Tag Archives: DUI Defense

Watkins Scores Win in Registry Case

Posted by Attorney Brian E. Simoneau on March 2, 2011 960 comments

Attorney Paul B. Watkins, a former Massachusetts Police Officer and Certified Drug Recognition Expert, recently achieved an excellent result for his client at the Registry of Motor Vehicles. The client faced an automatic revocation of her vehicle’s registration for allowing her husband, whose driver’s license was suspended, to drive her vehicle.

A little-known provision of Melanie’s Law makes it a crime to knowingly allow someone whose license is suspended to drive your car. Through his effective legal advocacy, Attorney Watkins was able to completely vacate the pending revocation of his client’s registration.

Proof of Prior Convictions Required in Mass. DUI cases

Posted by Attorney Brian E. Simoneau on March 2, 2011 778 comments

In the recent Massachusetts DUI case of Commonwealth v. Fisher, Lawyers Weekly No. 81-411-10, Appeals Court No. 09-P-154, the prosecution was unable to prove beyond a reasonable doubt that the DUI defendant had committed two prior operating under the influence offenses. Those arrested for second or subsequent DUI in Massachusetts are entitled to require the prosecution to prove not only that the defendant operated a motor vehicle while under the influence, but that the defendant had been previously convicted of DUI. The prosecution must prove each and every prior drunk driving offense.

Fisher was convicted in District Court of operating a motor vehicle while under the influence of liquor (OUI), 3rd offense, and leaving the scene of an accident after causing property damage. The Massachusetts Appeals Court ruled that Fisher’s DUI conviction, as to the third offense element.Melanie’s Law made it easier to prove prior offenses, but the Commonwealth must still introduce sufficient evidence, usually in the form of court and Registry records, to properly identify the drunk driving defendant and show that he or she was convicted of the prior offenses. The prosecution must prove, beyond a reasonable doubt, that the defendant in the courtroom is the same person named in records showing prior drunk driving convictions. Mere identity of name is not sufficient to indicate an identity of person. Identity must be proven by other demographical and biographical information.

Because the government is required to prove prior offenses beyond a reasonable doubt, it may make sense to take a DUI case to trial on that limited issue. If the Commonwealth is unable to prove its case, by showing prior convictions, the court will not be able to subject the defendant to the enhanced penalties associated with the subsequent drunk driving offense.

However, the Registry Motor Vehicles is not constrained by the requirement to prove prior offenses and, for ignition interlock and license suspension purposes, it can count prior offenses based on the official records of the Registrar.

Breathalyzer Accuracy Battle Rages in Massachusetts DUI Cases

Posted by Attorney Brian E. Simoneau on November 27, 2010 491 comments

A battle is raging between drunk driving prosecutors and Massachusetts DUI Lawyers. At the center of the controversy is the “source code,” or computer program used by breathalyzers which are used in Massachusetts DUI cases.

Worcester District Court Judge Mark Sullivan is tentatively scheduled to conduct an evidentiary hearing regarding the Dräger Alcotest MKIII-C, wherein Mass. DUI Lawyers will attempt to attack the reliability of the breathalyzer, based on alleged errors in the device’s “source code,” which is the computer programming which controls the breathalyzer.

New Jersey DUI attorneys have been unsuccessful in their attempts to discredit the Draeger Alcotest MKIII-C breathalyzer through its source code. In the NJ case of State v. Chun, that state’s Supreme Court held that the breathalyzer was reliable and that it could be used in New Jersey DUI cases. The Special Master’s Report in the Chum case (PDF) explains in detail how the breathalyzer works and the role of the breathalyzer’s source code.

It is currently unknown whether Massachusetts will hold a Daubert hearing, which is the mechanism to challenge the accuracy and reliability of scientific evidence. If the hearing is held, Judge Sullivan will determine whether the Dräger Alcotest 7110 is a scientifically reliable instrument for determining the alcohol content of the breath and blood. In the meantime, these devices are still being used in Massachusetts DUI cases. They are slated to be replaced by a newer breathalyzer, the Dräger Alcotest Model 9510.

Under Melanie’s Law, breathalyzers can play a critical role in Massachusetts DUI cases. Prosecutors can obtain convictions simply by proving that a driver was operating on a public way or right of access with a blood alcohol content at or above .08. Melanie’s law makes it unnecessary to prove that alcohol consumption diminished a driver’s ability to operate safely. Just being on the road with a BAC at or above .08 can result in a DUI conviction. Given the importance of breathalyzer results to the prosecution in drunk driving cases, it is not surprising that DUI lawyers from across Massachusetts are trying to attack the reliability of the breath testing devices.

Refusing to submit to a chemical breath or blood test in Massachusetts, after being arrested for operating under the influence, will result in an automatic CTR license suspension from 180 days to life.

Holiday Weekend Yields DUI Arrests

Posted by Attorney Brian E. Simoneau on November 26, 2010 3,030 comments

The Boston Globe reported today that Connecticut State Police made 24 DUI arrests and they investigated over one-hundred motor vehicle accidents during the first part of the Thanksgiving Holiday weekend. The Globe noted that police are on the lookout for drivers who are operating under the influence during the holiday season. They will be conducting rolling sobriety checkpoints and targeting aggressive driving. I expect that Massachusetts State and Local Police will be doing the same thing.

Nothing can ruin your holidays like a DUI arrest and resulting license suspension. If Massachusetts residents or license holders are among the twenty-four people arrested for drunk driving in Connecticut, the Driver Control Unit of the Massachusetts Registry of Motor Vehicles will automatically suspend their licenses for one year for a first offense DUI, two years for a second offense, 8 years for a third DUI offense, 10 years for a 4th DUI conviction or alcohol program assignment, and they’ll be suspended for life, with no possibility for a hardship license, if their records show 5 or more DUI convictions or alcohol program assignments in Massachusetts, Connecticut, or any other state or jurisdiction.