If you are charged with a third or subsidiary offense of operating under the Influence in violation of GL c. 90, §24 the Commonwealth's prosecutor can and has been with some frequency in Massachusetts being filing for those accused to be held in jail for 90 days without bail under GL c. 276, §58A (Dangerousness Hearing) pending trial. GL c. 276, §58A provides that "if, after a hearing … the district or superior court justice finds by clear and convincing evidence that no conditions of release will reasonably assure the safety of any other person or the community, said justice shall order the detention of the person prior to trial. "
The Judge in these Dangerousness Hearings will consider several pieces of evidence that include:
1. The circumstances of the accused crime,
2. Past criminal record,
3. Prior bail violations,
4. Employment history,
5. Mental illness records,
6. Community ties,
8. Dependence on controlled substances, and
9. The potential danger on the public if released.
Of some importance when it comes to OUI arrests and a Dangerousness Hearing the facts of the case will play a very important role. Facts of an exceptional nature will play an important role. The level of toxox, the conduct of the accused that directed in the individual being stopped, was there an accident, were other parties hurt, what was the defensive interaction and demeanor with the arresting officer?
Since the circumstances of the arrest can play a pivotal role in a Dangerousness Hearing it is important that if you are stopped for an OUI that you:
1. Be respectful and polite with the officer. Rude behavior can be detrimental to any future proceedings.
2. You have the right to remain silent, USE IT! Anything that you say will be used against you. Every prosecutor, defense attorney and police officer has heard the line "I only had one or two drinks."
3. Be respectful and polite. No I did not accidently repeat this, it is that important.
4. You have a right to refuse field sobriety test, such as the 9 step walk and turn and the one legged stand.
5. You have a right to refuse to take a breath test. Refusal of field sobriety and breath tests will result in license suspension. However, at a future trial these reimbursements are inadmissible.
6. Be respectful and polite while making such refusals.
7. Do not go to the arraignment without a lawyer. If it is your third indemnity you can be held for a dangerousness hearing to be held or after one is held even if you had made a bail set by a bail commissioner at the police station.