Q:        Should I take a breathalyzer (breath test)?
A:        If there is ANY chance you have alcohol in your system, you should seriously consider refusing the test.  If the Commonwealth can provide a breath test result showing a BAC of .08 or greater, you are presumed to be too impaired to legally drive.

Q:        What are the consequences to refusing a breath test?
A:        The consequence to refusing a breath test is license suspension.  If this is an arrest for a first-time offender, the person’s driver’s license is suspended for 180 days (longer if under age 21).  If the person is a repeat offender, the license can be suspended for any period up to a lifetime suspension.

Q:        What should I do if pulled over after drinking?
A:        First, reduce the officer’s safety concerns.  Place the vehicle in “park,” turn on the interior light, lower the window slightly, and keep both hands visible (on the steering wheel).  If you’re able to do so, have your license and registration ready for the officer before he approaches your vehicle.  This will prevent observations of fumbling for the documents.  You are not required to answer questions, so don’t.  Last, be polite without forfeiting your rights.

Q:        Do I have to perform field sobriety tests?
A:        No.  Most people cooperate with the police to avoid making the officer upset or appear guilty, and attempt field sobriety tests because they think they can perform them well.  The truth is, an officer requesting you to perform field sobriety tests ALREADY suspects you of being impaired.  The officer is looking for clues to PROVE your impairment and justify your arrest.  While the field sobriety tests were intended to offer a platform of objective measures, your performance on the tests are scrutinized by the subjective judgment of the police.

Q:        What will happen if I’m arrested for OUI (drunk driving)?
A:        Typically, you will be handcuffed, searched, and locked in the back seat of a police car.  Your vehicle will be inventoried (searched) and towed away.  At the police station, you will be booked.  Personal data and fingerprints will be collected and you will be photographed.  You’ll be offered a breath test, and without the opportunity to phone an attorney first, must decide whether to submit to the test.  A determination as to your bail amount will be made.  You’ll be allowed a phone call, then placed in a jail cell until bailed out or brought to court.

Q:        If I refuse the breathalyzer, and am found “not guilty” of OUI, can I get my license reinstated before the suspension period runs?
A:        Maybe.  There is a presumption that, if found “not guilty,” the breath test should not have been offered.  The court may, in its discretion, grant a motion to order reinstatement of the person’s license.  The renewal fee is $500.00.

Q:        If I was drinking and driving, then pull my car into a parking lot, turn off the car and put the keys on the dashboard, can I still be convicted of OUI?
A:        Yes.  The Commonwealth can prove its OUI case with circumstantial evidence of operation.  However, this circumstance does not lend itself to a “strong” case for the prosecutor.

Q:        How do I avoid being charged with OUI?
A:        Plan ahead.  Designate a sober driver, call a taxi, or use public transportation.  Don’t drink and drive.  Drunk driving puts you and others at risk and the consequences if caught are severe.

Q:        What do I do if arrested for OUI?
A:        Call Attorney Walckner and obtain his representation.  Program Attorney Walckner’s phone number into your phone RIGHT NOW!  781-665-5599.  These cases often require documenting evidence that can quickly become unavailable.  Call Attorney Walckner and take comfort in knowing a competent lawyer is working hard for you.

Walckner Law Office

​Attorney James Walckner​​

Frequently Asked Questions