The Massachusetts Breathalyzer Refusal Law

Posted by Brian Simoneau on August 30, 2011 2,564 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.

“Drive Sober or Get Pulled Over,” Mass. DUI Crackdown Begins

Posted by Brian Simoneau on August 12, 2011 702 comments

 

The Attleboro Sun Chronicle reported today that Massachusetts Police Officers will start intensive drunk driving enforcement efforts today which will continue to Labor Day. The name of the enforcement effort is “Drive Sober or Get Pulled Over.” This is a grant-funded program which will deploy police officers and Massachusetts State Troopers on targeted enforcement DUI patrols, where they will be specifically on the lookout for drivers who are operating under the influence.

 

Attleboro Police Chief Kyle Heagney was quoted as saying that police will have zero tolerance for those found to be impaired.

 

This enforcement effort will undoubtedly result in more OUI arrests, license suspensions, and DUI sobriety checkpoints across Massachusetts. Motorists should be careful and use a designated driver or public transportation when under the influence of alcohol. Officers assigned to these grand-funded patrols may be pressured to come in with OUI arrests and they will be stopping vehicles for minor traffic violations, to see if the drivers show any signs of being under the influence or impaired by drugs or alcohol.

 

Police are likely to be out in force on weekends and in areas frequented by tourists and vacationers, such as Cape Cod. Checkpoints are usually set up on major secondary roads such as Route 20, Route 9, Route 85, and similar arterial roadways. The State Police announce the checkpoints in advance. However, the announcements only mention the county where the roadblocks will be located and not the exact location.

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.

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.

Mass. OUI Crackdown

Posted by Brian Simoneau on July 19, 2011 1,241 comments

The Boston Herald recently reported on a statewide drunk driving crackdown. According to the Herald, 8,000 DUI arrests are projected this year.  According to the spokesman for the Massachusetts State Police, the increase in Massachusetts OUI arrests show that police are working hard to protect the public.

DUI sobriety checkpoints and drunk driving roadblocks have also been credited with the increase in OUI arrests. The Herald reported that police have set up 50 to 80 of these checkpoints each year.

This crackdown is apparently not enough to satisfy some activists, who are calling for stiffer penalties and tougher DUI laws. Legislation has been proposed to require even first offenders to use ignition interlock devices. If passed, Senate Bill 1746 would mandate ignition interlock usage during the entire term of any hardship license and for at least 6 months thereafter.

There is supposedly another bill in the works to prevent Massachusetts DUI lawyers from “bundling” pending OUI cases to allow their clients to escape harsh penalties associated with subsequent DWI offenses.

With the steady increase in DUI enforcement along with the changes in the Massachusetts drunk driving laws, hiring a the best DUI lawyer you can afford will become even more important.

Driver with 7 Prior DUI Convictions Arrested for 8th Offense

Posted by Brian Simoneau on July 18, 2011 409 comments

Day at the Beach Results in Arrest for OUI 8th Offense

In a recent Boston Globe article, Staff Correspondent John R. Ellement reported on a man who just charged with his eighth (8th) drunk driving offense, despite having his driver’s license revoked for life. The Globe reported that the 60 year old Winthrop man as 7 prior DUI convictions, dating back to the 70s.

The Registry of Motor Vehicles reported that Joseph F. Limone has not held a valid driver’s license since 1985. However, that did not stop him from driving his Lincoln Town Car on Revere Beach Parkway last week. He attracted the attention of a police officer when he was repeatedly beeping his car’s horn as he was following another car too closely. He was allegedly agitated and yelling at the vehicle in front of him. According to court records, he was swerving back and forth between lanes as he continued to yell. When a Massachusetts State Trooper tried to stop Limone, he allegedly drove the wrong way down a one way street. He was reported to be unsteady on his feet and used the side of his car for balance. His eyes were extremely bloodshot and glassy He allegedly claimed not to have his driver’s license with him and gave police a false name. His speech was slurred and police allegedly detected a strong odor of an alcoholic beverage emitting from his mouth. Court records indicated that Limone claimed to have consumed “two shots.”

During a search, troopers found his Massachusetts Registry Identification card which reflected his true identity. When taking the alphabet field sobriety test, he allegedly mixed up the letters. While performing the one-legged stand, he allegedly lost his balance and touched his leg to the ground three times. During the heel to toe test, he also failed to touch his heel to his toe every time and used his arms for balance, according to court records. When he attempted to perform the test for a second time, he lost his balance three times on the first nine steps and twice on the second nine steps.

When troopers advised him that he was going to be placed under arrest for Limone made several threats to the arresting officer and swore at him multiple times. A motor vehicle inventory revealed a rum shot and a Budweiser beer on the passenger seat of the Town Car. He kicked and broke the passenger side cruiser window out and caused damage to the cruiser door. The door frame appeared to be bent. A report filed with the Chelsea District Court disclosed that Limone became extremely combative and resistant. He had to be sprayed with pepper spray. He was shouting and made several racial statements and appeared to be out of control. He refused to submit to a breath test and the Registry will revoke his license (again), for life as a result of the chemical test refusal.

There’s no doubt that this man represents a threat to public safety. However, there’s equally no dispute that a license suspension did nothing to prevent him from driving and endangering the public. There is, however, a device which would help him. A breath alcohol ignition interlock device. An IID is an electronic lockout device which is weird to a car’s ignition system. It prevents the vehicle from starting if the driver has any appreciable alcohol in his or her system. Although a license suspension could not prevent this man from driving while intoxicated, an ignition interlock device may have. He is due to appear back in Chelsea District Court for a pretrial conference.

Foul Mouthed Former Northboro Selectman Arrested for OUI

Posted by Brian Simoneau on July 10, 2011 1,341 comments

A former Northborough selectman was arraigned Wednesday on charges of driving under the influence of alcohol and speeding. State Trooper Kenneth J. Proulx arrested Kevin H. Giblin shortly before 1 a.m. on Wednesday on Route 9 in Southborough, Massachusetts. Writing for the Daily Northborough, Danielle Kahn reported that Giblin was arraigned in Westborough District Court before Judge Vito Virzi and he is due to return to Westboro District Court on August 10th.

Trooper Proulx observed Giblin’s Bentley pass him at 85 MPH on Route 9 in Soutboro, Mass. According to court documents, Giblin drove in an erratic manner, almost striking another vehicle. It took him a long period of time to react to the cruiser’s blue lights and eventually pull over. The trooper noticed that Giblin’s eyes were bloodshot and glassy and his speech was slurred. There was an overwhelming odor of an alcoholic beverage emanating from the vehicle even with all of the windows down. He admitted to having consumed white wine prior to driving.

When Trooper Proulx asked Giblin to exit his car, he was unsteady on his feet and he then had to use the vehicle to steady himself as he walked to the rear of his car. He swayed from side to side and kept holding on to the car to keep from falling. The trooper could detect the odor of an alcoholic beverage while having conversation with him in the open air. While speaking to Giblin, he was swaying back and forth and very unsteady on his feet and stumbling around in a small circle. Trooper Proulx had to tell him multiple times to stand still while he was speaking to him and he continued to keep walking forward towards the trooper, causing him to back up and tell Giblin to stop moving.

When Trooper Proulx asked Giblin to perform field sobriety evaluations, he stated “just drive me home and I will leave the fucking car here and you can fucking drive me home.” He eventually agreed to perform field sobriety tests, which included the horizontal gaze nystagmus, alphabet, and the one leg stand. He failed the HGN, as the trooper detected lack of smooth pursuit in both eyes, nystagmus at maximum deviation, and nystagmus at onset prior to 45 degrees in both eyes. He failed the alphabet test and the one-legged stand. During the one-legged stand, Giblin kept walking forward towards the trooper and leaving the starting position. He could not hold his foot up for more than 4 seconds. He was falling over and tripping on his feet. The trooper had to terminate the test for safety reasons. He claimed that he “was a former selectman and that he should not have to take a preliminary breath test. While the trooper transported Giblin to the barracks for booking, he called the trooper an “asshole and a fucking little prick.” He also called the trooper a “prick and a fucking douchebag.” He kicked the back of the cage of the cruiser.

When he got to the barracks, he was offered a breathalyzer test, which he refused. His license will be automatically suspended for 180 days for the chemical test refusal.

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.

DUI Training Critical for Massachusetts Police

Posted by Brian Simoneau on June 22, 2011 1,561 comments

In order to accurately detect drug or alcohol impaired drivers, police officers must receive adequate training. This training begins in the police academy and continues throughout the police officer’s career. Inadequately trained police officers may make wrong decisions in Massachusetts DUI cases and these decisions can result in the arrest and prosecution of innocent motorists. For example, it cannot be disputed that administering field sobriety tests and interpreting the results takes specialized training. Incorrectly giving or scoring these tests can lead an officer to falsely conclude that a person “failed,” when he or she actually passed.

In Massachusetts, police training is approaching a crisis point. The basic police academy recruit curriculum has not been overhauled in over 10 years. Also, due to a profound lack of funding, Massachusetts police training facilities are deficient in many respects. For example, the Boylston police academy is operated out of a Town Hall. Budget cuts have forced the state agency which oversees police training to cut back on mandatory training programs such as accident investigation, collection & preservation of evidence, criminal investigator training, and Spanish and other pertinent languages for police officers.

In summary, the state’s failure to adequately fund police academies has denied Massachusetts police officers critical training. This lack of training may result in not only ineffective drunk driving prosecutions, but also the arrest and prosecution of those who did not actually violate the state’s DUI law.  Fortunately, there are good DUI lawyers who can protect the public. The other solution is to increase funding for police training so that officers are better trained and less likely to draw the wrong conclusions in Massachusetts OUI cases.