Massachusetts DUI Attorney Blog

DUI roadblocks and checkpoints occur frequently in Massachusetts and throughout the country, but studies suggest that checkpoints are less efficient than having police cars on random patrol. Often, Massachusetts OUI roadblock cases make difficult cases for the Commonwealth, because there is generally no evidence of unsafe, poor or dangerous driving, but exclusive reliance on field sobriety testing and the officer's subjective opinion.

Supports of DUI checkpoints like Mothers Against Drunk Driving argue that increasing arrest is not the goal of checkpoints, but awareness of the dangers of drunk driving and deterring motorist driving under the influence.

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A Massachusetts felony conviction for OUI motor vehicle homicide was reversed by the Massachusetts Appeals court as the trial judge improperly denied the defendant's challenge to the prosecutor's preemptory challenge. Under the United States Constitutional and the Massachusetts Declaration of Rights, a defendant is entitled to a jury that is selected from affair selection of the community and is not selected based on racial discrimination. While generally either side in a criminal case, can exclude at least two jurors without regard to cause, referred to as a preemptory challenge. Neither the prosecutor or defendant is allowed to strike jurors based on race or gender discrimination under the United States Supreme Court case law. Under the Massachusetts Declaration of Rights, a defendant has a similar right to a race neutral jury, which was set forth in the case of Commonwealth v. Soares.

In Commonwealth v. Douglas, decided by the Massachusetts Appeals Court, the court overturned a conviction for OUI motor vehicle homicide and negligent operation of a motor vehicle because the trial judge did not ensure that the prosecutor excluding a juror based on racial neutral reasons. Douglas involved a case where a prosecutor attempted to exclude the only black juror from the jury panel, which prompted an objection from the defense counsel. The prosecutor stated that the juror was excluded

As an experienced Massachusetts OUI criminal defense lawyer, it is crucial to ensure that a jury panel is selected fairly and not based on any racial or gender discrimination.

Continue reading "Massachusetts felony conviction for OUI Homicide overturned as prosecutor improperly excluded minority juror " »

A Taunton, Massachusetts driver, William Miller was charged with a Massachusetts OUI after striking a curb and hitting a utility pole. Miller submitted to a breathalyzer and registered a reading of .13.

A Massachusetts DUI lawyer defending Miller will have to attempt to have the breathalyzer evidence excluded from evidence, by reviewing the breathalyzer documents, potentially consulting with an expert and having a hearing prior to trial to exclude the breathalyzer test results from evidence.

The News report does not state whether or not field sobriety tests were given at the scene. If the arrest was based solely on the accident, and the breathalyzer evidence is deemed inadmissible, a DUI lawyer may try to offer an explanation for the accident and argue that the police did not have sufficient evidence to prove that the motorist was impaired beyond a reasonable doubt.

In Quincy District Court on November 25, 2009, Michael Cocomile was charged with a 3rd Offense Massachusetts OUI while on probation for a second offense. Accordingly, Cocomile has two cases to deal with, defending the 3rd offense OUI charge while also dealing with a probation violation hearing on the second offense.

A Massachusetts probation violation hearing is a hearing to determine whether a defendant violated the terms and conditions of probation. A violation of probation can be a technical violation, like failing to report, pay money or complete a program such as alcohol or drug counseling. A probation violation can also arise when a defendant is arrested for a new offense. While a motorist has a right to a violation hearing, the standard at this hearing is very low, not proof beyond a reasonable doubt, but a standard of preponderance of the evidence. Though the preference is for live witness testimony, the law does not allow the probation department to simply rely on the police report to prove a violation in certain circumstances.

From the news account, it appears as though a violation will be found, meaning that Cocomile will face a sentencing on the second offense OUI, typically a second offense sentence is a 90 or 60 day sentence suspended, meaning that a defendant can only receive a maximum jail sentence of 90 or 60 days on the violation.

Continue reading "Massachusetts 3rd offense OUI charge for Quincy driver on probation for OUI" »

In Massachusetts you can be arrested for OUI even if you are under the legal limit and register a .07 or .06 on the breathalyzer test. If you score a .05 or below, Massachusetts OUI law does not allow for the police to charge you if you are over 21 and not driving a commercial vehicle.

The arrest of Senator Kerry daughter, Alexandra Kerry underscores that police can charge you with DUI even if you are below the legal limit. Of course, any case with a breathalyzer reading under the legal limit will be a difficult case for the Government.

If a breathalyzer test result is below the legal limit, the Government will try to argue that the alcohol still impaired your ability to drive. This would require evidence of erratic operation, lack of balance and coordination, lack of mental abilities, unusual actions of the motorist, or lack of self control at booking or at the scene. In Alexandra's case, it appears as though there is no evidence of erratic driving as she was stopped for a registration issue.

While it is frustrating to be charged with a Massachusetts DUI if you are below the legal limit, these cases generally should be taken to trial as often they are handled by way of a jury waived bench trial as few judges would find that the Commonwealth can prove its case beyond a reasonable doubt when the Government's own prized piece of evidence, the breathalyzer, is in the corner of the defendant.

Continue reading "Can you be arrested for a Massachusetts OUI with a .06 or .07 breathalyzer result" »

A Hingham, Massachusetts, motorist, Hayley Damp, faces a Massachusetts OUI charge after causing a six car accident. According to the news accounts, after causing the accident Damp kept her foot on the gas pedal.

While on the surface the case appears challenging to defend, it interesting aspect of the case may be the basis that the police had to search the soft sided cooler. Under a recent case decided by the United States Supreme Court, Arizona v. Gant, police officers are not permitted to search the interior of a car incident to arrest unless some narrow exceptions are satisfied. These exceptions are officer safety and evidence preservation. Officers could still search the vehicle but that search must be conducted pursuant to an inventory policy maintained by the police department.

Continue reading "Hingham woman faces Massachusetts OUI charge after six car accident" »

The New York legislature is considering passing a child endangerment statute similar to the one adopted by the Massachusetts legislature. Under Massachusetts OUI law, Chapter 90 Section, 24V, any OUI charge while a child is present in the car who is under 14 will result in a motorist being charged with OUI child endangerment. This offense is taken very seriously by Massachusetts judges and could result in the imposition of jail time and will result in a one year loss of a Massachusetts driver's license upon conviction.

The legislation contemplated in New York would make an DUI child endangerment a felony offense. Additionally, the New York legislature is contemplating requiring the ignition interlock device after a first offense DUI conviction.

A Chicago police officer is alleged to have fabricated DUI charges. According to the news accounts, the officer Richard Fiorito allegedly fabricated DUI charges against gay motorists. Fiorito's conduct came to light as a result of police car cameras contradicting his police report stating that the operator was driving erratically. The officer fabricated DUI charges in order to earn greater overtime pay as a result of having to testify in court.

While most police officers are honest, some police officer do overstate their observations to justify a DUI arrest and support a conviction in court. A Massachusetts DUI attorney can challenge the officers statements through cross examination to contest the officer's allegations in the police report.

Continue reading "officer's false DUI police report confirms the importance of hiring an experienced Massachusetts OUI lawyer " »

Massachusetts OUI arrests will generally contained statements by the officer in the police report that the motorist failed field sobriety tests. Are these tests even reliable? Studies by the National Highway Traffic Safety Administration show these tests are approximately 68%. Is that enough to prove a case to a judge or jury beyond a reasonable doubt? The answer is in many case it is not enough as the problems with these tests are easy to understand.

The case of actress Stephanie Pratt demonstrates the minimal reliability of these tests. According to news accounts, the actress was taking these tests in four inch high heel boots. Police training manuals clearly provide that any motorist with two inch or more high heels should be given a chance to take off their shoes. If this account is accurate, the officer's experience, training and opinion on whether Pratt was under the influence could be called into question by a good DUI lawyer on cross examination.

Continue reading "Fairness and reliability of Massachusetts OUI field sobriety tests" »

A Milford, Massachusetts woman was arraigned on motor vehicle homicide charges after allegedly going through a stop sign and causing the death of Richard Grossi. A charge of motor vehicle homicide by negligent driving is a charge that carries a maximum penalty of two and one half years in the house of correction as well as a 15 year loss of license.

The defense will likely retain an accident reconstruction expert to determine the extent to which speed may have been a factor in the accident or other road conditions.

An Attleboro man. Stephen Parker, was charged with a Massachusetts third offense OUI. A third offense OUI is a felony offense and has a mandatory minimum jail sentence of 150 days. Prosecutors will typically seek a sentence greater than the minimum penalty and generally ask for at least one year committed on a third offense. Additionally, a third offense carries with it an eight year loss of license.

If the news accounts are correct, the Attleboro OUI defendant would also face a five year loss of license as a result of refusing to submit to a breathalyzer test. According to the article, it appears as though the police did not observe any erratic operation, but stopped Parker leaving the convenient store after allegedly trying to pick a fight with a patron. It is not clear what basis the officer had to stop the vehicle as the police would need reasonable suspicion to stop a motor vehicle to conduct an OUI arrest. It appears that a Massachusetts OUI lawyer would explore the basis of the stop as a potential DUI defense in this case.

Continue reading "OUI third offense in Attleboro, Massachusetts " »

Jim Leyritz has denied responsibility in a DUI accident that caused the death of a Fort Lauderdale woman two days prior to Christmas. An interesting aspect of the case is that Leyritz had a reported blood alcohol limit of .14 while the victim is report to have had a .18 blood alcohol limit. Leyrtiz is blaming the victim.

As any Massachusetts OUI lawyer would advise their client in a DUI involving an accident or in any criminal case, a defendant charged with a crime should never discuss the facts of the case. Any statements can be used against the defendant. Additionally, in Leyritz's case, his statements are likely to haunt him should be be convicted at the time of sentencing.

A DUI summit was conducted in Missouri regarding efforts to increase DUI penalties. Massachusetts OUI laws are always being made harsher by the legislature and trends in other states will put pressure on the Massachusetts legislature to revisit and increase DUI penalties. The potential for increased DUI penalties is a primary reason to carefully consider hiring an experienced Massachusetts OUI lawyer to defend your case.