or not, will always trigger the requirement of an ignition interlock device for any period of suspension imposed by the Court and/or Registry of Motor Vehicles, plus two (2) years.

New Hampshire still utilizes a ten (10) year look back period to determine a second offense, which is a Misdemeanor. Ironically, New Hampshire does not recognize a Massachusetts OUI offense “continued without a finding C.W.O.F.” as a valid prior offense. Be advised, a New Hampshire prosecutor may offer you a first offense disposition on a NH DWI charge because your prior MA OUI was “continued without a finding”, but the Massachusetts RMV will always treat that offense administratively as a second, third or other subsequent offense based on your driver’s history. Many a Massachusetts resident have plead out a first offense NH DWI charge to minimum penalties only to be notified by the Massachusetts RMV that their Massachusetts license is administratively revoked for two (2) years 2nd lifetime offense, eight (8) years 3rd lifetime offense, ten (10) years 4th lifetime offense, or lifetime 5th lifetime offense. See State v. Sharkey, where a NH DWI conviction was overturned because local NH counsel did not properly advise a Massachusetts resident of the true collateral consequences of his plea to a first offense NH DWI under Melanie’s Law.

NH will impose an interlock device requirement for at least one (1) year for any second offense or aggravated DWI conviction. Jail time for any second or third offense is capped at one (1) year in the House of Corrections as a Class A Misdemeanor, but typical mandatory minimums imposed are three (3) days in House of Correction, followed by seven (7) days inpatient for a second offense, and 150 days in the House of Correction for a third offense. If a second offense in New Hampshire is within two (2) years of the first offense the mandatory minimum jumps to thirty (30) days in the House of Correction followed by the seven (7) day inpatient program.

A Court sentencing any driver in a DUI casein Massachusetts or New Hampshire will consider prior criminal record, conduct at the time of the offense, and whether any aggravating factors exist, be it property damage, accident, or injury to the driver or other innocent parties. A sentencing Court will always look favorably upon any driver/defendant that voluntarily engages in substance abuse treatment, whether it be AA, NA, or other appropriate counseling.

Michael Bowser is a Board Certified DUI Defense Specialist practicing in Massachusetts and New Hampshire. Protect your interests by hiring a qualified DUI Defense Lawyer that can not only defend the DUI charge, but properly advise you of the sentencing factors and true collateral consequences to any DUI, OUI, or DWI disposition.

23 years of Proven Personal Injury Results. www.bowserlaw.com

(888) 526-9737