Articles Posted in OUI/DUI/DWI

For years, law enforcement officers in Massachusetts and across the country have relied on breath tests to determine an approximation of a driver’s blood alcohol content (BAC). These devices typically consist of a tube that is connected to a small machine. When an officer believes that a driver is under the influence of alcohol, the officer can ask the driver to take a breath test. If the test result indicates that the driver’s BAC is greater than .08, they can be arrested and charged with driving under the influence.

The use of breath alcohol tests is extremely prevalent. However, the use of breath alcohol testing devices can raise several legal issues in Boston DUI cases. One of the major limitations of breath testing machines, from a law enforcement perspective, is that they currently only test for alcohol. However, some jurisdictions have begun working on breath testing machines that could also be used to test for narcotics, such as marijuana, cocaine, or heroin.

Massachusetts law provides that all drivers must take a breath alcohol test when a police officer makes such a request. However, being required to take a breath test along the side of the road is an intrusion into drivers’ privacy interests. Thus, officers must base their request for a driver to take a test on articulable facts supporting a belief that the driver is intoxicated. If an officer is unable to point to any evidence suggesting that the motorist was drunk, the test results may need to be excluded. Of course, this introduces an element of subjectivity into the mix because an officer’s observations that a driver was “acting drunk” are rarely captured on video. This raises the issue of police officer credibility, especially when a motorist recalls a vastly different series of events leading up to their arrest.

Earlier this month, a state appellate court issued a written opinion in a Massachusetts DUI case upholding the defendant’s conviction after affirming the denial of his motion to suppress. Ultimately, the court concluded that the officer’s stop of the defendant was justified based on the officer’s observations that the defendant’s vehicle drifted across the right fog line for two or three seconds.

According to the court’s opinion, an officer stopped the defendant in the early morning hours on Route 202 after he noticed the defendant’s vehicle drift over the right fog line for a few seconds. Upon the officer’s approach and subsequent discussion with the defendant, the officer concluded that the defendant was likely under the influence of drugs or alcohol. Thus, the officer arrested the defendant for DUI.

The defendant filed a motion to suppress all evidence obtained as a result of the stop, arguing that the officer did not have a basis to conduct the traffic stop. A video of the incident confirms that the defendant briefly drifted out of his lane for a few seconds before returning to his lane. Other than that brief departure, the defendant’s driving was not called into question. The lower court granted the defendant’s motion, holding that “crossing a fog line one time for a few seconds does not constitute a marked lane violation.” The prosecution appealed.

Earlier this year, a state appellate court issued an opinion in a Massachusetts OUI case requiring the court to determine if the lower court properly denied the defendant’s motion to suppress the statements he made to the state trooper that had arrested him. Ultimately, the court concluded that the trooper’s testimony was conflicting regarding whether the defendant was given his Miranda warnings and whether the defendant indicated that he understood the warnings. Thus, the court reversed the defendant’s conviction.

The Facts of the Case

According to the court’s opinion, the defendant was pulled over by a state trooper for suspicion of operating a vehicle under the influence of drugs or alcohol (OUI). After the defendant was arrested, he told the trooper that he had consumed “two small bottles of red wine” and that he rated his intoxication as a “two” on a scale of one to ten. The defendant filed a motion to suppress his statements, arguing that his statements were taken without having been provided Miranda warnings.

Evidently, on direct examination at the motion hearing, the trooper testified that he provided the defendant with Miranda warnings and that the defendant indicated that he had understood those warnings. However, on cross-examination, the trooper contradicted himself, explaining that the defendant never told him he understood the Miranda rights, that he never waived those rights, and that he never agreed to talk to the trooper about the alleged offense.

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Many Massachusetts DUI cases are based on breathalyzer test results. These tests, often given on the side of the road by police officers, have come under intense scrutiny across the country for being less than accurate.

Over the past several years, Massachusetts criminal defense attorneys have been litigating the admissibility of breathalyzer test results. While the arguments to exclude the test results are quite technical and complex, the results were attacked both in how they were obtained as well as how they were stored. Recently, a Massachusetts District Judge issued a landmark opinion excluding breathalyzer results in thousands of Massachusetts DUI cases.

According to a recent news report covering the judge’s decision, the issue began back in 2017 when he ruled that the testing results were reliable, but that the manner in which they were maintained was not reliable. In his 2017 ruling, the judge determined that the results could not be presumed to be reliable, requiring the prosecution present additional evidence to establish test results were reliable. The judge also ordered the Office of Alcohol Testing (OAT) to provide thousands of pages of data to defense attorneys.

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In a 2017 Massachusetts appellate case, the defendant appealed from convictions for operating a vehicle under the influence of drugs (M.G. L. c. 90, § 24(1)(a)(1)) and negligent operation of a motor vehicle (M.G. L. c. 90, § 24(2)(a)). The case arose when a cop in an unmarked car saw the defendant drift over the centerline and travel toward him head-on. The cop swerved to avoid crashing into the defendant, and then he pulled her over.

The cop, who’d known her for a minimum of 23 years, observed she “wasn’t right” but was sleepy, lethargic, and disheveled with a low attention span and a physical unsteadiness. A different cop grabbed her hand to stop her from falling while she was performing the nine-step walk and turn test and the one-leg stand.

The defendant said she’d taken Sertraline, Symbicort, Albuterol, Spiriva, Singulair, Prozac, Dextral, and Paxil on that day. The officer asked to see her prescriptions, and she only produced Lorazepam and Oxycodone prescription bottles. The Oxycodone bottle included only a single pill, even though the prescription was for 75 pills and had been refilled three days before. The defendant had a redness around her nose, and it was visible in her booking photograph.

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Under 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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In 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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In 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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In 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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Under 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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