In Massachusetts, as in many other states, a driver’s prior DUI conviction could increase the severity of any subsequent DUI offenses charged by the district attorney. Many states have laws that enhance penalties for repeated DUI offenders, and even make it a crime to refuse to take a breath test in certain circumstances. As in the case of the recent Vermont Supreme Court decision, courts may even use the same prior conviction both to enhance the penalty for subsequent charges, and to criminalize a BAC test refusal.

The high court of the state of Vermont has ruled that any prior DUI conviction could be used to criminalize a refusal to submit to a BAC test, in addition to enhancing a penalty for refusal. Refusing to submit to a BAC test ordinarily results in license restrictions or suspensions in many states if the driver has no prior DUI record. Under the amended Vermont state statute, however, a refusal by a driver with a prior DUI conviction automatically becomes a criminal violation that is punishable by fees, imprisonment, and community service.

Many states, such as Vermont and Massachusetts, also enacted laws that increase the severity of the punishment for repeated offenders of DUI laws. As the number of past convictions increases, the penalty becomes more severe. Click here to see my webpage on the different OUI penalties in Massachusetts.

In the recent Vermont Supreme Court decision, one defendant was being charged with his second DUI offense. Because this is a repeated offense, the prosecutor asked the court to impose the enhanced penalties under Vermont law. In Vermont, a second offense may result in up to 2-years imprisonment, a fine of up to $1500, and at least 200 hours of community service. This penalty fine is double the fine imposed on first-time offenders, and first-time offenders are not required to perform any community service.

The Vermont Supreme Court’s decision reverses the trial judges’ rulings on the defendants’ cases barring the same prior offense from being used both to criminalize the BAC test refusal as well as to enhance the penalties. The state prosecutors appealed the decision of the trial judges, arguing that the judges misinterpreted the DUI statute by not allowing the same prior offense to trigger both penalties. The state Supreme Court agreed, holding that the amended form of the statute explicitly allows trial courts to use the same prior offense as a basis for triggering both penalties.

Unlike Vermont law, Massachusetts OUI law does not impose criminal penalties for refusing a breath test. A breath test refusal in Massachusetts results in administrative license suspension, which could be substantial depending on the number of prior offenses:

• No prior offenses and over 21: 180 days
• One prior offense or under 21: 3 years
• Two prior offenses: 5 years
• Three prior offenses: lifetime

The administrative license suspension is added to any suspension as a result of a DUI conviction. For example, an individual convicted of a 3rd offense OUI who refused a breath test would face an eight year suspension for the OUI conviction and an additional 5 years for the breath test refusal, resulting a 13 year license loss.