The road to an OUI arrest and its costly aftermath

You are on your way home after an evening out with friends. Suddenly, you see the flashing blue lights of a police car in your rear view mirror.

Perhaps you drank one last glass of wine to finish up a bottle, or drank another beer because a member of your dinner party bought another round. Crossing over the line into legal intoxication can occur with subtlety.

Irrespective of how it occurs, a night that starts with responsible drinking and ends with a decision to drive home while legally intoxicated can result in an arrest for operating under the influence (OUI) of alcohol and an embarrassing and costly legal process.

In a letter to the editor published January 13, a woman with no previous record of OUI described her arrest, gave thanks that she did not hurt anybody, and apologized to the community.

“I only wish that I could directly transmit the traumatic experience of being arrested to anyone at risk of driving under the influence,” the letter writer said. “There is no other feeling in the world like losing your personal freedom, even briefly. It is true aversion therapy.”

News reports and legislative efforts tend to highlight repeat offenders and problem drinkers; however, one too many drinks can result in a responsible person with no previous experience with the legal system under arrest.

The Times recently asked Island law enforcement and court officials to describe the step-by-step process of an OUI arrest and its consequences.

Signs of trouble

There are three phases of OUI detection, Lieutenant Timothy Williamson of the Oak Bluffs Police Department explained. Police officers on patrol look for unusual behavior by motorists that may be an indication of alcohol, drug use, or both.

“It could be somebody crossing the line, weaving within the marked lane or going outside the marked lane, driving slower than the speed limit or driving excessively fast,” Lt. Williamson said. “It could be somebody stopped in the travel lane for no reason. People that don’t dim their bright lights — sometimes that’s an indicator somebody might be under the influence.”

Those same behaviors may also be caused by inattention, medical issues, or fatigue, he added.

Traffic stop

Given reasonable suspicion that a driver may be impaired for whatever reason, a police officer has the right to stop the vehicle, which is phase two of OUI detection.

“We don’t arrest everybody who has a couple of glasses of wine with dinner,” Lt. Williamson said. “The fact of the matter is we’re looking for somebody who shouldn’t be driving a vehicle.”

Oak Bluffs police cruisers are equipped with video cameras. Lt. Williamson said officers first identify themselves to the driver, then inform the person that the stop will be audio- and video-recorded, and request a driver’s license and registration.

How someone handles the simple task of retrieving those documents may also be an indicator of impairment.

“Sometimes they give you a blank stare, or perhaps they fumble through their wallet and hand you their business cards or credit cards,” he said.

If a police officer believes there is probable cause for an OUI arrest based on evidence observed, the driver is asked to perform some field sobriety tests.

The tests

The three standardized tests most widely used include the one-leg stand, the nine-step walk and turn, and the horizontal gaze nystagmus test, Lt. Williamson said.

A police officer demonstrates each test first and instructs the driver not to start a test until the demonstration is over.

“You’ll start demonstrating, and before you know it, the person is standing beside you and has started the test,” Lt. Williamson said. “So that would be another cue that the person is not paying attention and is unable to perform a simple task.”

Although someone who is used to being under the influence of alcohol may be well-practiced and able to handle the mobility tests, the horizontal gaze nystagmus test cannot be faked because it gauges a physiological response, Lt. Williamson said.

A police officer observes a driver’s eyes as he moves his fingertip or an object in front of them. The pupils of someone impaired by alcohol will “bounce” in trying to adjust to peripheral vision at about a 45-degree angle from his or her nose.

Based on behavior, physical indicators, and performance on field sobriety tests, a police officer then determines if he or she has probable cause to arrest a driver for OUI.

“You get all kinds of statements from people once they’re placed under arrest, or even during a field sobriety test,” Lt. Williamson said. “A common one is, ‘You know, I couldn’t do this sober.’”

Off to Jail

The arresting police officer fills out a criminal complaint form for the OUI charge and a Massachusetts uniform driving citation for lesser offenses that might be related. He then returns to the police station to write a report, Lt. Williamson said.

It is a time-consuming process that takes a minimum of three hours, from arrest to finished report.

At the jail, the booking officer reads the arrested driver his Miranda rights — his right to remain silent, his right to an attorney, and the right to an appointed attorney if he is unable to afford counsel.

The prisoner is told he has the right to see a doctor, the right to bail, and the right to make a telephone call, according to Lt. Col. Durwood Araujo, the jail’s head of operations.

The driver’s fingerprints are taken. A digital photo, a so-called mug shot, is snapped against a background of a grey rectangle painted on the wall just inside the door. Although allowed to remain in street clothes, the arrested driver must turn over personal property, such as jewelry, which is locked up for safekeeping.

A background check is run through a computer search of state and national law enforcement data bases, as well as the Massachusetts Registry of Motor Vehicles.

The initial booking procedure takes about 20 minutes, during which time the arrested driver may call an attorney for advice on whether or not to consent to a chemical test, also known as a breathalyzer.

Blow or say no

Contrary to a common public perception, there is no option to choose a blood test over a breathalyzer test.

“A person arrested for OUI has the right to have a medical examination by a physician of their own choice, and at their own expense, to gather evidence on their own behalf,” Sheriff Michael McCormack explained.

It is acceptable for a physician or someone authorized to draw blood to come to the jail to do it, if willing, or the arrestee could have blood drawn at the hospital once bailed out.

Sheriff McCormack emphasized that Massachusetts has an implied consent law. Under tougher drunk-driving penalties imposed in 2005, under Melanie’s law, refusal to consent to a breathalyzer test results in an automatic loss of a driver’s license for six months, whether a person is found guilty of OUI in court or not.

A person whose breathalyzer test registers a blood alcohol concentration (BAC) of .08 or above is presumed to be under the influence of alcohol and his or her driver’s license is automatically suspended administratively by the Registry of Motor Vehicles for 30 days. Drivers under 21 years old, the legal age to drink, face administrative sanctions for tests with a BAC of .02.

Bail

Once the booking process and a breathalyzer test are complete, the arrestee is given an opportunity to make a telephone call to arrange for bail.

“We call a bail commissioner prior to the person making a call, and the commissioner will either set the bail or come down and interview the person to set bail,” Sheriff McCormack said. “And then we can tell the person, you’re going to need X dollars, so call somebody and see if they can bring the cash to you.”

The arrestee is then searched and placed in a holding cell to await bail or arraignment the next day, or if it’s a weekend, on the next court date.

That means a person arrested on a Friday night of a three-day holiday weekend could possibly be held until the following Tuesday morning.

If a person does not make bail, probable cause must be found 24 hours after an arrest, with a Jenkins hearing conducted by a magistrate or judge to substantiate the charges.

Liza Williamson, clerk/magistrate of the Edgartown District Court, said a hearing may be conducted by telephone, with a finding of probable cause based on the police report.

A weekend in a holding cell is a grim experience, especially in the women’s cell, which is only about 7 by 8 feet. A toilet and sink are directly in the line of sight from the cell door window, partially obscured by a three-foot high partition, and the small room reeks of disinfectant.

“It’s very claustrophobic; it’s literally a closet with bunk beds in it,” Sheriff McCormack said.

The men’s holding cell is about twice as big as the women’s, with no partition to hide the toilet. Both cells have bunk beds with hard mattresses covered in gray vinyl.

When called to set bail, the bail commissioner reviews a number of factors, such as the charges involved and the driver’s criminal record and ties to the community, to ensure the person’s appearance at the next court date.

A bail commissioner may release a first-time OUI offender with no record and close ties to the community on personal recognizance, Ms. Williams said, at a cost of $40 in cash, the first of many fees associated with an OUI arrest. The person must arrange for a safe ride home.

Facing the charges

At the Edgartown District Court’s next available court date, the defendant checks in first with the probation department which can arrange for a court-appointed attorney if the driver meets the eligibility requirements.

An arraignment hearing follows. The defendant receives a copy of the police report and the complaint with the charges on it and is given a pre-trial hearing date to return if a plea of not guilty is entered.

At that point, a defendant may meet with his or her attorney and have a conference with the District Attorney.

At the subsequent pre-trial hearing a defendant’s attorney may request dates to file motions to suppress evidence, tender a plea for a standard disposition, or request a trial by a District Court judge or jury.

The Edgartown District Court holds eight one-week jury sessions throughout the year, about one month apart, except in July and August.

Consequences and costs

“For a driver with no record and a first OUI offense, with no aggravating circumstances like an accident or an injury, the standard disposition is a continuation without a finding for a period of one year, completion of a 24D alcohol-education program, a 45-day loss of license, and fines and fees,” Ms. Williamson said. “You’re still on probation for a year, and even though a first OUI offense is a misdemeanor, if there is any violation of probation, you could face the maximum penalty of up to 2.5 years in the House of Correction.”

The standard fees for a first OUI offense include a $50 victim-witness fee, $50 victim-of-drunk-driving fee, $250 head-injury fee (waived for drivers with a BAC of .08 or higher who consent to a breathalyzer test), a $250 state fee for driving under the influence of alcohol, and a minimum probation-supervision fee of $65 per month for one year.

The 16-week 24D program costs about $540 and is available through Martha’s Vineyard Community Services. The program must be completed before someone whose license has been revoked may apply for an OUI hardship driver’s license for the purpose of work, education or other considerations such as medical treatments.

Although defense attorneys’ fees vary the Registry of Motor Vehicles’ website estimates the cost at about $5,000.

There are also towing fees. If an arrestee’s vehicle is on public property, Island police departments call an on-call duty wrecker to tow it.

Bay State towing owner Chris Magee said fees are regulated by the state. The average fee for a car towed from Oak Bluffs, Edgartown, or Vineyard Haven is probably about $150 for a day, Mr. Magee said. That would include a $90 tow fee, a mileage fee of $3 a mile depending on where the vehicle is picked up, and $35 a day for storage.

After a first time OUI arrest, the costs and consequences of any subsequent incidents escalate. A third OUI conviction constitutes a felony.

“People don’t think that $20 taxi ride could have saved them literally thousands of dollars,” Sheriff McCormack said. “Just take a cab.”