If you are charged with a third or subsequent offense of Operating Under the Influence in violation of GL c. 90, §24, the Commonwealth attorney can and has been with some frequency in Massachusetts requesting that defendants be held in jail for 90 days without bail under GL v. 276, §58A (Hearing of dangerousness) pending trial. GL c. 276, §58A states that “if, after a hearing…the judge of the superior or district court determines by clear and convincing evidence that no condition of release will reasonably ensure the safety of any other person or of the community, such judge shall order the arrest of the person before trial.”

The Judge at these Dangerousness Hearings will consider various pieces of evidence including:

1. The circumstances of the crime charged,
2. Previous criminal record,
3. Previous lease violations,
4.Employment history,
5. Mental illness records,
6. Community ties,
7. Reputation,
8. Dependence on controlled substances, and
9. The potential danger to the public if released.

Of some importance when it comes to OUI arrests and Dangerousness Hearing the facts of the case will play a very important role. Exceptional events will play an important role. The level of intoxication, the defendant’s conduct that resulted in the arrest of the individual, was there an accident, were other parties injured, what was the defendant’s interaction and behavior with the arresting officer?

Since the circumstances of the arrest can play a critical role in a dangerousness hearing, it is important that if you are arrested for an OUI:

1. Be respectful and courteous to the officer. Rude behavior can be detrimental to any future proceedings.
2. You have the right to remain silent, USE IT! Anything you say will be used against you. Every prosecutor, defense attorney, and police officer has heard the phrase, “I only had a drink or two.”
3. Be respectful and courteous. No, I didn’t accidentally repeat this, it’s that important.
4. You have the right to refuse field sobriety testing such as walking and turning the 9 steps and standing on one leg.
5. You have the right to refuse to take a breath test. Refusal of field sobriety and breath tests will result in license suspension. However, in a future trial these refusals are inadmissible.
6. Be respectful and courteous when making such denials.
7. Do not go to the arraignment without a lawyer. If it is your third offense, you can be held for or after a endangerment hearing, even if you have posted bail set by a bail commissioner at the police station.