Massachusetts DUI Attorney Blog

Under Massachusetts DUI law, a first offender convicted of an OUI will generally suffer a 45 day loss of license and be required to complete and alcohol education program known as the 24D program. It is only with a second offense OUI conviction that Massachusetts imposes the requirement that a motorist have the ignition interlock device installed prior to restoration of a Massachusetts driver's license.

Proposed legislation in Congress if passed would deny federal highway funds to states that do not impose ignition interlock requirements on 1st time DUI offenders. Numerous states have already begun to require ignition interlock devices for 1st offense DUI convictions.

What is often overlooked in the debate over the interlock device is the cost to the operator of installing the device, such as the costly installation fee and monthly service fees. The debate over the expansion of the ignition interlock device makes it crucial to avoid a 1st offense conviction for DUI because even if your conviction occurs prior to any change in the law, the Registry of Motor Vehicles may still require the installation of the ignition interlock device, either because your license has not been reinstated or as a condition of renewal of a drivers license. Since most judges impose essentially the same disposition even after a conviction after trial, the importance of retaining an experienced Massachusetts DUI lawyer has never been more important and is crucial to preserve your driver's license.

A motorist convicted of a second offense Massachusetts DUI appealed to the Massachusetts Appeals Court, claiming that the requirement that he install the ignition interlock device in his vehicle prior to reinstatement violated his rights under the State and federal constitution. Under Massachusetts statute, any motorist convicted of a second or greater offense DUI in Massachusetts or any other state, is required to have an ignition interlock device installed in their vehicle for two years prior to reinstatement of a Massachusetts driver's license.

In the case of the Registry of Motor Vehicles v. Gordon, the motorist had been convicted of a First offense Massachusetts OUI in 1989 and received a second offense conviction in 2003. The motorist was eligible for reinstatement in December of 2005, but did not seek reinstatement until January of 2006, two days after the ignition interlock component of Melanie's law went into effect.

The court rejected the motorist's challenges to the ignition interlock requirement for second offense OUI convictions and upheld the statute against Constitutional challenges. The Gordon case reaffirms the Constitutionality of the strict and harsh penalties imposed on drivers convicted of a second or subsequent offense DUI.

Continue reading "Ignition interlock device upheld for Second offense Massachusetts DUI conviction" »

Former University of Kentucky basketball coach, Billy Gillispie was charged with DUI this week. Gillispie was charged in Kentucky and has twice been arrested for DUI once in Oklahoma and once in Texas according to news reports. In the Oklahoma case, Gillispie avoid a DUI conviction by accepting a plea to a lesser charge.

In Massachusetts, the importance of avoiding DUI convictions is extremely important as Massachusetts has a lifetime look back for all prior DUI offenses that include convictions in other states. Accordingly, any time a motorist is arrest for DUI in Massachusetts the offense level is based on all prior DUI convictions regardless of whether or not they occur in Massachusetts. Sometimes the district attorney's office is not aware of an out of state conviction or cannot prove an out of state conviction at trial, but even if the charge is treated as a lesser DUI offense in the court, the Registry of Motor Vehicles will go by its own records of prior DUI convictions.

Generally, the only way to avoid a DUI conviction in Massachusetts is to proceed to trial as it is rare for a district attorney to agree to dismiss or reduce an OUI charge to a lesser offense of negligent operation. Even if a breathalyzer is below the legal limit of .08, most Massachusetts OUI defends will be forced to proceed to trial in order to obtain an acquittal on the charge as district attorneys generally have a policy against reducing or dismissing an OUI charge.

Continue reading "Former University of Kentucky basketball coach charged with DUI" »

A recent decision by the Massachusetts Supreme Judicial Court upholding the Constitutionality of a roadblock in Quincy, Massachusetts may promote greater use of roadblocks to detect drunk driving. A recent article indicates that the North Attleboro police and State police will be increasing DUI enforcement by conducting roadblocks up until the Labor Day weekend to reduce drunk driving.

If you are arrested at a DUI roadblock, it is important to understand that your case will have numerous defenses, including challenging the Constitutionality of the roadblock and the basis for the officer to order you from the follow of traffic. Additionally, an officer making an arrest at a roadblock has even less information than in a typical DUI stop where the officer witnesses some impaired or erratic driving. With the decision to arrest being based almost exclusively on field sobriety tests in roadblock case, these cases are often more difficult for the Commonwealth to prove beyond a reasonable doubt as many jurors understand that field sobriety tests are physical coordination tests that are difficult to perform under ideal conditions, and are particularly unfair when failure of balance will result in an arrest.

Continue reading "DUI Roadblocks in Massachusetts likely to increase in light of recent court decisions " »

According to the Patriot Ledger, Massachusetts DUI drug cases are on the rise statewide. Arrests for DUI drugs nearly equal the total for all of last year for the first six months of 2009. The survey from the federal government states that Massachusetts has the third highest rate of drug driving in the nation. The increase in DUI drug arrests in Massachusetts is probably a result of increased officer training as more officer are being trained as DREs, drugged recognition experts.

A DUI drugs case involves officer giving a different set of tests and evaluation than for a DUI alcohol case. In some cases, a DUI drug arrest results when a suspect passes a breathalyzer test and the officer is still under the belief that the individual was impaired. If an officer finds evidence of drug use either through statements of the driver or smells an odor of marijuana or other narcotics, than the suspect may be charged with DUI drugs.

Continue reading "Drug Driving, DUI/OUI drug arrests on the rise in Massachusetts " »

A Stoughton, Massachusetts man was held without bail after being charged with a 4th offense DUI. A Massachusetts Fourth Offense OUI is a felony and carries with it the possibility of 2.5 years in the house of correction and carries a mandatory sentence of two years in the house of correction with a one year mandatory minimum sentence.

According to news accounts, the suspect Paul Davenport, allegedly was involved in a hit and run accident and was stopped when police identified the car as being involved in an accident with heavy front end damage. The police did not observe any erratic operation and claim that the defendant failed two out of four field sobriety tests.

Davenport's DUI lawyer appears to have a strong case as according to the police own testimony the defendant passed two field tests. The police deemed Davenport to have failed the one leg stand, despite evidence that the motorist had an injury to his left leg. At trial, in addition to challenge the general unreliability of the one leg stand test, a DUI attorney could present medical records documenting the motorist's medical problems with his left leg, explaining any officer testimony regarding a lack of balance.

Continue reading "4th offense Massachusetts DUI charge for Stoughton man out of the Attleboro District Court. " »

A Whitman, Massachusetts resident will be charged with a Massachusetts OUI as she is alleged to have been speeding and rolled her vehicle over. The driver, Joyce Whitman was brought to the hospital where she was listed as being in fair condition. According to news accounts, the vehicle rolled over several times before crashing into a pole and a dumpster, and then catching fire.

A Massachusetts DUI case involving an accident can in some cases be difficult to prove, because often in one car accident cases, there is no witness to testify as to how the accident happened. Cases involving DUI accidents often require the Commonwealth to attempt to obtain the medical records of the motorist to find out the alcohol level of the driver. These medical records are often difficult to obtain and an experienced DUI lawyer can attempt to keep these records from being admitted into evidence.

Though a DUI charge involving an accident may appear to be a difficult case to defend, these cases are often difficult for the Commonwealth to prove. Under Massachusetts OUI law, an OUI charge requires proof that the consumption of alcohol diminished the driver's ability to operate safely. Since accidents are common place and be caused by many factors, a DUI charge involving an accident is not an easy case for the Government.

Continue reading "Massachusetts DUI charge for Brockton area motorist" »

In Massachusetts, as in other states, legislation to ban sending text messages while driving and cell phone use while driving is being considered in light of studies showing that sending text messages while driving is more dangerous than drunk driving. Legislatures are considering other factors that distract a drivers attention and contribute to negligent operation and reckless operation of a motor vehicle, causing accidents.

Continue reading "Texting while driving more dangerous than DUI in Massachusetts " »

The admissibility of breathalyzer evidence was alternated when the Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Colturi, 448 Mass. 809 (2007). In Colturi, the court held that the Commonwealth does not have to produce expert testimony to prove that the defendant's blood alcohol at the time of driving is the same as at the time of the test as long as the breathalyzer testing is done within a reasonable period of time after the operation. The court held that three hours would generally be a reasonable time, but allowed for the possibility that a shorter period should apply depending on each individual case.

A case from Mississippi recently raised issues similar to those litigated in Colturi. In a Mississippi case, State v. Evans, that will be decided by the Mississippi Supreme Court, the defendant registered a .09 just above the legal limit of .08. The defendant was stopped at 12:50 am and not given a breathalyzer test until 1:58 am according to news accounts. The court refused to allow the defendant to present retrograde extrapolation evidence that the defendant was below the legal limit at the time of operation. Given that the issue with any breathalyzer is whether it accurate reflects the blood alcohol content at the time of driving, the judge appears to be incorrect in precluding the defendant from offering the evidence and presenting a defense. The court of appeals reversed the trial judge and the case will be heard by the State's highest court.

Massachusetts DUI law under Colturi should not preclude a defendant from offering evidence proving that the blood alcohol level was lower at the time of driving. Though Colturi held that the Commonwealth does not have to present this evidence to prove a violation under the per se law, that case does not bar a DUI attorney from presenting this defense before a jury.

In a case involving a .09 breathalyzer, an OUI lawyer would want to consider whether a margin or error defense would be more effective, given that the machine has a margin of error that could put the reading below .08. Additionally, if field sobriety tests show that the defendant was coordinated and had good balance, an attorney could argue that there is a conflict or disconnection between the breathalyzer evidence and the officer's observations that should cause a jury to distrust the reliability of the machine.

Continue reading "Massachusetts DUI and breathalyzer testing after Colturi" »

According to a recent article, DUI arrests are on the rise for women. As a Massachusetts DUI lawyer, there are different ways to defend a case when a women is arrested for DUI. While field sobriety tests are unfair for all drivers, they can be particularly unfair for women. Police training on conducting the nine step walk and turn and one leg stand requires that an officer provide women with high heels of two inches or more the opportunity to take off their shoes. The choice is either to do the test barefoot on the uneven and rough pavement or in shoes that make balancing more difficult. When given to women under these circumstances, the tests are designed for failure. Officers generally do not give a motorist a second opportunity to take field tests at the station under fair conditions.

In addition to clothing and footwear that can make field coordination tests more challenging, breathalyzer testing has shown to have a discriminatory impact on women. Further, women may feel a greater sense of nervousness and anxiety when pulled over by a male police officer that could result in the officer interpreting signs of nervousness as signs of impairment. Often, a police report will state that a female motorist fumbled to get their license from their wallet. While often this is caused by nervousness and anxiety, police officers testify at trial that this is a sign of impairment.

Continue reading "DUI arrests increase for women" »

In Massachusetts, if you refuse the breathalyzer, it is important to contact a DUI lawyer immediately because there is a strictly enforced 15 day period in which the Registry of Motor Vehicles will allow you to challenge any license suspension for breathalyzer refusal. The 15 day period includes weekends and holidays. All motorists challenging any breathalyzer refusal suspension must go to the Registry of Motor Vehicles in Boston to request a hearing, regardless of location of the offense within the Commonwealth.

Breathalyzer refusal suspensions can be quite substantial depending on the age of the motorist, if under 21 there is a three year license loss, and the number of prior OUI convictions. In some refusal cases, the motorist attempted to take the breathalyzer but was unable to give a sufficient sample. This could be caused by a number of reasons, including error by the breathalyzer operator, flaws with the breathalyzer machine or medical issues that preclude a motorist from giving a sufficient sample. Typically, a police officer will deem a motorist to have refused in these situations where the motorist made a good faith attempt to take the breathalyzer.

While a refusal suspension can be challenged on a number of grounds, a case involving a motorist attempting to take a breathalyzer and being unable to deliver a sufficient sample, should be contested by the motorist at the Registry and the district court on appeal. These cases are referred to as constructive refusals and there are court decision that may support a claim that the officer was incorrect in deeming the failure to provide a breathalyzer sample as a refusal to justify a license suspension.

Continue reading "Breathalyzer refusals in Massachusetts " »

Mothers Against Drunk Driving, MADD, an organization dedicated to curbing drunk driving nationally and in the Commonwealth of Massachusetts, has criticized President Obama for hosting what became known as the "beer summit" to mend fences between Sergeant Crowley and Professor Gates.

A spokes person for MADD said that the idea of having a beer to soften the dispute between the professor and the officer was not a good idea because young people tend to mimic the actions of adults. In Massachusetts as in every state, it is not illegal to consume alcoholic beverages and drive.

In a Massachusetts OUI charge, the issue is whether the consumption of alcohol diminished a driver's ability to operate a motor vehicle safely. When someone is stopped for DUI, the officer's observations generally fall into standard categories: driving ability, ability to respond appropriately to questions, demonstrating mental alertness and physical coordination as demonstrated by field sobriety tests. Also, the officer will judge a suspects mental alertness by whether or not the individual listens to instructions on field sobriety tests and starts the tests when told to do so.

In many DUI arrests, a motorist will admit to consuming alcohol; however, typically the Commonwealth cannot establish the time of consumption. An individual charged with a Massachusetts DUI based on admissions to drinking may have a strong case as the Commonwealth cannot prove a DUI case based on admissions to consumption of alcohol alone without demonstrating that the alcohol actually impaired a drivers ability to operate a motor vehicle safely.

Continue reading "Drunk Driving organization criticizes "beer summit"" »

A roadblock in Chicopee, Massachusetts resulted in nine arrests. Over the weekend of May 12th, State police conducted a roadblock in Springfield, Massachusetts resulting in twelve arrests.

In addition to challenge whether the police complied with Massachusetts Supreme Judicial Court case law in conducting the roadblock, roadblock or sobriety checkpoint OUI arrests can be very defensible cases. Generally, roadblock cases involve no evidence of erratic driving and typically the police allow the motorist to drive from the screening area to the where further field sobriety tests will be conducted. When police make contact with a motorist but allow him to continue to driving, it suggests that the signs of impairment were not obvious or overwhelming.

At trial, the Commonwealth will rely most heavily on the motorist's performance on field sobriety tests. Given the fact that most jurors understand that field sobriety tests are difficult for some to perform even without consuming any alcohol, can be impacted by nervousness, lack of familiarity with the tests and the subjective nature of the scoring, often roadblock cases present strong DUI defenses that can result in an acquittal of the charge at trial.

Continue reading "Roadblock in Massachusetts results in nine OUI arrests" »