Massachusetts DUI Attorney Blog

One of the more unreliable field sobriety tests used by Massachusetts police officers making OUI arrests is the finger to nose test. The exercise has never been studied for reliability as the other field tests, but is still used by many police officers.

In scoring the finger to nose test, the officer generally testifies that the person did not hit the tip of the nose, but just under or to the side. Often the report is vague and inconclusive regarding where the suspect actually touched. A carefully cross examination by an experienced DUI attorney can reveal that the officer cannot recall how the defendant performed because he did not record the details in the police report and failed to take notes at the scene of the arrest as taught at the police academy.

Being on the side of the road, with a police officer in front of you, and being required to touch your nose with your head tilted back is something most jurors can understand is a strange task. Although the police officer likely concluded that you failed this test and other field tests, ultimately your performance and the value of this test is for the judge or jury to decide at your OUI trial.

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Massachusetts OUI lawyers will continue to raise Sixth Amendment confrontation issues to challenge the admission of breathalyzer evidence at trial in light of the United States Supreme Court's decision in Melendez-Diaz v. Massachusetts. In Melendez-Diaz, the United States Supreme Court reversed a defendant's drug conviction because the defendant was denied his right of confrontation under the Sixth Amendment by the Commonwealth introducing the drug analysis without live testimony of the chemist who conducted the analysis.

Prior to Melendez-Diaz, prosecutors in Massachusetts would prove that a substance was an illegal narcotics by introducing evidence of a drug certification showing that a chemist at the State lab tested the substance and concluded that it was an illegal narcotic. Often, the chemist would not even test the entire sample, but part of a sample and assume it was all consistent. The Massachusetts courts upheld that practice . The Melendez-Diaz will require that prosecutors summons in a chemist at a drug trial to prove that a substance is an illegal drug unless the defendant waives this right.

The Melendez-Diaz decision could also be applied in cases where the Commonwealth is trying to introduce breathalyzer test results into evidence. The Commonwealth must establish under the Barbeau case from the Massachusetts Supreme Judicial Court that the machine was periodically tested for accuracy. Typically, the Commonwealth calls the breathalyzer operator to testify, but does not always call the officer who performed the periodic testing and instead relies on the affidavit from the Office of Alcohol Testing to establish the periodic testing requirements.

Given the Melendez-Diaz decision, that reliance on an affidavit to establish the periodic testing and reliability of the machine could constitute a violation of a defendant's Sixth Amendment right of confrontation. The United States Supreme Court has taken a strong pro-defendant interpretation of the confrontation clause, with Justice Scalia authoring both the Melendez-Diaz decision and the Crawford decision. The Sixth Amendment remains a viable tool for the Massachusetts OUI lawyer to exclude breathalyzer test results from admission into evidence.

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A Cleveland Cavaliers guard, Tarance Kinsey, was arrested for DUI in Tampa, Florida. According to the police allegations, Kinsey was drifting within his lane and speeding. Kinsey's attorney will undoubtedly file a motion to suppress the stop. In Massachusetts, there is no requirement that a person drive perfectly straight within their lane of travel. A land roadway violation requires evidence that the person drove outside of their lane of travel as there is no traffic law requiring a driver to drive perfectly straight within their lane of travel. Even if the stop was proper based on speeding, testimony by the officer as to what justified the stop will assist the defense in preparing for trial. In case where no motion to suppress is viable, the DUI lawyer is left with the police report to determine how the officer will testify at trial. A motion provides the opportunity to obtain a dismissal of the OUI charge while at the same time previewing the officer's trial testimony. Attorney DelSignore has obtained dismissals of Massachusetts DUI charges by filing motions to suppress evidence.

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Under the case of Miranda v. Arizona, 384 U.S. 436 (1966), police officers are required to read you your Miranda rights prior to custodial interrogation. Generally, a police officer making an arrest in Massachusetts for DUI will read a suspect their Miranda rights upon making the arrest.

The suspect is typically brought back to the station where he is asked further booking questions. Case law has carved out what is known as an exception to Miranda for basis booking questions, such as name, date of birth, address, and other biographical information necessary to book a suspect. This exception was recognized by the United States Supreme Court in Pennsylvania v. Muniz, 496 U.S. 582 (1990) and followed by the Massachusetts Supreme Judicial Court under our State Constitution.

The abuse that occurs with the booking exception is that some officers use the cordiality created by booking questions to then question a suspect as to how much they had to drink, what they last drank and how much was consumed.

Questions such as these are clearly not part of the booking process and are usually asked close in time to basis booking questions. Many arrested for OUI answer these questions. A motion to suppress could be made challenging the admissibility of these statements as obtained in violation of a suspect's Miranda rights.

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Most people are familiar with the now famous Miranda warnings from television and movies. But how are these rights applicable if you are stopped for DUI in Massachusetts.

The Miranda warning comes from the case of Miranda v. Arizona, 366 U.S. 384 (1966). Under the United States Constitution and the Massachusetts Declaration of Rights, Miranda warnings are not required when a police officer stops your car to make an initial inquiry regarding a traffic infraction. Typically, in a DUI investigation, it starts as a traffic violation and the officer smells an odor of alcohol, observes bloodshot eyes and notes slurred speech and comes to the conclusion that the operator might be impaired.

An officer needs only reasonable suspicion to order a motorist from their car to request that they take field sobriety tests. In most cases, Miranda warnings will not be required prior to the officer ask preliminary questions and asking the suspect to take field sobriety tests. A motorist has no obligation to respond to an officer's questions or to take field sobriety tests; however, generally Miranda warnings are not required at this stage.

Miranda warnings may be required if there is a serious accident or if the officer observes numerous traffic violations or conducts the questioning in an aggressive and coercive fashion. Under precedent established by the United States Supreme Court in Berkemer v. McCarty, 468 U.S. 420 (1984), a roadside stop is generally considered not a custodial interrogation requiring Miranda warnings, because roadside stops are open to the public and presumptively brief encounters, that occur, according to the court in a noncoercive environment.

If prior to your arrest, the police acted aggressively, questioning you in a confrontational manner and in a way that made it appear to you as through you were under arrest, a judge may find that you were in custody and that Miranda warnings were required. If that occurred, then any statements made by you may be subject to suppression as the product of custodial interrogation in violation of your Miranda rights. Even if a motion to suppress statements in violation of Miranda is denied, often the defense of your case will be improved as the suppression hearing will provide an opportunity to hear the officers testimony and commit the officer to his testimony prior to trial.

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Video tape evidence can provide powerful evidence to lead to a not guilty verdict on a Massachusetts DUI charge. Many police departments are video-taping the booking process and some departments even have cruiser cameras and or a camera in the back of the police car.

In a recent case from Connecticut, a councilwoman evidently did not realize that the booking was being recorded as she told the officers that she has control over their salaries after being charged with DUI. Video tape evidence is important because it can undermine the officer's description of the performance on the field tests. I had one case where the officer testified that my client failed the field sobriety tests while the video showed someone that appeared to walk a perfect straight line on the nine step walk and turn.

On another case, I was surprised to see that while my client was taking the one leg stand test; the officer was doing the test at the same time. The video showed that the officer clearly did not administer the tests according to his police training and was distracting my client by performing the test across from him.

In a case from New Bedford, the booking video showed that my client attempted to take the breathalyzer three times, but no reading was registered. The officer could be heard expressing surprise that the machine did not obtain a reading.

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As an experienced Massachusetts DUI lawyer, one thing is clear from having DUI trials and watching DUI trials is that police officers administer the field sobriety tests according to their own personal style and preference. The National Highway Traffic Safety Administration studied the standardized field tests, the horizontal gaze, nine step walk and turn and one leg stand.

The reliability of the horizontal gaze test is 77% accurate; the nine step 68% accurate; and the one leg stand 65% accurate. Despite the minimal reliability of these tests, these are deemed the standardized test. Officers use other tests such as a finger to nose test, counting test and alphabet test, none of which have ever been studied for reliability in detecting drunk drivers.

In a recent trial I had, the officer's testimony indicated he did not administer the test correctly. He testified that on the walk and turn, the turn can be done in any manner the suspect wishes and has no set criteria. He testified he was not aware of any requirement that the turn be a series of three smaller steps as is indicated by his training manual. In one trial I saw while in court, the officer acknowledge that he instructed the suspect to put his leg down every five second and alternate legs on the one leg stand. Not only did this officer not know the criteria for the one leg stand, but he essentially created a new test.

Frequently, officers will vary in their application of the test. For example, the nine step walk and turn requires the officer to put the suspect in the start position where one foot is in front of the other. Some officers use the start position; others do not. According to the police training manual, the tests are suppose to be given in a standardized manner with a standard set of clues to guide an officer in scoring the test.

In a recent trial I had from the Dedham District Court, the officer testified that he was not aware that the nine step walk and turn allows a suspect to have a one-half inch space between heel to toe. If a suspect is required to bang their feet together, the test administered is more difficult than set forth by the officer's training.

Other officers do not use the standardize field test, but instead use an alphabet test, counting test and finger to nose test. These tests according to the police training manual are intends as screening tests prior to requiring a suspect to get out of the car to even submit to further police investigation. Many officers use these in place of the field tests while some use them as additional tests.

If you were arrested because you failed field sobriety tests, your case is very defensible as there are numerous challenges to the accuracy of these exercises, including how they are administered, conditions the tests are performed under as well as possible medical issues that could impact the results.

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On June 16, 2009, the Hudson police stopped a Hudson man for alleging running a red light and crossing the center lane of travel. The police charged the individual with OUI and he was also charged him with child endangerment as the police allege he had a four year old child in the car.

Chapter 90 Section 24V of Massachusetts General Laws imposes an additional punishment on any person convicted of operating under the influence of alcohol when also operating a motor vehicle with a child fourteen or younger in the car.

The child endangerment statute imposes a one year license loss on any person found guilty under the statute. The statute also requires a judge to impose a minimum jail sentence of 90 days; however, that sentence can be suspended by the judge. The penalty for a second offense child endangerment which is a felony, imposes a mandatory minimum jail sentence of six months and a three year loss of drivers license.

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A fifth offense Massachusetts OUI case was dismissed as the judge concluded the police unlawfully seized the motorist. Under the Fourth Amendment to the United States Constitution and Article 14 to the Massachusetts Declaration of Rights, a police officer needs reasonable suspicion that a person is committing a criminal act to be able to make a motor vehicle stop.

Generally, reasonable suspicion is provided by police testimony that a traffic infraction was observed. In the Marshfield case from the Plymouth District Court, the police saw the defendant parked in his car and approached the defendant based on a tip from another driver. In these types of cases where the police rely on a 911 call or citizen tip, the police must be able to establish the credibility and reliability of the tip before a judge will find reasonable suspicion to justify a seizure under the Fourth Amendment. If the identity of the citizen caller is unknown, the Commonwealth will have a difficult time demonstrating the veracity and reliability of a tip. In those cases, the police will lack reasonable suspicion to seize and detain a motorist.

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A Cincinnati Bengals football player, Leon Hall, avoid a first offense DUI conviction by pleading guilty to a lesser charge of reckless operation of a motor vehicle. While in some states it is common to reduce DUI charges to reckless operation or negligent operation of a motor vehicle, it rarely occurs in Massachusetts. I have had Massachusetts OUI charges reduced, but it is not common and usually happens because the Commonwealth has a weak case or a problem proving their case.

First offense OUI charges typically have to go to try in order to avoid a first offense for Registry of Motor Vehicle purposes and for the purposes of counting subsequent offenses. If a person pleas guilty to a first offense OUI in Massachusetts, typically the sentence is one year of probation with the condition that the defendant complete the 24D alcohol education program. On a finding of guilty after trial, most judges will impose essentially this same disposition.

Given the severe consequences of a second offense OUI, it is extremely important to speak to a lawyer to carefully consider the strengths and weaknesses of the case before agreeing to accept a plea deal.

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Massachusetts OUI offenses involving one car accident, sometimes can be difficult cases for the Commonwealth to prove. On June 12, 2009, a Cape Code man was charged with a third offense OUI when his car crashed into a utility pole and rolled over. The driver was taken to the hospital and the police found open containers in and around the car.

In one car accidents, often there is no witness as to how the accident occurred. Typically, the Commonwealth will attempt to obtain the medical records to determine what the blood alcohol percentage of the driver was from the hospital records. Even if the Commonwealth obtains the hospital records, there are many ways to challenge the hospital blood alcohol reading.

However, an accident alone is not enough to convict someone beyond a reasonable doubt of driving under the influence. Instead, the Commonwealth will need some other evidence, such as observations of the driver, blood alcohol evidence or testimony as to the cause of the accident.

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Massachusetts OUI roadblocks are becoming more common as the State police conduct DUI roadblocks known as "Over The Limit and Under Arrest". OUI roadblocks are supported by groups such as Mothers Against Drunk Driving and are occurring frequently around the country, including in Massachusetts. In Beverly, Massachusetts, A DUI roadblock resulted in 12 arrests at a roadblock on the inbound lane of the Veterans Memorial Bridge at Cabot and Water Streets, from 11:00 pm to 3:00 am. The State police have also set up roadblocks in other parts of Massachusetts, including Solider Field Road in Brighton, Massachusetts.

If you are arrested for a Massachusetts OUI at a roadblock, you should contact Attorney DelSignore immediately as you may be able to win your DUI case by proving that the police did not conduct the roadblock under the guidelines set forth by the Massachusetts Supreme Judicial Court in Commonwealth v. McGeoghegan, 389 Mass. 137 (1983) and you can also challenge the reasonable suspicion the police had for directing your car from the follow of traffic.

Additionally, since there is typically no evidence of erratic operation in a roadblock case, these cases generally rely heavily on the results of the field sobriety tests, which can be challenged on the basis of their lack of fairness and reliability.

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In Massachusetts, any motorist convicted of a second of subsequent offense of operating under the influence of alcohol must have the ignition interlock device installed before the Registry of Motor Vehicles will issue a hardship license. Chapter 90 § 24 ½ requires the ignition interlock to be installed prior to the Registry of Motor Vehicles issuing any hardship license for a second or subsequent Massachusetts OUI or DUI offense in Massachusetts. This requirement also applies to out of state convictions, so the RMV will review your entire driving record to determine how many prior OUI offenses you have. Sometimes the prosecutor will be unaware of a prior OUI and may charge a lower offense than your record would warrant; however, the RMV will issue any license suspension according to its records independent of the offense level charged by the court. Sometimes a prosecutor will voluntarily agree to reduce an offense level in exchange for a plea. While that will reduce the sentence imposed by the court, the license consequences will be the same as the Registry will issue any suspension based on its own records.

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In Arizona v. Gant, decided April 21, 2009, the United States Supreme Court held that a police officer may search the passenger compartment of a vehicle incident to a recent occupant arrest only it is is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of the arrest. The United States Supreme Court in Gant, narrowed its holding in New York v. Belton, 453 U.S. 454 (1981), which had been interpreted by some courts to allow a search of the passengers compartment of a vehicle even if there was no possibility that the arrestee might gain access to the vehicle.

In the context of a Massachusetts DUI arrest, Gant may provide a basis to have evidence suppressed found inside of the car after the arrest, such as open containers of alcohol or other evidence found through a search of the vehicle. While the police may be able to get this evidence admitted under other exceptions to the warrant requirement, Gant limits the ability of officers to search a vehicle after an arrest and in the context of a Massachusetts OUI case, it will be difficult for the officer to contend that the search of the car was justified to obtain evidence of the offense.

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The Massachusetts Court of Appeals in Commonwealth v. Stoddard, reversed an OUI conviction for a motorist because the Commonwealth did not prove that the defendant was operating under the influence on a public way. In order to prove an operating under the influence charge, the Commonwealth must demonstrate that the defendant was operating a motor vehicle, on a public way, while under the influence of alcohol. Generally, the public way element is not at issue in most operating under the influence cases. In Stoddard, it was an issue in the case because the defendant was driving within a gated camp ground that was closed to the public. The camp ground could only be entered by inserting a card to unlock the gate.

In finding that the public way element was not satisfied, the court focused on the fact that the camp ground excludes access by the general public. Significantly, the court raises the possibility that private gated communities, some college campuses, or private resorts that restrict access by the general public may not satisfy the public way element.

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Massachusetts DUI law defines operation of a motor vehicle as occurring whenever a person is intentionally manipulating some mechanical or electrical part of the vehicle, like the gear shift or the ignition, which alone or in sequence, will set the vehicle in motion. A recent case from the Connecticut Supreme Court, State v. Cyr, raises the issue of how far the court would extend the definition of operation.

In Cyr, the defendant started his car with a remote starter and was behind the wheel, but never inserted his key in the ignition. Without the key being in the ignition, the car could not be operated. The court held that the lack of the key being in the ignition was but a temporary impediment to the vehicle being operated. Interestingly, the court stated that if the vehicle could not be operated, or had a permanent impediment to being driven, it would hold that the operation element was not met.

I have had numerous cases involving operation defenses, including situations where the driver is behind the wheel of a parked car, outside of their car after an accident or outside of the car when the police receive a tip that the motorist is possibly under the influence. These situations present a possible defense to your OUI charged based on a lack of operation or an inability of the Commonwealth to prove operation beyond a reasonable doubt.

In Commonwealth v. Plowman, a case decided by the Massachusetts Appeals Court, the court held that sitting in a park car with the engine running does not compel a finding of operation. In that case, the trial judge precluded the defendant from providing his reasons for sitting in the drivers seat unrelated to operator of the motor vehicle. The result in the Cyr case appear to stretch the definition of operation and probably would not be followed by Massachusetts courts.

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If you are charged with a second or subsequent offense OUI in Massachusetts, the jury will not know that you have had prior convictions of OUI in Massachusetts. Instead, your trial on the underlying offense OUI will occur just as it would if this were your first offense OUI.

In Gonsalves, the Appeals Court reversed the defendant's conviction when a copy of the subpoena for medical records of the defendant was inadvertently showed to the jury which said OUI 4th Offense. The jury then asked the judge a questions asking if the indication on the evidence sheet is that it is the defendant's 4th offense. The judge denied the defendant's request for a mistrial and advised the jury that the prior convictions were not in evidence and that they should limit themselves to the evidence. Five minutes later, the jury returned a guilty verdict.

The Appeals court reversed emphasizing that whether the defendant previous committed three prior offenses of OUI should not have been brought to the attention of the jury. Under Massachusetts law, when a defendant has a prior OUI offense, the court bifurcates the trial with the jury first deciding whether the defendant violated the Massachusetts OUI law; and then secondly, whether the defendant has prior offenses. In most cases, a defendant will elect a bench trial on the issue of whether he has committed prior offenses of OUI, but can have a jury trial on the issue of subsequent offenses. However, typically the jury that heard the evidence on the underlying offense will be held for the subsequent offense portion of the case.

The Appeals Court also reaffirmed its prior holdings that post-arrest silence cannot be used against a defendant. The prosecutor improperly tried to have the jury draw a negative inference from the defendant's refusal to answer booking questions.

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