The Massachusetts .08 OUI Law & Breathalyzer Refusals

Posted by Brian Simoneau on January 21, 2012 None comments

Prior to 2003 in Massachusetts, the .08% BAC level was not a per se law; it was “evidence but not proof of drunkenness.” However, in 2003, however, Massachusetts adopted a per se BAC law in response to 23 U.S.C. §163, a statute ratified by President Clinton that would withdraw state highway funding if a state failed to enact the .08 BAC level.

Under the current law, to get a drunk driving conviction, all the prosecution has to show is that the person accused of OUI operated a motor vehicle on a public way, or place where the public has a right of access, with a blood alcohol content at or above .08. Whether the alcohol diminished the driver’s ability to operate safely is irrelevant under the .08 law.

Under the Massachusetts “per se” law, only the blood alcohol content (BAC) test result at or above .08 as sufficient evidence to satisfy the intoxication requirement. By reducing the evidentiary burden, the per se laws assist states in the prosecuting OUI offenders. In these per se cases, the central issue at the DUI trial is often the accuracy of the BAC test result and the manner in which the breathalyzer test was conducted.

Obviously, the .08 law cannot be used in cases where the driver refuses to submit to a breathalyzer or blood test. In those cases, the prosecution must prove, beyond a reasonable doubt, that the driver’s ability to drive safely was diminished by alcohol. Thus, there is an incentive to refuse to submit to a breath test. Without breathalyzer readings or alcohol blood test results, the “intoxication” element of the drunk driving charge will be more difficult to prove.

Of course, refusing the breath test is not without consequences. In Massachusetts, a breathalyzer refusal will trigger a license suspension of at least 6 months, up to lifetime, depending on the number of DUI convictions on the driver’s record and whether he or she is 21 years old or not.

Call Before you Plead Guilty to Drunk Driving

Posted by Brian Simoneau on January 21, 2012 None comments

 

In courthouses across Massachusetts, those charged with drunk driving are faced with the question of whether to “plead out” or not.

Admissions and guilty pleas carry extensive consequences, most of which typically are not discussed during the plea bargaining procedure or when the court accepts a plea.

The acceptance of a plea in Massachusetts DUI cases is governed by the Massachusetts Rules of Criminal Procedure, Massachusetts laws, and the Massachusetts state constitutions as well as the U.S. Constitution.

The law requires DUI lawyers to explain: (1) the nature of the charges and the elements that the government would need to prove to convict; (2) the possible sentences applicable to the charges, including any mandatory minimum and possible maximum sentence; and (3) that the defendant is foregoing the right to a trial, including the rights to confront and cross-examine witnesses and to present evidence in defense against any charge. Also, the judge must inform the defendant that if the defendant is not a citizen, a guilty plea may result in deportation or denial of readmission to the United States.

For those on probation or parole, who plead out to DUI, there may be adverse parole or probation consequences. In exchange for accepting an admission to sufficient facts or a guilty plea, courts often require defendants to pay restitution, victim-witness fees, court costs, counsel fees, or probation fees. Pleading guilty to a criminal charge may also encourage or impact prosecution in an accompanying civil suit, leading to civil liability, or may be a catalyst to administrative proceedings, exposing the defendant to administrative fines, fees, and penalties.

A guilty plea and the resulting conviction may completely bar employment or, at least, drastically limit available job opportunities for a defendant. Most job applications and interviewers ask an applicant if he or she has ever been convicted of a crime, and many employers conduct criminal background checks for prospective employees. Any employer can choose not to hire a given individual on the basis of that applicant’s criminal record. Individuals with criminal records may also be denied opportunities to enlist in or maintain positions within the armed forces. Guilty pleas may also prohibit an individual from holding public office, or may result in revocation or suspension of a defendant’s business or professional license by administrative bodies.

The privilege of holding a driver’s license is forfeited by entry of certain guilty pleas or admissions to sufficient facts. While a defendant pleading guilty to traffic violations or drunk-driving may anticipate license suspension or revocation, many defendants are caught unaware when their licenses are revoked after pleading guilty to certain charges having nothing to do with automobile operation, such as drug offenses.

Pleading guilty to drunk driving and other crimes in Massachusetts courts can have innumerable other effects on defendants’ lives, including expulsion from or denied access to higher education opportunities, difficulty finding available housing, negative implications in child custody battles, and the revocation of ability to carry firearms.

Defendants often do not learn of the collateral consequences of their guilty pleas until they are adversely affected by such consequences. Sometimes this occurs several years after the plea, when, for example, a defendant is charged with a subsequent offense and learns that he faces harsher penalties due to his earlier plea. Or, the defendant later violates probation only to learn that a mandatory minimum sentence must be imposed as a result of such violation. In these cases — and in any case where a judge has already accepted the plea and sentenced the defendant — the defendant’s only recourse is to move to withdraw the earlier guilty plea. This can be extremely difficult to do.

To avoid the many potential pitfalls associated with pleading guilty or making an admission to sufficient facts, consultation with a DUI lawyer who understands how the Registry operates is essential. Call today.

 

OUI 2nd Offense: Not Guilty. Penalties Avoided

Posted by Brian Simoneau on January 14, 2012 None comments

While on routine patrol, a police officer saw a car travel over the double solid line into the opposing lane several times and then proceed through a red light without stopping. When he attempted to stop the car, the driver did not stop immediately.

When she was finally pulled over, she admitted to drinking 2 Bud Light Beers. Her eyes were blood shot, red and glassy. The police officer could smell a moderate odor of an alcoholic beverage coming from her facial area. Her voice was thick and her words were slightly slurred. She was unsteady on her feet. She failed three field sobriety test (9 step walk and turn, one leg stand & HGN.)

The driver, a healthcare professional, was arrested and charged with OUI- Alcohol 2nd Offense, Failure to stay within marked lanes, and failure to stop for a red light. She refused to submit to a chemical test.

If convicted, she would have been required to attend a 14 day in-patient alcohol program and 26 weeks of aftercare, been placed on supervised probation for 2 years, and she would have to pay thousands in fines, fees, court costs, and surcharges. Fortunately, she hired the right lawyer, DUI Attorney George E. McCarthy, Jr. Yesterday, a jury found her not guilty of DUI 2nd offense.

If you’ve been charged with DUI, call for a free consultation and review of your case.

Proving Subsequent DUI Convictions

Posted by Brian Simoneau on December 26, 2011 7 comments

In order to convict a person of a subsequent offense OUI in Massachusetts, the Commonwealth must prove, beyond a reasonable doubt, that the drunk driving defendant is the same person named in the records showing prior DUI conviction(s). Without other corroborating evidence, name alone is insufficient. However, where there is a correlation of not only the defendant’s name, but also the defendant’s date of birth and prior addresses, in Registry and/or court records, the judge can draw the reasonable inference that the person named in the prior conviction records and the DUI defendant are one in the same person.

This is a critical issue when it comes to determining the particular sentence to be imposed, as the law treats repeat DUI offenders more harshly than first offenders. However, the inability to prove prior offense(s) in court has nothing to do with the license suspension which a DUI conviction will trigger. The Registry makes a determination independent of the courts regarding prior convictions. Once that determination is made, the DUI suspension is governed by law. Thus, is entirely possible to be convicted as a first offender in court and have the Registry treat you as a second, third, or fourth offender, for the purposes of license suspensions and revocations.

Also, whether or not the court found you guilty as a repeat offender, if the Registry records show a prior DUI conviction or alcohol program assignment, you will be ignition interlock required.
It is important to remember that the “beyond a reasonable doubt” standard does not apply to the Registry. Instead, the Registry’s records are presumed to be correct. A good DUI lawyer may be able to overcome this presumption, by presenting evidence, in the form of certified court documents and probation records, to contradict the contents of the RMV record.

Broken Tail Light Leads to DUI 2nd Offense Arrest

Posted by Brian Simoneau on December 12, 2011 8 comments

 

Many Massachusetts DUI cases start out when the police stop a motorist for a traffic or equipment violation. In the case of Commonwealth v. Dick, the Massachusetts Appeals Court recently upheld a DUI stop for what first appeared to be an equipment violation. However, there was actually no violation.

The drunk driving defendant appealed his OUI 2nd offense conviction on the grounds that the stop of his vehicle was unlawful and, therefore, in violation of his constitutional rights.

At approximately 11:40 P.M. on the night of October 20, 2008, Sergeant Steven May of the Rowley police department was maintaining stationary traffic surveillance on Route 133 in that town. The defendant’s automobile passed his location. From his lateral view of the car, Officer May saw that the right rear tail light was fractured along the right edge of the lens and was consequently emitting a white, rather than red, light. He pulled onto the road, activated his cruiser’s emergency lights, and followed and pulled over the defendant’s car after about one hundred yards of travel.

This traffic stop allowed the officer to see that the defendant’s movements were lethargic; that his speech was slow and slurred; that his eyes were red and glossy; and that a strong odor of liquor emanated from his person. Based on these observations, the officer requested that the driver perform several field sobriety tests. At the conclusion of the tests, the officer arrested the defendant for drunk driving.

In this case, there was no tail light violation. The vehicle was complying with the law. However, it appeared to the officer that one of the tail light lenses was cracked and white light was shining through it.

The Mass. Appeals Court upheld the DUI conviction, ruling that a police officer’s honest but mistaken belief that a traffic violation was being committed gave the officer a legitimate reason to stop the car. Once the driver was stopped, the officer noticed signs and symptoms suggesting that the driver was under the influence of alcohol. These observations allowed the police officer to investigate further by ordering the driver out of the car to perform field sobriety tests.

Senior Patrick Aide Arrested for Drunk Driving in Brookline

Posted by Brian Simoneau on October 19, 2011 50 comments

The Boston Globe reported recently that Brookline Police arrested Ron Bell, a senior aide to Governor Deval Patrick. He was arrested after being involved in an accident in the City of Boston. A Brookline police officer stopped Bell after he nearly struck a Brookline police cruiser. When asked for his driver’s license and registration, Bell told the officer that he worked for Governor Patrick and asked if that would help.  The Governor refused to comment on that allegation. Bell’s eyes were allegedly glassy and bloodshot. Also, he was alleged to have failed field sobriety evaluations which were conducted at the scene of the early morning car stop. After being booked for DUI at the Brookline Police Station, Bell claimed that he was not feeling well and he was transported to Brigham & Women’s Hospital in Boston, where he refused to submit to a blood alcohol test. Because of his chemical test refusal, the Registry of Motor Vehicles will automatically suspend Bell’s driver’s license for 180 days. He was arraigned in the Brookline District Court, where he pled not guilty to the charge of Operating Under the Influence of Liquor, First Offense. He is scheduled to appear back  Brookline District Court for a pre-trial conference on November 21st.  He has supposedly been placed on unpaid leave while the drunk driving charge is pending.

Truro Massachusetts Police Chief Arrested for DUI

Posted by Brian Simoneau on October 18, 2011 42 comments

Last Friday night, Truro Police Chief John Lundborn was arrested by one of his own officers for Operating Under the Influence of alcohol.  The DUI arrest came after Chief Lundborn was involved in a single car accident with his police cruiser at an undisclosed location in the Town of Truro. He was placed on paid administrative leave and the Truro Board of Selectmen are investigating the facts leading up to his DUI arrest. It was not reported whether the Chief was offered or refused a breath test.

The Chief was just appointed to his position a few months ago. His drunk driving arrest has prompted some citizens to call for his removal. He was scheduled to be arraigned in the Orleans District Court on Monday. However, his lawyer claimed that the Chief had medical problems and the arraignment was continued to November 4th. The case was transferred to the Plymouth District Court.

The arrest of a Massachusetts Police Chief shows that no one is immune from being arrested for drunk driving. Indeed, police officers, politicians, lawyers, doctors, and even judges have all been arrested and prosecuted for operating under the influence in Massachusetts.

 

 

DUI defense: Challenge the Standard Field Sobriety Test

Posted by Brian Simoneau on September 27, 2011 174 comments

Criminal defense attorneys generally agree the so-called “Standard Field Sobriety Test”(SFST) is a classic of “voodoo psycho-physio-pseudo-science.” Therefore, although it was developed as a means of insuring high conviction rates, the SFST has become a powerful tool for winning acquittals in Massachusetts drunk driving cases.

The SFST almost always emerges as the weakest link in the prosecution’s case. Therefore, experienced Mass. DUI attorneys and their investigators examine every detail of officers’ test administration and every nuance in their interpretation of the forensicpsychology behind the SFST. Because the standard sequence of cognitive, vision, and balance exercises provides the critical link between officers’ stop-and-search and their administration of blood alcohol tests, when the defense discredits the field sobriety test, the prosecution’s case falls apart.

Standard Field Sobriety Testing

 The NationalHighwayTrafficSafetyAdministration explains, “The Standardized Field Sobriety Test (SFST) is a battery of three tests administered and evaluated in a standardized manner to obtain validated indicators of impairment and establish probable cause for arrest.” Specifically, the test requires Mass. Drunk driving suspects, to track a moving flashlight through their field of vision, so that officers can assess the accuracy of their peripheral vision. Then, they must walk a straight line, execute a 180-degree turn, and walk another straight line as if they were on a tightrope. Finally, they must balance, flamingo-style, on one leg. In some jurisdictions, officers first will ask suspects to recite the alphabet or count backwards from 100 to assess their cognitive impairment.

Problems with probable cause in Massachusetts DUI Investigations

 If officers have no probable cause for stopping a motorist, then the results of their interrogation and testing are inadmissible at trial.

Massachusetts OUI attorneys routinely contest officers’ allegations of probable cause for stopping motorists: An average-sized driver who has consumed slightly more than one drink per hour typically will test at between .050 and .079 blood-alcohol content—in other words right on the threshold of legal drunkenness but not over the limit. In that condition, drivers will make minor driving mistakes—swerving, awkward turns, speed variations, and clumsy stops. Officers must make the case for probable cause on more substantial grounds.

Among DUI defense attorneys’ “greatest hits,” the assertion, “It is not illegal to swerve,” tops list because it sets the bar for probable cause. In order to stop and interrogate a motorist suspected of driving under the influence of alcohol or controlled substances, a police officer must establish sufficient grounds for the stop; and they often claim, “The motorist was swerving erratically in his lane.” Naturally, erratic swerving poses a problem, but if the driver does not cross the lane markers, he has done nothing illegal. Moreover, swerving does not automatically and infallibly indicate impairment, because faulty wheel alignment, slippery pavement, or road debris may prompt swerving just as easily as intoxication. Similar problems arise with allegations of excessive speed or driving too slowly, both of which may indicate intoxication, but may also be perfectly consistent with “the basic speed law,” the legal mandate for judging speed according to road conditions. By that standard, a motorist traveling a wide open country road at noon on a sunny day lawfully could exceed the posted speed limit by thirty or forty miles per hour; and another motorist traveling a crowded LA freeway in a blinding rain legally could—and should–defy the posted minimum speed.

Interpretations SFST results are notoriously unreliable

 If the results of the SFST are thrown-out, then everything that follows from them becomes inadmissible—“fruits of the poisonous tree.” Because police officers very subjectively evaluate suspects’ performance on SFSTs, skilled DUI defense attorneys often impeach test results. Even more importantly, video evidence from dashboard cameras often serves as the defense’s most powerful exhibit.

Common sense suggests Massachusetts Field Sobriety Tests accurately measure DUI suspects’ natural coordination but say very little about their intoxication. “Crying Wolf,” Dr. Greg Kane’s landmark study of SFST results, dramatically confirms common sense. After aggressively drilling down on arrest and conviction statistics, Dr. Kanereports, alarmingly, “The science proves SFSTs do not work. The science proves that if juries rely on the SFST to decide the guilt of drivers charged with DWAI at the current…level, they will wrongly convict ninety-three percent of the innocent drivers who go to trial.”

Visual tracking poses exceptional difficulty for arresting officers—especially because myriad eye problems completely unrelated to alcohol affect people’s peripheral vision. Whereas testing proves that people with blood alcohol concentrations above .08 will track erratically, it does not prove the converse. Approximately half of perfectly sober people will show similar tracking problems from the tests’ requirement they tilt their heads back and angle their eyes toward their foreheads. Similarly, balance tests reveal very little about sobriety. Many experimental subjects with blood alcohol levels well above the legal limit could balance on one leg indefinitely; not surprisingly, athletes did well in these tests because they develop sophisticated command of their muscles. People with clinical depression, on the other hand, could not balance on one leg even when they were stone-cold sober. Researchers also stressed people taking prescription medications miserably failed the balance tests.

In one classic demonstration, a defense attorney noted the arresting officer had tripped as he ascended the witness stand, and he suggested the trip gave probable cause for a quick courtroom exercise. The officer arrogantly assented to the test, and he did easily pass the eye exam. However, because he was considerably overweight, he experienced tremendous difficulty walking a straight line and turning. Because he still wore his holster and gun, he could not stand on one foot for more than two seconds. “Shall we measure your blood alcohol, officer?” the defense attorney inquired.

Retain an experienced MA DUI attorney

 If you face DUI charges, retain an experienced criminal attorney with special command of the NHTSA guidelines and the flaws in SFST administration and interpretation. Whether he or she wins a dismissal, earns an acquittal, or negotiates an equitable plea agreement, your attorney’s zealous advocacy will save you not only thousands of dollars but also your reputation, your license, and your opportunities for career advancement.

DUI Lawyer Makes Mistakes at Drunk Driving Trial

Posted by Brian Simoneau on September 13, 2011 227 comments

The errors committed here show why it is so important to hire the right lawyer when you have been arrested for DUI. In the recent case of William Tribou, the DUI defense lawyer mistakenly and unnecessarily exposed the jury to potentially unfairly prejudicial material regarding his client. Specifically, jurors heard references to an outstanding warrant for larceny by check and probation information, including the defendant’s probation number. By failing to redact this material, the defendant’s DUI defense lawyer may have harmed his chances of getting a not guilty verdict. Jurors should not learn of certain information which may prejudice them against the defendant and make getting a not guilty verdict more difficult.  

The jury learned of the prejudicial information because the DWI lawyer did not personally test the audio-visual equipment he intended to use, at the drunk driving trial, to play the booking video for the jury. When the playback equipment turned out not to be suitable, the attorney ended up using the judge’s laptop computer. However, the OUI attorney did not familiarize himself with the judge’s laptop, so that he could start and stop the video in the proper places. This resulted in jurors learning of unfairly prejudicial information regarding the defendant who was ultimately convicted of drunk driving. The jury convicted the defendant even though the booking video was helpful to the defendant. It showed him to be lucid, responsive, and coordinated. Nevertheless, he was found guilty of OUI and the Massachusetts Appeals Court denied him a new trial.

The Massachusetts Breathalyzer Refusal Law

Posted by Brian Simoneau on August 30, 2011 1,836 comments

The Mass. Implied consent law states that all drivers in Massachusetts are deemed to have consented to a breathalyzer or blood test if a police officer has reasonable grounds to believe that the driver was operating a motor vehicle while under the influence of alcohol. The purpose of this law is to make it easier for prosecutors to get DUI convictions by punishing drivers who refuse to incriminate themselves. The penalty for refusing a breath or blood test, after being arrested for OUI and informed of the refusal penalty is an administrative license suspension ranging from 6 months for first offenders over 21 to lifetime, for those with three (3) prior DUI convictions. The rationale behind this penalty is that that driving is a privilege and not a right. In exchange for a license, drivers agree to have their breath or blood tested when they are arrested for OUI.

Drivers who refuse the breathalyzer will face administrative license suspensions. However, the prosecution will likely have a more difficult time convicting the defendant, because the jurors are generally hesitant to convict the defendant in the absence of BAC evidence. Blood alcohol content is an extremely valuable piece of evidence in a DUI and the lack of this evidence can make the task of convincing a jury of the motorist’s guilt very difficult. On the other hand, A BAC reading of 0.08 or above provides the prosecution with an important, tangible piece of scientific evidence that will help obtain a conviction.

One factor which decreases the likelihood of being convicted of DUI without breath test evidence is that the prosecutor is not permitted to present evidence to the jury regarding the defendant’s refusal to submit to a breathalyzer or blood test. Perhaps this is why a 2005 study showed that approximately 85% of those arrested for OUI refused the breathalyzer.

In Massachusetts, a decision to refuse the breath test is likely permanent and irrevocable. For example, in the case of Mackey v. Montrym, a driver who was arrested for OUI refused the breath test. 20 minutes later, after speaking to his attorney, the driver said he wanted to take the breathalyzer. The officers, having already documented the initial breath test refusal, refused to give the defendant a second breath test. The refusal was upheld.

In summary, deciding whether to take the breath test or refuse and face a license suspension can be a difficult choice. Fortunately, Massachusetts DUI Lawyers may be able to help you shorten or reduce your chemical test refusal suspension. Also, good DUI lawyers win DUI cases in Massachusetts, even with BAC evidence.