OUI/DUI/DWI

The Errors of Roadside Breath Tests May Have a Positive Impact on the Defense of your OUI case

Published on: May 30, 2012 | by Patrick J. Murphy, Esq.

Over 80% of OUI cases heard by a Massachusetts Judge and 50% of OUI cases in a jury trial are dismissed. This high rate of acquittals led the Boston Globe to launch a spotlight investigation on the matter in December of 2011. The findings of the final report show that the high rate of acquittals is due to the reluctance of prosecutors to dismiss flawed OUI cases, the improper administration of breath and blood tests, the inaccuracies from the results of those tests, and the prosecutions’ high burden of proof in regards to satisfying the elements of an OUI case. Most frequently, the arresting officer improperly administers the breath test on the suspect, thus leading to the inadmissibility of the evidence and the failure of the prosecution to proffer evidence of the suspect’s blood alcohol concentration (BAC).

Breath testing instruments are small hand held pieces of technology, which like most technology, are often prone to errors. In fact, research indicates that breath tests can vary at least 15% from actual blood alcohol concentration. At least 23% (that’s about one out of every four) of all individuals tested will have a BAC reading higher than their actual BAC. Therefore, the findings of the test leave a lot to be interpreted and analyzed by your attorney and the judge presiding over your case.

DEFENSES TO BREATH TEST RESULTS
Breath testing instruments most commonly experience problems with calibration, interfering substances, and mouth alcohol. Most breathalyzers require recalibration at least once a year to maintain accuracy. Thus, if the tester has not received the proper recalibration maintenance, it may lead to inaccuracies and false readings of the machine. Additionally, there are non-alcoholic substances that can contribute to a false reading such as the weight, health, metabolism, diet, and mental health of the subject. Medical illnesses such as diabetes, emphysema, bronchitis, and asthma can also have a dramatic impact on the results of the test. Breath testing instruments are also quite sensitive to temperature; the machine is calibrated to test the breath at 34 degrees centigrade, but studies show that at the time of OUI arrest, people generally come closer to 35.5 degrees centigrade. The result of this can mean a 10-20% higher reading.
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The Increase of Alcohol Related Deaths has Prompted New Laws to Combat ‘Extreme OUI’

Published on: May 26, 2012 | by Patrick J. Murphy, Esq.

Operating under the influence of drugs and/or alcohol is a serious offense in the United States, and carries severe penalties for those found guilty. In 2009, 10,839 people were killed in alcohol-impaired driving crashes, accounting for nearly one-third (32%) of all traffic-related deaths in the United States. The increased perception of driving while drinking as a serious problem has, in the past two decades resulted in tightening of the legal limit of blood alcohol – blood alcohol content (BAC). It has also produced another classification of driving under the influence (DUI) in many states. For instance, just recently, a man in Arizona was arrested and is now facing charges after it was determined that he had a blood alcohol level four times greater than the legal limit. This is an extreme OUI.

Normally, OUI is defined as an individual found to be operating a motor vehicle while under the influence of drugs or while registering a BAC level of 0.08. Presently in Massachusetts third offense OUI and above are treated as felony offenses. In cases of extreme OUI, an individual must be found to have a significantly higher BAC level – between 0.15 and 0.20. That is nearly double the legal limit for drivers. Statistics show that nearly two-third of all accidents resulting in an alcohol related fatality involves a driver with a BAC of at least 0.15%, or nearly twice the legal limit. This poses an extreme threat to the safety of the society and its citizens.

Legislatures attribute persistent drinking and the rise in binge drinking to the increase in extreme OUI cases. When a person consumes alcohol on a regular and continuous basis, they develop a tolerance towards the substance. Once an individual has built up a tolerance to alcohol, the amount of alcohol required to achieve a state of drunkenness is magnified. At this stage of tolerance, many people feel they are fine even after several drinks of alcohol. But the fact is that they are impaired of their driving ability due to slow reaction time, poor visibility, multitasking and coordinating various activities at a time. Usually people do not factor in extraneous circumstances, such as mood swings, fatigue and food consumed, which can have a significant effect on how your body reacts to alcohol consumption.
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Massachusetts Woman Charged with Second Offense OUI

Published on: May 22, 2012 | by Patrick J. Murphy, Esq.

The Boston Globe reported that a Norfolk woman is facing a second drunken driving charge after allegedly causing a multiple car collision in Attleboro according to several 911 callers. State Police charged her with operating under the influence of liquor, second offense, negligent operation of a motor vehicle, unlicensed operation, and marked lanes violations. After interviewing other drivers and administering field sobriety tests, State Police determined that the woman was driving while intoxicated. Police arrested her and took her into custody, transporting her to the State Police barracks in Foxborough. Three people not seriously injured were taken to local hospitals for treatment. The woman was arraigned on Monday in the Attleboro District Court and was ordered held on $3,000 bail with pretrial probation conditions to remain alcohol-free and to refrain from driving an automobile. Her license to operate an automobile was confiscated by the State Police and revoked indefinitely because police deemed her an immediate threat.

If convicted of a second offense OUI, a judge could sentence a defendant to prison for not less than 60 days or up to 2 ½ years in a house of correction. There is a mandatory 30 days that must be served in a house of correction, which may be served at a designated treatment facility for alcohol issues. If a defendant has less than 2 prior convictions he or she is eligible for 2 years of probation in addition to a 14 day in-patient residential alcohol treatment facility. The Registry of Motor Vehicles in Massachusetts will also suspend your license for 2 years. A defendant can apply for a hardship license after a year with the requirement of an alcohol interlocking device in the car during the period of hardship.
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New Melanie’s Law Ruling in Massachusetts Helps Repeat OUI Offenders Avoid Lengthy Registry License Suspensions

Published on: May 18, 2012 | by Patrick J. Murphy, Esq.

In a recent ruling representing a change in the interpretation of Melanie’s Law, the Supreme Judicial Court of Massachusetts has ruled that the Massachusetts Legislature did not intend that an “admission to sufficient facts” also known as a “CWOF” or “continuance without a finding of guilt” in a drunk driving case to be treated as a conviction by the Registry of Motor Vehicles when acting pursuant to G.L. c.90, § 24(1)(f)(1) to suspend an operator’s driver’s license for more that 180 days due to the driver’s refusal to take a breathalyzer test.

In so holding, the SJC decided that a person charged with operating under the influence of alcohol who receives a continuance without a finding -a routine disposition for first-time drunk driving offenders-shall not have their case counted as a first offense conviction on their record. The lawyer for the Registry of Motor Vehicles contended that a CWOF should be treated as a conviction subjecting a repeat (DWI/OUI) offenders to the additional license suspension penalties.

The case name is Souza v. Registry of Motor Vehicles and was decided on May 17, 2012 as reported in the Boston Herald. In this case, a defendant arrested and charged with OUI admitted to sufficient facts for a finding of guilty but he did not plead guilty and his case was continued without a finding and later dismissed after he successfully completed his probationary terms. The defendant was arrested again thirteen years later and he had refused to submit to a breathalyzer test. Later, the Massachusetts Registry of Motor Vehicles suspended his driver’s license for three years pursuant to G.L. c.90, § 24(1)(f)(1) which directs that the RMV suspend the license for three years for a breath test refusal if the driver has been previously convicted of an OUI crime. If there is no previous conviction, the RMV suspension is for 180 days.
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Operating Under the Influence in Massachusetts: A misdemeanor not to take lightly

Published on: May 15, 2012 | by Patrick J. Murphy, Esq.

When you are charged with operating a vehicle under the influence of alcohol or drugs, the official charge in Massachusetts is Operating Under the Influence (OUI). Today, the terms ‘OUI’ ‘DUI’ and ‘DWI’ are used interchangeably. Operating under the influence has become one of the most commonly encountered offenses in Massachusetts. In fact, it is estimated that nearly 17,500 people were killed in automobile collisions involving alcohol in 2002. According to the National Highway Traffic Safety Administration (NHTSA), this represents 41 percent of the 42,815 people killed in all traffic accidents and crashes that year. Statistical evidence such as this lead to the passing of ‘Melanie’s Law’ in 2005, the purpose of which was to enhance the penalties attached to OUI offenders.

Being charged with an OUI is a serious offense in the state of Massachusetts, and someone charged would be well advised to seek legal counsel. A person may be found guilty of Operating Under the Influence (OUI) if they are 1) at least 21 and 2) register at .08% or higher when tested for your blood alcohol concentration (BAC). If you’re younger than 21, you will face administrative penalties if you test at .02 or higher, plus standard charges at .08 or higher. If you are convicted, the penalties can be harsh and include imprisonment, significant fines, and suspension of driver’s license, probation, community service sentence, and mandatory enrollment in DUI traffic school.

PENALTIES ATTACHED

Being charged with OUI for the first time can be an extremely stressful and frightening experience. However, retaining an experienced Massachusetts defense attorney for your case can relax the situation and minimize the apprehension. In the event one is found guilty of an OUI first-offense, an individual faces a maximum 2 ½ years in jail, a $5,000 fine, and a 5-year license suspension at your RMV hearing. Drivers arrested for a first OUI offense can get their sentences reduced by agreeing to complete a state-approved alcohol education program. This is not an option after the first offense.

As you probably expected, the penalties for a second offense OUI are more severe. In any case, a qualified OUI defense attorney can significantly reduce the harsh penalties you will be facing. If convicted of a second offense it is possible you will be punished by a fine of at least $600 to the maximum $10,000, and imprisonment for a minimum of 60 days ranging to 2 ½ years; Mass. Gen. Laws Ann. ch. 90, § 24. In addition, the Registry of Motor Vehicles will suspend your driver’s license for 2 years when you are convicted on a second offense OUI.
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Drunk Driving and Roadside Field Sobriety Testing in Massachusetts OUI Cases

Published on: September 1, 2011 | by Patrick J. Murphy, Esq.

This article will discuss the different types of standard field sobriety tests that are currently being used by law enforcement officials in Massachusetts for people suspected of operating a motor vehicle under the influence of alcohol or drugs (OUI/DWI), commonly referred to as drunk driving. The tests used by police officers out in the field in traffic stops consist mainly of the walk-and-turn test, the one-leg stand test, alcohol breath test, and horizontal gaze nystagmus test. The results of these tests are used because government officials at the National Highway Traffic Safety Administration learned decades ago that they have been reliable indicators for distinguishing blood alcohol content beyond the legal limit for driving, assuming that the tests were administered in a standardized manner by a properly trained police officer.

The walk-and-turn test is divided up into two areas. First, there is an instruction phase where the individual detained is told to keep the arms at his or her side, and to put his or her feet heel to toe. The person is then instructed to listen to the directions as the officer informs them to take nine heal to toe steps, turn in a certain manner, then take another nine heal to toe steps back. The second phase is the physical test itself. Scoring by the officer is performed based upon certain cues including but not limited to whether the person lost balance, started too soon, stopped while walking, and touched heal to toe, etc. During this time the officer is looking for two or more cues which would lead to the probability that they where operating their motor vehicle while intoxicated.

The one-leg stand is a test that also has an instructional part then a balancing and counting part. During the instructional part, the police officer asks the person to stand with feet together, arms at the side and to listen. The person is told to raise one leg about six inches off the ground with toes pointed outward while keeping both legs straight. The person is then instructed to count out loud until told to stop. During this time, the person must follow the instructions as given by the officer. There are four specific cues that the officer looks for during this test: any swaying while balancing, using the arms to balance, hopping, or putting a foot down during the test. If you put your foot down three or more times during the thirty-second period the police consider you unable to complete the test. If you have two or more cues you also fail the test.
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