The Law Office of  
              Mark W. Barry & Associates 

OUI Offenses

In Massachusetts driving with a BAC (blood alcohol content) of 0.08% or higher is illegal. If you are stopped by a police officer you can be arrested for OUI (Operating under the influence). First, the officer will need to determine whether or not you are under the influence by performing one or more of several field sobriety tests. The tests can range from reciting the alphabet, a walk and turn test, a one leg stand to a more extensive test such as a chemical breath or urine test. Refusal to perform any of these tests when asked by the officer will most likely result in your immediate arrest and being booked in a local jail for OUI. An OUI charge and conviction can have dramatic affects on your future. An attorney experienced in defending people charged with operating under the influence will be able to help keep you out of jail and preserve you future rights with the RMV to keep you license or get it back as quickly as possible.


Operating under the influence of alcohol is one of the most commonly charged crimes in Massachusetts, and the consequences of an OUI conviction can be devastating.

Elements of OUI

In order to convict a defendant of operating under the influence of alcohol, the Commonwealth must prove beyond a reasonable doubt that the defendant:

  • Operated a motor vehicle;

  • On a public way; and

  • While under the influence of alcohol or while his or her blood alcohol content (BAC) was .08 or higher as measured by the Breathalyzer machine.


The first two elements are ordinarily easy to prove – the Commonwealth must establish that the defendant was driving (or otherwise in control of) the car and that the operation occurred on a public way (any road maintained by the local, state, or federal government or any road or lot to which the public has access). Therefore, most OUI defendants dispute the third element – that he or she was under the influence of alcohol or registered a .08 on the Breathalyzer machine (in Massachusetts, if a defendant refused to submit to Breathalyzer analysis, the prosecutor cannot tell the jury that he or she refused the test).

Under the Influence of Alcohol is a legal term that means an individual’s ability to safely operate a motor vehicle was impaired by his or her alcohol consumption. The Commonwealth does not need to prove that the defendant was drunk. How does the Commonwealth prove a defendant was under the influence of alcohol? Generally a police officer will testify that the defendant was observed driving the car in an “erratic” fashion either by speed or crossing over the double yellow line. The officer will testify that the defendant smelled like alcohol, had bloodshot eyes, and spoke with slurred speech. The officer will then have the defendant submit to a series of field sobriety tests. Police officers are trained to provide these tests to help them determine if a defendant is under the influence of alcohol. The most common field sobriety tests are:

Alphabet Test-the defendant is asked to say (not sing) the alphabet;

Horizontal  Gaze NystagmusTest- the defendant is told to look at the tip of a pen by the officer while the officer moves it side to side while watching the defendant’s eyes. The officer looks for a shaking of the eye called nystagmus.

Walk and Turn Test – the defendant is asked to walk in a straight line, touching heel to toe and not raising his or her arms, turn around, and return with the same posture; and

One-Legged Stand Test the defendant is asked to stand still with one leg raised six inches off the ground and count to 30.

A failure of one or more of these tests will ordinarily result in an arrest for operating under the influence of alcohol.


Common Defenses to the “Under the Influence” Element

How can you possibly rebut the police officer’s observations? Take them one at a time.

Erratic operation is not necessarily the result of alcohol consumption. There are a variety of reasons why someone might cross the double-yellow line, or change speed abruptly including a simple lack of attention.

It is not against the law in Massachusetts to drink alcohol before driving. It only becomes a crime if the alcohol consumption affects an individual’s ability to safely drive the car. Therefore, the odor of alcohol can be easily explained if the defendant had two or three drinks before driving.

There are many reasons why a driver’s eyes might be bloodshot. The driver might be tired or have allergies. The heat might be on in the car, which could cause dry and bloodshot eyes.

The field sobriety tests are almost never given in a controlled  environment. They are given on the side of the road in a small area. The lights of the police cruiser will likely on and flashing . Cars will be speeding by. If it’s dark outside, the lighting probably will be poor. And the driver will probably be nervous. Are  “field sobriety tests” accurate when they are administered in such a distracting environment?

We also offer defenses to the following aspects of the charges for an OUI:

             Prior Convictions


After the resolution of the matter you will still have the RMV to deal with and we will assist you in your efforts there also.


The Law Office of Mark W. Barry & Associates  has successfully defended OUI cases with these exact arguments.

Violent Crimes

    Assault and Battery
    Domestic Assault

Drug Crimes/ Controlled Substance Offenses


Theft Crimes



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The Law Office of 
Mark W. Barry & Associates
6 Lynde Street
alem, Massachusetts 01970

Tel. 978-745-3574
Fax. 978-336-4660


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