Articles Posted in OUI/DUI/DWI

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courtroomUnder the Sixth Amendment and article 12 of the Massachusetts Declaration of Rights, a defendant is supposed to be advised of the right to an attorney before a critical stage of criminal proceedings. In Commonwealth v. Neary-French, the Massachusetts Supreme Judicial Court considered whether the 2003 amendment to M.G.L. chapter 90 section 24, which created a theory whereby a breath test reading .08 or more is an element of the offense, made the decision of whether to take a Breathalyzer a critical stage, such that the defendant needed to be advised of the right to counsel.

The case arose when a woman signaled to the police department that the defendant’s car was bumping into another car. An officer approached the defendant and observed she might be operating under the influence. Another officer came to the scene to administer a field sobriety test.

Due to his observations and her performance on the tests, the defendant was arrested. At the police station, she was advised of her Miranda rights and given a statutory rights and consent form, which advised her of her right to make a phone call, her right to a physician, the consequences of a refusal to submit to a chemical test, and other warnings. The defendant initially refused the Breathalyzer but a few minutes later agreed. The test showed her blood alcohol content was greater than .08.

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kitchen-1484790.jpgIn the recent case of Commonwealth v. Ross, the defendant appealed from an OUI conviction, her fifth offense, and operating a motor vehicle under the influence with a suspended or revoked license under
Massachusetts G. L. c. 90, § 23.

The case arose when the defendant was driving on a part of the road that was under construction. Later, someone working at the construction site would testify he saw the defendant crash into a construction vehicle parked there. The police came to the scene shortly thereafter. A policeman asked to see the defendant’s license, and she told him she didn’t have one that was good. He continued to interview her and then arrested her for an OUI. Her vehicle was searched, and wine bottles were found.

At trial, the defendant claimed her appearance and actions during the interview and arrest were due to the fact she suffered from seizures. The judge bifurcated the trial. In the first part of the trial, the judge heard testimony about what happened leading to the arrest. He ultimately found her guilty of operating a car with a suspended or revoked license and of an OUI. In the second half, the defendant stipulated to the evidence, and the judge determined the defendant was guilty of OUI, fifth offense, and that her license had been revoked for a previous OUI conviction.
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booze-1481628 (1).jpgIn Commonwealth v. Botelho, the defendant appealed after being convicted of a second offense OUI. The only issue before the jury at trial was whether he was drunk at the time of the collision or whether his demeanor arose out of his hearing impairment plus the effect of the crash.

The case arose one night in 2012, when an officer responded to a dispatch about a one-vehicle accident. The defendant was discovered behind the steering wheel of a truck that had crashed into a utility pole. There was significant damage at the front of the car, and the side air bag had deployed. When the defendant got out of the truck, he said his stabilizer broke. He said he hadn’t been drinking.

However, the arresting officer later testified that the defendant’s speech was slurred and his eyes were bloodshot, and that he smelled of alcohol. When he administered two field sobriety tests, the defendant tried to perform the tests before he’d finished giving instructions. The officer failed the defendant for both tests and then arrested him and charged him with OUI and negligent operation of a motor vehicle.
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breathalyzer-1240974.jpgIn Commonwealth v. Cormier, the defendant was arrested for an OUI and speeding in 2012. He agreed to take a Breathalyzer test. The results of the test showed he was above the statutory limit for alcohol consumption.

During discovery, the defendant asked for the manual for the particular Breathalyzer machine that had given results in his case. The Office of Alcohol Testing (OAT) responded there was no manual. In response, the defense asked to exclude the breath test under 501 Code Mass. Regs § 2.04(f), which requires OAT to develop and maintain an operator’s manual.

The defense asked for an evidentiary hearing. At the hearing, an OAT supervisor testified that the machine in question was new and had only been introduced the year before the defendant’s arrest and that it was in use throughout the state. She explained the machine had two parts. The information related to the first part, the inner workings that measured breath, wasn’t in a manual because the manufacturer had a proprietary interest in the technology. The second part related to state-specific software that had to be installed because of different breath test requirements across the country.
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glass-of-beer-1440646-m.jpgUnder G. L. c. 90, § 24(1)(a)(1), anybody in Massachusetts who operates a motor vehicle in a place where the public has access with .08 blood alcohol content, or while under the influence of intoxicating liquor, marijuana, narcotics, depressants, stimulants, or glue vapors can be punished by a fine of $500-$5,000 or by imprisonment for not more than 2 1/2 years, or both. A person who is convicted, is placed on probation, or otherwise pleads guilty to an OUI is subject to an assessment of $250, which cannot be reduced or waived by the court.

If the defendant was previously convicted or assigned to an alcohol substance education or rehabilitation or treatment program, the defendant faces a fine of $600-$1,000 and imprisonment of 60 days-2 1/2 years. The sentence may not be reduced to less than 30 days, and the defendant won’t be eligible for probation, parole, or furlough.

In Commonwealth v. Nahimana, the appellate court reviewed the sufficiency of evidence for the OUI conviction of a defendant who was not given a breath or blood test. The case arose when the defendant was driving 25 mph on a 55 mph roadway after midnight, and a state trooper who was off-duty pulled him over. The trooper observed that the defendant’s slow speed was causing other cars to swerve or hit the brakes. He also saw that the defendant’s car failed to signal when crossing about 75% of the left lane, before moving back into his own lane.
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breathalyzer-465392-m-3.jpgLast month, prosecutors in certain Massachusetts counties suspended the use of Breathalyzer test results in OUI cases. Meanwhile, the State Police reviewed whether the test procedures were reliable. In March, prosecutors were told about concerns with the tests, which caused a number of attorneys to look at older cases to see whether there were Breathalyzer test results with issues.

A spokesperson for the Executive Office of Public Safety and Security stated that when properly maintained, the breath test instrument is one of the most accurate tools available to identify drunk drivers. However, the district attorney for Middlesex County claimed that the issue was the calibration of Breathalyzers, and her staff was temporarily ordered to stop using test results in cases. Similarly, the Cape and Islands district attorney issued an order not to introduce the breath test in any case until further information is obtained. One official initially claimed that 69 out of 6,000 tests administered throughout the state were involved.

At the end of April, the Public Safety Secretary Daniel Bennett announced that only a small number of 39,000 breath analysis tests were flawed because police officers had made mistakes calibrating the machines. He claimed the tests themselves were not malfunctioning.
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the-last-drop-1083566-m.jpgIf you hurt someone while drunk driving in Massachusetts, you may be charged with multiple counts, some of which may seem quite similar. In a recent case, a Massachusetts defendant was convicted of (1) drunk driving (operating under the influence or OUI), (2) drunk driving that caused a serious bodily injury, (3) driving on a suspended license, (4) manslaughter by motor vehicle, and (5) motor vehicle homicide. The case arose because the defendant was driving drunk on the wrong side of an access road and crashed into a Saturn. A 17-year-old passenger in the Saturn was killed and the driver seriously injured.

A state police trooper later testified that when the crash happened, the defendant was driving at 55 mph in a 25-mph zone, and the defendant didn’t try to avoid the crash. The defendant claimed he had drunk two 16-oz. mojitos and a vodka-Red Bull drink before the crash happened. The trooper also noted the defendant’s slurred speech, glassy eyes, unsteadiness, and failure to pass a sobriety test. The trooper arrested the defendant.

During the booking process, blood ran from the defendant’s ear, and he asked for medical assistance. Paramedics examined him. He agreed to a breathalyzer test with two measurements, and his blood alcohol level measured at .17 and .18. Next, he was taken to the hospital, where his blood alcohol level was measured at .15.
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On this blog, we often discuss how due to the serious nature of criminal offenses, the government bears the burden of proving all elements of a crime beyond a reasonable doubt. However, in certain cases, that is not the only burden of proof that the Commonwealth must bear. For example, as one Appeals Court decision affirms, in charging and sentencing based upon prior offenses, the prosecution must also prove that it was the same individual who committed the prior relevant offenses. archive building.jpg

In the case, Commonwealth v. Cruz, Mass. App. Ct. (2013), the defendant was subjected to a two part trial. In the initial phase of the trial, the jury convicted the defendant of operating under the influence of intoxicating liquor (OUI) and of negligent operation of a motor vehicle. In the second part, the jury convicted the defendant on the subsequent (third) offense portion of the operating under the influence charge. However, the defendant, Michelle Cruz, appealed on the later charge, arguing that there was insufficient evidence to establish that she was the individual who committed the two prior OUI offenses.

According to the opinion, the only evidence introduced by the Commonwealth to establish the defendant’s identity, was a certified copy of Michele MacCord’s 1993 OUI conviction and a certified copy of Michele Fortenbacher’s 2003 OUI conviction. Both of those conviction records reflected a birth date of March 17, 1962.
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The Supreme Judicial Court issued an opinion earlier this month, that held the common practice of eliciting opinion testimony from police officers regarding impairment in OUI cases is not permissible as evidence. breathalyzer.jpg

This case is noteworthy, because in practice, many prosecutors have developed a habit of simply asking officers their opinion regarding whether a driver was impaired at the time of the arrest, which the court held is a legal issue upon which a lay witness is not qualified to speak.

The case involved the stop of a driver in 2009. In addition to recanting facts regarding the circumstances of the driver’s field sobriety tests, the prosecutor asked the officer whether he had formed any opinions regarding the driver’s sobriety. To this, the officer replied, “I believed that his ability to drive was diminished.” This is testimony that the court held was impermissible, as it comes close to an opinion on the ultimate issue of guilt or innocence, in this case the standard for the OUI charge is whether “the defendant’s consumption of alcohol diminished the defendant’s ability to operate a motor vehicle safely.” Therefore, due to the well established law that “[n]o witness, including a police witness, may testify as to a defendant’s guilt or innocence,” this type of testimony is not allowed.
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If this is your first time being charged with Operating Under the Influence, or OUI, you may be feeling incredibly stressed and uncertain of what’s to come. There are also some things you should know about the nature of the allegations against you.mojito.jpg

First and foremost, even in the case of a first offense, OUI is deemed a criminal offense. The crime itself is defined as a person operating a motor vehicle (which can include a boat or other vehicle, not only a car), while under the influence of alcohol and/or drugs. Keep in mind also that “operating a vehicle” does not necessarily mean driving on the street. Depending upon the circumstances, even sitting within a car to sober up could be considered operating a vehicle, depending upon the officer’s impression of your behavior, and also the surrounding factual circumstances. In other words, it doesn’t take erratic driving or a dramatic car crash to potentially implicate these charges.

The state of Massachusetts felt that current law was not harsh enough on drivers found guilty of OUI, so in 2005 it passed Melanie’s Law, increasing the penalties for OUI cases. Due to the state’s stance on these types of cases, it is of the utmost importance that you hire a Massachusetts defense lawyer who is knowledgeable about the nature of the charges, and also experienced in representing individuals charged with OUI offenses.

For example, an experienced Massachusetts OUI defense attorney may successfully be able to reduce the potential sentence you are facing as a first time offender from a maximum of two and a half years in jail, a $5,000 fine, and a five year license suspension, to a state-approved alcohol education program. This reduction is not possible after the first offense, and it is not a default reduction. That means the court will not automatically grant it; your attorney will have to secure it for you.
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