Tag Archives: DUI Evidence

The Mass. DUI 2nd Offender Alcohol Program

Posted by Attorney Brian E. Simoneau on March 2, 2011 1,458 comments

There appears to be some confusing regarding the program utilized for DUI second offenders in Massachusetts. This program differs from the 16 week out-patient 24D Program which is designed for DUI First Offenders. This post will briefly explain the alcohol treatment program which 2nd offenders must complete. Individuals who are convicted of or plead out to a 2nd offense DUI in Massachusetts are assigned by the courts to a two-week alcohol education program. Operated by the Middlesex Human Service Agency, the DUlL or Driving Under the Influence of Liquor Program is a 14-day residential program for individuals who are referred by their probation officer for intensive alcohol and/or drug education and treatment. Individuals attending the program receive a comprehensive substance abuse evaluation, individual and group counseling, alcohol and drug education, and self-help meetings. The DUIL program is operated out of the Saunders Building at Tewksbury State Hospital, which is located at 50 Apple Hill Dr, Tewksbury, MA 01876. The phone number is (978) 863-0048. Michael Kennedy is the DUIL Proggram Director and you may reach him via e-mail: DUIL@MHSAInc.org.

Upon completion of the DUIL program, a certified alcohol counselor will issue a certificate of completion and generate a Discharge Summary &. Aftercare Plan. This document will include a risk of recidivism. Everyone initially receives a “high” recidivism classification. However, the Discharge Summary &. Aftercare Plan will contain treatment recommendations, such as the completion of a 26 week out-patient program. At the conclusion of the recommended aftercare, another Discharge Summary is completed. This document is often considered for the purposes of deciding whether or not to grant a hardship or work license. A low risk of recidivism will increase the chances of obtaining a DUI hardship license. For more information, visit the Massachusetts DUIL Program website.

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.

HGN Evidence in Massachusetts DUI Cases

Posted by Attorney Brian E. Simoneau on December 6, 2010 639 comments

Across Massachusetts, as part of roadside field sobriety testing, police officers routinely administer the Horizontal Gaze Nystagmus test to those suspected of driving under the influence. The Horizontal Gaze Nystagmus field sobriety test involves the officer moving a pen in front of the defendant’s eyes to determine if the defendant can follow the path, or if unusual eye movements occur. A strong correlation between intoxication and nystagmus has been demonstrated and DUI prosecutors may attempt to introduce HGN related evidence in Massachusetts DUI cases.
However, courts have repeatedly ruled that testimony about this science-based DUI sobriety test requires an accompanying expert witness. Without such an expert, courts will exclude a police officer’s testimony regarding HGN, because the correlation between nystagmus, the involuntary jerking of the eyeball, and intoxication is beyond the common knowledge and experience of jurors. Massachusetts courts routinely require this foundational testimony even in light of a resolution which the American Optometric Association passed in 2003 endorsing the use of horizontal gaze nystagmus by police officers in drunk driving cases.

When administering the test in a DUI case, the person suspected of DUI is told to follow an object to the peripherals of his sight, and if his eyeball twitches the officer is trained to associate that twitching, nsytagmus, with drunkenness. However, it is a sign of number of ailments which have absolutely nothing to do with alcohol intoxication. As with the other field sobriety tests, there are numerous innocent explanations for what might be characterized as a field sobriety test “failure.” For HGN evidence to be admitted, the prosecution must lay a proper foundation through the use of a properly qualified expert witness such as an ophthalmologist, who can adequately explain, to the jury, the relationship between nystagmus and alcohol intoxication.

The best Massachusetts DUI Lawyers file motions, in advance of the drunk driving trial, to exclude any HGN related testimony and evidence. This is a sound practice because there have been cases where no motion has been filed and the jury hears some mention of the HGN field sobriety test. DUI defense lawyers will usually object at the first mention of HGN. However, it is too late by then. The jury has usually already heard that the test was, at least, offered. Therefore, the best practice is to file a motion in advance of the trial.

Private Medical Information Admissible in Mass. DUI Cases

Posted by Attorney Brian E. Simoneau on September 12, 2010 1,338 comments

Those charged with DUI who are administered medical treatment should be aware that laboratory results as well as statements made to police officers, firefighters, EMTs, paramedics, and hospital personnel may come back to haunt them at their Massachusetts DUI trial.

For example, in the case of Robert S. Pulisciano, the Massachusetts Appeals Court ruled that an Emergency Medical Technician’s report which contained incriminating statements and observations was admissible at Pulisciano’s DUI jury trial.

Pulisciano was involved in a motor vehicle accident on Route 1 in Saugus, Massachusetts. While he was being transported by ambulance to Massachusetts General Hospital, EMT Michelle Allen treated him. During the transport, EMT Allen smelled an odor of alcohol emanating from Pulisciano and she asked him if he had been drinking. He stated that he had consumed three or four beers prior to the accident.
After Pulisciano arrived at the hospital, a Mass. State Trooper spoke with him twice, and concluded that he had been operating a motor vehicle while under the influence of liquor. This conclusion was also supported by observations made at the scene of the accident where Pulisciano was unsteady on his feet, his eyes were bloodshot and glassy, and his speech was “pretty slurred.”

The medical staff at Massachusetts General Hospital took Pulisciano’s blood and urine as part of their regular medical treatment protocol. The substances were tested and the results showed that Pulisciano had both drugs and alcohol in his system. The results of these tests were declared admissible at the DUI trial on the grounds that Massachusetts law provides that “Records kept by hospitals [as required by statute] … may be admitted … as evidence in the courts of the commonwealth so far as such records relate to the treatment and medical history of such cases….” Consequently, the jury in the drunk driving trial was informed that Pulisciano’s blood and/or urine contained both drugs and alcohol.

This case shows how evidence in a Mass. DUI case can come from unexpected sources. Many individuals who receive medical treatment or undergo testing mistakenly expect that information provided to medical personnel and the results of medical tests will remain confidential and private. However, as explained above, in a Massachusetts DUI trial, this is not the case. Through subpoenas and other means, the prosecution may be able to use otherwise private medical information to prove that the defendant was operating under the influence of alcohol or drugs.