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OUI Penalties Under Melanie’s Law

Summary of OUI Penalty Changes under Melanie’s Law

Upon refusal of a breath test in Massachusetts


  • No 15-day temporary license after refusal of a breath test
  • The vehicle will be impounded for 12 hours after the arrest and no one, not even friends or family members, will be permitted to pick it up earlier.
  • A suspension due to refusal must run consecutively with any other suspension, such as that imposed for conviction. Until now, a judge could order that such suspensions run concurrent, although the order was non-binding to the Registry of Motor Vehicles. However, the Registry, within its discretion, generally granted such nonbinding orders.
  • Upon a not guilty verdict, nolle prosequi or dismissal, a judge has the discretion to restore a license suspended for breath test refusal. There is a rebuttable presumption that the license be restored unless the commonwealth establishes, by a fair preponderance of the evidence, that this would endanger the public safety. In that case, the court must issue written findings of fact to support its decision not to restore the license.
  • No hardship license for first offenders is available due to the suspension until there has been a 24D disposition.

License suspension rules for refusing a breath test


  • First offender: 180 days
  • First offender under the age of 21: 3 years
  • Second offender: 3 years (but a continuance without a finding does not count as a prior conviction for these purposes).
  • Second offender (if first offense was OUI with serious bodily injury): 10 years.
  • Second offender (if first offense was OUI motor vehicle homicide or manslaughter by motor vehicle): Lifetime
  • Third Offender: 5 years
  • Fourth offender: Life.

h2>License suspension for failing a breath test with a BAC of .08 or higher


  • Loss of license for 30 days or until the case is disposed of by trial, plea or dismissal, whichever comes first.
  • If under the age of 21, a loss of license of 180 days for breath test result of .02 or greater.
  • Automobile impounded for 12 hours following arrest, regardless of who comes to pick it up.
  • Breath test failure is considered a “per se” violation of the law and is admissible in the prosecution as long as it was conducted properly.

Massachusetts penalties for drunk driving conviction, first offense, over 21


  • License loss of one year (with 24D alternative disposition, license loss is 45 to 90 days).
  • Probation for not more than two years.
  • A period of incarceration in the house of correction for not more than two and a half years. Incarceration may be served on weekends, evenings and holidays.
  • A fine of not less than $500 or more than $5,000.
  • Community service may be assessed.
  • Under 24D program, entry into the approved alcohol education program, the payment of the costs of such program, assessments and probation supervision fees.
  • The 24D program is still available after conviction by trial.
  • The 24D program is not available in the cases of death or serious bodily injury.
  • Within the discretion of the judge, the first offenders program is available “once in a lifetime” to a second offender if the date of the incident that resulted in the one prior conviction occurred more than 10 years earlier than the second offense. However, in this situation, the offender will still need the new ignition interlock device on the vehicle during the hardship license period.
  • Unlike the previous procedure, if a first offender legally resides out of state or is a full-time student out of state, that offender may take an equivalent alcohol education program outside of state.

Massachusetts OUI penalties for a first offense by a driver under 21


  • License loss of 210 days, even with 24D program.
  • An additional license loss of 180 days, but this may be avoided by enrolling in a special underage drinking program.
  • If the breath test result is .20 or over, the offender, aged 17-21 inclusive, must take a specially designed driver alcohol treatment and rehabilitation program called the “14 day second offender in-home program.”

Second offense OUI penalties


  • Not less than 60 days nor more than two-and-a-half years in the house of correction (30 days of this is mandatory).
  • Alternative sentence is a mandatory 14-day in-patient treatment program with aftercare as determined.
  • Two-year loss of license
  • Two years of probation
  • Fine of $600-$10,000.

Third offense OUI penalties


  • 180 days or two-and-a-half years in the house of correction (150 days of which is mandatory) or two-and-a-half to five years in state prison.
  • May serve it at a specially designated D.O.C. facility for alcohol programs.
  • Eight-year loss of license
  • Fine of $1,000-$15,000.

Fourth offense OUI penalties


  • Two to two-and-a-half years incarceration in the house of correction or two-and-a-half to five years in state prison (one year of which is mandatory).
  • Ten-year loss of license.
  • Fine of $1,500-$25,000.