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Second Offense DUI Penalties in MA & NH

November 23, 2016

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Mike Bowser of Bowser Law speaks with John Maher about the differences between Massachusetts and New Hampshire in their second offense DUI penalties. There are key differences in their minimum sentencing guidelines and how they count offenses. Understanding them is crucial if you’re facing a DUI charge.

John: Hi, I’m John Maher. I’m here today with Mike Bowser, a board certified DUI defense lawyer practicing in Massachusetts and New Hampshire. Today we’re talking about second offense DUI penalties in Massachusetts and New Hampshire. Welcome, Mike.

Mike: Nice to see you.

John: Mike, what are the penalties for a second offense OUI in Massachusetts?

Mike: A second offense OUI in Massachusetts is based on the fact that you have at least one prior offense–either a guilty fining or an assignment to an alcohol education program–anytime during your lifetime because in Massachusetts, Melanie’s law which is the OUI statute has a provision that includes a lifetime look back. So you can be charged as a second offender if you have a prior CWOF, or a prior assignment to an alcohol program, or a prior guilty 10 years ago, 15 years ago, 20 years ago.

The second offense OUI is a misdemeanor. It has a maximum penalty in Massachusetts of two and a half years in the house of correction. However, most second offenders are sentenced, if convicted. They are typically sentenced by the court to one of two alternative mandatory minimum sentences. One of the mandatory minimum sentences is two years of probation: a two-year loss of license with completion of a 14-day inpatient hospitalization. That’s [at] an alcohol treatment facility. You’re there for two weeks overnight. It’s a locked facility in a state hospital, but it’s not a prison or a jail.

When you complete that 14-day program, you’re in counseling for a year. You’re on probation for two. The other alternative sentence, if you don’t receive the 14-day hospitalization, you’re looking at a 60-day house of correction sentence. You do have to serve the 60 days behind the wall at the house of correction, whether it’d be Middlesex, or Essex county, or Suffolk county, wherever it may be. Most of the judges on a second offense in Massachusetts, they’re sentencing to one of those two alternative minimum sentences. What’s interesting is there’s also what’s called a Cahill Disposition in Massachusetts.

There is one exception to that second offense mandatory minimum sentencing scheme. If you only have one prior, [and] it’s more than 10 years ago, you can literally be sentenced as a first offender one more time. Meaning you can get a first offense sentence, as opposed to a second offense. Regardless of whether it’s a Cahill Disposition or a true second offense, anyone with more than one OUI finding on their record, when they do get restored, their license has to be restored with an ignition interlock device for a period of at least two years. That’s a mandatory provision for a second offense in Massachusetts.

John: Okay. How does the– which one of those penalties that you get? How does that get determined? Is that just the judge’s choice?

Mike: It may be determined through a plea negotiation with the prosecutor that the judge does, or does not agree to. Sometimes, you’re asking the judge to consider a Cahill Disposition, for instance, give him another first offense, because his last prior was 12 years ago, more than 10 years ago. If you go to trial, you’re not necessarily in a position at that point to negotiate for a Cahill Disposition or a 14-day inpatient. The judge might be inclined to give the 60-day sentence to the house of the correction after trial whereas before trial, you may’ve been able to get the 14-day inpatient program. All these things are in the mix as you are approaching a trial date, and trying to figure out what is the best disposition for your particular client.

It’s all negotiable, and you negotiate these things as you go forward through the case.

John: Okay. How does that differ from New Hampshire? What are the penalties for a second offense DWI in New Hampshire?

Mike: New Hampshire has a second offense which is a class A misdemeanor. A New Hampshire class A misdemeanor carries a maximum penalty of one year in jail. A typical second offense disposition in New Hampshire is the mandatory minimum sentence, which includes– what they do is they say 17 days in the house of correction, all but five days suspended. You serve a five-day jail sentence. Once you’re released from that five-day jail sentence, you need to immediately enter into the Impaired Driver Care Management plan, go through an evaluation, and start on a treatment plan.

It also requires a mandatory minimum three-year loss of license from the court. New Hampshire also requires if there is a second offense conviction that you have the ignition interlock device for at least 12 months. What’s interesting about New Hampshire is their look back period for a prior is 10 years. If you have a DWI, OUI, outside of 10 years, they’re not going to count it. If you have one within 10 years, then you’ll be treated as a second offender. What’s really important in my practice is I represent so many Massachusetts residents that are facing New Hampshire DWI charges.

I have some people that may have had an OUI in Massachusetts 20, 25, 30, 15 years ago. New Hampshire may be treating them as a second offender because there’s one only within 10, but they may have a couple that are really old. When they come back to Massachusetts, Massachusetts through the registry is going to treat them as a second, third, potentially fourth offender, because they never drop off their record. Administratively, under Melanie’s law, they’ll say, “Well, we understand New Hampshire treated you as a second offender, but it’s truly your fourth. The difference between a three-year loss of license and a 10-year loss of license, or a three-year loss of license and a lifetime loss of license.”

You need to understand the impact of the Mass record on the Mass resident who’s facing a DWI in New Hampshire. Whether it’d be a first offense DWI, or a second offense DWI.

John: All of that adds up, to me, to the fact that you really need to have a lawyer on your side who knows what they’re talking about in terms of DUI offenses, and like you said, both Massachusetts and New Hampshire, potentially if you’re crossing the border. You live in one state, but you get arrested in the other. How important is it to get legal representation for a second offense DUI?

Mike: Well, it’s critically important in both states, because both states the second or subsequent offense is a mandatory minimum sentence of incarceration or hospitalization. The loss of license can be dramatic. The interlock device is a requirement in both states. In my practice for 20 years, I’ve always been in both states. There’s very little of a border between Mass and New Hampshire. Every day, we got back and forth between these two states, and we never think about it. The impact of that DWI charge in New Hampshire can be significantly different than the true impact in Massachusetts when you come home. That’s because of that lifetime look back provision.

If you walk into a courtroom in New Hampshire, and you’re treating your DWI as a first offense or a second offense, but Massachusetts is going to treat is as your third or your fourth, you need to know that ahead of time. Because the differences in the penalties through the registry of motor vehicles in Massachusetts can be drastically more severe in Massachusetts based on what happens in New Hampshire. You need to know both.

John: All right. That’s really great information Mike. Thanks again for speaking with me today.

Mike: Sure, you’re welcome.

John: For more information about Mike Bowser, visit bowserlaw.com, or call 888-526-9737.

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