Submitted by Anonymous on Thu, 07/29/2010 - 12:42
My fiance was arrested for a dui, his 5th. His last one was in 94, I know the time between offenses doesn't matter in MA, but he was also cited with violating his license restriction. He claims it had been so long that he totally forgot.
He doesn't remember much about the arrest. A few things he does remember doesn't exactly jive with the police report but them some of the officer's testimony doesn't jive with the report either. He also claims that he only had a couple of drinks. Since he spent several hours at my house, only drinking soda and left sober at 11:45, I'm leaning towards believing that he wasn't drunk. He also didn't submit to any testing, breath, agility....
I've been after him for years to get tested for a sleeping disorder because he falls asleep a lot (driving, eating, working, taking...). He finally did.
He recently found out that he has narcolepsy and sleep apnea. The doc claims all of the symptoms he exhibited that night could be attributed to his condition and exacerbated by even one drink. The doc is also willing to testify as an expert witness. I know the penalty for the DUI. My concern is the license violation.
What's the penalty for violating the restricted license? Would it be treated like driving on a suspended license? If so, it would be a first offense.
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Penalty for violating license restriction
The penalty would depend on how the offense was charged. They could charge your fiance with the misdemeanor crime of driving with a suspended license which carries a fine and a maximum jail sentence of sixty days (and no minimum sentence) or he could be charged with operating a motor vehicle under the influence of alcohol while his license was suspended for OUI which has a minimum mandatory jail sentence. While you are correct in stating thee time between offenses does not matter in MA, you should know that the older a conviction, the more difficult it becomes to prove the prior offense. This is because the Commonwealth must prove, beyond a reasonable doubt, that the person convicted back in 1994 or 1984 was the same person that is charged in 2010. Often older records are incomplete illegible or simply missing. A fifth offense OUI is considered a serious felony in MA, you and your fiance should sit down with a criminal defense attorney and explore all of your options. Feel free to contact me with any questions.
Attorney Kevin Gaughen, Jr.
DISCLAIMER: This answer is provided in response to a "hypothetical" question and provided for general, informational purposes and does not create an attorney/client relationship. The information presented is not legal advice and may change based additional information and research. It is recommended that you speak to an attorney to discuss your specific legal issues. This is not intended to constitute legal advertising or solicitation, but rather to educate.