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In January of 2019, District Court Judge Robert A. Brennan issued and order in the case of Ananias v. Commonwealth creating seven new requirements for the state to meet before the judge lifted the period of presumptive exclusion of certain breathalyzer test results to which defense counsel and prosecutors had previously agreed.

The most important factor among the agreement was that the Commonwealth must produce an application for national accreditation as a calibration and testing lab “that is demonstrably substantially likely to succeed.”

On June 14, 2019, the State Police Office of Alcohol Testing obtained the required national accreditation as a forensic calibration laboratory. The accreditation was approved by the ANSI National Accreditation Board, often referred to as “ANAB.”

Based on the fact that Massachusetts now has ANAB-accredited calibration labs, the state will likely argue to Judge Brennan that it is in compliance with the judge’s order and that the routine admission of breath-test evidence at trial should be resumed.

This is important to any person pulled over for alleged drunk driving because the most essential evidence for a Massachusetts OUI (or drunk driving prosecution) is a driver’s blood alcohol content (BAC). If the driver is 21 years or older and operating a regular passenger vehicle, the legal limit for BAC is 0.08%. The standard stricter for younger drivers and drivers operating commercial vehicles. The legal limit for drivers under 21 is 0.02%. The legal limit for commercial drivers is 0.04%.

Of course, law enforcement can only obtain a driver’s BAC if the driver consents to take the breathalyzer. This is a choice. A driver can refuse the breathalyzer. Massachusetts drivers should be aware that such a refusal triggers a 180-day license suspension for first-time offenders who are 21 years and older. Automatically losing one’s license for 180 days is harsh, however, refusing the breathalyzer deprives the Commonwealth of key evidence at trial. It is important to note that in Massachusetts, a driver’s refusal to take the breathalyzer is not admissible at trial. Therefore, the most powerful piece of evidence never comes into evidence and there can be no mentioning of the fact that the driver refused the breathalyzer.

At Egan, Flanagan & Cohen, we review every single OUI case (whether the driver refused or took the breathalyzer) in detail. The first step is to determine if the client’s best interests are served by contesting the charges and demanding a trial and finding of “not guilty.” Of course, this is usually the best possible result. If the a finding of “not guilty” is unlikely, sometimes the best strategy is negotiating with the prosecutor to achieve the most favorable and lenient plea agreement possible. Every single case is different and dependent on the facts and the client’s goals.

Egan, Flanagan and Cohen has a deep bullpen of experienced trial lawyers who meticulously evaluate the strengths and weaknesses of each client’s case. We help the clients make the best and most informed decision after reviewing the evidence and applying our own independent investigation.

In Massachusetts, the courts treat OUI offenses on a tiered approach depending on the history of the driver. First offenses are treated more leniently. Punishments increase with each subsequent offense.

The terms of a plea agreement, if any, must be negotiated with the prosecutor and approved by a judge, and may be increased in the presence of aggravating circumstances, such as injuries to other people or property, an accident, reckless driving, and other offenses committed with the OUI.

The penalties increase dramatically with each subsequent OUI offense. In Massachusetts, it is also illegal to operate a motor vehicle with an open container of alcohol anywhere in the vehicle. This applies even if a passenger is holding the alcohol.

Drivers who are accused of OUI are best served by retaining an attorney that is well-versed in Massachusetts OUI law, skilled in negotiating with prosecutors, and, if need be, arguing a case to a jury.

A competent OUI attorney can help a driver obtain an acquittal, a dismissal of the case, a more lenient sentence, a hardship license, license reinstatement, and sealing or expungement of the driver’s record. Proceeding without an experienced criminal defense attorney puts a defendant at a significant disadvantage.

For a free consultation about OUI law in Massachusetts, call us today at (413) 737-0260 or email

Attorney Michael G. McDonough, Esq., ( is one of many talented trial lawyers at Egan, Flanagan and Cohen Attorney McDonough practices in both civil and criminal law.

This material has been prepared by Egan, Flanagan & Cohen. for informational purposes only and should not be construed as legal advice for any individual case or situation. Transmission of the information is not intended to create and receipt does not constitute an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional legal counsel. No part of this material may be disseminated without this paragraph.

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