Massachusetts DUI Attorney Blog

A Weymouth, Massachusetts man, Omar Hernandez faces a second offense Massachusetts OUI charge as a result of his arrest over the weekend. According to news accounts, Hernandez led the police on a high speed chase, resisted arrest, stopped in the middle of the road and tossed his keys out of the car.

News accounts indicate that Hernandez was previously admitted to sufficient facts regarding an OUI charge in 2006 and received a continuance without a finding, referred to as a CWOF in court.

While technically a CWOF is not considered a conviction, for license suspension purposes and counting prior OUI offenses, the CWOF counts as a prior offense, meaning that Hernandez will face a second offense DUI.

If a motorist pleas guilty to a second offense DUI, most courts will impose what is referred to as an alternative disposition where the motorist receives a suspended jail sentence with the requirement of completing a 14 day in-patient program. However, the registry will revoke a motorist's license for two years and require the installation of the ignition interlock prior to reinstatement of a any driving privileges.

It appears as through Hernandez also refused a breathalyzer test which would result in a three year license suspension by the Massachusetts Registry of Motor Vehicles. A motorist who refuses a breathalyzer only has 15 days, including, weekends and holidays to appeal to the Registry in Boston to request a hearing challenging the refusal suspension.

Continue reading "Second Offense Massachusetts DUI for Weymouth man" »

An Auburn, Massachusetts man was charged with a Sixth offense Massachusetts DUI. The case will be heard in the Westborough District Court.

When a DUI case is brought in the Westborough District Court, often the police departments within the Westborough venue have either booking videos or police camera videos. These videos can often provide helpful evidence to someone charged with OUI/DUI as the video can contradict the officer's police report and can provide compelling evidence that a motorist was not impaired by alcohol. Video evidence can be powerful evidence in a DUI case because it allows the jury to see the motorist through their own eyes and to make their own judgment, uninfluenced by the police officer's perception.

Continue reading "Sixth Offense Massachusetts DUI arrest made by Westborough police" »

It is easy to be charged with a Massachusetts DUI because much of the evidence is opinion testimony of the officer that he believed a driver was impaired. For those charged with a first offense OUI, it is important to remember that merely being arrested is not the same as being convicted of DUI.

Massachusetts OUI law prohibits someone from operating a motor vehicle so that their ability to operate the motor vehicle safely is diminished by alcohol. In cases without a breathalyzer reading, the Commonwealth has to prove that alcohol diminished a driver's ability to operate safely. The case of Commonwealth v. Connolly, 394 Mass. 169 (1985) establishes this standard.

Often a Massachusetts DUI charge will result from officer observations of some traffic infraction, admission to drinking and failure to field coordination tests. The important thing to remember when charged with a first offense is that the police report is not the final word and that the Commonwealth has a substantial burden of proving that you were impaired beyond a reasonable doubt. It is not illegal to consume alcohol and drive home as long as your ability to drive is not impaired. In many cases, the Commonwealth cannot prove beyond a reasonable doubt that a driver was impaired by alcohol to obtain a DUI conviction.

It is easy to be charged with a DUI offense. This past week a Wisconsin police chief was arrested for DUI and Washington State police sergeant were arrested for DUI.

Continue reading "Charged with a Massachusetts First Offense DUI/OUI " »

An Attleboro, Massachusetts man, Thomas Powers, was arrested and charged with a Fourth Offense OUI. According to the news report, Powers was charged with operating on a revoked license for a prior DUI charge. If Powers is found guilty of a DUI in Massachusetts while driving on a revoked license for DUI, he faces a mandatory jail sentence of one year on the charge of driving on a license suspended for DUI.

Additionally, Massachusetts DUI law Chapter 90 Section 23 requires that any sentence on the charge of driving with a license suspended for OUI while under the influence run on and after any sentence on the underlying OUI charge. Accordingly, Powers would still face the Fourth offense OUI charge which also carries a mandatory minimum jail sentence of one year. That sentence, unless the district attorney agrees to drop or reduce the license suspension charge, would run on and after the charge of driving on a suspended license for OUI while OUI.

Continue reading "Attleboro, Masschusetts man arrested for a Fourth Offense DUI " »

A Massachusetts second or subsequent offense DUI/OUI charge requires the Commonwealth to proceed in a two step fashion. First, the Commonwealth must prevail at the trial of the underlying OUI offense. Once the Commonwealth obtains a convictions, the next issue is for the judge or jury to determine whether the Commonwealth can prove the number of prior offenses. At the trial on the underlying offense, if a jury trial, the jury does not know that a defendant has a second or subsequent offense OUI conviction.

Generally, the trial of the number of prior offenses is resolved through a bench trial. At the trial, the Commonwealth must offer a certified conviction of the prior offenses, the docket sheet and any entry of appearance by an attorney. The Commonwealth may also try to prove a prior offense by relying on probation records of conviction.

The documents used to prove a prior Massachusetts OUI conviction must match the defendant by indicating the same biographical information and identifying information. Massachusetts OUI law Section 24 provides that the prosecutor can prove a prior conviction by either attested copies of the original court papers, or certified copies of the defendant's biographical data and informational data from the department of probation, any jail or house of correction or the registry.

In a case regarding subsequent offense DUI convictions from the State of Montana, State v. Blue, the Montana Supreme Court rejected a defendant's argument that because the state reduced his prior third offense DUI to a second offense DUI, the state was precluded from now convicting him of a Fourth offense without first obtaining a conviction on a third offense. The court held that the defendant got the benefit of a reduction in offense level on his third offense, but that did not preclude the State from later prosecuting based on his number of prior offenses in his criminal record.

In Massachusetts, prosecutors will sometimes reduce a charge to a lower offense level. If faced with a similar case, a Massachusetts court would likely not preclude the Government from prosecuting based on the actual offense level even though a defendant received the benefit of a prior reduction. With any agreement to reduce an offense level, for purposes of license suspension, the Registry suspends based on its own records of prior offenses and will not be bound by a court reduction in offense level for the purposes of a Massachusetts license suspension for DUI.

Continue reading "2nd and subsequent offense Massachusetts DUI/OUI convictions " »

A Plymouth, Massachusetts man was involved in an accident after allegedly driving drunk and sending five individuals to the hospital with injuries. Charges were brought against Jason Martitz for OUI and leaving the scene of an accident along with other charges.

According to news accounts, one of the victims was seriously injured. If the news accounts are accurate, the defendant could face a charge of OUI causing serious bodily injury as a prosecutor has the ability to amend a criminal charge prior to trial or a disposition with permission of the court.

Under Massachusetts General Laws, Section 24L, if a defendant is convicted of OUI with serious bodily injury, the defendant faces a maximum penalty of 2.5 years in the house of correction and a minimum mandatory house of correction sentence of six months if the case remains in the district court. The statute defines a serious bodily injury as an injury that creates a substantial risk of death or total disability or loss or substantial impairment of some bodily function for a substantial period of time. Accordingly, the language of the statute suggests that it applies to permanent and total disabilities and would not encompass a temporary injury, such as a broken bone or fracture that heals and causes no permanent disability. A conviction under this section carries a two year loss of license.

A Swansea, Massachusetts, man, Justin Nunes, age 22, was arraigned in Fall River, Massachusetts District Court on the charges of OUI motor vehicle homicide and negligent operation of a motor vehicle. According to news accounts, Nunes' vehicle left the road and struck a utility pole. An OUI motor vehicle homicide case may be heard in either the superior or the district court.

If the Commonwealth seeks an indictment, the case will go to the superior court where the potential penalty is drastically enhanced. While a district court judge can only impose a maximum sentence on one count of 2.5 years, a superior court judge, under a DUI homicide charge, can impose a maximum penalty of fifteen years in the state prison. If the case remains in the district court, the maximum penalty is 2.5 years with a one year minimum mandatory jail sentence in the house of correction.

In Nunes case, it is not clear what evidence other than the accident the Commonwealth has to prove that he drove under the influence of alcohol. The Commonwealth will likely rely on observations of the officers, potential civilian witnesses, and other potential witnesses to the defendant's driving and or conduct after the accident. If the defendant went to the hospital, the Commonwealth would attempt to obtain the medical records to prove the defendant's blood alcohol level.

Generally, an accident alone without additional evidence is not sufficient for the Commonwealth to prove beyond a reasonable doubt that the a defendant was under the influence of alcohol to sustain an OUI conviction. In Nunes case, it may be that the prosecutor amends the charges to a negligent operation or reckless operation death resulting. That would be an easier charge to prove because the focus would be on the driving that caused the accident rather than the defendant's level of impairment by alcohol which is difficult to determine without any blood alcohol evidence, breathalyzer evidence or observations. A negligent operation charge carries a potential penalty of 2.5 years, but does not carry any mandatory minimum jail sentence. Under either theory, the defendant faces a fifteen year loss of license from the Massachusetts Registry of Motor Vehicles.

Three individuals were charged with drunk driving in Dedham, Massachusetts over the weekend. In one of the cases, regarding Christopher Reissfelder, the Dedham police found him standing outside of his car. According to the newspaper report, the police indicate that the defendant slurred his words, was unsteady on his feet and made statements that he was going to jail.

Experienced Massachusetts DUI lawyers can challenge the fairly common statements in police reports that a motorist was unsteady on their feet and had slurred speech. In some cases, officers put these observations into police report out of habit and when challenged in cross examination at a DUI trial reveal that the motorists did not have trouble with balance or communicating with the officer.

Generally, an officer will put in the police report that he noted the motorist had slurred speech, yet at the same time will be able to understand everything said by the driver, have detailed statements of the motorist and will have complete biographical information, suggesting that there was no difficulty communicating with the driver.

The observation of unsteadiness also can be challenged by noting whether the driver was able to get out of the car, walk to the area to take the field sobriety tests, walk into the police station and stand appropriately for the booking photograph and during the instructions when the officer demonstrates the field sobriety tests.

Continue reading "Three Massachusetts OUI arrests in Dedham" »

Massachusetts DUI law allows the Commonwealth to move for forfeiture of the motor vehicle of any motorist convicted of three or more DUI offenses. A Fall River man may face forfeiture proceedings as the Easton police will attempt to seize the motor vehicle of Ronald Marovelli.

Under Massachusetts law, Chapter 90 Section 24W the Commonwealth can petition the court for forfeiture of the motor vehicle of any motorist convicted of three prior OUI offenses in Massachusetts or any other state. The forfeiture proceeding is a civil suit that the Commonwealth can initiate either in the district or superior court having jurisdiction over the criminal case. If the motor vehicle is jointly owned, the OUI defendant shall have the burden of proving that the vehicle is not subject to forfeiture because the claimant is dependent on the motor vehicle for the livelihood or maintenance of his or her family.

Field sobriety tests are often used to justify a Massachusetts DUI arrest. A recent study demonstrates that these field sobriety tests are no more reliable than flipping a coin. A recent study showed that police officers incorrectly classified 46% of the participants. Why are field sobriety tests unreliable, because they are physical tests, balancing on one leg and walking nine steps heel to toe are the two most commonly used field sobriety tests. These tests are impacted by weather conditions, location of the test and especially the physical dexterity of the participant.

Another common field tests, the finger to nose test, has never been studied for reliability and requires the motorist to touch their nose while on the side of the road with a police officer judging their performance. The article suggests that police officers know when they approach the car whether there is going to be an arrest and that these field tests simply justify the decision to arrest.

Continue reading "Boston DUI arrests and field sobriety tests" »

The admissibility of breathalyzer evidence in Massachusetts may be impacted by a confrontation clause case from Virginia that the United States Supreme Court agreed to hear for the upcoming term. Commonwealth v. Briscoe. The appeal in Briscoe concerns several cases that were consolidated and all raise the same issue of whether Virginia's notice and demand statute satisfies the Constitutional requirements of the Sixth Amendment confrontation clause.

The Briscoe cases involves the issue of the admissibility of a drug certificate of analysis. Unlike the Melendez-Diaz case where the Supreme Court required live testimony, the Virginia statute only allows the certificate to be admitted if the State gives the defendant notice and demand of their intent to rely on the affidavit seven days prior to trial and files this with the court. The defendant is then given the opportunity to call the chemist as an adverse witness with the cost of the summons, incurring to the State.

The Melendez-Diaz decision suggested that States could enact law requires a defendant to assert the right of confrontation prior to trial, suggesting that notice and demand statutes would satisfy the Sixth Amendment requirements. Additionally, the Melendez-Diaz decision clearly indicated that the right of confrontation could be waived.

The Virginia statute appears contrary to the language of Melendez-Diaz and the court should strike it down, though it would be anticipated the decision would essentially direct states as to how to pass a Constitutional notice and demand statute. The flaw in the Virginia statute appears that it requires the defendant to subpoena the lab technician and call the lab technician as a witness in the defense case. In a criminal trial, the burden is always on the Government to call witnesses to establish the essential elements of the offense and the due process clause is violated by efforts to shift the burden to the defendant. The language of the Sixth Amendment also underscores that the Government has to call witness against the defendant to preserve the defendant's right to confront witnesses against him.

In addition to the language of the Melendez-Diaz decision, the defense counsel's brief in Briscoe depicts other flaw with the Virginia statute that the right to call the chemist as an adverse witness in the defense case is not the same as being provided with the opportunity for cross examination after the chemist testified as a witness on direct examination for the Government. Further, the defense brief points out that this essentially time saving procedure has no logical limitation and could be expanded to other cases not involving drug analysis, reverting back to the rejected concept of trials based on affidavit.

The United States Supreme Court should strike down the Virginia statute. Massachusetts has yet to enact any similar notice and demand statutes in DUI case or drug cases. The impact of the United States Supreme Court confrontation clause will have a major impact on the admission of breathalyzer evidence as the confrontation clause cases define how the Government must proceed to have documents regarding the accuracy and reliability of the breathalyzer machine placed before the court.

By the time Briscoe is decided by the Supreme Court, likely to be June 2010, there will be numerous decision from state courts applying Melendez-Diaz to the admissibility of breathalyzer evidence. The Briscoe decision is likely to shape the method by which states enact notice and demand statutes.

Continue reading "Massachusetts DUI evidence and the impact of Briscoe on the right of confrontation" »

A Framingham, Massachusetts man, Miguel Sanchez was charged with OUI when he struck a bicyclist. According to the news reports, the bicyclist was not injured and the driver was arrested for DUI after failing field sobriety tests, the officer smelling an odor of alcohol and finding an open container of rum. The news article reports that Sanchez was spitting into the breathalyzer machine and refused to take the breathalyzer test.

While Sanchez's case does not appear to involve a serious bodily injury, DUI cases in Framingham and throughout Massachusetts involving accidents are serious cases. If a motorist is found to be driving under the influence of alcohol and is involved in an accident causing serious bodily injury, Massachusetts DUI law imposes a six month mandatory minimum jail sentence with the possibility of a judge imposing a greater sentence along with a two year loss of license without the possibility of hardship eligibility. Massachusetts law defines serious bodily injury as creating a substantial risk of death, or which involves total disability or loss or substantial impairment of some bodily function for a substantial period of time.

Continue reading "Framingham, Massachusetts man arrested for DUI after striking bicyclist" »

A Fall River, Massachusetts man, Ronald Marovelli with a pending Massachusetts OUI charge in Dedham District Court was arrested in Easton for DUI and charged with a Fourth offense according to news accounts. Given that Marovelli was on bail when arrested, he could face the potential for a bail revocation as any time an individual is released on bail, in a DUI case or any other type of case, and charged with a new offense, there is the potential for a bail revocation which can result in a defendant being held without bail for up to sixty days.

The admissibility of breathalyzer evidence in Massachusetts DUI cases may depend upon how the courts apply the United States Supreme Court's decision in Melendez-Diaz v. Massachusetts. The Melendez-Diaz case held that the Commonwealth cannot convict a defendant of a crime where the Government relies on an affidavit to prove an element of the offense without, providing the defendant with an opportunity to confront any witness against a defendant by cross examination.

The application of this rule to DUI cases in Massachusetts involving breathalyzer testing is working its way through the courts. The issue was address in a Virginia case, Grant v. Commonwealth on September 1, 2009.

In Grant, the Virginia Court of Appeals ruled that a trial judge improperly allowed a breathalyzer test to be admitted into evidence without the live testimony of the officer that conducted the test. In Massachusetts, the Commonwealth would generally call the officer that conducted the breathalyzer test as a witness. Based on United States Supreme Court case law, and reaffirmed by Grant, is that the Government must call the breathalyzer operator as a witness.

The case suggests a further requirement on the Government, which may result in breathalyzer evidence being excluded in Massachusetts DUI cases. The court states that once the legislature sets forth by statute how breathalyzer evidence is to be admitted in a DUI trial, then the Commonwealth must prove those facts by live testimony. Under Massachusetts OUI law, the Commonwealth must prove that the breathalyzer machine complies with the annual certification and the periodic testing requirement. Generally, the Commonwealth relies on an affidavit from the Office of Alcohol Testing to prove compliance with the annual certification and periodic testing requirements of the law. The Grant case suggests that live testimony is necessary to prove compliance with the foundation requirements to admit breathalyzer evidence. Accordingly, a Massachusetts DUI lawyer may be able to exclude breathalyzer evidence under the reasoning of the Grant case.

Continue reading "Breathalyzer testing in Massachusetts DUI cases and recent Sixth Amendment defenses" »

Three company star Joyce DeWitt was charged with DUI in California. Like Massachusetts a person arrested for DUI in California can be charged under two theories, one known as a per se theory prohibits a driver from operating a motor vehicle with a breath alcohol reading of .08 or greater while the other prohibits a motorist from operating a motor vehicle when impaired by alcohol. Massachusetts OUI law refers to these theories like California as an impairment prong, based on field sobriety tests and officer observations and a per se prong which is based on a breathalyzer reading. In Massachusetts a breathalyzer reading taken within three hours of driving is presumed to reflect the breath alcohol reading at the time of driving unless other circumstances can show that a lesser period of time is reasonable under the circumstances.
If a person is found guilty of a Massachusetts DUI, the potential penalties are the same regardless of which theory the Government pursues. Generally, the Commonwealth proceeds under both theories if a breathalyzer test is taken by the motorist.

Continue reading "DUI CHARGE BROUGHT AGAINST FORMER STAR OF THREE'S COMPANY" »

Massachusetts DUI roadblocks are likely to increase in light of campaigns by law enforcement to curb drunk driving by putting more police officers on patrol and increasing the number of DUI roadblocks. One issue that may arise in Massachusetts is whether a police officer can stop a motorist under the Fourth Amendment when the driver lawfully attempts to avoid a DUI roadblock.

This issue arose in a case decided by the New Mexico Supreme Court on August 25, 2009 in the case of State v. Anaya. In that case, the New Mexico Court of Appeals affirmed a trial judge who held that the police officer had no reasonable suspicion to stop a driver who lawfully made a u-turn prior to a DUI roadblock. As a result of the motion to suppress being granted, the DUI lawyer suppressed all evidence gathered as a result of the stop, including observations of the officer and results of field sobriety tests.

The State appealed from the trial judge's ruling. The Court of Appeals affirmed and the State appealed to the New Mexico Supreme Court, which reversed the lower courts. Under the Fourth Amendment to the United States Constitution, police officers need reasonable suspicion to stop a motorist. This requires that the officer have a specific basis for believing that the motorist committing a traffic infraction or violated the criminal laws in some fashion. The Fourth Amendment prohibits a police officer from detaining a driver based on what the law refers to as a mere hunch.

The New Mexico Supreme Court's decision is inconsistent with clearly established Fourth Amendment case law. The court holds that the roadblock begins when the motorists could first become aware of its presence. According to the court, the roadblock starts when it is in sight of the motorist which would greatly expand the scope of the roadblock. The court attempts to limit its ruling by stating that not all case of avoiding a roadblock will constitute reasonable suspicion, depending on the time of day, proximity to the roadblock and traffic patterns.

However, in Anaya, the motorist made a legal u-turn. Nothing other than the officer's speculation could support a basis to stop the motorist which is insufficient to provide a constitutional justification for the police to seize an individual.

If this issue were to arise in a Massachusetts drunk driving case, the Massachusetts courts would be unlikely to follow the New Mexico Supreme Court in light of other case law by the Massachusetts courts interpreting the Fourth Amendment and State Constitution.

Continue reading "Massachusetts OUI Roadblocks and 4th Amendment limitations " »