Massachusetts DUI Attorney Blog

A sixty year old women, Suzanne Labonte was arrested for a Massachusetts OUI with a breathalyzer reading of .08. A reading of .08 is generally a very defensible case because of the margin of error of the breathalyzer machine. The breathalyzer has a margin of error of at least .01 and a strong argument can be made for a further margin of error of .015. With a reading just at the legal limit, the margin of error would push the actual reading below .08 on the per se portion of the OUI offense.

Labonte's case presents a challenge for a DUI lawyer because according to news accounts she struck a utility poll and continued to drive with a flat tire. What happened in this accident will be an important issue as to whether she grazed the poll or struck it squarely and continued to drive anyway. A DUI lawyer will have to minimize if possible the driving in this case to refocus the defense toward the margin of error in the breathalyzer and other potentially favorable evidence, such as demeanor, ability to respond to questions and performance on any field sobriety tests.

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In many Massachusetts OUI cases involving an automobile accident, field sobriety tests will not be administered either because the motorist refuses to take the tests, is not offered the tests because the officer realizes they cannot be fairly administered under the circumstances or because an injury or medical conditions makes administering these tests impractical.

Many Massachusetts OUI arrests involving accidents involve these circumstances where the only evidence possessed by the Commonwealth is the fact of an accident, where the police officer does not witness the accident and the only evidence consists of observations and an odor of alcohol.

In a case from the State of Illinois, State v. Boomer, 757 N.E. 2d 960, a judge found that the officer lacked probable cause to arrest a motorist for DUI based on the fact that an accident occurred, an admission to drinking and an odor of alcohol. The court suggested that the Government needed evidence regarding, appearance, demeanor and behavior to establish probable cause to arrest for DUI, beyond an odor of alcohol to establish a lawful arrest.

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Recent studies continue to demonstrate a growing national trend of a greater number of DUI arrests involving women. As a Massachusetts DUI lawyer, some cross examination techniques and points of emphasis at trial work better when defending a female motorist. While it is difficult to generalize, a female motorist may feel a greater sense of nervousness performing field sobriety tests on the side of the road in front of a male police officer.

Additionally, in some cases, a female motorist may not be dressed appropriately to perform these balance and coordination tests, rendering the results useless. Though officers should let a female motorist remove high heel, performing a one leg stand or walk and turn bare foot on the side of the road is an unfair test. Despite these facts, of nervousness and unfair conditions which can be amplified when women are stopped for DUI, officers generally do not allow female motorists, or any motorist, the opportunity to retake field sobriety tests at the police station, where weather will not influence the results, traffic conditions and where the tests can be recorded.

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A Second Offense Massachusetts DUI charge involves a two step process. Like any alleged multiple offense DUI, whether, second, third or fourth offense, the first phase involves the Commonwealth proving the underlying offense. At this trial, the jury is not allowed to hear that a motorist has prior DUI offenses, but hears only the evidence on the underlying offense.

If the Commonwealth proves the DUI case beyond a reasonable doubt, the next phase is called the subsequent offense portion. The proceeding on any prior offense DUI is called a bifurcated proceeding with a trial on the underlying offense, followed by a trial on the enhancement.

Massachusetts OUI law Chapter 90 Section 24 provides that the Commonwealth can prove a prior conviction by offering evidence of a certified copy of the docket of conviction, certified copy of the defendant's biographical information from the department of probation or house of correction or the registry shall be prima facie evidence of a prior conviction. The statute provides that the Commonwealth is not required to produce live testimony to prove the prior conviction.

Massachusetts courts have held that the Commonwealth has to prove more than mere identify of name. In other words at the subsequent offense portion of the trial, the Commonwealth must be able to match the defendant before the court with the prior conviction, by showing the same address, date of birth, physical appearance and other identifying traits. Generally, the subsequent offense portion would be a bench trial though a defendant has a right to elect a jury trial on the issue of the prior offense DUI.

Ina case from Pennsylvania, the Pennsylvania Supreme Court held that a DUI defendant could not be convicted of a prior offense when he was arrested for two DUIs in the same night. The court held that the defendant must have been convicted of a prior offense prior to being charged with a second offense DUI. The same result would likely follow in Massachusetts; however, a judge would likely sentence a defendant in accordance with a second offense and the Massachusetts Registry of Motor Vehicles would impose any license suspension for the DUI in accordance with a second offense status upon conviction of both offenses.

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A Massachusetts DUI stop must be based on the officer having reasonable suspicion that a motorist is committing a traffic violation or some violation of the criminal laws. In a DUI case, if there is not a lawful basis for the stop, a DUI lawyer may be able to have the entire case dismissed as a result of the unconstitutional stop.

Chief Justice Roberts of the United States Supreme Court in a dissenting opinion from the denial of certiorari in a case from Virginia, suggested that he would support a lowering of the standard of reasonable suspicion and allow motor vehicle stops based on anonymous tips even if the police do not witness any traffic violation. The Chief Justice stated that the impact of requiring a tipster to be known to the police or the officer to witness a traffic violation is that a drunk driver gets one free swerve before they can be legally pulled over.

The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizure and an anonymous tip has no indication of reliability, that the tip is accurate, that is not made to harass the motorist, for revenge, or that the tipster is being truthful with the police. A truly anonymous tip cannot be lawfully used to stop a motorist for an alleged drunk driving just as an anonymous tipster cannot tell the police that an individual has a weapon on them and justify the police to search the individual. The United States Supreme Court in Florida v. J.L., 529 U.S. 266 (2000) made this holding clear. The Chief Justice is essential trying to create a DUI exception to the Fourth Amendment prohibition against unreasonable search and seizures and established case law.

If a caller does not wish to leave contact information or to identify themselves to a police dispatch, the reliability of the caller is clearly called into question. In fact, few tips are truly anonymous. Courts use the fact that cell phones can be traced to hold that the tip was not anonymous. Many courts will find that a tip is not anonymous if the police could have discovered the identity of the caller or if the caller put their anonymity at risk in any way. Accordingly, in Massachusetts the issue in a DUI tip case will be whether the tip is anonymous; if the tip is truly anonymous, a Massachusetts DUI lawyer should be successful in having the case dismissed based on a violation of the motorist's Fourth Amendment and Article 14 rights under the Massachusetts Constitution.

Continue reading "Massachusetts OUI arrest based on 911 call and Chief Justice Roberts speaks out on DUI cases" »

The star of The Hills, Stephanie Pratt was arrested for DUI in Hollywood, California. According to news accounts, it appears that Pratt has a strong case as the news reports from the officers state that it was a basic DUI arrest and that Pratt was polite and cooperative at the scene.

A successful DUI defense in Massachusetts involves emphasizing all of the normal and appropriate actions of the motorist. Most officers will acknowledge that some drunk drivers are uncooperative and belligerent and have sharp mood swings. A driver that is polite and cooperative with the police, shows normal reaction to the situation, demonstrates characteristics that are consistent with sobriety. While a good demeanor alone will not ensure an acquittal, it is an example of a normal response of the motorist that is inconsistent with someone under the influence.

Generally, officers fail to mention anything in the police report during booking and in making the arrest. At booking an officer will have significant time to observe a DUI suspect and the lack of any observations regarding impairment undermine the opinion made at the scene that the driver was under the influence.

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In a Massachusetts OUI case, a police officer is required to administer two valid breathalyzer tests to a motorist. The only breathalyzer result admitted into evidence is the lower of the two test results. The two breathalyzer test results must agree with .02 of one another or a third test must be given to the motorist.

A recent case from the Massachusetts Supreme Judicial Court, Commonwealth v. Steele, raised the issue of whether the Commonwealth could admit into evidence the higher of the two test results. The Commonwealth argued that it is the regulation and not the statute that states that only the lower of the two test results is admissible. The Commonwealth argued that admitting only the lower of the two test results benefits the motorist.

The Massachusetts Supreme Judicial Court held that the statute delegated the authority to the Secretary of Public Health to create regulations governing breathalyzer testing. The court held that the regulation permitting only the lower test result to be admitted into evidence is a reasonable regulation designed to promote accurate and reliable breathalyzer test results.

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A Massachusetts State Senator was charged with leaving the scene of property damage. The Senator released a statement saying that he was nervous because of his driving record and left the scene of the accident.

Massachusetts law requires a driver to stop at the scene of any accident, causing property damage. A conviction of leaving the scene of personal injury will result in a sixty day loss of license. An article in the Boston Globe speculated that the Senator left the scene because he had been drinking and to avoid the potential harsh consequences of a second offense drunk driving charge.

Massachusetts law imposes a more severe penalty for a motorist charged with leaving the scene of personal injury. Upon conviction, a motorist faces a one year loss of license. The statute requires a mandatory jail sentence of six months, though a judge would have the ability to suspend that sentence, meaning that a motorist could avoid severing six months if successful in completing probation.

In the Senators case, there is no evidence of alcohol consumption. In cases where there is evidence of alcohol consumption, many judges will impose a harsher sentence on a defendant, believing that the defendant left the scene to avoid the consequences of a Massachusetts DUI.

Massachusetts General Laws Chapter 138 Section 34C imposes a ninety day loss of license upon conviction of any minor being found in possession of alcohol. The Attleboro police department has been particularly aggressive in attempting to prevent minors from buying alcohol by setting up stings at local liquor stores. News reports have attempted to warn the public of these efforts in an understandable effort to reduce this problem facing minors.

While it is understandable the efforts of the police in reducing underage drinking, these matters sometimes involve the police overstepping constitutional limitations on permissible searches and seizures. Additionally, in some cases, a resolution can be achieved without resulting in a loss of your driver's license.

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A Massachusetts DUI arrest by the Milford police revealed that there was a problem with the breathalyzer machine possessed by the Milford police department. The defendant, Clayton Dealmeida was brought to the Hopedale police station because there was a problem with the breathalyzer machine at the Milford police station.

The issue of why the breathalyzer machine at the Milford police station is broken may create defenses for other defendants as this would make for a useful basis of discovery. An experienced Massachusetts DUI lawyer would want to know when the police detected that the machine was in need of repair, the nature of the repairs, how the discovery was made and who found that the machine was not working properly.

The discovery of the problem with the machine arose out of the arrest of Dealmeida which involved a police pursuit. An interesting aspect of Dealmeida's case may be the time between the observation driving and the administration of the breathalyzer test. A breathalyzer test is only admissible if performed within a reasonable time after driving, generally three hours is deemed reasonable.

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Rhode Island DUI law divides cases into two categories, cases with breathalyzer test results and breathalyzer refusal cases. When a motorist refuses a breathalyzer, generally there are two charges brought from the same incident. One is the misdemeanor criminal case for DUI in the Rhode Island District Court and the other is the civil motor vehicle offense of a breathalyzer refusal.

A Rhode Island driver faced with a breathalyzer refusal has a chance to contest the refusal at a trial in the Rhode Island Traffic Tribunal. The motorist will essentially have to win at both the Traffic court and district court to avoid any license suspension for the DUI or breathalyzer refusal.

Unlike Rhode Island, Massachusetts has a more complex process to challenge a breathalyzer refusal suspension. Rather than giving the motorist a date for arraignment and trial, Massachusetts puts the burden on the motorist to go to the Registry in Boston within 15 days to contest the refusal. In Massachusetts, the motorist will only have one court date to appear in the district court to face the DUI, also referred to as OUI charge.

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In a Massachusetts OUI case, an important issue is the reason that the officer has for stopping your car. Common reasons for officers to justify a traffic stop, include, weaving, going over the fog line or breakdown lane line, crossing the double yellow line and almost striking an object. This list of driving clues is set forth in the Police Training manual on how to investigate DUI cases.

A recent study reveals numerous factors that could explain poor driving. For women, children in the car ranked as the number one cause of distraction, while putting on make up and playing with the radio were the next two top causes of distraction. For the men, eating and drinking while driving was a common cause of distraction while driving. The purpose of the study was to show that more than just sending text messages and cell phone use can distract a driver.

In a Massachusetts OUI case, evidence of eating or drinking, sending text messages or other cause of distraction may explain poor driving as being caused by these factors rather than alcohol. A good Massachusetts DUI lawyer will attempt to minimize or explain away poor driving. Many times this is accomplished by putting out the numerous thing that the driver did correctly. However, in some cases, the driver may have an explain for poor driving that would be credible before a jury or judge.

In Massachusetts, the refusal of a motorist to take a breathalyzer test is inadmissible at trial. While Massachusetts DUI law penalties a motorist's refusal to take a breathalyzer test with a license loss, the fact of the refusal is inadmissible in the criminal trial. In a DUI refusal case, a motorist faces a license loss for the refusal with a right of appeal to the RMV in Boston and then to the district court. This refusal appeal is considered a civil appeal against the RMV.

The DUI case proceeds in the district court. During the OUI/DUI trial, the jury will not hear evidence that the motorist refused a breathalyzer test. In a case decided by the Massachusetts Supreme Judicial Court, Opinion of the Justices to the Senate, 412 Mass. 1201 (1992), The Massachusetts Supreme Judicial Court held that to admit evidence of a breathalyzer refusal during a criminal trial would violate the provision of the Massachusetts State Constitution, the Declaration of Rights, which provides that no person shall be compelled to accuse or furnish evidence against himself. The Massachusetts Constitution provides a greater privilege against self-incrimination than the Fifth Amendment to the United States Constitution.

In a case decided on September 30, 2009, by the Ohio Supreme Court, State v. Hoover, the Ohio Supreme Court upheld an Ohio law that imposes ten additional days of jail time on a driver with a prior DUI offense that refuses to submit to a chemical test. The court rejected the defendant's contention that the law was unconstitutional because it penalties the defendant's refusal to consent to s warrantless search of his person.

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