A Framingham, Massachusetts man was charged with OUI second offense and OUI with an accident causing serious bodily injury on July 25, 2009. 20 year old Nicko Casteneda is alleged to have crashed his car into a motorcycle causing serious bodily injury to the rider of the motorcycle who was stopped ready to make a left turn. According to the newspaper article, the Framingham minor admitted to have eight beers and register a .21 on the breathalyzer test.
Massachusetts General Laws Chapter 90 Section 24L provides for a mandatory minimum jail sentence of six months for any person convicted of operating a motor vehicle under the influence of alcohol causing serious bodily injury. Additionally, an OUI serious bodily injury charge carries with it a two year loss of license.
An interesting issue for the DUI lawyer will be whether the police gave Miranda warnings prior to questioning. In a case involving an accident, it can be argued that this is not an ordinary roadside stop under Berkemer v. McCarty, 468 U.S. 420 (1984) and Miranda warnings should be required.
The high breathalyzer reading along with the charge being alleged a second offense for a driver under 21 will make this a case where the prosecutor is likely to take a firm stance regarding sentencing. A person under 21 charged with OUI and obtaining a breathalyzer reading of over .20 for a 1st offense is required to take the 14 day in-patient program along with the aftercare program required of second offenders. The 14 day in-patient program is required of all individuals convicted of a second offense OUI.
In this case, given the seriousness of the allegations, defense counsel will have to vigorously fight to exclude any alleged statement of the defendant and possibly obtain an expert to challenge the admissibility of any breathalyzer evidence. A DUI lawyer can exclude breathalyzer evidence by demonstrating that the officer failed to comply with the fifteen minute waiting period required by Massachusetts Law, showing that the defendant did not consent to the breathalyzer test and presenting medical evidence that may impact the reliability of the test results. Additionally, prior to any breathalyzer evidence being admitted in court, the police officer must explain to the defendant that he has a right to an independent medical examination to have additional testing to challenge the breathalyzer evidence. This is known as an OUI defendant's Chapter 263 Section 5A rights.
Attorney DelSignore is a Massachusetts OUI lawyer that handles cases throughout the Commonwealth of Massachusetts. Attorney DelSignore defends cases where motorists failed field sobriety tests, were involved in accidents and failed breathalyzer tests. Breathalyzer tests are not infallible and often officers make errors in performing the tests that result in them being excluded from evidence at trial. If you were arrested for OUI, call Attorney DelSignore and let him explain the process in a free consultation. Call today.
