If I wasn't seen driving and my breathalyzer is out of the case do I have a chance to fight?

Would have to know more facts about the case. You should speak to an attorney about your case. Best of luck!

Obviously, your chances are better than *with* the BT coming in. Without a BT it's almost always a triable case. They probably got the "guy" to put you behind the wheel and the police report probably has most of the usual stuff ... odor of an alcoholic beverage on your breath, slurred speech, bloodshot and glassy eyes, unsteady on your feet, etc. You didn't mention field sobriety tests, so if there were no field tests it's a *really* triable OUI case. You should hire an experienced criminal defense attorney now.

Consult with a good DUI defense attorney. It sounds like you might have some good issues to exploit. The government needs at least one witness to put you behind the steering wheel. Generally, it's better for the prosecutor to have the police see the defendant drive. As a former prosecutor, I always hated only having a civilian witness put the defendant behind the wheel because it was always way harder to get the civilian witness to show up for trial. This being said, the prosecution in a case like this, might be more willing to work with your attorney and offer a better deal. Best of luck. Michael Larsen

Attorney Seccareccio is correct -- having the BT out of your case certainly makes your case better, but it is nearly impossible to say where you stand now with just internet advice. At this point in your case, unless you were arrested in the past few hours, you most likely already have a lawyer. If you are happy with your lawyer, direct your question to them. If you are not happy with your lawyer, don't have one, or don't trust them, by all means get on the phone and start shopping for a new lawyer immediately. OUI 3d is a serious charge that carries mandatory jail time, and only an experienced criminal defense lawyer analyzing your case with all of the paperwork and interviewing you in person can tell you what the likely strengths and weaknesses of the case are.

Without the BT, your chances of success at trial rise greatly. Regarding operation, even a person's own admission is insufficient to prove this crucial element of an OUI charge according to Commonwealth v. Leonard. There must be more than just an admission. However, circumstantial evidence can be used to establish that you were the driver. If the party that you were arguing with us able to testify that s/he saw you driving that would likely suffice. The most often contested element is impairment when there is no BT. I would need to see your police report to give you a better analysis of whether or not the case was triable. If it's your 3rd offense you really don't have much to lose by trying it. You are looking at a. In mandatory 150 days committed on a 3rd offense. If you don't already have an attorney you can contact me if you would like to discuss it in detail.