Massachusetts DUI Attorney Blog

The Appeals court has thrown out a defendant's conviction on a seventh Massachusetts OUI charge, the Boston Herald reported.

The court set aside the conviction on Tuesday over what it called an illegal seizure by an off-duty police officer. This case perfectly illustrates the importance of hiring a skilled Massachusetts drunk driving defense lawyer when facing an OUI charge. When authorities act inappropriately, as in cases where an illegal search or seizure leads to your arrest, an experienced attorney can seek to have the evidence suppressed in your case and the charges reduced or dismissed. And, even in cases where a judge won't dismiss the evidence, a successful appeal can nullify the charge.

That's precisely what happened in this case -- the appeals court ruled the trial court erred in denying a motion to suppress evidence.

The defendant actually struck a car driven by an off-duty Somerville police officer. Suspecting the driver was drunk, the officer took the keys out of his ignition and called police.

The court ruled the officer's actions constituted an illegal seizure because he did not have authority to make an arrest outside his jurisdiction. The ruling means the man will be released from prison and bail where he has served about half of a six-year sentence.

The case is Commonwealth v. Limone.

Continue reading "Court overturns man's seventh Massachusetts OUI conviction; cites illegal seizure by police" »

The New Mexico Supreme Court ruled that a police officer can make a DUI arrest without a warrant even when the defendant is inside his home and the police did not observe the motorist drive. The case is City of Santa Fe v. Marcos Martinez.

In the Martinez case, the police received a tip from a mall employee that Martinez was drunk and tried to unlock several vehicles before speeding away. The police tracked down Martinez's vehicle at his house; when he came to the front door, the officers claim that he was falling down drunk. The officers felt the hood of Martinez's car which was still warm at the time.

When the officer came to the front door, he could see the defendant staggering in his house. The defendant then reached up to unlock the door. The officer then entered the residence without a warrant.

The New Mexico Supreme Court found that the actions of the officer were proper under the State's misdemeanor arrest rule. The Court did not address the Constitutional issue of whether the defendant's arrest was valid under the Fourth Amendment to the United States Constitution and accordingly, remanded the case to the district court.

This case raises in interesting issue for a Massachusetts OUI lawyers to consider. Under the United States Supreme Court decision of Welch v. Wisconsin, 466 U.S. 740 (1984)
a police officer cannot enter a home to make an arrest without a warrant for a misdemeanor.

This rule appears to have been violated in this case when the officer entered the house without a warrant to make a DUI arrest, which under Massachusetts OUI law would be a misdemeanor offense. The State would likely argue that the defendant gave consent to enter by unlocking the door; however, the court should find that unlocking the door does not constitute the actual consent necessary to justify a warrantless entry of a home under the 4th Amendment.

The case raises a second Constitutional question as to whether the store employee gave the officer a sufficient description of the motorist to even justify any seizure of the motorist.

Continue reading "Police can make DUI arrest without observing the motorist driving the New Mexico Supreme Court rules" »

The Attleboro Sun Chronicle reports that one of two alleged drunk drivers charged in the death of a state trooper worked in the probation department, where he monitored drunk drivers and other criminals required to wear electronic monitoring bracelets.

Kenneth Weiand, 43, of Walpole, faces a Massachusetts drunk driving charge in connection with the Friday accident. Authorities allege he attempted to drive past Sgt. Doug Weddleton, who was blocking an exit ramp as road crews established a construction site. While the trooper was out with Weiand, a pickup driven by Anthony Perry, 45, of Boston slammed into the stopped car, fatally injuring Weddleton.

The Bristol County District Attorney's Office reports Weiand's blood-alcohol level was .20, more than twice the legal limit of .08 for drunk driving in Massachusetts. Perry's blood-alcohol level was .07, below the legal limit. The media reports that Weiand will not be committed for a mental health evaluation, despite concerns regarding his mental health in the wake of the accident. He is due back in court on Aug. 5 for a pretrial hearing. He is employed by the Boston Municipal Court system as an electronic monitoring coordinator.

As we reported on our Massachusetts DUI Attorney Blog, Perry is facing charges of Massachusetts OUI and vehicular homicide. He was released on $10,000 bail and is due back in court on Aug. 5.

Meanwhile, Weddleton's family is thanking the community for the outpouring of support, the Enterprise News reported.

A 45-year-old man who is facing charges of Massachusetts OUI and vehicular homicide for the death of a state trooper may not have been legally drunk at the time of the accident, the Patriot Ledger reported.

The accident happened Friday morning on I-95 North in Mansfield.

Anthony Perry, of Hyde Park pleaded not guilty Friday in Attleboro District Court. Authorities allege he struck an Acura that had been stopped by Sgt. Douglas Weddleton. The accident forced the Acura into the trooper, dragging him across all three lanes of travel.

The prosecutor's office reports that breathalyzer examinations tested .07 at the scene and .06 at the station -- both below the legal limit of .08 for drug driving in Massachusetts. Police report that Perry admitted to consuming three beers and a mixed drink earlier in the evening while at a Rhode Island bar and grill.

Perry's attorney said the felony charges should be dropped, in place of misdemeanor negligent operation and motor vehicle homicide. Under Massachusetts law (Ch, 90 Sec. 24G), motor vehicle homicide carries a penalty of up to 2 1/2 years in jail. Vehicular homicide in connection with an OUI offense is punishable by up to 15 years in prison.

The man the trooper had initially stopped registered a .20 on a portable Breathalyzer examination. The Acura was stopped after trying to get around the trooper, who was blocking the off-ramp to Route 495 north for road construction.

WPRI News reported that Perry has been released from jail after posting $10,000 bail.

You can read the full WPRI report here.

Continue reading "Defendant accused of drunk driving in death of trooper may not have been legally intoxicated " »

A man facing Fall River OUI charges in connection with a Massachusetts drunk driving accident has been denied bail and ordered held in custody pending trial.

In denying bail, the Herald News reported that the judge cited the defendant's poor judgment in causing the June 3 pedestrian accident.

Afonso Oliveira is accused of driving drunk when he hit a woman and three children as they crossed Plymouth Avenue. He is charged with a third offense of operating under the influence, negligent operation of a motor vehicle and failing to stop for pedestrians in a crosswalk. Police allege that he passed through the light at the intersection of Plymouth Avenue and Lyon Street, where he struck the victims. The woman was trapped beneath his SUV and dragged for 200 feet before he stopped. Witnesses lifted the front of the Suzuki SUV, allowing the woman to crawl out. Police report that none of the victims were seriously injured in the accident.

Authorities say Oliveira was cooperative but did poorly on sobriety tests and had trouble understanding English. A Fall River defense lawyer may challenge the results of the tests and the assertion that he did poorly. A language barrier may well have impacted the defendant's ability to follow instructions.

Oliveira was previously charged with drunk driving in 1982 and 1994, the Herald News reported. Each charge was continued without a finding.

Police resolved to increase traffic enforcement in the wake of the accident, including the use of crosswalk decoys to target motorists who fail to yield the right-of-way to pedestrians. Police have issued more than $10,000 in tickets for such violations in the last month.

Continue reading "Fall River OUI suspect denied bail; accused of Massachusetts drunk driving accident" »

A charge of a Third Offense OUI in Massachusetts was brought against a Weymouth man, Michael Tomkins after police allege that Tomkins was under the influence of alcohol while driving with his six year daughter, according to a news account from the Patriot Ledger. A charge of child endangerment is brought when anyone is charged with a DUI offense with a child under 14 in the vehicle. The additional penalty for a child endangerment offense is a one year license loss along with the potential for a jail sentence. The child endangerment statute, Chapter 90 Section 24V was added to Massachusetts OUI laws with the passage of Melanie's Law.

A Massachusetts OUI lawyer defending Tomkins before a jury may wish to attempt to exclude any testimony that Tomkins had a minor in the car while he was driving to avoid having the jury be prejudiced when hearing the testimony as to whether he was impaired while driving. This could be done by asking the judge for a bifurcated trial. The child endangerment charge makes the Massachusetts OUI offense more difficult to defend and would require a careful decision as to whether to proceed with a jury or bench trial.

Based on the news account, it is unclear how strong of a drunk driving case the Commonwealth has. The news account does not mention that the officer observed any erratic driving while following the vehicle for two miles. This would present significant evidence of normal driving for the defense. The severity of the accident will also be an important factor. If the accident only caused minor or minimal damage, a Massachusetts DUI defense attorney could argue that Tomkin did not know he struck the other car. Lastly, it will be important what other observations the officer made to determine that the defendant was under the influence, including manner of speech, appearance as well as balance and coordination, getting out of the car and performing other physical tasks required by the officer, such as field sobriety tests.

Continue reading "Third Offense OUI in Massachusetts for Weymouth man " »

A Middleboro man is facing Massachusetts OUI charges in connection with an alleged drunk driving accident in New Bedford.

South Coast Today reported that the crash occurred on Route 18 about 8:30 p.m. Thursday night. Police report that Jeremy Levesque, of Middleboro was driving a Chevy van that swerved from the left lane to the right lane, rear-ending a Honda Accord, which then struck a Volvo station wagon. Both the van and the sedan were destroyed in the accident. Northbound Route 18 traffic was routed onto 1-195 and the road was temporarily closed.

Four passengers in the Honda were taken to St. Luke's Hospital for treatment.

Levesque faces charges of drunken driving, operating to endanger and following too closely, South Coast Today reported.

Massachusetts law (Chapter 90 Section 24) states anyone who puts the lives or safety of the public at risk by operating a motor vehicle negligently on a public road is guilty of a criminal offense. Operating to endanger is punishable by up to 2 years in jail. Under the law, the charge can result from a defendant's actions or from his or her failure to act as reasonably expected.

Continue reading "Middleboro man faces Massachusetts OUI charges following New Bedford car accident" »

The Massachusetts Appeals Court addressed the public way element of Massachusetts OUI law in the case of Commonwealth v. Gregory Belliveau. The issue in the case is whether Pier 4 in Charlestown Navy Yard is a public way. The defendant argued that it was not a public way because there is a closed gate leading to the pier and because only authorized vehicles were allowed on the pier.

The Appeals Court discussed its prior decisions addressing the public way element of Massachusetts OUI law. The court contrasted the case of Belliveau with the case of Commonwealth v. George, where the Massachusetts Supreme Judicial Court found that the public way element was not satisfied when a defendant drove drunk on a baseball field. In that case, the court held that the baseball field was not a public way because the public did not have access to the field by way of a motor vehicle. Unlike the George case, the court decided that although access to the pier was restricted, the public could gain access. The court indicated that it considered the issue a close question, but would find the pier to be a public way. However, the court held that it did not need to resolve this close question because even if the pier was not a public way, the defendant's conviction would be affirmed because the defendant drove on public ways prior to reaching the pier.

One Justice of the Appeals Court, Justice Sikora, wrote a separate concurring opinion criticizing the court's interpretation of the public way element of the Massachusetts OUI statute. Justice Sikora suggests that the court has misinterpreted the language of the statute by defining the term access as referring to public access by motor vehicles. Justice Sikora would interpret the statute to encompass any drunk driving where the public has a right of access, regardless of whether by motor vehicle or as pedestrians.

Continue reading "Massachusetts OUI law and "public way" element interpreted by the Appeals Court" »

The Massachusetts Appeals Court upheld an OUI car stop in the case of Commonwealth v. Riedel, decided on June 1st. The case involved a motorist suspected of driving under the influence of alcohol who was stopped in Brewster by an Orleans police officer. Under Massachusetts law, the authority of a police officer is limited to the territory where the officer is a police officer. An officer only has authority to make an arrest outside of his territory if it is granted by statute or is part of the common law.

Massachusetts General Laws Chapter 41 Section 98 provides as follows: A police officer of a city or town who is empowered to make arrests within a city or town may, on fresh and continued pursuit, may exercise such authority in any other city or town for any offense committed in his presence within his jurisdiction for which he would have the right to arrest within his jurisdiction without a warrant. The issue in Ridel's case was whether the defendant committed an arrestable offense. The Appeals Court held that the defendant's erratic driving gave the officer reason to believe that an arrestable offense was committed in his presence.

Massachusetts OUI arrests sometimes raise an issue of whether the officer had a lawful basis to make a motor vehicle stop. An extraterritorial stop is a defense that is handled through a motion to suppress. This type of defense based on the territorial jurisdiction of the officer could arise from an officer entering a neighboring town or when an officer crosses state borders.

I had a Second Offense Massachusetts OUI dismissed in the Attleboro District Court when my client was initially detained by the Rhode Island police. At the motion hearing the judge, agreed with my argument that the Rhode Island police lacked authority to detain my client in Massachusetts and it resulted in the case being dismissed.

Continue reading "MASSACHUSETTS OUI CAR STOP OUTSIDE THE TERRITORIAL JURISDICTION OF THE OFFICER UPHELD BY THE APPEALS COURT" »