Massachusetts DUI Attorney Blog

The Massachusetts Court of Appeals held on February 17, 2011 in the case of DiGregorio v. Registrar of Motor Vehicles that a motorist convicted of drunk driving out of state is entitled to have the period of the Massachusetts license suspension run from the date of the out of state conviction rather than the date on which the RMV learns of the conviction. Under Massachusetts OUI law, if a motorist is convicted of DUI in another state the RMV will suspend the motorist as if the offense occurred in Massachusetts.

The issue in DiGregoria is that the RMV did not learn that the defendant was convicted of his third DUI in Connecticut until three years after the conviction. Any motorist who has DUI conviction in Massachusetts or any other state will incur an eight year loss of license. The RMV asserted that the eight year period did not run until the RMV receives notice of the suspension. The Appeals Court held that the RMV's interpretation of the statute is contrary to the plain meaning of the statute. Further, the court notes that the RMV should have learned of the suspension as the information pertaining to the conviction was accessible to the RMV.

A Sixth Offense Massachusetts DUI charge was brought against Steven Pierce from Billerica and resulted in him being held without bail as dangerous by a judge from the Gloucester District Court. Any offense over a third offense can result in the Commonwealth seeking an indictment and bringing the case to superior court. A sixth offense is typically indicted so that the Commonwealth can seek a higher sentence that involves State prison time. If a drunk driving charge stays in district court, the maximum penalty for the DUI charge is 2.5 years. While a judge can give on an after time resulting in a total sentence beyond 2.5 years, a district court judge can only impose a house of correction sentence while a superior court judge can sentence a defendant to state prison as well as impose longer periods of prison time.

According to a news account in the Gloucester Times written by Nick Curcuru, Pierce failed to stop for the police, was alleged to have driven erratically, crossing the center lines. The news account states that Pierce struck a pedestrian. Pierce is alleged to have been unable to stand when getting out of the car. The news account claims that Pierce told the police that he had a few vodkas and then told the police at booking that he had seven to ten drinks.

One interesting issue that is raised by this case is the admissibility of Pierce's statements to the police officers. Given the evidence of erratic driving prior to the stop, a Massachusetts OUI attorney could argue that Pierce should have been read his Miranda rights immediately upon being stopped. Generally, when a motorist is pulled over for suspected drunk driving, police do not have to provide Miranda warnings because the stop is not considered custodial. The rule of Miranda v. Arizona, requiring the Miranda warnings only applies to custodial interrogations. The United States Supreme Court ruled in Berkemer v. McCarthy, that in a typical drunk driving case a motorist is not in custody and accordingly Miranda warnings are not required. A Massachusetts DUI lawyer could argue that Pierce's case is outside of the rule of Berkemer and that Miranda warnings were required because the police already had probable cause to arrest for drunk driving.

The Attorney General for the District of Columbia has been forced to drop dozens of drunk driving cases because of inaccurate breathalyzer results, The Examiner reported.

We frequently write about the need to contact an experienced Massachusetts OUI defense lawyer when facing drunk driving charges. Breathalyzer tests in Massachusetts can frequently be challenged, along with the results of field sobriety tests. Successfully challenging evidence often results in a reduction or dismissal of the charges.

A host of issues are involved in determining the proper administration of a breathalyzer examination, including whether a client burped or has stomach indigestion, whether the machine is properly maintained and calibrated, and whether the officer has received proper training.

The Examiner reports D.C. prosecutors are dropping drunk driving charges because of a problem with the city's breathalyzer. The results have not been admissible in D.C. courtrooms since February 2010, when it was revealed the results were inaccurate. Defense attorneys contend the District Attorney is dropping charges rather than revealing the results of an investigation into the conduct to two police officers who were responsible for a third of the city's 1,400 annual drunk driving arrests.

A review of 25 dismissed cases found one of the officers made the arrest in each instance. A union chief said it was those two officers who brought the breathalyzer issues to the forefront and that they are being targeted as a result.

Earlier this month, police in D.C. stopped using the breath analyzers to test BAC levels because the medical examiner's office won't certify the results. Police are using urine samples instead.

D.C. politicians are jumping into the fray, voicing frustration that the system has been broken for more than a year.

Continue reading "D.C. case illustrates Breathalyzer issues in Massachusetts OUI cases" »

Nancy Kerrigan's brother, Mark Kerrigan, had his bail of $ 25, 000 revoked as he was alleged to have failed four breathalyzer tests with reading below the legal limit. The breathalyzer test reading ranged from .025 to .036. Kerrigan had his bail revoked because the court found that he violated the terms of his pretrial release by not remaining alcohol free. The defendant claimed that the failed breathalyzer test results were the result of taking cough syrup.

With readings at such a low level of .025 and .036, Kerrigan's claim could be correct that he failed the breathalyzer test as a result of consuming cough syrup. To prove this claim Kerrigan will present testimony that he was sick at the time of the breathalyzer test results. According to Denise Lavoie's Article for the Associated Press, the judge may reconsider his decision if Kerrigan Massachusetts DUI lawyer can prove that the defendant was sick, requiring him to take cold medication.

Kerrigan Massachusetts OUI attorney plans to test the cough syrup for its alcohol content and to present the result to the court along with an affidavit from her client stating that he did not consume alcohol.

Continue reading "Nancy Kerrigan's brother claims consuming cough syrup caused failed breathalyzer test results in violation of pretrial conditions " »

The Massachusetts Supreme Judicial Court heard oral arguments on February 7, 2011 in the case of Commonwealth v. Zeininger, which was an appeal of a drunk driving conviction out of the Greenfield District Court. The defendants in the case filed an appeal with the Massachusetts Court of Appeals, which the SJC took on its own motion for direct view. As a Massachusetts OUI attorney, this decision could have an important implications for attorney defending drunk driving cases.

The defendant made three challenges to the admissibility of the breathalyzer test results. First, the defendant challenged the evidence presented by the Commonwealth to show that the breathalyzer machine was certified. Under the Massachusetts Supreme Court's decision in Commonwealth v. Barbeau, 411 Mass. 782 (1992), in order to admit breathalyzer test results into evidence, the Commonwealth has to establish that the machine satisfies both the annual certification and the periodic testing requirements imposed by the Massachusetts regulation and the Barbeau decision.

The Commonwealth did not call a witness to prove the annual certification, but relied on the certification noted in the implied consent form. The implied consent form does not indicate who certified the breathalyzer testing machine. The Commonwealth can request a certification from the Office of Alcohol Testing, but it appears that the Commonwealth relied on the certification on the implied consent form rather than the full Office of Alcohol Testing documents that are certified by the Office of Alcohol Testing.

The defendant on appeal argued that the defendant was being deprived of the right of confrontation guaranteed by the Sixth Amendment to the United States Supreme Court by not being granted the opportunity to confront the witness that certified the machine. The defendant relied on two recent United States Supreme Court decision Crawford v. Washington, 541 U.S. 36 (2004) and Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).

The SJC is likely to use this decision to address how the Commonwealth must prove that the machine has been certified. I would expect the SJC to hold that the Commonwealth needs the certification from the Office of Alcohol Testing at minimum to satisfy the annual certification requirement and cannot simply rely on a notation on the implied consent form that the machine was certified.

As a Massachusetts OUI lawyer, the Commonwealth should be required to call a witness to establish that the machine was certified. However, if the court is going to hold that the certification of the machine is nontestimonial under Crawford, the Commonwealth would still be required to present some evidence of who certified the machine. It appears as though the Commonwealth did not provide reliable evidence that the machine was certified and accordingly the court should have excluded the breathalyzer test results.

A second issue raised by this appeal is whether the trial judge properly allowed the police officer to testify as an expert regarding the breathalyzer machine. In the case, the trial judge allowed the police office over the objection of the defendant to testify that the breathalyzer machine was working properly. The Massachusetts DUI attorney in the case argued that the Commonwealth did not offer the police officer as an expert and that his training was only to give breathalyzer tests and that there was no evidence that he was qualified to determine if the machine was working properly. The defense argued that only a chemist from the Office of Alcohol Testing can determine whether a breathalyzer machine is working properly. Further, defense counsel objected to the officer testifying regarding the ability of the breathalyzer machine to recognize mouth alcohol.

The Massachusetts Supreme Judicial Court should reverse the conviction of the defendant on the grounds that the officer was not qualified to testify regarding the presence or absence of mouth alcohol. In the case, the defendant was found guilty of only the per se prong of Massachusetts drunk driving law as her BAC was just over the legal limit and registered .10. The defendant presented credible evidence during the trial that the defendant had acid reflux which can cause inaccurate breathalyzer readings. The trial testimony was that the defendant spit up acid and spit into the trash can next to the breathalyzer machine.

The final argument made by the defense was that the breathalyzer test should be excluded because the police officer did not comply with the observation period. It appears this is a strong argument. From the argument it appears as though the officer misconstrued the 15 minute waiting period as simply a time period that must elapse so that the breathalyzer can warm up. This misinterprets the purpose of the waiting period and based on the briefs in the case it appeared as though the officer did not testify according to the requirements defined in Massachusetts DUI law as set forth in the case law. The officer must testify that he did not observe any contaminating events and it appears as though the sample may have been contaminated as a result of the defendant spitting up and suffering from acid reflux. This would have contaminated the sample and artificially inflated the defendant's breath test results.

Overall, I would expect the court to reverse the conviction based on the improper expert testimony of the officer and because a substantial miscarriage of justice did occur as a result of the admission of the breathalyzer test results and the failure to conduct a proper observation period.

Your chances of being arrested for DUI in Rhode Island could depend on where you live and who is on duty at the time, Channel 10 News reports.

A lack of police officers properly trained in the administration of breathalyzer examinations could prevent a department from charging you with drunk driving. Rhode Island drunk driving defense lawyers frequently challenge an officer's training and experience when it comes to field sobriety tests and breathalyzer examinations. In some cases, you may be tested by an unqualified officer. Such circumstances can result in a dismissal of the charges against you. But without an experienced DUI defense lawyer on your side, you may not discover whether the officer has been properly trained to administer a breathalyzer test or field sobriety tests.

Those face Providence DUI charges may be most at risk of dealing with an inexperienced or unqualified officer. Only 20 officers in Providence are qualified to run the Breathalzyer-- or just 4 percent of the force.

The news report found just 42 officers in East Providence were certified, compared to 119 in Warwick, 95 in Cranston, 53 in Woonsocket and 65 in Pawtucket. Pawtucket had the next-lowest percentage certification, with only 40 percent of officers on the force qualified to run the Breathalyzers.

Perhaps in part as a result, Providence only arrested 85 drivers for drunk driving in 2009. In comparison, smaller communities made more arrests: Woonsocket had 166, Coventry had 165, Middletown had 122 and Warwick had 371.

The news report suggests that because Warwick makes more arrests that the city is better at preventing drunk driving. Number of arrests can be a misleading statistic as it has not relationship to the number of convictions. It is not surprising that towns with less violent crime will make more DUI arrests, given that a DUI arrests is based on the opinion of the arresting officer and is easy to charge, but can be difficult to prove beyond a reasonable doubt.

Continue reading "Rhode Island DUI charges often contested based on officer's Breathalyzer training" »

The Massachusetts Court of Appeals, in the case of Commonwealth v. Rumery, decided February 4, 2011, issued a decision regarding the margin of error of the breathalyzer at Massachusetts DUI trials. The court ruled that a defendant is not entitled to a jury instruction that the breathalyzer has an inherent margin of error of .01. The defendant sought this instruction because when the Office of Alcohol testing tests a breathalyzer devise for accuracy, the machine is considered accurate as long as the machine can read a solution with a known alcohol content within a range of plus or minus .01. The court held that the .01 does not represent any specific margin of error of any particular machine. The court noted that the Commonwealth contended that the margin of error is much smaller and the court appeared to accept that finding. It is unclear how the court can accept that finding given that the Office of Alcohol Testing does not require such precision when it is testing the machine for accuracy pursuant to the periodic testing mandated by Massachusetts DUI law.

The court also stated that the margin of error has already been accounted for as a result of taking the lower of the two samples. Finally, the court held that if an instruction on a margin of error were mandated, it would require complex expert testimony on the margin of error of each machine.

In the case before the court, the defendant's breathalyzer reading was at the legal limit of .08; accordingly, the accuracy of the machine is central to the issue as the machine is determining whether the defendant is guilty of the offense of drunk driving. The Commonwealth should be required to prove the margin of error of the machine in case with readings at or near the legal limit.

As a Massachusetts OUI attorney, this decision will not have a major impact on the defense of breathalyzer cases near the legal limit as the court only held that a jury instruction was not required. A defendant is still permitted to argue that the margin of error of the breathalyzer machine is .01 based on how the Commonwealth conducts its periodic testing. Additionally, a defense lawyer can present other evidence that impacts the margin of error of the breathalyzer machine, such as temperature, the partition ratio and individual variation in providing a breathalyzer sample, including breath volume.

Continue reading "Massachusetts OUI attorney comments on recent Appeals Court decision on the breathalyzer margin of error" »

A Massachusetts trial judge, Mark Sullivan, in the case of Commonwealth v. Anthony Daen, denied the defendant's request for a Daubert-Lanigan hearing in a group of Massachusetts drunk driving cases that were consolidated for the Honorable Judge Mark Sullivan out of the Lawrence District Court. The case involved 60 defendants charged with operating under the influence of alcohol where the defendants submitted to a breathalyzer test.

A Daubert-Lanigan hearing is hearing that a Massachusetts criminal attorney can request challenge the scientific reliability of expert testimony. When this hearing occurs, the Commonwealth presents its proposed scientific evidence to a judge prior to trial so that the judge can determine whether the evidence is sufficiently reliable for a jury to hear the evidence. If a judge finds that the evidence is not scientific reliable, it will be excluded from evidence.

Judge Sullivan ruled that the Daubert standard does not apply because the Massachusetts legislature made breathalyzer test results admissible by statute and devised a statutory scheme for the admissibility of breathalyzer test results. Accordingly, the judge ruled that a Daubert hearing is inapplicable because the test results are admissible under Massachusetts OUI law.

As a Massachusetts OUI attorney, I would expect the defense to appeal the decision of Judge Sullivan as I think his reasoning on this issue is incorrect. First, the legislature cannot remove from the court the function of determining the reliability of evidence as it is the function of the court to ensure a defendant's right to a fair trial and effective cross examination is preserved under the Constitution. While the legislature can determine what evidence is admissible at trial and the method of how it is admitted at trial, it is ultimately the job of the court to determine whether evidence is reliable and should be admitted. The court can never transfer to the legislature the power to determine whether an individual's constitutional rights to effective cross examination and due process have been denied. Evidence that is not scientifically reliable has the power to deny a defendant a right to a fair trial, due process of law and effective confrontation. Accordingly, the judge should have allowed for a hearing on the issue as to whether the source code for the breathalyzer machine used in Massachusetts is scientifically reliable.

The judge next concluded that even if he were to reach the merits of the issue, he would have determined that the breathalyzer source code is scientifically reliable, in part relying on the decision of the New Jersey Supreme Court in State v. Chun, 943 A.2d 114 (2008). The flaw in the court's logic is that it denied the defendants in the case before it the opportunity to present evidence to the court that may not have been raised in the Chun case. Further, the court never heard the testimony that was heard in the Chun decision and accordingly, the court may have reached a different result upon hearing the testimony regarding the problems with the breathalyzer source code. The filing in the Chun case can be found in the lead counsel, Evan Levow's website by clicking here.

Given the recent problems discovered with the accuracy of scientific evidence, the court's refusal to conduct a hearing to determine the reliability of the breathalyzer test, given that the Chun decision found numerous flaws with the breathalyzer device, is an incorrect application of the Daubert test and should be reversed on appeal. The Massachusetts OUI attorneys before Judge Sullivan will likely appeal the ruling and ultimately the issue will be resolved by the Massachusetts Supreme Judicial Court.

The recent decision of the Massachusetts Court of Appeals in Commonwealth v. McGillivary, decided on January 25, 2011 interpreted the definition of operation of a motor vehicle under Massachusetts OUI law. In the case, the defendant was slumped over the wheel with the keys in the ignition but the engine turned off. Only the electricity was running in the car as the engine was off. The Massachusetts Appeals Court had to address the issue of whether a DUI conviction could be upheld when there was no evidence that the defendant drove the vehicle, but only that the defendant was in the car with the keys in the ignition and the electricity turned on in the car.

The Appeals Court found sufficient evidence of operation and held that putting the keys in the ignition was the first step in operating the vehicle. The Court's decision raises the interesting question for Massachusetts OUI attorneys regarding whether the court would have found operation if the keys were simply in the ignition without the electricity of the car being turned on.

Continue reading "Massachusetts OUI attorney comments on recent court decision interpreting definition of operation under Massachusetts drunk driving law " »

A 37-year-old woman is facing OUI charges in Hingham after police say she was driving drunk with an infant in the car, according to a report in the Patriot Ledger.

A Hingham drunk driving defense attorney should always be consulted when a mother is accused of OUI with children in the vehicle. As we reported recently on our Massachusetts DUI Attorney Blog, the government reports a 36 percent increase in the number of women facing drunk driving charges. Such allegations frequently lead to charges of child endangerment and the inclusion of child welfare authorities in your affairs, which can create all sorts of undesirable complications.

In this case, Gayle E. Drummond, of Norwell, was charged with third-offense drunk driving in Massachusetts, as well as driving to endanger, having an open container of alcohol in a motor vehicle and child endangerment while driving drunk. She posted $5,000 bond after being arraigned in Hingham District Court.

She has been ordered by a judge to complete a residential treatment program and to submit to drug and alcohol tests. Police say she drove into a snowbank with her baby in the car on Jan. 15 and had an open container of alcohol in the car when stopped by police. She is also accused of missing three court dates.

The Patriot Ledger reports she was charged with drunk driving in 1997 and in 2004. The earlier arrest included an alleged drunk driving accident in which she is accused of driving into a tow truck and seriously injuring two of her passengers.

Too often, clients complicate their legal picture by failing to show up for court. We encourage you to consult an attorney as soon after your arrest as possible. Missing court dates will only result in the court requiring cash bail or setting a higher bail amount.

Continue reading "Aggressive defense required when Massachusetts OUI charges involve children in car" »