Avoiding Jail on Third Offense Massachusetts OUI Charge

Can you avoid jail for a third offense drunk driving charge in Massachusetts? It is possible, however one of three things must occur for this to happen:

1. You are found not guilty on the underlying charge of drunk driving.
2. The Commonwealth agrees to reduce the charge from a third offense DUI to a second offense DUI, and agrees to a probationary sentence on a second offense OUI.
3. If you are found guilty of drunk driving, there will be a separate trial to determine how many prior DUI convictions you have. This trial may take place before a judge or a jury. If you had a jury trial on the underlying OUI offense, you will most likely have the same jury again. This time, the jury will determine how many OUI convictions you have had in your lifetime.

Typically in these situations, a defendant will select to have a bench trial to determine the number of prior DUI convictions. At this trial, the Commonwealth will need to present evidence that demonstrates you are the same person previously convicted for DUI in another Court. This is done through a certified copy of your court records.

Additionally, your Registry of Motor Vehicle record and/or your probation record will be used. If a judge does not find sufficient evidence to prove beyond a reasonable doubt that you are the same person that had the prior DUI convictions, you may on your current offense be found guilty of only a second or first offense OUI.

Avoiding jail time on a third offense OUI will depend on several factors including:

• The district attorney handling the case
• The strength of the Commonwealth’s case against you
• Your age during your prior convictions. For example, if your prior convictions are further in time away from your most recent arrest, the district attorney is more likely to amend or reduce the level of offense you are currently charged with.