What Happens If You’re Charged with OUI While Your License Is Already Suspended in Massachusetts?

If you’ve been arrested for OUI while your license is already suspended in Massachusetts, chances are good that you’re in a near panic. You’re dealing with two serious problems at the same time, while also worrying about possible jail time, whether you’ll lose your job, and how all of this is going to affect your family.

In this guide, we’ll cover the technical defenses available if you find yourself in this situation, what to know about your actual jail exposure, and the immediate action steps that you need to take beginning now.

The good news is that while things look bleak right now, they may not be as bad as they seem. In our experience as defense attorneys representing clients in Worcester District Court and Worcester Superior Court, we’ve seen many people charged improperly because the Massachusetts State Police or the assistant district attorney didn’t check if the suspension was for an enumerated OUI disposition under M.G.L. c. 90 § 23, versus for administrative reasons from the Registry of Motor Vehicles (RMV).

The Most Important Question: What TYPE of Suspension Do You Have? (This Determines Everything)

Determining what type of suspension you have is the single most important thing to do because that determines everything that comes afterward.

Only suspensions for enumerated OUI disposition under the law’s listed provisions qualify for the OAS-for-OUI mandatory minimum. Qualifying OUI dispositions include:

• Conviction or CWOF for OUI under M.G.L. c. 90 § 24(1)(a)
• Alternative disposition (24D) under M.G.L. c. 90 § 24D
• OUI causing serious bodily injury under M.G.L. c. 90 § 24L
• OUI-based motor vehicle homicide under M.G.L. c. 90 § 24G

In comparison, administrative suspensions don’t qualify. This distinction was reinforced by the Supreme Judicial Court in Commonwealth v. Nascimento, 479 Mass. 681 (2018), which makes clear that the Commonwealth must prove the suspension arose from a qualifying OUI disposition, not just that an OUI once existed. Those include suspensions for the following: 

• Breath test refusal (typically 180 days)
• Breath test failure (often 30 days)
• Unpaid fines or fees
• Child support suspensions
• Medical or competency-related suspensions
  

The problem is that officers often do little more than a quick RMV check without verifying which specific statutory paragraph caused the suspension. The assumption is that the suspension was from an OUI, not an administrative suspension.

Here’s a simple breakdown:

• Suspension from § 24(1)(a), § 24D, § 24L, or § 24G: Can support OAS-for-OUI
  
• Suspension from refusal, failure, fines, child support, or medical reasons: Cannot support OAS-for-OU

Note that habitual traffic offender status is not an enumerated OUI disposition and does not qualify for OAS-for-OUI mandatory minimums unless the underlying suspension qualifies under the enumerated OUI provisions.

What Exact Charges and Penalties Are You Facing? (The Numbers You Need to Know)

The exact charges and penalties you’re facing vary depending on the underlying offense, because that charge determines your minimum jail exposure.

The Two Different Offenses (and Why It Matters Which One You’re Charged With)

Remember that you could be facing one of two different charges: operating after a suspension for OUI or operating under the influence while suspended for OUI. They’re not the same and don’t carry the same penalties.

Offense #1: Operating After Suspension for OUI (OAS-for-OUI)

In this situation, the state’s required to prove that: 

1. Your license was suspended because of an enumerated OUI disposition

AND

2. You operated a motor vehicle while that suspension was in effect.
   

You’re not being charged with a new OUI. Instead, you’re being charged with driving while your license was suspended for OUI. 

If you’re convicted, you will face:

• 60-day mandatory minimum jail sentence
• Up to 2.5 years in the House of Correction
• $1,000 to $10,000 fine
• 1-year additional license loss
  

Understand that there’s no leeway here. This is a true minimum-mandatory sentence. The judge has no authority to suspend, reduce, or probate the 60 days if the conviction stands.

Offense #2: Operating Under the Influence While Suspended for OUI

The second offense is more complicated because it’s what’s called a “stacked offense”. Here, the state has to prove: 

1. You committed a new OUI

AND

2. At the time of that OUI, your license was already suspended for an OUI disposition.
   

This offense combines a brand-new OUI with OAS-for-OUI status.

If you’re convicted, you’ll face at least:

• 1-year mandatory minimum jail sentence
• Up to 2.5 years in the House of Correction
• $2,500 to $10,000 fine
• 1-year additional license loss
  

Why Consecutive (“From-and-After”) Sentencing Matters

Under M.G.L. c. 90 § 23, enhanced OUI-related sentences have to run consecutively. They can’t run concurrently. That means:

• The sentence has to run “from and after” the sentence on the underlying OUI.
• The judge can’t let the sentences overlap.
  

For example:

• A new OUI sentence + 60-day or 1-year minimum-mandatory sentence = stacked jail time
  

To help illustrate the differences, we’ve laid them out below.

Your Situation	Charge Faced	Mandatory Minimum	Defense Angle
Driving while suspended for prior OUI, no new OUI alleged	OAS-for-OUI (M.G.L. c. 90 § 23)	60 days jail	Attack suspension type; prove it was administrative or HTO, not an enumerated OUI disposition
New OUI while already suspended for OUI	OUI while suspended for OUI	1 year jail	Challenge OUI evidence and suspension basis; suppress stop, breath test, or RMV proof
Driving while suspended for refusal, fines, or HTO	Simple OAS	No mandatory jail	Reduce or dismiss enhanced charge as legally unsupported

How They Compare

• 60-day mandatory minimum vs. 1-year mandatory minimum depends entirely on how the case is charged.
  
• Both charges carry up to 2.5 years in the House of Correction, and fines up to $10,000, but the floor is what drives risk.
  
• Because these are minimum-mandatory sentences with from-and-after requirements, a single charging error or a successful legal challenge can mean mandatory jail or no mandatory jail.
  

The first legal question to answer is whether the charge itself is legally sustainable under M.G.L. c. 90 § 23 and Melanie’s Law.

What If You Were Just Driving (Not Arrested for a New OUI)?

If you were just driving and not arrested for a new OUI, you still face a 60-day minimum jail stay, but the other penalties are lower.

Operating a vehicle while your license is suspended for an enumerated OUI disposition without a new impairment is still the OAS-for-OUI variant. Simple OAS (for non-OUI suspension reasons) has lower penalties and no mandatory jail time. It’s also important to know that a breath test refusal suspension or breath test failure suspension should result in the charges being reduced to simple OAS with no mandatory minimum per Nascimento.

Why Courts and the RMV Treat This So Seriously

As far as the court is concerned, driving on an RMV suspension shows disregard for prior court orders. Doing so while impaired just compounds that, and the court treats it like a direct threat to public safety. That’s especially the case if your suspension is from a prior OUI, a breath test refusal, unpaid fines, or habitual traffic offender (HTO) status. You can expect to see higher bail amounts and have a tougher time during plea negotiations than if this were a first OUI with a valid license. 

From the defense perspective, it’s important to start mitigating the situation early. An experienced attorney can do that by showing you have steady employment, family responsibilities, are going through treatment, and that there’s genuine confusion about your suspension status. Your attorney will also focus on correcting charging errors and RMV records.

Separately, RMV penalties stack on top of court penalties. The RMV, through its ATLAS system, enforces suspensions and hearings via an RMV Hearings Officer (usually at the Worcester RMV branch, 44 Quinsigamond Ave). This hearing is handled separately from the criminal case, meaning that as your case proceeds, you’ll still be dealing with administrative consequences.

What Happens During and After the Stop?

During and after a stop, the officer will check your license in the state’s system, discover the suspension, check for signs of OUI, and likely ask for field sobriety tests, before booking you into jail and possibly requiring a breath test.

At the Roadside: How Police Build the Case

Police start with a traffic stop, run your license, and quickly learn if there’s an RMV suspension. Once that’s confirmed, officers shift to checking for OUI indicators like slurred speech or the smell of alcohol, and then they’ll ask you to complete field sobriety tests (FSTs) while recording the entire thing.

While the officer will probably pressure you to take the FSTs, understand that it’s your decision. They’re voluntary, but can create evidence to use against you (dash-cam video and body-cam footage). A roadside breath test is also optional, but the in-station breathalyzer is not. You can choose not to take it, but refusing is tied to the state’s implied consent law and means additional RMV consequences. That said, not taking it means that you won’t give the prosecutor your BAC reading (0.08% is the per se threshold).

If you’re arrested, the police will probably impound your vehicle, and that means paying for towing and storage costs on top of criminal charges and RMV penalties.

At the Station and What to Expect Next

At the station, a booking officer processes you, inventories any property you might have on you, and documents your charges. You may be offered the official breath test, too. Remember that refusal generates a refusal notice and RMV consequences (suspension). You’ll also receive paperwork listing both charges (the OUI-related offense and the license offense).

After an arrest in Worcester, custody only lasts a few hours. A bail magistrate will release you, either on personal recognizance or with minimal conditions. You’ll have an arraignment scheduled soon in Worcester District Court. 

After you’re released, make sure that you:

• Do not drive again
• Gather and keep all paperwork
• Write a timeline of the stop, tests, and statements while it’s fresh

The Technical Defenses: How a Lawyer Gets These Charges Reduced or Dismissed

If you’ve been charged with OUI while your license is already suspended, an experienced lawyer can get your charges reduced or even dropped with the right defense.

The “Improper Charging” Defense (Most Valuable)

Remember, administrative suspensions like breath test refusal or failure don’t support the OAS-for-OUI mandatory minimum. This makes the “improper charging” defense one of the most common. 

How it works:

• The defense pulls the certified and attested RMV record.
  
• That gets compared to the complaint to see whether the suspension came from an enumerated OUI disposition or an administrative reason.
  
• If it’s administrative, the OAS-for-OUI paragraph is legally unsupported.
  

Commonwealth v. Nascimento, 479 Mass. 681 (2018) holds that breath test suspensions cannot support an OAS-for-OUI charge. The state has to prove that the suspension came from a qualifying OUI disposition, not a refusal/failure.

So, what happens next? In our experience, it looks like this:

• Your attorney presents authenticated RMV records.
• The prosecutor files an amended complaint.
• You get a charge reduction from OAS-for-OUI to simple OAS (no mandatory jail), or dismissal of the enhanced count.

The “Notice” Defense

The “notice” defense comes in if you didn’t get an “actual or constructive” notice of your license suspension. If the state can’t prove that you did, the charge fails. We’ve seen several common notice problems our clients have dealt with, including:

• Address changes not yet reflected in RMV records
• Mail delivery issues under RMV mailing procedures
• Overlapping suspensions creating genuine confusion about status
  

Commonwealth v. Deramo, 436 Mass. 40 (2002) holds that the state has to prove the defendant had actual or constructive notice of the suspension. A lack-of-notice defense defeats OAS when notice can’t be shown.

Challenging the OUI Evidence Itself

Finally, there’s the option of challenging the OUI evidence itself. Attacking the new OUI charge can improve your negotiation position on the suspension charge. Experienced OUI lawyers in Worcester can challenge several different OUI elements, including:

• Stop legality, including pretextual stops
• Field sobriety test reliability, given conditions, instructions, and officer bias
• Breath test procedures, including breathalyzer calibration and operator compliance
  

In this situation, the defense counsel files a motion to suppress where appropriate. Successful rulings reduce or eliminate critical evidence and improve negotiations across the case.