Most holidays are a great time to get together with family and friends and share a drink. Especially if it’s a holiday with a parade! Some people, however, often have a little too much fun when they’ve been drinking all day. A good time can quickly get out of hand and you can end up being arrested and facing criminal charges. There are certain things you can do though to keep yourself and those you care about out of legal trouble.
One of the most important preventive steps you can take involves your interactions with the police. On most holidays the police are not out looking to arrest people for having fun. Their job is to keep order and to keep potentially dangerous situations from escalating. The police will often get a call for a noise complaint because a party has gotten too big. Other times, a person who has had way too much to drink may refuse to leave a bar. These are examples of situations that can easily be resolved. If the police tell you to leave the party, just leave. If you are asked to leave the bar, just do it. If your friend is asked to leave the bar, leave with them. These situations end in arrest when you refuse to do what the officer asks or become unruly. Don’t argue. Just leave! Listening to the officer’s instructions will keep you out of jail. Drunkenly arguing with an officer will get you nothing but a new mugshot.
Minor in Possession of Alcohol
Holidays and underage drinking go hand in hand. Whether you are at a house party or at the parade, drinking seems to be a right of passage. While most people under 21 drink alcohol, it is still illegal and you can still end up with a criminal record. If you are in possession of alcohol, and are under age 21, you can be charged with being a Minor in Possession of Alcohol. It is a crime punishable by $150 fine and a 90-day driver’s license suspension. Most people focus on the license suspension as being the worst part; however, even if you are only ordered to pay a $150 fine, you now have a conviction on your record.
Keep in mind that even if the police do not see you physically holding a cup or alcoholic beverage, you can still face charges if you are at a party and alcohol is close to you. In most of these cases, the police will take down your information and then you will receive a Notice for a Clerk Magistrate’s Hearing from the court in the mail. This hearing is a step before criminal charges and hiring an attorney to represent you at the hearing can have a dramatic effect on how your case turns out. If you have legal counsel we can try to work out an agreement where you will not face criminal charges if you stay out of trouble and perform community service. Hiring an experienced attorney will avoid a conviction and most likely a criminal record. Do not try and handle a case like this on your own. A conviction will follow you for the rest of your life!
Operating Under the Influence of Alcohol
Holidays are a day of celebration and drinking. There is no reason to drive anywhere. If you are going to the parade, a party, or a bar take the “T”, Uber, or Lyft. If you don’t drive there, then there is no risk of you driving home. As most people who have been charged with Operating Under the Influence of Alcohol will tell you, they thought they were fine to drive. Next thing they know they are under arrest and facing criminal charges wishing they had spent a few dollars on an Uber.
The police will be out in full force and there will be sobriety checkpoints. By the time you see the sobriety checkpoint, it will be too late to take a different route and you will be funneled through it. It doesn’t matter that you weren’t swerving, tailgating, or appeared to be driving safely. If the police smell alcohol on you at the checkpoint, you will be sent to the screening area where you, most likely, will end up in handcuffs.
In Massachusetts, you can be charged with operating under the influence of alcohol if you have Blood Alcohol of .08 or greater or your ability to operate a motor vehicle is diminished by alcohol.
Many people mistakenly believe that if they blow .06 or .07, the police will release them from custody. This is false! You will still be arrested and still charged for Operating Under the Influence of Alcohol. The Commonwealth can still try to prove you were impaired while operating your vehicle even though you blew under .08.
If you are stopped by the police, one of the first questions you will be asked is whether you have been drinking and how many drinks you have had. Answering yes will result in you being arrested. Even if you tell the police officer that you have only had one drink, most times you are going to be arrested. The officer does not want to take a chance that you will drive away, get in an accident, and he gets sued for letting you drive away. They are trained to err on the side of caution.
If the officer suspects you have been drinking, he will ask you to step out of the vehicle and ask if you would perform field sobriety tests. Respectfully decline! All you have to do is say no. The officer cannot force you take them. Your failure of the tests, which is subjective to the officer’s opinion, will only reinforce his reason to arrest you. Your refusal to take the tests cannot be used against you at your trial but your poor performance on the tests can be used against you! Don’t give the police evidence against you. Just say no!
Once the officer arrests you, he will Mirandize you. You have the right to remain silent and to an attorney. Invoke your rights! Do not make any statements. Nothing you say will help you avoid being arrested. At the police station, you will be asked routine booking questions which you will have to answer such as name, date of birth, and address. Do not answers questions about how much alcohol you had that night.
At the police station, you will be given the opportunity to take a breathalyzer test. Refuse the test! If you take the breathalyzer test and blow over .08, your license will be suspended for 30 days. If you refuse the breathalyzer test, your license will be suspended for a longer period of time depending on whether it is your first, second, third, fourth, or fifth refusal. If it is your first refusal and you are over 21, your license will be suspended for 180 days. If you are under 21, it will be suspended for 3 years.
Breathalyzer test results are being excluded from many OUI cases right now because the court has determined they are not scientifically reliable. There are some cases, however, where the Commonwealth is still seeking to use the breathalyzer test which is why we recommend still refusing to take the test.
Your ability to successfully defend against an OUI charge at trial is dramatically increased if you do not take the breathalyzer or field sobriety tests. Without field sobriety tests and breathalyzer results, all the police officer could testify to would be that you had red, glassy eyes and he could smell an odor of alcohol on you. The police write that in every report and testify to it at every trial. If you are found not guilty, we will file a motion requesting the judge return your driver’s license and if the motion is allowed, and it usually is, we can represent you at the RMV to request your license be reinstated even though it was suspended because of the breath test refusal. We have represented many clients who were found not guilty and then had their driver’s license reinstated by the RMV even though their license was still supposed to be suspended because they refused the breathalyzer test.
Disorderly Conduct
Most people who have had too much to drink and refuse to follow a police officer’s instructions will find themselves facing criminal charges for Disorderly Conduct. If this is your first offense, you face a fine of $150. If it counts as a second or subsequent offense, you face up to 6 months in the house of correction. This is the easiest criminal charge to avoid. If the police tell you to leave an area, just leave. If the bar cuts you off, just accept it. If your friends are telling you to let it go, let it go.
Indecent Exposure
As most people know, a common side effect of drinking is needing to use the bathroom. While it is tempting to urinate outside, just don’t! Find a bathroom. Depending on the circumstances you can be charged with Indecent Exposure and face up to six months in the house of correction. While some officers will arrest you on the spot, others may give you an opportunity to zip up and move along. If the officer gives you that chance, then take it! Do not give the police a hard time or you will face charges.
Rape or Consensual Sex
Drinking and sex can go hand in hand. That is why it is so important to remember that a person is deemed incapable of consenting to sex if they are too intoxicated, asleep, mentally disabled, or otherwise unable to give consent. Sometimes we will have a client that will say well we both drank too much. Unfortunately, you cannot use your own intoxication to mitigate what happened.
If you find yourself in a situation where the other person is alleging Rape, do not talk to the police! Never make any statement about what happened until you talk to an attorney. If you are convicted of Rape, you face up to twenty years in state prison, will be required to register as a sex offender, and to wear a GPS bracelet while on probation. Nothing you say to the police will change their mind about whether you will face criminal charges if the other party is alleging a sexual assault. The best thing to do is hire an attorney immediately and try to get in front of the accusations.
Contact the Attorneys at Sweeney & Associates, LLC
At Sweeney & Associates, LLC we understand people make mistakes and that holidays are a time to let loose and have a good time but if you find yourself in an incriminating situation or think you may face criminal charges, contact us for a free consultation at (617) 328-6900 or mail@rsweeneylaw.com. For further information see our website at www.rsweeneylaw.com.