Category Archives: DUI Legal Victories

Mass. DUI Lawyer Gets 7 Not Guilty Verdicts & Dismissal

Posted by Brian Simoneau on March 30, 2012 149 comments

7 DUI Not Guilty Verdicts & a Dismissal

8 DUI Trials and 7 Not Guilty Verdicts, 1 Dismissal.

Framingham, Mass. DUI Attorney George E. McCarthy’s last eight trials resulted in Not Guilty verdicts and one dismissal.  The following is a summary of the OUI evidence presented at trial, by the prosecution.

Worcester District Court: 19 year old defendant, who had ingested alcohol, backed his motor vehicle into a parked motor vehicle, sending the parked motor vehicle down a hill and crashing into a large tree.  The defendant could not say the alphabet; failed the 9 Step Walk and Turn test; and finger to nose test.  AFTER A BENCH TRIAL, THE DEFENDANT WAS FOUND NOT GUILTY OF OUI.

Milford District Court: 45 year old defendant, who had ingested alcohol, was followed by a civilian witness, who observed the defendant’s pickup truck, operating erratically, swerving all over the road, and crossing the double yellow lines, into the opposite lane of traffic, on several occasions.  The defendant appeared to be struggling to stay on the right side of the road.  The defendant took 2 minutes to produce his license and registration.  9 cans of beer, including two empty cans, were on the seat, next to the defendant when he was arrested.  The defendant was very unsteady on his feet, and had to hold the side of his vehicle, to keep his balance.  The defendant was given 3 opportunities to perform the One Leg Stand, and failed all attempts.  The defendant also failed the 9 Step Walk and Turn test and stumbled while walking.  AFTER A BENCH TRIAL, THE DEFENDANT WAS FOUND NOT GUILTY OF OUI.

Framingham District Court: 63 year old defendant, who had ingested alcohol, was observed by the arresting officer, repeatedly applying her car’s brakes, for no apparent reason; speeding up and slowing down, for no apparent reason; traveling over the double solid lines, into the oncoming lane; coming to a complete stop at a green light; running a red light; failing to stop promptly for the police officer; could not produce her registration; the officer discovered a bottle of beer in her purse; and failed the 9 Step Walk and Turn test and One Leg Stand test.  AFTER A JURY TRIAL, THE DEFENDANT WAS FOUND NOT GUILTY OUI, SECOND OFFENSE.

Worcester District Court: 27 year old defendant, who had ingested alcohol, was stopped by a detail officer, at 2:23 a.m., as his vehicle exited on the wrong side of the traffic cones, onto the newly paved closed exit ramp; and after being asked to move his car, almost hit a series of traffic cones.  The defendant’s shirt was wet, and according to the officer, he was “out of it”; “tripped up his words, a few times”.  The defendant was unsteady on his feet and swayed from side to side, after he exited his vehicle.  The defendant failed the 9 Step Walk and Turn test, One Leg Stand test, and the portable BT test.  AFTER A JURY TRIAL, THE DEFENDANT WAS FOUND NOT GUILTY OF OUI SECOND OFFENSE.

Framingham District Court: 38 year old defendant, who had ingested alcohol at a Boston Bruin’s game, was observed to operate his motor vehicle erratically; failed to stop promptly for the police officer; open container in vehicle; unable to promptly produce his license and registration; failed all field sobriety tests; and stumbled on the cruiser videotape.  AFTER A BENCH TRIAL, THE DEFENDANT WAS FOUND NOT GUILTY OF OUI.

Dorchester District Court: 37 year old defendant, who had ingested alcohol, was stopped at a State Police Sobriety Check Point, at 1:20 a.m., and evidenced an odor of alcohol; red, bloodshot and glassy eyes; slurred speech; and a portable BT reading of .148.  AFTER A BENCH TRIAL, THE DEFENDANT WAS FOUND NOT GUILTY OF OUI.

Brighton District Court: 36 year old defendant, stopped at 11:50 p.m. for speeding; sobbed uncontrollably at State Police Barracks; laid down in the center of the lobby on salt covered floor, kicking feet and flailing her body around.  Trooper indicated “she is wasted”.  Second Trooper, simultaneously stated “she is cocked”; speech slurred, strong odor of alcohol.  DISMISSED ON THE DAY OF TRIAL.

Framingham District Court: 38 year old defendant, stopped at 1:20 p.m., after leaving a stag party and was observed by the officer, to cross over the fog line on one occasion; leave the roadway on another occasion; and nearly striking a telephone pole, on a third occasion.  The defendant had difficulty producing his license and registration; had bottle caps in his shirt pocket; and empty and full beer cans in his truck.  The defendant was observed to be extremely unsteady on his feet; failed the One Leg Stand, by putting his foot down numerous times; and failed the 9 Step Walk and Turn test, by stepping off the line, numerous times, and stumbling during the test.  AFTER A JURY TRIAL, THE DEFENDANT WAS FOUND NOT GUILTY OF OUI SECOND.

Mass. Drunk Driving Conviction Reversed on Appeal

Posted by Brian Simoneau on July 23, 2011 799 comments

On July 18, 2011, in the case of Commonwealth v. Eric P. Ortolani, the Massachusetts Appeals Court reversed a 2nd offense DUI conviction because the police officer who stopped the driver had no legitimate reason to do so.

The facts: At 2:00 A.M. on a morning in May, 2009, a Littleton, Mass. police sergeant saw Ortolani’s van stopped at a stop sign at the end of the exit ramp which connects Route 495 with Route 110 in Littleton. The sergeant slowed his marked cruiser as he approached the van, noting that it remained stationary with the brake lights illuminated. After approximately 35 seconds, the officer sounded an air horn, attempting to gain the driver’s attention. There was no response. After another ten seconds the sergeant shined his spotlight toward the driver’s side door. There was still no response. During this time no traffic prevented the van from proceeding onto Route 110.

The officer became suspicious and concerned for the driver of the van. As the officer began to exit his cruiser, the van signaled left and pulled away. The officer began to follow, observing the van to travel on the yellow lane marker of the roadway but not cross over into the oncoming lane of traffic. The van then turned left into a long driveway. The officer pulled in behind the van, activating the cruiser’s blue lights as he did so. By the time the officer left his cruiser, Ortolani had already exited the van. Based upon the officer’s subsequent observations and field sobriety tests, he arrested Ortolani for OUI 2nd offense.

The Appeals Court’s Ruling

The van’s lengthy, deliberate stop at the intersection and the lack of a response to the horn or spotlight presented a legitimate basis for a “community caretaking” well-being check of the driver. But things changed when he left the intersection by turning left. At this point, the sergeant was obviously permitted to follow the van and continue observing the behavior of its driver. But absent any further indication that the driver was in distress, such as another extended stop or erratic driving, the sergeant lacked an objective basis for continuing concern justifying a community caretaking stop of the van. The sergeant observed no signs that the driver was in distress, had any difficulty controlling the van, or posed a danger to other motorists. The judge did not find that the van weaved, crossed into another lane of traffic, slowed or accelerated suddenly, or otherwise drove in a fashion which would provide an objective basis for concern for the driver’s well-being. We therefore conclude that the sergeant did not have an objective basis to conclude that the defendant’s well-being or the safety of the public was in jeopardy.

Because the sergeant had no objective basis for a community caretaking well-being check, the defendant was seized when the sergeant activated his blue lights. The sergeant had no such justification. Specifically, the sergeant had no basis for reasonable suspicion that the defendant had committed a marked lanes violation. The Commonwealth has pointed to no other traffic violation that could have formed the basis for the sergeant’s reasonable suspicion justifying the stop. Accordingly, the judge should have allowed the defendant’s motion to suppress. Because the stop yielded the sum total of the evidence against the defendant, the guilty verdict was reversed on appeal and the second offense DUI conviction was vacated.

This case is an example of what a good Massachusetts DUI lawyer can do for his or her client.

DUI with Accident & Breathalyzer: Case Dismissed

Posted by Brian Simoneau on July 5, 2011 1,494 comments

A 39 year old woman was charged with leaving the scene of a property damage accident and DUI 2nd offense in Dedham, Massachusetts. The charges originated when a witness told police that the woman drove straight into his parked car and then fled the scene on foot, without exchanging information. When police investigated, they found the woman’s car in the street with the transmission still in “drive.” A witness claimed that the driver “appeared to be in a semi state of consciousness.”

The investigating police officer immediately detected an odor of an alcoholic beverage emanating from her breath and observed that she was unsteady on her feet and her eyes were glassy. She told the officer that she had just got out of work and had one drink before she came home. The police reported that she failed field sobriety tests, which included the alphabet test, the heel to toe, and the one-legged stand. According to police, unable to walk heel to toe, was unsteady on her feet and did not complete the test. During the one-legged stand test, she was unable to follow instructions, unable to keep her arms by her sides, unable to keep her foot elevated and stopped the test on her own. The responding officer formed the opinion that the driver was under the influence of an intoxicating liquor.

Police detected a moderate odor of an alcoholic beverage emanating from her breath and her eyes were glassy and bloodshot. She admitted that she had a drink approximately 15 minutes before being arrested and that she took a sleeping pill prior to leaving work. The booking Sergeant formed the opinion that she was impaired and she took a breathalyzer.

The result: the drunk driving and leaving the scene of an accident charges were dismissed in Dedham District Court.

Tough Case, Excellent Results

Posted by Brian Simoneau on July 5, 2011 1,116 comments

A motorist told the Mass. State Police that a client’s vehicle was operating in a highly erratic manner by driving in the breakdown lane on Route 495. Traffic was very heavy due to rush hour and the client’s car was in the breakdown lane passing all the vehicles. The witness stated that it cut into traffic, nearly causing an accident. The vehicle was “tail-gating” vehicles and attempting to pass them. The witness claimed that the vehicle slammed on its breaks in the middle travel lane and then “hit the gas” accelerating to a high rate of speed. The client’s car struck a guardrail on Route 495 and sustained heavy front end damage, with both airbags being deployed. There was also heavy damage to approximately sixty feet of guardrail.

Another witness reported that the client was driving in the breakdown lane at an extremely high rate of speed. The vehicle lost control, cut to the right and crashed head-on into the guardrail. A third witness stated that the car passed her in the breakdown lane between 90 to 100 mph. After the vehicle passed her, she abruptly swerve into the right hand lane, causing the other vehicles in the area to “slam” on their brakes. The 4th witness reported to police that the car went from the middle lane to the left hand lane, started to “fish tail” and then “slammed” into the guardrail. 

Police found a large ocean spray cranberry bottle with a clear liquid inside, which they believed to be an intoxicating beverage. They also found a brown bag containing six bottles of corona beer and a large clear plastic cup with a small amount of an orange liquid in it. The cup gave off a strong odor of an intoxicating beverage.

The client was transported to the hosital for medical treatment. Blood was drawn and, through the District Attorney’s Office, the State Police obtained a copy of the lab report showing the blood alcohol content.

The client’s charges included driving to endanger, OUI 1st offense, drinking from an open container of alcohol, marked lanes, speeding, and not keeping to the right. The result: Attorney McCarthy obtained not responsible findings on all of the civil violations and the criminal charge of operating to endanger was dismissed. This saved the client substantial fines, insurance surcharges, and an automatic license suspension associated with the criminal charge of operating so as to endanger. Attorney McCarthy got the OUI charge continued without a finding. If the client complies with the terms and conditions of probation, including completing an alcohol education program, the DUI will be dismissed.

Defense Lawyers Score Major Win in License Case

Posted by Brian Simoneau on June 11, 2011 1,820 comments

Driving on a license which was suspended or revoked for OUI carries stiff penalties including a minimum mandatory jail sentence and an automatic license suspension. However, convicitions for operating after revocation in Massachusetts have just become markedly difficult for prosecutors to prove.

Yesterday, in the case of Commonwealth v. Parenteau, the highest court in Massachusetts vacated a conviction for driving on a license which had been revoked for 10 years for 4th offense OUI on the grounds that the prosecution failed to prove that the Registry notified the defendant that his license had been revoked for 10 years.

Is the prosecution had done in thousands of cases prior to Parenteau, it introduced a certified copy of his driving record. This certified record contained a letter indicating that Parenteau’s license was revoked for 10 years for his having been convicted of OUI with 3 prior OUI convictions. In prior cases, this was all that was required to prove notice.

However, in the Parenteau case, the Massachusetts Supreme Judicial Court ruled that while the RMV record could be introduced to show that a person’s license was suspended, it could not be used to prove that the defendant was notified of the suspension or revocation. To obtain a conviction for driving on a suspended license, the prosecution must prove, beyond a reasonable doubt, not only that the defendant’s license was suspended or revoked, but that the defendant knew of the suspension or revocation. Here, the Commonwealth could not prove by reliance on the certified record that the letter was actually mailed to Parenteau.

The Massachusetts SJC ruled that reliance only on the certified record, without live testimony, violated Parenteau’s 6th Amendment right to confront and cross-examine adverse witnesses, a right recently affirmed by the United States Supreme Court.

This case represents a major win for Massachusetts defense lawyers and a major blow to prosecutors. It will undoubtedly result in the filing of motions to dismiss and motions for required findings of not guilty across the state.

Mass. DUI Conviction Requires Public Way or Right of Access

Posted by Brian Simoneau on May 24, 2011 1,461 comments

It is no crime in Massachusetts to operate under the influence on private property.   To obtain a Mass. DUI conviction, prosecutors must prove that the defendant drive on a public way or a place where members of the public have a right of access as invitees or licensees.

In one case, for example, police found a man driving under the influence on a softball field. His DUI conviction was reversed because the softball field was not a public way or a place where public vehicular traffic had a right of access.  In another case, a Massachusetts DUI conviction was reversed where the defendant was found driving under the influence on a private campground road.

Today, in the case of Commonwealth v. Virgilio, 2011 WL 1988395, in accordance with the aforementioned legal requirements, the Massachusetts Appeals Court reversed the DUI conviction of Lisa Virgilio. Ms. Virgilio was charged with operating under the influence when the police found her behind the wheel on private property which was located on Burden Street in Sutton, Massachusetts. She was found driving on a paved driveway which connects her property with a two story 2 family house. The driveway and parking area services only private residences and no businesses which would lead anyone to believe that the public was welcome.

Based on the nature and character of the area where Ms. Virgilio was found operating, the Appeals Court reversed her DUI conviction, due to the prosecution’s failure to prove beyond a reasonable doubt that Virgilio operated on a public way or a place where the public had a right of access, as the Massachusetts DUI law requires.  Justice Sikora dissented.

Mass. DUI Lawyers Enforce the Constitution

Posted by DUI Attorney Paul B. Watkins on May 20, 2011 1,426 comments

The 4th Amendment to the U.S. Constitution and Article 14 of the Massachusetts Declaration of Rights protects citizens from unreasonable searches and seizures. Mass. DUI Attorneys can sometimes use these important protections to obtain not guilty verdicts or dismissals of DWI charges.

The best DUI lawyers know how to exclude, from OUI trials, evidence obtained by unconstitutional or otherwise unlawful or police conduct. Without this evidence, prosecutors are often forced to agree to a dismissal of the operating under the influence charges. In other cases, where prosecutors refuse to drop the charges, the evidence is so weak that a judge or jury finds the defendant not guilty. Constitutional and legal principles prohibit the police and prosecution from putting illegally seized evidence to any use, this prohibition applies to both verbal statements and physical evidence.

For example, Article 14 prohibits police officers from ordering drivers out of cars in connection with routine traffic stops unless the police officer has a legitimate safety concern or law enforcement reason. In DUI cases, this means that the police must have a valid reason to ask a motorist to perform field sobriety evaluations. Requesting a driver to perform these tests without a good reason can be grounds for suppression of the evidence or dismissal of the charges.

When it comes to consent searches in Massachusetts drunk driving cases, officers must have a reasonable basis to request consent from a driver, and the prosecution must prove, by clear and convincing evidence, that the consent search was voluntary.

When it comes to towing vehicles Article 14 requires police to explore reasonable alternatives prior to towing and searching a DUI suspect’s car. The failure to explore alternatives such as parking the vehicle at the scene of the DUI stop or roadblock or having a licensed operator drive the vehicle away should result in the exclusion of any incriminating evidence.

Statements made by DUI suspects who are in police custody and subjected to interrogation are subject to suppression and exclusion unless the prosecution proves that the statements were  voluntarily made, beyond a reasonable doubt. This can be a high standard for prosecuting attorneys to satisfy. Also, pursuant to Article 12 of the Massachusetts Declaration of Rights, once a Massachusetts lawyer identifies himself to the police as the lawyer for the DWI suspect, the police must cease questioning and immediately pass on the lawyer’s messages to the suspect. The failure of the police to notify the person who is held in custody will likely trigger suppression of any statements made after the violation of the suspect’s constitutional rights.

In cases where the police electronically record the DUI stop, field sobriety testing, or booking, the police must inform the person being stopped, tested, arrested, or booked that his or her voice is being electronically recorded. These recordings can sometimes be used as exculpatory evidence in Massachusetts DUI trials.

These are just a few examples of how Mass. OUI lawyers can use the principles contained in the Massachusetts Declaration of Rights to achieve success in the courtroom.

Police Seek to Expand Jurisdiction to Make DUI Arrests

Posted by DUI Attorney Paul B. Watkins on May 6, 2011 1,510 comments

Writing for the Boston Globe, Katheleen Conti recently reported on legislation which would allow Massachusetts police officers to make DUI arrests outside of their jurisdictions. Currently, local police officers generally only have arrest powers in the respective cities and towns which employ them. According to the Boston Globe article, there are currently two bills pending at the Massachusetts Statehouse which would expand police authority in drunk driving cases.

One bill would allow local police officers to make OUI arrests in neighboring communities when they observe a law violation in their jurisdiction. The other bill would give local police statewide arrest authority.

The basis for the proposed DUI legislation is the case of Commonwealth v. Limone. While driving on a revoked license, Joseph Limone rear-ended a Somerville police officer, who was in uniform and returning to his home after working a traffic detail in Woburn. Limone was arrested for operating after revocation and DUI. Thanks to good lawyering, on appeal, the court found in favor of Limone and it reversed his drunk driving and revoked license convictions on legal grounds. This case shows how having a good Massachusetts DUI lawyer can make the difference between winning and getting your license back or losing and having to face all of the consequences and stiff penalties associated with a Mass. DUI conviction or operating after suspension arrest. In this case, the DUI defendant received a state prison sentence, since it was his 7th DUI conviction.

The Court reversed the 7th offense DUI conviction because the officer who Mr. Limone rear-ended lacked the legal authority to detain Limone by ordering him to step from his vehicle and taking his keys. The accident occurred in the City of Woburn and the police officer was from another jurisdiction. Based on his observations, he formed the opinion that Limone was under the influence of alcohol. However, since he was outside of his jurisdiction, he had no lawful authority to detain Limone. Although he could have obtained authority by contacting the Woburn Police Department under the doctrine of transferred authority, he failed to do so.

This case is an example of how a lawyer who was familiar with the laws regarding the authority to make a DUI arrest was able to successfully challenge the arrest and get his client’s convictions reversed. Now, the police are attempting to change the law to give them more authority. Some communities have addressed this issue by swearing their officers in as special police officers in neighboring jurisdictions.

Probation Record Excluded from Mass. DUI Trial

Posted by Brian Simoneau on April 25, 2011 2,328 comments

When a repeat DUI offender is accused of drunk driving in Massachusetts, the prosecution must prove not only the elements of the DUI offense, but that the person accused had been previously convicted. Proof of prior drunk driving convictions is required to subject the enhanced penalties created by Melanie’s Law. When it comes to criminal sentences, as opposed to DWI license suspensions or the ignition  interlock requirement, the prosecution must prove prior OUI convictions beyond a reasonable doubt.

Today, in the case of Commonwealth v. Ellis, the Massachusetts Appeals Court ruled that a probation record was inadmissible to prove a prior conviction. The ruling was based on the U.S. Supreme Court’s holding in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). The Mass. Appeals Court ruled that the probation memorandum was “prepared specifically for use at [the defendant's] [DUI]trial” and is testimonial…”

Records prepared in the ordinary and usual course of business, such as Massachusetts Registry of Motor Vehicles Records, or hospital laboratory reports and medical records, are normally admissible in drunk driving trials. However, records prepared specifically for litigation are inadmissible without the live testimony of the individual who created the records. Admission of the records without the witness violates the confrontation clause of the Constitution.

Breathalzyer Waiting Period Required in Mass. DUI Cases

Posted by Brian Simoneau on April 24, 2011 957 comments

In the case of Commonwealth v. Frasier, 25 Mass. L. Rptr.  507, Worcester Superior Court Judge Peter Agnes properly excluded breath test results, because the breathalyzer test was not administered in accordance with the breath testing regulations promulgated by the Massachusetts Office of Alcohol Testing.  

Frasier’s DUI lawyer convinced Judge Agnes that the police did not follow approved breath testing procedures. The Massachusetts breathalyzer regulations require police to observe a person arrested for drunk driving in Massachusetts to be observed for at least 15 minutes prior to the breathalyzer test, otherwise the results are invalid.

The purpose of the 15 minute breathalyzer waiting period is “to ensure that the defendant has not brought any substance into his mouth, such as food, drink, or regurgitation by burping or by hiccoughing, that would have had a contaminating impact on the accuracy of the results, and to permit a sufficient lapse in time to allow such possible contaminants to clear.”

This is waiting period is required because breathalyzers can mistake substances in the person’s mouth for alcohol and produce an artificially high blood alcohol reading. In the Frasier case, the judge found  that “The officer’s two assertions that he observed the defendant for a period of time, which were made on cross-examination and in a colloquy with the judge, were summarily made, not responsive to the questions asked, and inconsistent with each other.” Frasier’s DWI Attorney convinced the judge that there was a substantial deviation from regulatory compliance and this deviation rendered the breathalyzer results inadmissible.

The judge ruled that the prosecution failed to meet its burden of establishing the breath test administered to the OUI defendant by the police was performed in accordance with Massachusetts breathalyzer regulations, and therefore the breath test results could be used at the defendant’s drunk driving trial.