Massachusetts law about drunk driving

A compilation of laws, regulations, cases and web sources on drunk and drugged driving law.

Table of Contents

Massachusetts laws

MGL c.90, s.24 : Drunk Driving
MGL c.90, s.24D : Probation, alcohol education, alcohol treatment
MGL c.90, s.24I-24X : Additional drunk driving provisions.
MGL c.90, s.24-1/2 : Ignition Interlock Devices

Massachusetts regulations

501 CMR 2: Safe Roads (Breath Testing)
540 CMR 25: Ignition Interlock Devices

Massachusetts court rules

District Court Standing Order 1-08: Petitions for Judicial Review of License Suspension for Chemical Test Refusal

Federal regulations

36 CFR 4.23 Operating under the influence of alcohol or drugs in Federal Parks

Selected case law

Burke v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, 90 Mass.App.Ct. 203 (2016)
An "admission to sufficient facts", or CWOF, counts as a previous conviction and thus the registrar has the authority to suspend the driver's license for more than 180 days

Commerce Insurance v. Ultimate Livery, Inc. , 452 Mass. 639 (2008)
A limousine company "owed a duty to the plaintiffs to avoid discharging a passenger who they knew, or should have known, was intoxicated and likely to drive an automobile," where passengers who had been drinking were dropped in a parking lot at 2 am, got in a car and drove, resulting in a fatal accident, and thus the company could be tried for negligence.

Comm. v. Colturi , 448 Mass. 809 (2007)
Prosecutors need not introduce expert testimony extrapolating from blood alcohol level at the time of the test to the level at the time of the stop, "so long as the test is conducted within a reasonable period of time after the driver's last operation of the vehicle."

Comm. v. Gibson , 82 Mass. App. Ct. 834 (2012)
Instruction on absence of breathalyzer evidence. Where "no breathalyzer test report or results were admitted in evidence, a substantial risk of a miscarriage of justice arose from the judge's erroneous limiting instruction that, in addition to appropriately instructing the jury that they were not to consider any absence of breathalyzer evidence, informed them that a person does not have to take a breathalyzer test."

Comm. v. Gerhardt, 477 Mass. 775 (2017)
"[T]here is as yet no scientific agreement on whether, and, if so, to what extent, [field sobriety] tests are indicative of marijuana intoxication...Neither a police officer nor a lay witness who has not been qualified as an expert may offer an opinion as to whether a driver was under the influence of marijuana." A police officer may testify, however, about his or her observations, including observations of the defendant's performance on requested behaviors.

Comm. v. Maloney , 447 Mass. 577 (2006)
Upheld the portions of Melanie's Law dealing with proof of prior convictions. "We hold that the application of § 6A of Melanie's Law, St. 2005, c. 122 , § 6A, as construed in this opinion, to the defendant's G. L. c. 278, § 11A , proceeding does not violate the ex post facto, due process, or confrontation clauses of the Federal or State Constitutions."

Comm. v. Neary-French , 475 Mass. 167 (2016)
There is no right to counsel before a defendant decides whether to take a breathalyzer test.

Comm. v. Nascimento, 479 Mass. 681 (2018)
A person whose license was administratively suspended by the police for failing a breathalyzer test cannot be charged with operating a motor vehicle after a license suspension for operating while under the influence of alcohol or controlled substances.

Comm. v. Richards, 480 Mass. 413 (2018)
A defendant whose license is revoked for refusal to consent to a breathalyzer, and is later found not guilty of driving under the influence, may immediately request reinstatement of his license. The court will consider the facts as they exist at the time of acquittal, and if the reinstatement is denied, the defendant may not come back at a future date to request reinstatement. 

Comm. v. Steele , 455 Mass. 209 (2009)
501 CMR 2.57 [Reg. is now at 501 CMR 2.15] is valid and controlling and where two samples "differ within +/- 0.02 blood alcohol content units, the lower of the two adequate breath samples shall be taken as the individual under arrest's blood alcohol level."

Comm. v. Wolfe, 478 Mass. 142 (2017)
A "a judge should not give a jury instruction that specifically mentions the absence of breathalyzer or other alcohol-test evidence unless the defendant requests it."

Comm. v. Zeininger , 459 Mass. 775 (2011)
"The certification and supporting records were created as part of a regulatory program providing standardized mechanisms for the routine maintenance of all breathalyzer machines throughout the Commonwealth. Given this fact, we conclude that they were admissible in evidence as business records pursuant to G.L. c. 233, § 78, and were not testimonial statements within the scope of protection afforded by the confrontation clause of the Sixth Amendment to the United States Constitution."

DiGregorio v. Registrar of Motor Vehicles, 78 Mass. App. Ct. 775 (2011)
When relying on an out-of-state drunk driving conviction to impose a license suspension, the suspension begins with the date of conviction, not the date the registry found out about it.


Jury instructions

Criminal Model Jury Instruction 5.300: Operating Under the Influence of Intoxicating Liquor or with a Blood Alcohol Level of .08% or Greater, Mass. District Court

Criminal Model Jury Instruction 5.310: Operating Under the Influence of Intoxicating Liquor, Mass. District Court.

Model Jury Instruction Regarding Roadside Assessments for Use in Prosecutions for Operating Under the Influence of Marijuana
Commonwealth v. Gerhardt, 477 Mass. 775 (2017) Appendix: 

You heard testimony in this case that the defendant, at the request of a police officer, performed or attempted to perform various roadside assessments, such as [Here outline the nature of the evidence, e.g., walking a straight line, balancing on one foot]. These roadside assessments are not scientific tests of impairment by marijuana use. A person may have difficulty performing these tasks for many reasons unrelated to the consumption of marijuana.

It is for you to decide if the defendant's performance on these roadside assessments indicate that his [her] ability to operate a motor vehicle safely was impaired. You may consider this evidence solely as it relates to the defendant's balance, coordination, mental clarity, ability to retain and follow directions, ability to perform tasks requiring divided attention, and other skills you may find are relevant to the safe operation of a motor vehicle.

It is for you to determine how much, if any, weight to give the roadside assessments. In making your determination, you may consider what the officer asked the defendant to do, the circumstances under which they were given and performed, and all of the other evidence in this case.

Finally, evidence of how a defendant performed in roadside assessments, standing alone, is never enough to convict a defendant of operating under the influence of marijuana.

Testing and devices

Approved breath testing instruments, State Police Office of Alcohol Testing, 2017

Ignition interlock device program, Registry of Motor Vehicles
Explains some of the details of who needs a device, how to obtain one, and how they work

Web sources

Federal DUI Laws , Findlaw
"Information about federal DUI laws, including a definition of what constitutes “federal land,” and the elements of a federal DUI."

Alcohol and Drug Suspensions for Over 21 Years of Age, Registry of Motor Vehicles
Provides the Registry of Motor Vehicles' policies related to alcohol or drug suspensions/revocations for customers over the age of 21. Includes tables outlining the penalties under the new law

DUI and DWI in Massachusetts,
This commercial site brings together a great summary of the provisions of Massachusetts law related to drunk driving.

The Massachusetts Prosecutors' Manual: Operating Under the Influence, 8th edition, MDAA, 2015.
"This manual, created especially for prosecutors in Massachusetts, is designed to include everything prosecutors need to know about an operating under the influence (OUI) case – from investigation to case preparation through trial and sentencing."

Print sources

Drunk Driving Defense (Mass. Practice v.50) , West, annual softcover.

Handling OUI cases, MCLE audio, 2017

Massachusetts OUI law, Lexis annual.

Representing the OUI Client , Mass. Bar Institute, 2011

Trying OUI Cases in Massachusetts , MCLE, loose-leaf

Understanding breath testing, MCLE, 2018


Last updated: September 20, 2018


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