Friday, June 21, 2024

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In Commonwealth v. Nascimento, SJC-12442 (June 5, 2018) the Massachusetts Supreme Judicial Court recently corrected a long-standing practice of the lower courts sentencing drivers operating on a license suspended for administrative reasons related to OUI (such as breath test failure or refusal) to the same mandatory jail time required for someone operating on a license suspended for an OUI conviction.

The statute mandates a minimum sixty-day sentence for anyone convicted of operating on a license that has been suspended on any of a number of itemized provisions of state law related to OUI. However, an administrative suspension for breath test failure or refusal may be immediately imposed by a police officer in the field. The SJC found it significant that among those enumerated provisions was a suspension imposed by a judge in court presented with blood test from a hospital thus providing certain protections for the driver to refute evidence during court procedures.

Furthermore, the SJC discussed the legislative history noting that the Legislature has amended the statute numerous times and has never included the sections relevant to administrative suspensions in the list of enumerated provisions mandating the minimum sixty-day jail sentence.

Driving with a suspended license is a crime in Massachusetts. The proliferation of license plate scanners on police cruisers makes being pulled over nearly guaranteed. Thus, we expect this decision to have far-reaching consequences for drivers facing allegations of OUI.

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Joseph Waldbaum

Joseph Waldbaum

Joseph Waldbaum has been licensed as an attorney in Massachusetts for the last nineteen years. He has also been a member of the National College of DUI Defense for fifteen years, routinely attending their national seminars. You may learn more about Mr. Waldbaum through his websites at, or You may also reach him by phone at 978.921.4100 or at

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