Massachusetts DUI Attorney Blog

OUI Drug charges in Massachusetts and new legislation targeting driving under the influence of drugs

Wed, 09 May 2012 05:57:22 -0500

Massachusetts DUI/drugcharges present unique challenges to prosecutors, compared to a standard, alcohol-related DUI charge.

In a routine Attleboro DUI, police officers can test your blood alcohol level through a breath or blood test. They can note well-recognized signs of alcohol intoxication, and a lot of these cases are fairly straightforward (although there are always ways that a skilled Massachusetts DUI defense attorney can attack the credibility of those tests or the officer's work).

Under Massachusetts General Law, Chapter 90, Section 24, it's illegal to operate a motor vehicle while impaired by any substance.

That said, when it comes to a drug-related OUI in Massachusetts, the details are more nuanced. For example, when you drink alcohol, it stays in your system for a relatively short period of time. That means that if an officer tests you for alcohol consumption and test results are positive, chances are pretty good that you recently consumed a drink. If you are over the age of 21, that rest result has to be at least 0.08 in order for you to be charged with a DUI.

However, if you smoke marijuana, that drug may stay in your system for weeks. So even if you test positive for it, there's no definitive proof that you were actually intoxicated at the time you were behind the wheel. It's the same for many other substances.The court is going to look at the observations of the officer - and that is a much more subjective measure.

This gets even trickier for states that have legalized marijuana. Massachusetts isn't one of those, but voters are trying to rally to get enough signatures to have the issue placed on the November ballot. (A bill that would have legalized pot in the state died in the last legislative session).

But in other states, such as Colorado, where the drug is legal for medical purposes, politicians are working on a measure that would explicitly define what marijuana intoxication is under the letter of the law. Right now, the measure is in the House Appropriations Committee. Senate Bill 117 would essentially outline that motor vehicle operators who have more than 5 nanograms of THC in their system would be considered intoxicated. That will be the standard - even if a driver can show they aren't actually impaired.

This is troubling and dangerous territory. A person who is using marijuana for medical purposes may have very high levels of THC, but due to their heightened tolerance levels, they are fit to drive. What that means is that people would be able to be convicted of impaired driving - even when they aren't impaired and even when they are consuming a legal medicine.

Right now, marijuana is legal in 16 states, including the District of Columbia. The Massachusetts ballot measure would allow for 35 medical marijuana dispensaries in the state, which could only distribute the drug with the prescription of a doctor. Approximately 11,500 signatures are required for the measure to be placed on the ballot.

DUI/drugs charges also commonly involve prescription medication. In many cases, contesting the charge can make it virtually impossible for the state to prove the allegations beyond a reasonable doubt. While "drug recognition" experts are being trained, their opinion as to a driver's intoxication level is even more suspect than an officer's determination regarding a driver's performance when taking field-sobriety tests.

Massachusetts DUI Roadblock arrest involving fleeing motorist

Thu, 03 May 2012 05:41:19 -0500

Fleeing a Lawrence DUI roadblock has resulted in assault charges and complications for one man's Massachusetts DUI defense team - not to mention it nearly got him killed.

Lawrence DUI defense lawyers understand that sobriety checkpoints are intimidating. While we have long challenged their legality and effectiveness, the fact is, for now they are legal and that isn't likely to change anytime soon. However, there are solid defenses that an experienced Lawrence DUI lawyer can mount to weaken the credibility of the state's case.

Additionally, cases involving Massachusetts DUI roadblocks are often tough for prosecutors anyway. That's because when you're stopped at a checkpoint, officers often have no proof that you were driving erratically. Plus, these operations rely a great deal on field sobriety tests. These are non-scientific and highly subjective measures by which law enforcement tries to prove a Lawrence DUI. Such "evidence" may not stand up in court.

For you, that means that fleeing is rarely a smart option because in the end, you're likely to be charged with additional offenses, as well as the underlying DUI, DWI or OUI you were aiming to avoid.

However, if you do try to take off (maybe you don't even remember it happening), contacting a skilled Lawrence OUI attorney as soon as possible after the incident is going to be critical to giving you the best chance of beating or mitigating the charges.

With the most recent incident, the details we have at this point are sketchy, but here's what we know so far from The Eagle-Tribune:

A 32-year-old man made a swift attempt to flee a sobriety checkpoint that as set up on Route 28 around 2:15 a.m. on the weekend of April 29th. Andover police officers had set up and were operating the checkpoint, while troopers were standing guard near the roadblocks, which prevent motorists from maneuvering around them.

We don't know yet if he had already begun the process of moving through the checkpoint or if he was trying to avoid it entirely when he hit the gas and took off.

In what was likely an unintentional assault, the man struck the hand of one of the state troopers as he barreled through the roadblock.

In turn, this caused the troopers to open gunfire at the man.

At that point, police began chasing them man, first on Route 28, where the checkpoint had been established, then onto I-495 North. It ended with a cruiser colliding with the driver's vehicle at the Massachusetts Avenue exit in North Andover.

Suffering injuries from the crash, the man was transported to the Lawrence General Hospital. There, he was treated and released to the custody of the Andover police, and booked into the state police barracks.

For now, his charges include drunk driving and assault with a motor vehicle. It's possible additional charges could be filed.

The trooper who was allegedly struck by the man was also taken to a local hospital, treated and released.

Multiple Prior Plymouth OUI Convictions Require Skilled Defense Attorney

Thu, 26 Apr 2012 05:56:24 -0500

Multiple Plymouth OUI convictions can lead to long-lasting consequences for offenders.

Plymouth OUI attorneys know that the first conviction alone can have serious consequences. When you are charged with a Second or Third Offense, the potential penalties increase along with the license suspension for refusing a breathalyzer test. Accordingly, it is important to contest the charge as a 3rd offense carries an eight year license loss, while a fourth offense carries a ten year loss and offense of five and greater result in a lifetime license loss. Additionally, if you refuse a breathalyzer test and have three prior convictions, the refusal can also result in a lifetime license loss.

In a recent weekend OUI enforcement initiative, five people were arrested in Pembroke in a matter of just a few minutes - including one individual who had two previous OUI convictions on his record, according to The Patriot Ledger.

In a separate case, a 49-year-old Plymouth man earlier this month pleaded innocent to his eighth OUI charge. His bail was set at $50,000, despite a plea from his attorney to reduce it to $5,000. He was arrested in mid-January on Route 3, by a trooper who reported he'd been driving erratically. He admitted to the trooper he had been drinking, failed a sobriety test and blew a breathalyzer result of 0.12 - above the state's 0.08 limit. His license was still reportedly under suspension, as it was revoked for 10 years in 2003, following his fourth OUI conviction.

There are a number of ways that a skilled Plymouth OUI attorney can defend your case. Remember though that in most instances, the issues can be time-sensitive. That means it's important that you contact a lawyer immediately following the incident.

Repeat Offender Requires Attleboro Reckless Driving Defense

Sun, 22 Apr 2012 11:04:45 -0500

A police chase prompted authorities to take drastic action in side-stepping normal procedure for license revocation for a motorcyclist eight-times convicted of driving to endanger in Attleboro.

Attleboro criminal defense attorneys know that it's rare for police to make a direct request to the Massachusetts Registry of Motor Vehicles, requesting an immediate revocation. In this case, however, police have labeled the 33-year-old motorist a menace.

Prosecutors say his long record of traffic violations include eight prior convictions for driving to endanger.

Driving to Endanger, which is outlined under Massachusetts General Law Chapter 90, Section 24, is grouped with other serious traffic crimes, including operating under the influence.

Basically, there are two standards that can be used: negligence or recklessness. In negligent operation, prosecutors only need to prove that you were careless or just not paying attention. One example would be if you are texting while driving and swerve into another lane.

Recklessness is a somewhat higher standard. It means that your actions were not only wrong, but that they showed blatant disregard for the safety of others. One example would be if you are speeding, going 100 miles per hour, at night, with your lights off.

Neither requires that you be under the influence of drugs or alcohol. In either case, you're looking at several hundred dollars in fines, as well as a possible two-year jail term.

With regard to the Attleboro motorcyclist, we don't know the details of his prior convictions. What we do know is that this latest incident appears to have sparked intense ire from police and prosecutors.

The 33-year-old suspect has been held without bail, which the judge was able to legally do because the defendant had been charged with a domestic violence case last month and was out on bail at the time of the alleged chase.

According to police, the motorcyclist had a suspended license and was driving on Route 23 around 6 p.m. The officer who spotted him? The police chief of Norton. He followed him into Attleboro, at which time Attleboro Police Department officers picked it up.

Officers in unmarked cruisers tried to stop him as he reportedly raced along O'Neal Boulevard at roughly 60 miles per hour. He then swung onto Maple Street before barreling through a parking lot and over a sidewalk and back onto the street.

He then slowed to less than 20 miles per hour, reportedly ran a stop sign and then lost control of his bike.

Then, officers claim, he tossed his bike on its side, and started to run on foot, hopping a chain-link fence before he was ultimately tackled by police.

In addition to the charges he faces in Attleboro, he will also reportedly face additional charges in Norton.

Plus, he faces a probation hearing, not only on the latest charges but also on his failure to pay certain fees.

Stoughton OUI lawyer's Advice to those charged at a DUI Roadblock

Wed, 18 Apr 2012 11:47:41 -0500

If you were arrested at a drunk driving Roadblock in the Stoughton and Canton area, you should know the following about your case.

Roadblock cases can be difficult for the Commonwealth to prove at trial. There are three reasons for this:

First, there is typically no evidence of erratic driving;
Second, in most cases, after being initially greeted by an officer, you are allowed to continue to drive into the screening area.
Third, these cases rely almost exclusively on field sobriety tests, which are often unfairly administered, improperly scored and performed under stressful conditions that make it difficult for a motorist to perform a physical test when nervous.

Roadblock arrests in Massachusetts also presents the opportunity to challenge whether the Roadblock was set up in conformity with Constitutional requirements. If the State and local police deviated from the strict compliance with Massachusetts DUI law in setting up the roadblock, the Court would suppress all evidence from the stop, resulting in the case being dismissed.

Even if you took a breathalyzer test and failed, when police administer a breathalyzer test at a portable BAT mobile during a roadblock arrest, the circumstances are much different from the typical arrest that the officer performs. Given the number of people, other officers present and the set up of the portable BAT mobile, often the officers will not comply with the correct procedure in administering the breathalyzer test. If this occurs, a judge may exclude the results from evidence at trial.

South Shore Drug OUI Difficult to Prove Without Drug Recognition Expert

Thu, 12 Apr 2012 05:24:47 -0500

Those requiring South Shore OUI defense should be aware of recent news reported by The Patriot Ledger, detailing the area's lack of drug crime recognition experts.

South Shore OUI defense attorneys know that while it is illegal under Massachusetts state statute Chapter 90, section 24 to drive while intoxicated on any substance, proving a drug OUI, as opposed to an alcohol OUI, can be more difficult.

That's because while measuring the alcohol in your blood involves taking a breathalyzer test, most drugs aren't going to show up that way. Certain signs of drug impairment - like pupil size or heart rate - aren't as easy for law enforcement to spot. What's more, just because you have drugs in your possession doesn't automatically prove that you took them.

In other words, you don't need to necessarily be an expert to recognize when someone is drunk. However proving that someone is under the influence of drugs is tougher.

According to the law, in order to secure a conviction on a South Shore OUI charge, prosecutors need to show that you took drugs you were not legally authorized to take, that those drugs caused you to be impaired, that you were driving a motor vehicle and that you were on a public street. This may sound straightforward, but unless the agency has an expert to testify, proving you were impaired is not as simple as it seems.

So what many law enforcement offices do is hire or train Drug Recognition Experts (DRE's). These are law enforcement officers who have gone through fairly intensive training to recognize whether an individual is under the influence of drugs. The testimony of these individuals can be quite compelling in court. That doesn't mean you can't beat the charge with the help of a skilled South Shore defense attorney, but it does make the job more challenging.

These so-called "experts" offer nothing more than their opinion about a driver's state of intoxication -- much like Massachusetts field sobriety test results, that opinion can be challenged.

The problem for many South Shore law enforcement agencies is that having a DRE is expensive.

In 1995, the state started a Drug Evaluation Classification program, which purported to give police the ability to identify the specific effects of drug intoxication. Right now, there are about 75 DRE's in Massachusetts. Police don't feel that's enough.

The training takes a great deal of time. A certified DRE will have completed 80 hours of instruction in the classroom, and then conduct drug impairment examinations on at least 12 drugged individuals. Then, they must pass a five-hour written examination. Because the state hasn't funded the courses for two years now, the cost must be absorbed by the agency, which, in addition to paying for the actual training, must cope with being short of that officer during the training period.

So while most departments think it would be ideal to have one or two employed on the force, it's often just not feasible. Sometimes, agencies have resorted to reaching out to a DRE on a neighboring force. But there are issues with this because the effects of certain drugs don't last long. By the time the DRE arrives, the effects may no longer be evident.

Massachusetts Breathalyzer test of .384 Raises concerns over the accuracy of the machine

Thu, 05 Apr 2012 05:35:03 -0500

Dammon McLaren didn't have a near-death experience, but he did learn firsthand the need for a solid breathalyzer defense in Massachusetts.

Brockton drunk driving defense attorneys frequently challenge the reliability of breathalyzer test results and field-sobriety testing. In the latter case, nothing more than an officer's opinion is involved. And when it comes to breathalyzer machines and their results, the debate rages from coast to coast.

In Washington D.C., police have quit using their machines amid allegations of inaccuracies. In Florida, DUI defense attorneys have successfully sued the manufacturer for the code, arguing defendants have a right to confront their accuser. The company has thus far denied a court order to turn over the code.

In the Brockton case, the .384 blown by 32-year-old Dammon McLaren should have put him at death's door, according to the Boston Herald. The arrest even made news overseas, where the Daily Mail reminded readers that's nearly 5 times the legal limit of .08 in Massachusetts.

State police say McLaren smelled of alcohol, had slurred speech and was unsteady on his feet. After submitting to the breathalyzer, McLaren blew a .373 and .384.

-A BAC of .30 to .39: Is associated with central nervous system depression, unconsciousness and death. The high breathalyzer test results being inconsistent with the officer's observations raise what is known as a disconnect defense. This is when the breathalyzer test results are inconsistent with observations that are typically associated with the BAC reported by the breathalyzer machine.

Police report McLaren was awake and alert. They say it's "scary" he was driving a car but are sticking by their machine. DUI defense attorneys and other experts are doubtful; they say McLaren would have been comatose or near death.

There are many factors that go into determining breath tests results, including the age and condition of the machine, training of officers and medical conditions of defendant.

McLaren is due back in court April 7, where he facing charges of driving under the influence, a lane violation, a citation for not using a turn signal and a ticket for operating with an expired registration.

Massachusetts DUI lawyer reviews police report in arrest of Rhode Island State Senator Ruggerio

Sat, 31 Mar 2012 14:34:03 -0500

As a Massachusetts DUI lawyer, a frequent question surrounds the significance of statements contained in the police report. The arrest of Senator Ruggerio in Rhode Island resulted in his police report being published in the Providence Journal and provides a good opportunity to explain how I review DUI police reports.

According to the report, the officer is alerted to the car by a 911 call. If the police have the information for this witness and the witness testifies at trial, it makes for a more difficult case for the defense as the witness would probably be credited by a jury as being a neutral witness.

The officer attempted to stop Ruggerio immediately; in many Massachusetts OUI arrests, the driver will pull over immediately and there will be nothing in the report about how the car was stopped. When a police report does not mention how a driver pulled over, it is a strong point for the defense because it shows normal response in an emergency situation. One thing I look for in addition to what the officer alleges is the driving infraction that caused the stop, but how the driver responded to the emergency lights.

This case is unusual as the report states that the officer deactivated his lights when Senator Ruggerio did not stop immediately. The officer alleges some minor traffic violation of a wide and slow turn. The officer claims that Ruggerio pulled over in the middle of the road, though it appears the car was stopped on a side street.

For the defense, the driving is the State's best evidence as the rest of the case does not show someone under the influence of alcohol. The difficulty with the license and registration is fairly typical as people keep many documents in the glove box.

The field sobriety tests show an officer unsure whether to make an arrest. Ruggerio tells the officer he has a bad knee making the exercises unreliable when given to him. Still, he does fairly well considering his physical condition.

The key point for a Massachusetts OUI lawyer would be how long it takes to decide to arrest. Despite given three field tests, the officer states in the report he needed to use his Advanced Field Sobriety Test Training to come to his opinion. But for his advanced training, he would never have been able to tell if the Senator was under the influence of alcohol.

The key argument at trial would be that if it is hard to decide to arrest, then there is reasonable doubt because we have an unsure, indecisive officer. These two additional tests have never been studied for reliability and should be excluded at trial.

Senator Ruggerio would have a strong case for trial if he were charged in Massachusetts. Being charged in Rhode Island and having refused the breath test, he may be able to get his DUI dismissed if he admits to the refusal. This option is not available in Massachusetts, where his refusal and OUI charge are completely separate. Given that his DUI charge is very defensible, he may want to have a trial on both the DUI and refusal to avoid a potential license loss in Rhode Island.

Taunton OUI Defense Watch: Bristol County DUI Checkpoint this Weekend

Fri, 30 Mar 2012 08:53:25 -0500

Drivers in Bristol County are forewarned: Law enforcement will be out in force with weekend and a sobriety checkpoint is planned, according to the Taunton Daily Gazette.

Taunton DUI defense attorneys understand the many ways in which a Massachusetts OUI checkpoint arrest can be challenged. These cases are difficult for the Commonwealth to prove and often result in not guilty verdicts at trial.

Since 1990, when the U.S. Supreme Court ruled 6-3 in Michigan Dept. of State Police v. Sitz that properly conducted sobriety checkpoints are constitutional, they have become a favorite of law enforcement. Substantially less than 1 percent of all DUI arrests come at sobriety checkpoints, but they make for great public relations and they pay officers overtime.

Of course, they are a violation of your right to be free from unlawful search and seizure, so in what's at least a nod toward the Fourth Amendment, strict rules have been adopted regarding how such law enforcement roadblocks must be operated.

Massachusetts uses an aggressive campaign of sobriety checkpoints. At such a roadblock, each vehicle is stopped and greeted by a police officer. If an officer believes there is reason to suspect the driver has been drinking (odor of alcohol, bloodshot eyes, open container, etc.), the vehicle can be pulled aside for further investigation.

The cases governing operation of Massachusetts sobriety checkpoints are Commonwealth v. McGeoghegan , 389 Mass. 137 (1983) and Commonwealth v. Trumble , 396 Mass. 81, 92 (1985). Requirements include:

-Cars must not be stopped arbitrarily.
-Safety must be assured.
-Inconvenience to motorists must be minimized.
-Law enforcement must follow a plan for operation of the checkpoint.
-Advanced public notice must be given.

That's where the article in the Taunton Gazette comes in. Somewhere out there in the wild this weekend the police will be operating a roadblock.

"The purpose is to further educate the motoring public and strengthen the public's awareness to the need of detecting and removing those motorists who operate under the influence of alcohol and/or drugs from our roadways," a press release from the State Police said.

This has become something of a joke. Today, with Facebook, Twitter, and text messaging, those who need to avoid a checkpoint have been warned almost before officers have made the first stop. Today, there are even cell phone apps to warn of approaching checkpoints.

What's important to remember is that authorities can charge you with whatever they want. Whether you are convicted in a court of law is what counts.

Massachusetts OUI/Drugs: Blandford Selectman's Case Postponed

Thu, 29 Mar 2012 05:50:24 -0500

The Massachusetts OUI/Drugs case against a Blandford City Selectman has been postponed, 22 News is reporting.

Westborough OUI defense attorneys understand there are many ways to challenge a drug case. Certain drugs, particularly marijuana, can remain in your system for weeks -- long past the point where a driver could be considered under the influence. While the National Highway Traffic Safety Administration supports special recognition training for officers that purports to identify drivers suspected of being under the influence of drugs, such "testing" is even more subjective than Massachusetts field sobriety testing.

Even with a blood or urine test, there are many ways to challenge an allegation of driving under the influence of drugs.

In this case, Rob Nichols is accused of crashing his SUV into a school bus while under the influence of drugs last May. He was arrested at Noble Hospital in Westfield, where he had been taken for treatment of minor injuries. A court hearing in his case has been postponed and will likely be scheduled within the next couple months at Westfield District Court.

Massachusetts State Police claim Nichols was speeding down South Street when he crossed the centerline and collided with the bus. Four Chester Elementary School students were on the bus at the time. The driver and three of the students were taken to the hospital.

Troopers reported finding two pill bottles inside Nichol's Land Rover. A "drug recognition expert" then interviewed Nichols and determined he was under the influence of narcotics, according to the media account. He was charged with operating under the influence of drugs, negligent operation of a motor vehicle, and speeding.

It's unclear what, if any, field sobriety tests Nichols was given. Nor do we know if he was required to submit to a blood or urine analysis. And we don't know why police believed they had cause to search the Land Rover. All of these issues will likely be explored by a Westfield DUI defense attorney.

The subjective methods of these so-called drug recognition experts are even more suspect than those employed by officers conducting field sobriety tests. There are only three federally recognized field sobriety tests:

Walk and Turn

One Leg Stand

Horizontal Gaze Nystagmus

Still, officers are prone to requesting motorists perform all sorts of gyrations and recitations. Even when the rules are followed, the results are simply the opinion of an officer about whether you are impaired.

President Obama's Uncle Receives Standard Plea in First Offense OUI charge out of the Framingham District Court

Tue, 27 Mar 2012 21:45:19 -0500

President Obama's Uncle received a CWOF on his first offense Massachusetts OUI charge out of the Framingham District Court, according to numerous media reports.

Obama's Uncle received the same sentence that most individual receive when admitting to a first offense OUI, he was placed on probation for one year and ordered to complete the 24D Alcohol Education Program. Additionally, he will have to pay a $ 65.00 per month probationary fee and the other fees required under Massachusetts OUI law.

The meaning of a CWOF, also known as a Continuance Without a Finding, is sometimes misunderstood. While a CWOF is technically not a conviction, it is an admission to the charges, requires a defendant to admit that the facts contained in the police report are substantially true, and requires a defendant to waive the Constitutional right to a trial by jury and to confront the Commonwealth's evidence. Further, a CWOF will also count as a prior OUI conviction if there is a subsequent arrest, then the charge will be a second offense.

In the case of Obama's Uncle, he did not receive any special treatment but received the standard plea given to other first time offenders. Based on earlier reports that he requested the driving record of the officer, it appeared as though the case may proceed to a motion or trial; however, Obama's Uncle decided he wanted to resolve the case.

Given the publicity that would have surrounded his trial, it would have been difficult for the court to accommodate the public interest as the Framingham District Court trial session has two small rows for the public to watch trials, as many trials draw little public attention. Given his status, it is not surprising that he did not want to proceed with a trial; however, it appeared as though he may have had some strong defenses had the case gone to trial.

Fourth Offense Massachusetts OUI Results in Prison Sentence out of the Taunton District Court

Thu, 22 Mar 2012 09:44:34 -0500

A 49-year-old Massachusetts man was sentenced to nearly two years in prison after being convicted of fourth-offense OUI in Taunton.

Darryl A. Torres, 49, had faced up to 2.5 years in prison. He will get credit for time already served, according to the Taunton Gazette.

Hiring a Taunton DUI defense attorney for a first-offense DUI and aggressively fighting any subsequent charges, can help prevent ever facing a felony DUI charges in Massachusetts. In all cases, challenging claims of erratic driving and the results of field sobriety tests and breathalyzer results can result in a reduction or dismissal of charges.

Under Massachusetts drunk driving law, a fourth-offense is a felony that can result in 2-5 years in prison, with one-year mandatory jail time. A defendant also faces a 10-year driver's license suspension. An ignition interlock device will be required throughout the hardship period and a fine of up to $25,000 will be assessed. Conviction for a fifth-offense drunk driving can result in lifetime suspension of your driver's license.

In this case, Torres was arrested for drunk driving in Taunton last December after police say he wrecked a green 1997 Chevy pickup into the back of a 2007 Toyota SUV. The Toyota had been waiting at the light at East Britannia Street and Broadway. The SUV's driver and witnesses at a nearby Rite Aid parking lot, say Torres fled the scene and went speeding down Washington Street.

Torres was stopped by Taunton's police chief; media reports indicate he may have been returning to the scene. Police say they determined Torres was involved because his truck's license plate had been torn off and remained at the scene of the crash.

Police say he failed three field-sobriety tests, after telling them he had just stopped at the scene to see what happened. His truck had major front-end damage.

After first being taken to police headquarters -- Torres had to be transported to Raynham because Taunton's breathalyzer equipment was out of service. Drunk driving defense attorneys in Taunton understand how frequently breathalyzer results are called into question and ways to exclude the results from evidence at trial.

Breathalyzer testing in Massachusetts OUI arrests

Mon, 19 Mar 2012 05:27:45 -0500

In a Massachusetts OUI arrest, one requirement for the Commonwealth to admit breathalyzer evidence is for Government to establish that the motorist wanted to submit to a breathalyzer test or consented to take the test. In many cases, the government will attempt to admit into evidence a sign implied consent form, indicating that the motorist was advised of the penalties and consequences of refusing a breathalyzer test.

This form also indicates that the defendant was advised of their right to an independent medical exam. Though police departments have a motorist sign these standard forms, in some cases an officer will not read directly from the form or will explain the form in a way that is confusing and misinforms a motorist of their rights regarding using a chemical test. Further, in some cases police officers will complete fail to advise a motorist of these rights.

This issue was recently addressed in a case from the Iowa Supreme Court, State v. Overbay, decided February 17, 2012, and discussed in Lawyers Weekly USA. In the Overbay case, the Iowa Supreme Court held that inaccurate information regarding the consequences of refusing a blood test did not require suppression of the blood test results when it could not be shown that the inaccurate information did not affect the defendant's decision to submit to a blood test. To read the decision of the Iowa Supreme Court follow this link.

As a Massachusetts OUI attorney, I do not believe the Massachusetts courts would follow this decision. A motorist's consent to a breathalyzer test cannot be considered voluntary when the police misinform the motorist regarding the consequences of refusing the test. Further placing the burden on the defendant to re-create his thought process regarding the decision to take a breathalyzer test, places an unfair evidentiary burden on a defendant. Since the Commonwealth has the burden of proving consent, it should be the Commonwealth burden to show that the misinformation provided the defendant was not substantial enough to warrant suppression of a breathalyzer test.

Finding the details that add up to a not guilty verdict in a Massachusetts OUI trial

Sun, 18 Mar 2012 05:03:46 -0500

Winning a Massachusetts OUI trial on a first offense often involves obtaining numerous small admissions from the officer that add up to reasonable doubt. In many OUI trials, there is no single detail that will win or lose the case, but a successful defense requires the attorney to explain the significance of the details that support an acquittal in a way that can be remembered by the jury.

In many cases, the training of the officer can be used to support a finding that a driver was not under the influence of alcohol. Often a police report will make no mention of how a motorist got out of the car following the officer's request for the driver to take field sobriety tests. Since police reports only contain the negative details, this lack of information means that the person did not have trouble with balance getting out of the car.

To make this point most effectively, the Massachusetts OUI lawyer will want to teach the jury the significance of this. Of course, the attorney could simply ask: the defendant got out of the car without any difficulty; answer: yes. However, such a short response will not allow the jury to understand the significance of the admission. One of the best books on Cross Examination for lawyers is Cross Examination, Science and Technique by Roger Dodd and Larry Posner; this book explains how to conduct and effective cross examination and provides numerous examples. One of the more important tips that Posner and Dodd provide is that time is the measure of importance in the courtroom; the more time is spent on a topic, the more it will be considered by the jury.

Instead, the attorney should remind the officer about this training, that how someone gets out of the car is specially mentioned in his police training as something he needs to pay careful attention to. The officer will acknowledge he was paying close attention, looking for whether the motorist had trouble getting out of the car, used it for balance or stumbled getting out of the car.

While this detail alone will not win a case, when used in combination with other areas where the motorist showed good balance and coordination, it may help support a jury finding reasonable doubt.

Challenging Breathalyzer Refusal Suspensions under Massachusetts OUI law

Thu, 15 Mar 2012 05:59:50 -0500

This is the second of two blogs addressing breathalyzer refusals in Massachusetts. The first blog addressed the procedures for challenging a suspension for breathalyzer refusal. This blog addresses the arguments I have used in court to argue that the court should vacate a refusal suspension.

As a Massachusetts OUI attorney, I typically am asked what arguments can be made to challenge a breathalyzer refusal suspension. In my prior post, I outlined the procedure for filing an appeal of a breathalyzer refusal suspension. In this post, I will discuss the arguments I have made before the RMV and in the District Court to attempt to vacate the suspension.

First, I look at the documents to make sure that the officer complied with Massachusetts general laws, Chapter 90 Section 24 in issuing the suspension. To comply with Massachusetts DUI law, the refusal must be witnessed by one other officer in addition to the officer requested the breathalyzer test. Some police officers are not aware of this requirement and I have seen reports of refusal omit this element.

The second issue is whether or not a motorist actually refused a breathalyzer test. In cases where a motorist attempted to submit to a breathalyzer test, but could not register an adequate sample, this raises the issue of whether the motorist constructively refused a breathalyzer test or could not deliver an adequate sample, due to medical conditions or to the condition of the breathalyzer machine.

A third argument, and one I use it every case, is that the report of refusal does not comply with Massachusetts DUI law as it is not signed under the pains and penalties of perjury.

Chapter 90 section 24 provides that a police officer shall "prepare a report of such refusal. Each report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by the police officer before whom such refusal was made."

In every case that I have seen, the report of refusal has no signature of the officer and next to prepared under the pains and penalties of perjury, there is an indication of "Y" to indicate yes. The reports of refusal also has a disclaimer that the registry reserves the right to correct any error or omission in the report of refusal. A Massachusetts DUI lawyer can argue before the court that this report does not constitute a report prepared under the pains and penalties of perjury. An officer could not be prosecuted for perjury based on this preprinted form that has no indication that the officer reviewed it or check it for its accuracy.