Tag Archives: DUI Victory

Not Guilty of OUI & Still Suspended?

Posted by Attorney Brian E. Simoneau on March 2, 2011 894 comments

A Not Guilty Does Not Automatically Restore Your License on a Mass. Breathalzyer Refusal Suspension

Mass. Drivers who refused the breathalyzer in and were found not guilty of a Massachusetts DUI offense do not automatically get their licenses reinstated. Instead, in cases were all alcohol related charges were resolved in the Mass. DUI defendant’s favor, the defendant can petition the court for a restoration of the driver’s license.

There is a legal presumption that the license should be restored and, to block the license restoration, the prosecution must establish that it is more likely than not that returning the DUI defendant’s license would endanger public safety. The judge hearing the breathalyzer refusal case is required to make written findings of facts regarding his or her decision.

The ability to try to get a breathalyzer refusal suspension vacated may encourage Massachusetts DUI defendants to take the case to trial. A dismissal or not guilty verdict on the OUI charges, at least, gives the driver a chance to get his or her license returned.

Massachusetts DUI lawyers should approach these license reinstatement hearings very carefully. In cases involving repeat DUI offenders, it is important not to apply for license reinstatement too early and it is critical to have a plan. There should be some mechanism in place to insure the judge that the OUI defendant has his or her alcohol issues under control such that he or she is not likely to reoffend. No judge want to learn of a tragedy caused by someone he or she put back on the road. Sometimes a judge will initially deny a DUI license reinstatement motion and allow the DUI lawyer to apply for reconsideration after additional time has elapsed.

In summary, it may be possible to vacate a breathalyzer refusal suspension in Massachusetts DUI cases where the alcohol related charges are resolved by a dismissal or not guilty verdict. It may be also possible to challenge the breathalyzer refusal through other legal means.

First Offense DUI Conviction for Second Offender

Posted by Attorney Brian E. Simoneau on March 2, 2011 562 comments

In the Massachusetts DUI case of Commonwealth v. Babb, which the Massachusetts Appeals Court decided yesterday, the Court held that the prosecution was unable to prove that Babb has committed a prior DUI offense and he, therefore, was guilty only of DUI First Offense and not DUI 2nd offense.

The Appeals Court agreed with Babb’s OUI lawyer’s claim that the evidence was insufficient for the judge to find Babb guilty on the second offense portion of the DUI charge. The only link between the Babb and his alleged 1st Offense DUI conviction was his name. This was insufficient to support a guilty finding on the Second Offense portion of the DUI charge.

Under Massachusetts DUI law, G.L. c. 278, § 11A, those charged with operating under the influence in Massachusetts are legally entitled to a separate trial on the question of whether or not the Mass. DUI defendant has prior convictions. The law prevents the judge from considering or relying on any evidence that had been presented at the jury trial to establish identity. Instead, the prosecution must convince the judge beyond a reasonable doubt that the drunk driving defendant is the same person named in the prior DUI cases. Under Melanie’s law, live testimony is not required and this can be proven by court records. However, Melanie’s law did not lower the standard of proof and it still must be established beyond a reasonable doubt. Identification of the defendant is, and always has been, a critical element in every criminal trial and the lack of identification can and has resulted in not guilty verdicts. Mere matching of a name, without more, does not sufficiently establish identification, such that a defendant can be convicted of DUI second or subsequent offense.