Protect Yourself in a Drunk Driving Investigation

Whether you are innocent or guilty, it is normal to be stressed during a DUI/DWI traffic stop. People are often afraid it will look bad if they don’t cooperate, so they tell police far more than they should. The truth is you don’t have to say a word. It is your constitutional right to stay silent, even if your Miranda rights are not read, which usually won’t happen until an officer intends to make an arrest. Before that time, the officer will do anything he can to get you to incriminate yourself. But without the evidence you give him, an officer will have no probable cause for arrest. Always stay calm and polite. Respectfully, tell the officer your name and address. Then, say “I will not give anymore information until my attorney is present.” This is just one of many ways to protect yourself in a drunk driving investigation. 

It is also your right to say “no” to a field sobriety test or portable breath test. Again, these are measures the officer will use to gain probable cause that you are drinking and driving. By asking for your consent, they are admitting they don’t have enough evidence for a conviction. Don’t give them what they want. Instead, know and exercise your constitutional rights. The worst that will happen if you refuse a portable breath test is a small fine. In most cases, the fact that you refused a field sobriety test cannot be used against you in court. If the officer does arrest you or ask you to take a breathalyzer test or blood alcohol test, you can still refuse. The consequence will usually be a driver’s license suspension. However, if you are not convicted of a DUI, the suspension can often be reversed.

Police Will Intentionally Lie

Police officers have a close relationship with prosecutors and are well-trained in interrogation techniques. They may appear friendly or docile in an effort to get your guard down so you admit your own guilt and build their case for them. They might tell you that you won’t serve time if you simply confess. This is a blatant lie. A judge is the only one who determines sentencing. While it is perfectly legal for a cop to lie, it can be devastating to your case if you lie to an officer. Don’t talk to the police! Instead, wait until an experienced defense attorney can coach you on how to proceed.

Police Will Make Mistakes

Most states require an arresting officer to observe a driver for 15 minutes before giving a breath test. However, this step if often skipped. Many officers even lack probable cause for the traffic stop. Or, they will cut corners during field sobriety tests or ask questions that violate a citizen’s rights. If you avoid self-incrimination, a skilled attorney can use police error to have evidence excluded from trial or possibly obtain a dismissal.

How a Criminal Defense Attorney Can Help

If you are charged with a DUI/DWI, it is crucial to remain calm. Find an attorney with experience in DUI/DWI cases. A skilled, aggressive attorney can meet with prosecutors and convince them to drop the charges or have evidence disqualified from trial. The police do not want you to know your rights. But it is an attorney’s job is to empower their clients and help them achieve the most positive legal outcome.

If you or a loved one has been charged with drunk driving in the Boston area, I invite you to contact me for a case consultation. I can be reached directly at 617-263-6800. I provide criminal defense representation to residents of Lawrence, Lowell, Haverhill, Concord, Ayer, Newburyport, and all throughout Massachusetts.

Drive Sober or Get Pulled Over

A national campaign called Drive Sober or Get Pulled Over has made its way to the Boston area.  The goal is to curb drunk driving during the holiday season, and federal grant money is being used to beef up local patrols on the road.  Here are a few things you should know to keep yourself safe and arrest-free.

Why Should I Care?

Massachusetts is intensifying efforts to eliminate drunk driving partly due to the state’s high rate of the crime.  In 2012, 123 people were killed in crashes by drivers whose blood alcohol level was over the legal limit of .08%.  Nationally, 830 people were killed in drunk-driving accidents in December 2012.  This year, 191 Massachusetts communities are participating in the new campaign.  Not only are patrols being heightened, but police are conducting outreach campaigns that encourage the public to report suspicion of drunk drivers.  So far this year, motorists have reported 439 possible offenders.  Some local police are going so far as to offer rewards to citizens volunteering to participate in the campaign.

What Does This Mean for Me?

Across the state, especially in the Boston area, police are taking a closer look at what’s happening on the roads.  Because of the new campaign, law enforcement agencies now have the funds to put more police on the roads and stop more drivers. Anyone pulled over and arrested for drunk driving will face jail time, extensive fines, and the loss of driving privileges.  Financial losses alone reach up to $10,000, not to mention the cost of lost wages and a damaged personal reputation.

What Should I Do If I Am Arrested for an OUI?

Of course, the easiest solution to avoid legal action is to abstain from drinking and driving, or to call for a friend or taxi to take you home. But if you are stopped and arrested for drunk driving, there are still a few things you can do. First, contact an experienced OUI attorney immediately to review the details of your case. A lawyer can determine whether the circumstances surrounding your arrest were lawful.  They can even discredit the arresting officer by casting doubt about the validity of the blood alcohol test. If the equipment was outdated or improperly used, you might be able to avoid charges altogether.  Or, charges can be reduced depending on other circumstances of the case.

It is never recommended to deny a breathalyzer test or other field sobriety tests of blood alcohol levels. You could face more severe fines and penalties, and the mere refusal of testing can be seen as an admission of guilt. Instead, cooperate with police quietly until you can get an experienced attorney on your side.

The holiday season is meant to be a time of rest, relaxation, and celebration. The last thing anyone wants is to spend their vacation time in jail or their well-deserved bonus paying excessive fines. If you or someone you know has been arrested for an OUI in the Boston area, consult an experienced OUI defense attorney today.

Sources

Lederman, Diane. Amherst police will have extra patrols looking for drunk drivers from now through the new year. December 4, 2014. Read more at: http://www.masslive.com/news/index.ssf/2014/12/amherst_police_will_have_extra.html.

Michalski, Jessica. Police Stepping Up Patrols to Catch Drunk Drivers. December 4, 2014. Read more at: http://www.wggb.com/2014/12/04/police-stepping-up-patrols-to-catch-drunk-drivers/.

Massachusetts OUI Defense Lawyer

The Benefits to Pleading Guilty at Your Arraignment

Oftentimes when people get arrested for OUI the bail commissioner sets a bail. This is usually forty dollars. Once bail is paid you will be released. Because run of the mill drunk driving cases are not the most serious offenses your arraignment might not be scheduled for a couple of days. If this happens your lawyer will be able to bet a copy of the complaint and police report before the arraignment. This will permit time to evaluate the case prior to arraignment. If the arraignment is the day after your arrest you will get these documents at that proceeding. Regardless, you should have some time to discuss your options with your lawyer. A good DUI lawyer can quickly evaluate the likelihood of success in fighting your case.

So what should you do? If the case is one that you will not likely win pleading guilty at arraignment might make the most sense. You will get your driver’s license back rather quickly. You can get into the alcohol awareness program right away and get this behind you. Most judges will continue your case without a finding and impose the 24D program. Upon a successful completion of your probation you will not have a criminal record. No perspective employer will know that you had an OUI case. It is usually less expensive to plead guilty at arraignment most lawyers will charge you somewhere between one thousand and two thousand dollars to plead you out at arraignment. The additional court appearances associated with litigating your case will increase the cost of your defense. Trial first offense DUI cases in Massachusetts cost between three thousand five hundred dollars and ten thousand dollars.

When You Should Not Plead Guilty At Arraignment

If the motor vehicle stop violated your constitutional rights you will want to file a motion to suppress. If you win the case will be over. If you did not take a breathalyzer test and there was no accident you might want to try your case. If the breathalyzer test was administered improperly your lawyer will try to get the results excluded. If you took a breathalyzer test and the result was under a .08 you might want to refrain from pleading guilty at your arraignment. Basically, in cases where you are likely to win or where discovery might lead to success you probably should not plead guilty. A good lawyer can advise you about your rights in this regard. Remember, once you have been charged hire a lawyer. There are many things to discuss prior to arraignment all of which will help you make the decision of whether to plead or pursue your defense.

Jurors Get Suspicious When Cops Do Not Make Full Disclosures in Their Reports

Cross-examination of police officers in drunk driving cases starts with a pattern of questions designed to lock the officer into the facts established in his or her report. The line of questioning is typically as follows:

Q.        As part of your training and experience you are taught how to draft police reports, correct?

A.         Yes we are.

Q.        And you are taught to record as much detail as you can at or near the time of the incident, isn’t that correct?

A.         Yes.

Q.        And you do that with the knowledge that the district attorney will use this report to determine whether or not to charge the crime alleged, isn’t that right?

A.         Yes it is.

Q.        And you know that the district attorney will prepare his or her case with this report, correct?

A.         Yes.

Q.        You know that the defense will get a copy of this report, right?

A.         Yes.

Q.        And you know that the defense prepares its case in large part from the report, is that right?

A.         Yes it is.

Q.        And you are not trying to hide anything from the defense are you officer?

A.         No I am not.

Q.        And you have to sign off on that report, correct?

A.         Yes.

Q.        And your supervisor also has to sign off on the report, is that right?

A.         Yes it is.

Q.        And on direct, in addition to testifying to a,b and c you testified to d,e and f didn’t you?

A.         Yes I did.

Q.        And none of that is in your report is it officer?

A.         No it is not.

If you got his far you are going to win the case. Jurors hate witnesses being deceitful. To them, it is a personal affront particularly when the witness admits to having an obligation for fully disclosing the facts of the case in a report. Just this week I tried a case with a line of questioning that paralleled these questions. It took the jury less than an hour to acquit my client. I am convinced that the failure to include all details in the report was the reason for my client being exonerated.

Massachusetts OUI Law Firm

Attorney Stephen Neyman has won countless OUI cases for clients in Massachusetts. We try these cases throughout the state. Our approach is simple and convincing. If you have an OUI case call us. We are successful drunk driving defense lawyers who can be reached at 617-263-6800 or by email or website chat.

OUI Marijuana Defense Lawyer

Massachusetts Police Officers are Not Trained to Recognize Symptoms of Marijuana Impairment 

Most of the time OUI stops are made by patrol officers. These folks are trained to recognize objective symptoms of alcohol impairment. They are not taught how to recognize signs of drug impairment. It is not a crime to drink and then drive. Nor is it a crime to smoke marijuana and drive. It is a crime to operate under the influence of these substances only. Defining what constitutes being under the influence of marijuana is not easily done, at least here in Massachusetts. It is well known that there exists no consensus as to how much marijuana needs to be consumed to establish impairment. Marijuana does not absorb into the bloodstream as does alcohol. Even a positive test for marijuana does not indicate impairment.

There Are No Reliable Field Tests That Establish OUI Marijuana

The typical field sobriety tests, walk and turn, one legged stand nystagmus do not help officers distinguish among substances used by the suspect. That is a fact. Many of the alcohol impairment and marijuana impairment symptoms are similar. Larger pupils, reddish eyes, failed nystagmus tests and slurred speech. It is agreed that detecting marijuana impairment is more difficult than detecting alcohol impairment. In Massachusetts, for an OUI charge to survive a motion to dismiss the substance causing impairment must be identified. Thus, the district attorney cannot charge with OUI liquor or alternatively OUI marijuana. It his to be one or the other. So, shortcomings in the field sobriety tests alone will not help the cops win an OUI marijuana prosecution. There must be more. Establishing more is something that Massachusetts cops cannot do at this time.

There Are Very Few Drug Recognition Experts Available at the Time of the OUI Stop

Most Massachusetts police departments have a drug recognition expert. These people are usually not patrol officers. They are not always on duty. If they do not see the suspect at or near the time of the alleged impairment they cannot testify at trial. Right now Massachusetts police departments do not have the budget to pay for drug recognition experts to be on duty at all times. Thus, establishing OUI drugs is not so easy at this time.

OUI Marijuana Defense

The Law Offices of Stephen Neyman, PC has been defending OUI drug cases that involve marijuana impairment for nearly thirty years. We have never lost an OUI marijuana case. Call us at 617-263-6800 or send us an email if you have to go to court. We will defend you.

The Accuracy of Blood Alcohol Calculators

Most people have looked online or spoken to people about blood alcohol calculators.  These are charts that estimate what a person’s blood alcohol level will be in certain situations.  Some of the charts use a beer or a one shot mixed drink as a yardstick.  The rule of thumb some say is that for every beer or shot add .02 to your blood alcohol calculation.  So, four beers will make you a .08, the level all states now say leaves you presumptively impaired.  Here is another one of these rules of thumb.  Take off .02 every hour as well;  i.e. your system metabolizes a beer every hour.  Using these measurements might lead someone who has had six beers in three hours to believe that his bac is .06 – – that is .12 for the six beers minus .06 for the three hours of metabolization.  This is not really a safe calculation and almost every lawyer would tell a client who drank six beer in three hours not to take a breathalyzer test.  However, someone using the app might think he will pass and make the mistake of breathing into a machine.  Don’t do it.  You probably won’t like the result.

Advising Someone Not to Take a Breathalyzer Test

If your app tells you not to take the breathalyzer test and you have been drinking then at least in Massachusetts you will be getting good advice.  In other states however this might not be the case.  Take California for instance.  Your refusal to take the breathalyzer test can be used against you at trial as consciousness of guilt.  That is not the case in Massachusetts where a refusal is never admitted as evidence against you.  Thus, in the case of breathalyzer tests, or field sobriety tests your app better be state specific.

Asking a Lawyer for Advice

Having an app that provides you with a list of lawyers to call might be the biggest benefit of this tool.  Rather than guessing about what to do you can simply press a button and get legal advice.  The only pitfall I see here is that most lawyers will not give advice unless they have been retained on the case.  I would expect however that these apps would have credit card authorization thereby enabling you to get your lawyer on board right away.

OUI Defense Law Firm

The Law Offices of Stephen Neyman, P.C. has been defending Massachusetts DUI cases for nearly thirty years.  Call one of our staff at 617-263-6800 to discuss drunk driving issues pertinent to your case.  We know that we can help you get the right result the right way.

The Events Leading Up To The Arrest

He had been at a friend’s house watching a golf tournament.  He has not been drinking at all.  He left to go home around 8:00 p.m., not long after the tournament had ended.  He was talking on his cell phone.  He dropped the phone and bent over to pick it up.  When he did he swerved into oncoming traffic and nearly got into an accident.  He was almost immediately pulled over by a police officer who was traveling just a few car lengths behind him.  The officer asked for his license and registration.  He produced it.  The officer told him that he had just swerved over center marked lanes.  The officer then went back to his cruiser with the license and registration in hand.  When he returned he asked the man if he had been drinking.  The officer told him to get out of the car.  He did.  He was again asked if he had been drinking.  He said no.  He was then arrested and charged with OUI second.  There is more.  The police report referred to the man taking and failing field sobriety tests that were never administered. 

How Did This Happen?

The answer to this is pretty simple and it explains the police officer’s actions.  When the officer took the license and registration back to his cruiser he called in the information on those items.  Back at the station certain records were obtained.  Either a criminal history check, a registry check or both were run.  And guess what the cop found out?  That’s right.  He found out that the person he just stopped had an OUI conviction.  Right then he made up his mind to make and arrest and charge the man with OUI second.  This is terrible and unfortunately not an isolated circumstance.

How Can This Be Defended?

There are several things that can be done.  1) Access dispatch records.  These will show when the officer called in the stop, when he called in the license and registration information and when he called in the arrest.  The times reflected in these records might not support the supposed administration of field sobriety tests.  2) Check the area for security equipment.  If available this might show that no field sobriety tests were given.  3) Remember why this man swerved?  It was because he dropped his cell phone.  You know what else happened, the person on the other line remained there until the time of the arrest.  He or she will be able to testify to what was said.  The cell phone records will show the duration of the call corroborating the defendant’s story.  4) The friend who the man was with watching the golf tournament will testify that he was not drinking at all. 

Massachusetts OUI Defense

So what really happened here?  The cop was lazy.  He assumed that since the suspect had a prior he was driving drunk again.  The cop lied.  He wrote in his report that the defendant smelled like alcohol.  He wrote about field sobriety tests never given.  He talked about the defendant unable to answer questions and having slurred speech.  These conversations never occurred and his speech was fine.  Cases like this one deserve a defense.  We have been doing this for nearly thirty years and we look forward to defending this case.

The “Standard” Massachusetts Drunk Driving Police Report

On such and such a date, at such and such a time, I, Officer Jones, was on routine patrol in (any town in Massachusetts). I was headed northbound when I observed a Dodge Durango, license plate 123456 crossing the marked lanes several times. I followed the vehicle for approximately 6 tenths of a mile during which time I counted the left tires of the vehicle cross over the lanes into the oncoming lane of traffic three times. As a result I activated my overhead lights and conducted a stop of the motor vehicle. I contacted the operator later identified as John Defendant. I immediately detected a strong odor of alcohol coming from the person of Mr. Defendant. I asked him if he had been drinking to which he replied “I had two beers”. His speech was slurred. His eyes were bloodshot and glassy. I then asked him to provide his license and registration. Mr. Defendant reached into his wallet, fumbling through some papers before finally producing his driver’s license. He then opened the glove box of the Durango and attempted to locate the registration. Mr. Defendant fumbled through several papers, passing over the registration at least two times.

Based on these observations, and having concerns about the suspect’s ability to operate a motor vehicle, I asked Mr. Defendant if he would mind getting out of the car to perform some field sobriety tests. Mr. Defendant agreed to do so. When he got out of the car I noticed him to be unsteady on his feet, using the car door the support himself as he stepped from the vehicle. I then asked Mr. Defendant to perform the walk and turn test. I first demonstrated how to do the test. During the test I observed Mr. Defendant struggling to maintain his balance. After the seventh step he turned even though I told him that he had to take ten steps. He disregarded my instructions and attempted the test in the opposite direction. In my opinion Mr. Defendant failed this test. The next test I asked him to perform was the one legged stand test. Again, I demonstrated to Mr. Defendant how to do the test. Mr. Defendant raised his left leg two inches, inches less than requested and held it for a count of six before losing his balance. I formed the opinion that Mr. Defendant failed this test as well. At this point I formed the opinion that Mr. Defendant was under the influence of alcohol and I placed him under arrest.

At the station Mr. Defendant was offered an opportunity to take the breathalyzer test. He refused to do so. He was cited for Marked Lines Violation and OUI. He was picked up by his wife at the station at 4:30 a.m. after the bail commissioner set a $40 dollar bail.

Does this sound familiar? It should. This is what police officers often report after OUI arrests. What is most interesting is that most of my clients tell me that little of this really happened. Rather, the police take shortcuts. They suspect you of drunk driving and they arrest you. They never show you how to perform the field sobriety tests. They never see you fumbling through your wallet for your driver’s license. They never see you having difficulty getting the registration out of the glove box. We know this and we know how to defend against it. I have successfully represented countless people charged with OUI whose police report seems to follow this template.

If you have been charged with this crime call us at 617-263-6800. We can help you.

The Intoxilizer Machine in Massachusetts

This machine uses infrared technology to estimate the presence of alcohol in a gas sample. The sample is acquired by having the subject blow into a mouthpiece that is attached to a tube running into the machine. Alcohol molecules, if present in the sample enter the chamber and react with infrared radiation sending a reading that is calculated in accordance with the amount of infrared radiation that is absorbed. The calculations are based on generally accepted partition ratios of 2,100 to 1. That is, for every one molecule of alcohol in your breath sample there are 2,100 such molecules in your blood. In order for this evidence to be presented to a jury the prosecution must put an expert on the stand. This someone who not only administers the test but is able to explain how the machine works. As a practical matter there are very few of these people in Massachusetts and all of them, if being honest will admit that there are several flaws with this machine.

What Are the Flaws With the Intoxilyzer Machine in Massachusetts?

The intoxilyzer machine cannot distinguish between mouth alcohol and blood alcohol. That is, if there is some residual alcohol in your mouth the reading will be higher than what your blood alcohol truly is. Mouthwash or toothpaste give high false readings as do certain types of chewing gum and breath mints. Certain medications give higher readings. People with acid reflux, GERD, tend to have intoxilyzer readings that are high and not reflective of actual blood alcohol. Improper administration of the test can result in a false positive reading. This often occurs when the police officer tells you to keep blowing. The test itself requires only 1.1 liters of breath to establish an admissible reading. Most people can provide samples three or four times that large. The more you blow the greater the chance of getting a higher reading. There are many more factors that show how these tests can be inaccurate. This is something you want your lawyer to point out to a jury. Our office has the ability to do that. Call us now to get started with your Massachusetts OUI defense.

What Makes Cops Bad Witnesses?

Cops get hostile towards defense attorneys in front of juries. They often respond to cross-examination in an aggressive manner. Anytime that happens juries will believe a witnesses’ testimony that the officer was rude in during the stop. I remind jurors that if the officer is this nasty at trial towards me, imagine what he was like on the night of the alleged incident. At least at trial there is a referee (the judge) and rules of decorum. On the street there are not. Juries get this and quickly see right through the officer’s testimony. Now, add the testimony of a good defense witness. My chances of victory are now much improved.

What Makes a Good Defense Witness in an OUI Case?

Be yourself. The biggest mistake witnesses make is trying to convince the jury that they are telling the truth. It is the criminal defense lawyer’s job to be persuasive, not the witnesses’. Just respond to the question. There is no need to elaborate unless asked to do so by the defense attorney or the district attorney. Don’t feel like you have to explain or correct inaccuracies in the police officer’s testimony or police report. Some witnesses have read the police report. Remember this is just the officer’s memorialization of the events. It is not necessarily accurate or even true. Anytime you acknowledge statements in his report but you try to characterize them you are giving the officer credibility. Don’t be afraid contradict the police officer. This lets the jury know that the officer is not telling the truth. Don’t be afraid to let the jury know that the cop was a jerk. Be honest. District attorneys who prosecute OUI cases in Massachusetts are rather new and often young. They ask stupid questions that jurors will see as stupid unless you validate them by responding in a suspect manner. For example, if the defendant is a family member the district attorney might ask you the following questions: “You love the defendant don’t you?” I imagine the response is “Yes”. The follow up question is always “And you would do anything for him wouldn’t you?”. Again, an honest response would be “I probably would”. And next, thinking they have you on the ropes they ask “And wouldn’t that include lying for him?” If there is no objection, or the objection is overruled, keep telling the truth. “Yes I would…but I am not lying now”. The jury will appreciate your honest response.

Hire an Experience Massachusetts OUI Lawyer Today

The Law Offices of Stephen Neyman, PC has been defending OUI cases in Massachusetts with unmatched success for nearly three decades. Call us at 617-2673-6800 with any questions you have. We will represent you.