Operating under the influence of alcohol is a crime that is taken seriously in Massachusetts. If you are convicted, the punishment will impact not only your freedom but also possibly your relationships with others and employment opportunities.
When children are in the car when an OUI takes place, the consequences of conviction become even more serious. This is so because children are more vulnerable to injury or death when an accident caused by unsafe driving occurs.
There is a law in Massachusetts that prevents endangering children while operating under the influence of alcohol. It can be found in Massachusetts General Laws Chapter 90, Section 24V. It is called Child Endangerment While Operating a Motor Vehicle Under the Influence. There are two ways a person can be convicted.
What is OUI-Child Endangerment?
OUI-Child Endangerment is a crime in Massachusetts that occurs when a person operating a motor vehicle under the influence of alcohol puts a child in danger of death or other injury. Like all crimes, to convict a person certain facts or elements must be proven by the government beyond a reasonable doubt. They are:
- The accused operated a motor vehicle
- The accused did so on a public way, in a place where the public has a right of access, or in a place where members of the public are given an invitation or license to be at
- Either:
- While the accused was operating the vehicle, they were under the influence of intoxicating liquor
- While the accused was operating the vehicle, the percentage of alcohol in their blood was .08% or greater
- While the accused was operating the vehicle, there was a child present in the vehicle who was 14 years old or younger
So, a person cannot be found guilty of OUI-Child Endangerment unless each of these elements are proven beyond a reasonable doubt. If the government cannot prove one or more of these facts to this high degree of certainty, the person on trial must be acquitted.
What is the difference between being “under the influence” and having a blood alcohol content of .08% or greater?
There are two ways or legal theories of proving a person guilty of OUI-Child Endangerment. One is called impairment theory. Impairment means that the person was under the influence of alcohol while operating the vehicle. The other theory is called per se theory. Per se operating under the influence of intoxicating liquor means that the person was driving with a blood alcohol content (BAC) of .08% or greater.
The government can go with either approach if there is supporting evidence. However, in both cases they will have to overcome certain obstacles.
For example, a person is not “under the influence of alcohol” simply because they had an alcoholic beverage before getting behind the wheel. A person is under the influence of alcohol only if they have consumed enough alcohol to reduce their ability to drive their vehicle safely. The state will have to present evidence not only that the accused consumed alcohol but that this impacted their ability to drive safely.
Similarly, to have a blood alcohol content of .08% or greater is a scientific determination. This means scientific evidence must be presented that the blood alcohol content of the accused was tested. A good defense attorney will ensure that evidence of any tests that occurred were reliable by investigating:
- If they were given in a reasonable amount of time after operation
- If the person who gave the test was properly certified
- If the correct pre-test procedures were used
- If the testing device was working properly when the test was given
- If the test was given correctly
What makes OUI-Child Endangerment different from a regular OUI?
Because of the state’s interest in protecting children, being convicted of OUI-Child Endangerment increases the possible punishment.
Importantly, this crime has a punishment of 90 days to 2.5 years in the House of Correction and an automatic 1-year driver’s license suspension for a first offense.
Additionally, a person found guilty of a first offense will receive a minimum fine of $1,000. This fine could be raised as high as $5,000. A person could also receive a sentence of more than 90 days: up to 2.5 years in the House of Correction.
For people who commit this offense more than once, the punishment is increased to:
- Fine of $5,000 to $10,000
- Sentence of 6 months to 2.5 years in the House of Correction or 3 years to 5 years in state prison
- A 3-year driver’s license suspension
People convicted of a second or greater offense cannot have their sentence suspended. They also cannot receive probation or parole for good conduct until 6 months are served.
So, the consequences are harsh. This is why it is important to consult an experienced criminal defense attorney if you or a loved one are accused of this crime. An effective defense attorney will make sure that the state meets its burden of proof.
IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH OUI-DRUGS, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.
CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.
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