Category Archives: Mass DUI Information

DUI defense: Challenge the Standard Field Sobriety Test

Posted by Brian Simoneau on September 27, 2011 489 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 750 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 2,563 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.

Mass. Drunk Driving Convictions & Firearms Licenses

Posted by Brian Simoneau on August 10, 2011 2,725 comments

Ordinarily, an applicant for a License to Carry Firearms submits an application to their local police department or the State Police. Those licensing authorities would then determine whether the applicant is a “suitable person to hold such license.” However, certain conditions automatically disqualify an applicant from holding such a license. For example, an individual is disqualified if he has been convicted of a felony or misdemeanor currently punishable by a term of more than two years. The disqualification for these types of misdemeanors was added by the Gun Control Act of 1998. See St. 1998, c. 180, § 41.

A conviction for even a first offense Operating under the Influence, which occurred after May of 1994 is considered a statutory disqualifier. Those convicted of OUI 2nd offense, who attended an in-patient program, such as the 14 day DUIL program in Tewksbury, or OUI 3rd offenders who completed the 90 day in-patient program, may also be statutorily disqualified on the grounds that they underwent treatment for drunkenness.

For those denied a License to Carry Firearms, it may be possible to appeal the denial to the Firearms Licensing Review Board (“FLRB”). In 2004, the Massachusetts Legislature created the FLRB, which created an avenue of review for persons otherwise disqualified because of certain classes of criminal convictions.

In order to obtain FLRB review, the petitioner’s disqualifying offense must have: (1) been punishable by two and a half years imprisonment or less at the time the offense was committed; (2) not involved an assault and battery on a family member as defined in Chapter 209A; and (3) had a date of conviction five or more years prior to the date of petition to the FLRB. In a hearing before the FLRB, the burden is on the petitioner to “prove his suitability to receive … [an LTC] by clear and convincing evidence.” Provided that the “sole disqualifier” for an LTC applicant is an offense described above, the FLRB may determine by at least a 2/3rds vote that the disqualifying conviction no longer bars an applicant from receiving an LTC if the petitioner meets his burden “by clear and convincing evidence, that … [he] is a suitable person” to hold an LTC. The FLRB’s decision only serves to remove the disqualification; the licensing authority still must independently determine that an applicant is a “suitable person” for an LTC and issue the license. However, for those with disqualifying OUI convictions, an appeal to the FLRB, may be worthwhile.

Massachusetts DUI Court Records Admissible

Posted by Brian Simoneau on June 22, 2011 1,511 comments

In a Massachusetts DUI trial, the burden is on the prosecution to prove each and every element of its case, unless the OUI defense lawyer stipulates to certain elements of the crime charged. When it comes to repeat offenders, the Commonwealth must prove that the defendant was the same person convicted of the prior DUI offenses. Melanie’s law has made this procedure easier for Massachusetts DUI prosecutors because they can rely on certified copies of certain court records and they do not need to call live witness.

In the case of Commonwealth v. McMackin, which the Massachusetts Appeals Court decided on June 14, 2011, the prosecution’s reliance on certified documents to prove McMackin’s  four (4) prior drunk driving convictions was questioned. The challenge was based on the Supreme Court’s decision in Melendez–Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), where the United States  Supreme Court held that a drug certificate was inadmissible at trial without the live testimony from the chemist who tested the drugs and issued the certificate. Live testimony was required to satisfy the defendant’s constitutional right to confront and cross examine his accusers.

In  Commonwealth v. McMackin, the court noted that Melendez–Diaz did not prevent a prosecutor from using certified court records to prove prior DWI convictions and live testimony was not required. The Supreme Court carved out an exception to the live testimony requirement for court records. In  McMackin’s case, those records consisted of “various certified registry, court, sheriff, and probation records,” all of which were properly admitted to prove his previous convictions.

Incidentally, as a 5th offender, McMackin’s license is revoked for life and he cannot be considered for a 12 hour DUI hardship license.

DUI First Offense Sentencing Options

Posted by Brian Simoneau on June 19, 2011 1,358 comments

The Massachusetts DWI law governs how courts can handle plea bargains. The DWI law states clearly that a Mass. drunk driving charge cannot be filed or continued without a finding (CWOF’ed), except under the terms of G.L. c. 90 § 24D, the Massachusetts DUI First Offender Program.

Absent a § 24D disposition, the penalty a first offense operating under the influence conviction includes a jail sentence up to 2½ years, a fine of between $500.00 and $5,000.00, a $50.00 Victims of Drunk Driving Assessment, and a $250 Head Injury Assessment. These amounts do not include other costs such as program and attorney’s fees. There is a 1 year license revocation for those convicted of a 1st offense DUI who do not get awarded a § 24D disposition.

In cases where a person is convicted of drunk driving and his or her blood alcohol content is at or above .20, the Court will order a substance abuse assessment conducted by the Mass. Department of Public Health or another court-approved treatment provider.

As an alternative to the standard DUI first offender sentence, the Court may award a § 24D First Offender sentence. This is not automatic and there is absolutely no entitlement to a § 24D sentence. Awarding this disposition is up to the judge who presides over the case.

The § 24D disposition includes an admission to sufficient facts, continuance without a finding, assignment to a drug or alcohol education program, a $250.00 assessment fee, a 50 Victims of Drunk Driving Assessment, and a $250.00 Head Injury Treatment Assessment, a license suspension from 45 to 90 days, or 210 days for those under 21. OUI defendants who are between 17 and 21 years old must complete a 14 day in-patient alcohol program.

Other than getting a not guilty verdict or dismissal of the drunk driving charges, which our DUI lawyers routinely get, or getting a 24D disposition as outlined above,  there is no other way to resolve a Massachusetts DUI charge.  Except for 24D cases, a DUI cannot be continued without a finding or filed. Assignment to an approved drug or alcohol treatment program is a mandatory and unavoidable part of every plea bargain. Also, the Massachusetts Registry of Motor Vehicles requires a program assignment as a mandatory prerequisite for getting a DUI hardship license.

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 Lawyers on Lookout for Unfair Prejudice

Posted by DUI Attorney Paul B. Watkins on June 8, 2011 1,339 comments

In a Massachusetts DUI trial, care should be taken to insure that the jury does not receive unfairly prejudicial testimony or information. The best Mass. DUI lawyers are always on guard to insure that the jury is not tainted by unfair prejudice. This is important to insure that the person charged with operating under the influence receives a fair trial. On one such case, a DUI victim received medical treatment as a result of a car accident. The prosecution introduced the DUI victim’s medical records at trial and there was a notation in the record indicating that the victim had been in a motor vehicle accident and was “hit by drunk driver.” It is for the jury to determine if the person charged was actually a “drunk driver” and upon objection by the defendant’s lawyer, the judge could have either declared a mistrial or, at the very least, given a “curative instruction” to the jury wherein he would specifically instruct the jury to disregard that information.

In another Massachusetts DUI case, there was a note contained in records which were introduced as evidence which indicated that it was the OUI defendant’s “4th offense.” This information should never come before a jury whose sole purpose is to determine whether or not the person accused committed an OUI. The judge or jury does not determine how many prior convictions a person has until it is determined that he or she is guilty of as much of the DUI complaint which alleges a first offense.  The guilt or innocence portion of a DUI case is segregated from the penalty phase to avoid a jury from treating a defendant unfairly if the jurors hear of prior DUI convictions.

These two instances underscore how important it is for DUI defense lawyers to be on the lookout for unfairly prejudicial facts which may come before a jury, either through inadvertence or design.

Mass. DUI Lawyers on Lookout for “Google Mistrials”

Posted by Brian Simoneau on May 30, 2011 1,437 comments

Each and every person arrested for DUI in Massachusetts deserves a fair trial and the right to be tried by a jury of one’s peers is one of the most fundamental rights guaranteed by the Massachusetts and federal constitutions. Rules and laws govern what evidence can be admitted and what evidence can be excluded. These legal principles help insure that the jury is not unfairly prejudiced against a defendant. For example, a DUI defendant’s prior criminal record, refusal to take a breathalyzer, and refusal to perform field sobriety tests are inadmissible.  If a jury learns of this evidence, the defendant’s right to a fair trial will likely be prejudiced.

One way jurors may learn of evidence which has been excluded is by using Google and other search engines to find out about the DUI case. The media routinely publicizes DUI arrests, especially those involving repeat OUI offenders or those involving accidents or vehicular homicide. The media might portray the facts in a sensationalistic and unfair manner. Any juror with a smartphone or iPhone could easily be improperly influenced by facts which are not admitted into evidence.

Younger jurors appear to be especially tech-savvy and prone to using the internet to answer questions. Jurors may also use social media sites such as Twitter and Facebook to improperly communicate about the case. Without a specific instruction, those who are used to tweeting and routinely perform internet searches on their phones might not realize that such conduct is prohibited and could be harmful.

To help insure a fair trial, Massachusetts DUI lawyers should ask the trial judge to specifically instruct the jurors regarding inappropriate use of the internet and social media during a trial. The best DUI attorneys preemptively query their client in the major search engines to see what media coverage exists regarding the case, so that they are aware of what a juror might see.

Mistrials have been declared because of jurors violating a judge’s instructions regarding social media and the internet. Given the costs, for the prosecution, defense, and the courts, associated with trying a case, inappropriate internet research and communications could cost thousands, if a mistrial were to be declared.

Google and internet technology might not be all bad for those charged with drunk driving. Some OUI lawyers might use Google and other search technology to research prospective jurors, when selecting a jury for a DUI case.

Mandatory Jail Time for Driving on License Suspended for OUI

Posted by Brian Simoneau on May 24, 2011 1,515 comments

If your license or right to operate has been suspended or revoked in Massachusetts due to a prior operating under the influence conviction and you are unfortunate enough to be caught driving after the loss of your license, you are at risk of losing your license for an additional year and going to jail for a minimum of 60 days. This is because the crime of “operating after suspension or revocation for OUI” is a different and much more serious crime than a straight driving with a suspended license charge. OAS for OUI carries the automatic 1 year additional license suspension and the 60 day minimum mandatory jail sentence.

I recently corresponded with an unfortunate young man who has been charged with operating after suspension for OUI.  He wrote that “I’ve been told from several people possibly a fine, or extended time on my suspension, but haven’t heard of jail time.” These people are wrong. The law is very clear. If he’s convicted of OAS for OUI, he will be sentenced to serve at least 60 days in jail. The judge has no choice. The case cannot be continued without a finding (CWOF’ed) or filed. The jail sentence cannot be reduced and a suspended sentence cannot be imposed. Also, release on probation, parole, or furlough is prohibited, and there cannot be no sentence reduction, unless and until the defendant serves at least 60 days in jail.

This law was obviously designed to impose “shock incarceration” upon those who drive on licenses which were suspended for OUI. With the danger of having to do jail time, it makes sense to try to get a DUI hardship license. It may be possible for you to get a hardship license by appealing the suspension to the RMV or Board of Appeal. I have helped countless clients get back on the road lawfully by helping them get 12 hour hardship licenses.