Massachusetts DUI Attorney Blog

An Illinois man is seeking a new trial after his attorneys discovered that prosecutors withheld thousands of taped conversations the man had from the jail with outsiders, NBC News reports.

It is Improprieties like that act as a reminder of why it is critical to always mount a Boston OUI defense or defense of other criminal charges in Massachusetts. OUI in Massachusetts is a serious crime and those cases involving injury or death can result in the loss of liberty for years or decades.

The man was convicted in February for the drunk driving death of his girlfriend's son last year. According to the report, the man crashed a car into a tree, killing the 5-year-old son of his then-girlfriend. The crash happened after the boy's mother was arrested for driving with a suspended license. A police officer gave the man the keys to his girlfriend's car after the arrest. Police said he had a .208 blood-alcohol level, about three-times the legal limit.

This is a disturbing case of poor decisions by the police and prosecution. First, if the man appeared intoxicated, the officer should have never given him the keys to a car and told him to drive home. Second, it is unconstitutional for the prosecution to withhold evidence in a criminal case.

In Stoughton, OUI involving an accident can result in jail time. Even an accident where someone is injured can cause the driver to spend years in prison, loss of driver's license and other OUI penalties.

Hiring a Quincy DUI lawyer can be one of the most important decisions you make. A bad choice and you could be saddled with thousands in fines and fees, incarceration, a ruined reputation and future job problems.

While every case is different, challenging blood and chemical testing can be a great defense, eye witnesses can be aggressively questioned and disproven and experts can be hired to combat the Commonwealth's case against you.

Continue reading "Withheld Evidence in Drunk Driving Case Shows Why Boston DUI Defense is Critical" »

As a Massachusetts OUI attorney, I found the case of Commonwealth v. Virgilio, decided on May 24, 2011, of interest because the Appeals Court reversed a DUI conviction on the grounds that the public way element was not established at trial.

When a motorist is charged with drunk driving in Massachusetts, the Commonwealth needs to prove three elements beyond a reasonable doubt. Those elements are
1. that the car was operated
2. that it was operated on a public way or area where members of the public have a right of access
3. That the vehicle was operated on a public way under the influence of alcohol. Click here for a link to the jury instructions at a drunk driving trial.

In most OUI trials in Massachusetts, the contested element is whether the driver was under the influence; in some cases, typically bench trials, the elements of operation and public way will be agreed to by what is called stipulation.

In the case of Commonwealth v. Virgilio, which arose out of the Uxbridge District Court, the public way element was directly at issue. In Virgilio, the court found that the defendant did not operate a motor vehicle under the influence because she was driving on a private driveway where the public had no right of access. Accordingly, the court held that her conviction for DUI should be reversed as the evidence was insufficient under the law to sustain the verdict of guilty.

Continue reading "Massachusetts OUI conviction reversed by Court as public way element not proven at trial " »

A Massachusetts OUI charge with failed breathalyzer test results is a case that can be won at trial. A recent Florida case provides a good example of what is referred to as the disconnect defense in drunk driving cases.

In the Sarasota case, the Government presented evidence of a breathalyzer test result of .10 that was allowed to be entered into evidence. The DUI lawyers in the case of Felicia Bridwell attacked the reliability of the test results by demonstrating problems with the breathalyzer machine and by showing a video that did not depicted a woman under the influence of alcohol.

In Massachusetts, when video tape evidence or a motorist's performance on field sobriety tests are inconsistent with breathalyzer test results, A Massachusetts drunk driving lawyer can argument to the jury to trust their own judgment over that of an unreliable machine. This defense is referred to as the disconnect defense because there is a gap between the observations and evidence that the jury can see and the results of the machine. At most OUI trials with breathalyzer test results, the jury learns little about the machine other than the results of the test and is essentially being asked to trust the machine.

Continue reading "Winning your Massachusetts OUI charge with failed breathalyzer test results" »

The Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Zoanne Zeininger which addressed the issue of whether the Sixth Amendment requires the Commonwealth to present the live testimony of a witness from the Office of Alcohol Testing in order to admit breathalyzer test results at a Massachusetts DUI trial. Click here to read in SJC decision in Zeininger.

At trial, the Massachusetts OUI attorney, argued that the Office of Alcohol Testing documents could not be admitted into evidence without the live testimony of a witness from OAT in order to preserve the defendant's right of confrontation under the Sixth Amendment and the recent case of Melendez-Diaz v. Massachusetts. At a DUI trial, the Commonwealth generally subpoenas a packet of documents from the OAT that show compliance with the annual certification and periodic testing requirements of Massachusetts drunk driving law. The Commonwealth generally seeks to admit these documents into evidence as business records without live testimony from the Office of Alcohol Testing. The Zeininger case raised the issue of whether this practice satisfied constitutional requirements.

The Massachusetts Supreme Judicial Court held that the court undergoes a two part inquiry to determine whether out-of-court statements are admissible at a criminal trial. First, it determines whether the statement is admissible under a hearsay evidence exception and second whether it satisfies the requirements of the Confrontation Clause of the Sixth Amendment.

The SJC held that the OAT documents are made by a public official having a statutory duty to comply with a rigorous regulatory certification. The Court held that these records do not express any opinion but memorialize routine scientific measurements. Further, the court stated that the records qualify as business records because they were not created essentially for use in court, but pursuant to the mandates of Massachusetts statutes creating the regulatory scheme. Accordingly, the court held that the records are admissible under Massachusetts evidence law.

The SJC also rejected challenges to the admissibility of the OAT records based on the Sixth Amendment Confrontation Clause. The SJC held that the Oat records are not made for the purpose of proving some fact at trial but to comply with its statutory mandate.

As a Massachusetts OUI lawyer, the court's decision is contrary to the United States Supreme Court's Melendez-Diaz decision as the only purpose for the OAT records is to establish the reliability of the breathalyzer test at trial. But for the fact that breathalyzer results are used in court, there would be no purpose for the records or testing of the machine. Accordingly, the Court 's suggestion that the records are not prepared primarily for trial is simply incorrect.

Additionally, the SJC's claim that the records the records memorialize routine scientific measurements is inconsistent with the language of Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009) which held that the Confrontation Clause is essential to ensure the reliability of scientific procedures in court. The SJC ignores the language of the Supreme Court in Melendez-Diaz by suggesting that the OAT testing procedure is simple so that confrontation is not required.

As a Massachusetts DUI lawyer, the court's decision and reasoning is incorrect and contrary to the requirements of the Confrontation Clause as set forth in the United States Supreme Court case law. The United States Supreme Court is expected to release its decision in Bullcoming v. New Mexico by the end of the terms, which may undermine the SJC reasoning in Zeininger.

Continue reading "Massachusetts DUI lawyer comments on recent case regarding admissibility of breathalyzer test results " »

The Boston Globe reports that hundreds of Vermont DUI cases could be in jeopardy because Vermont State Police may not have properly set up a machine that analyzes breath testing.

It isn't shocking to Massachusetts OUI defense attorneys that authorities continue to have problems with breath testing. We believe breathalyzers are one of the weakest forms of DUI evidence -- problems are being uncovered from coast to coast.

As recently discussed on the Massachusetts DUI Attorney Blog, hundreds of cases in California are being reviewed because of a manufacturing error. In Philadelphia, more than 1,000 cases are being reviewed because of botched breath test results. There are many defenses to Boston OUI cases and often breath testing is one of the best.

The Globe reports that whistleblowers are also bringing up complaints about unethical lab work in the Vermont cases. The problem comes from the Department of Health's maintenance of the machines that are used at police stations and barracks to test drivers arrested for suspected drunken driving. In this case, the problem may be human error that resulted in a machine operating for a year without a self-check function that assures proper functioning.

The story highlights the two problems with these tests: the possibility of human error and the likelihood of technical error. The technology behind the breathalyzer and the training of the officers involved are a continuous source of court challenges by Boston defense attorneys. Those facing a drunk driving charge in Boston and throughout Massachusetts should consult an attorney who can properly challenge these tests.

A breathalyzer is a machine that officers often ask drivers to blow into to get readings about the driver's blood alcohol level. In Massachusetts, the legal limit is .08. The machines give readings based on the person's breath.

While we often take technology for granted and usually trust that it is operating correctly, that isn't the case in DUI cases involving breathalyzers. These tests should be vigorously challenged in court. Boston OUI breath test results, if challenged successfully, can be the difference between a win and loss at trial.

Continue reading "Bad Breathalyzers Show Up in Vermont, is Massachusetts Next?" »

A Norton, Massachusetts man faces a dangerousness hearing after being charged with a Fourth Offense Massachusetts DUI out of the Attleboro District Court. Kevin Whiting is being held without bail pending a dangerousness hearing according to the Attleboro Sun. For a defendant to be held without bail pursuant to the Massachusetts dangerousness statute, the Commonwealth needs to prove that no condition of release can reasonably assure the safety of the community.

When the court holds a dangerousness hearing, the Commonwealth will present the testimony of the officers that arrested the defendant; these officers will testify as to the basis of stopping the defendant as well as the defendant performance on field sobriety tests. An Attleboro DUI lawyer will have the opportunity to cross examine the officer. In most DUI trials in Massachusetts, a defendant does not have the opportunity for a complete cross examination of the officer prior to trial. Though a finding that a defendant is a danger to the community, will result in a defendant being held without bail, a drunk driving defense attorney is provided an opportunity to preview the Commonwealth's case prior to trial. By obtaining a transcript of the hearing, an attorney can use this prior testimony in preparing a defense at the time of trial.

Nearly a 1,000 drunk driving defendants could go free in California amid reports of a faulty breathalyzer machine, the Mercury News reported.

Massachusetts OUI defense attorneys understand the breath test results are far from a sure thing. Coast to coast, the technology behind the breathalyzer and the training of the officers involved are a continuous source of court challenges. Those facing a drunk driving charge in Boston or elsewhere in Massachusetts should consult an experienced attorney to discuss their options.

As we reported previously on our Massachusetts DUI Attorney Blog, botched breath test results in Philly have compromised more than 1,000 cases. Faulty breath test results in D.C. are forcing the district to change the type of machine it uses; and a Florida judge has ruled a breathalyzer manufacturer must release the code used in the machine to defense attorneys who wish to challenge the validity of results.

In the California case, the Santa Clara district attorney's office is taking a month to review the cases it will drop as a result of police officers' use of the Alco-Sensor V breathalyzer. The machines were subject to faulty readings because of a manufacturer's error.

Officers had begun using the device in November and used it exclusively through the busy holiday season. They stopped this month after discovering that Ventura County authorities were reviewing hundreds of cases for errors. Defense lawyers say cases in which suspects blew into the device but later refused to give a blood test are now suspect -- since the state's main piece of evidence may be compromised.

Authorities had been using 60 of the defective devices. The devices were portable breathalyzers, the results of which are not typically used in court. However, California law allows the readings to be used if further testing at the station is refused. Santa Clara County arrests more than 7,000 motorists each year for DUI.

Continue reading "More Drunk Driving Cases Dumped as Faulty Breathalyzer Testing Uncovered" »

When you are charged with a Second Offense DUI in Massachusetts, how does the Commonwealth prove that you had a prior conviction. The Appeals Court addressed this issue in the case of Commonwealth v. Ellis which was decided on April 25, 2011.

The Ellis case involved an appeal of a Fourth Offense OUI conviction from the Chelsea District Court. However, regardless of whether you have a second, third or fourth offense, drunk driving charge, the method of proof is the same. With a third or fourth offense, the Commonwealth needs to prove either two or three prior convictions rather than just one prior conviction as for a second offense Massachusetts DUI charge.

In a Massachusetts Second Offense DUI charge, the Commonwealth can prove the existence of the prior conviction in a number of different ways. First, the Commonwealth can offer into evidence a certified copy of the conviction from the court in which the prior offense occurred. This is the most common method used by prosecutors. Second, the Commonwealth can offer into evidence a certified copy of your Registry of Motor Vehicle driving record showing the prior conviction. Lastly, the Commonwealth can offer into evidence a copy of your probation record.

The Massachusetts OUI lawyer representing Ellis challenged the method of proving the prior convictions of the defendant. The Commonwealth attempted to offer the defendant's probation record into evidence as a business record. If a record is a business record, then it can come into evidence at a criminal trial without requiring the maker of the record to testify. To qualify as a business record a record must be kept in the ordinary course of business and not prepared in anticipation of litigation. If a record is a business record, it is considered nontestimonial and the Commonwealth does not have to present live testimony of the author of the record in court.

The court rejected the classification of probation records as business records and held that these records are prepared in anticipation of litigation and according fall outside of the hearsay exception for business records. The Appeals Court adopted the argument of the lawyer in this case that under Melendez-Diaz the probation records were testimonial and required the Government to present a witness to admit the records into evidence. To read more about Melendez-Diaz and the right of confrontation, you can click on my prior blogs on this issue and refer to a Law Review Article from Creighton University, attached here.

Despite upholding the Massachusetts DUI lawyers objection to the probation records coming into evidence, the Court ultimately found that the error was harmless as the Government also admitted the defendant's driving records from the Registry of Motor Vehicles. The court held that RMV documents are nontestimonial and can come into evidence without the presentation of a live witness.

Continue reading "Proving Prior Convictions in Second Offense Massachusetts DUI arrest " »

Braves Pitcher Derek Lowe is apologizing to family and fans following a drunk driving arrest, the Boston Herald reports.

Police say he was racing another car down the street when he was stopped shortly after 10 p.m. Thursday. He declined to take a breath test and was charged with DUI, reckless driving and improper lane change.

Declining a breath test in Massachusetts will make it more difficult for the Commonwealth to prove you are guilty of OUI. While your license will be automatically suspended, you can appeal the breathalyzer refusal suspension within 15 days of your arrest. The best option for getting your license back may be a not guilty verdict at trial as there is a presumption of reinstatement for those found not guilty of OUI. Speaking with a Massachusetts drunk driving defense lawyer as soon as possible after your arrest will help you determine the best course of action in your particular case.

The USA Today reports there have been a string of high-profile DUI arrests among major league baseball players this spring, including Detroit Tigers first baseman Miguel Cabrera, Cleveland Indians outfielder Austin Kearns, Seattle Mariners infielder Adam Kennedy and Oakland A's outfielder Coco Crisp.

Yahoo! Sports reported a number of analysts are calling for suspensions of players arrested -- similar to the stance taken by the NFL.

In the real world, the consequences of a DUI can be quite serious outside the courtroom, and may include job loss, skyrocketing insurance premiums, ignition interlock devices and a criminal record. Conviction may even impact your ability to hold certain jobs or quality for certain types of government assistance, including financial aid and student loans.

Additionally, with penalties for conviction growing tougher each year, fighting to keep a drunk driving charge off your record is your best bet for protecting yourself against the more severe consequences for a future violation. A first-offense OUI in Massachusetts is often your best bet to beat the charge.

Speak to a DUI defense lawyer. Protect your rights.

Continue reading "Massachusetts OUI Defense Lawyers Note String of MLB Drunk Driving Arrests" »