Massachusetts DUI Attorney Blog

Prosecutors obtained a Massachusetts Third Offense DUI conviction against Brian Hand after a jury trial in the Attleboro District Court. Hand was charged with a Fifth Offense OUI according to the Sun Chronicle News account, but found guilty only of a third offense as the prosecutor failed to present sufficient evidence demonstrating four prior DUI convictions.

According to the news account, the prosecutor attempted to present evidence of two prior Massachusetts DUI convictions and two prior New Hampshire DUI convictions. The trial judge found that these records did not provide the proper certification or verification that these records related to the defendant before the court. To prove a defendant has a prior conviction the Commonwealth needs to show that the defendant in the prior case is the same defendant as before the court.

In Hand's case, he proceeded to a jury trial where he was found guilty of operating under the influence of alcohol. The next step in any charge alleging a subsequent offense OUI whether a Fourth Offense or Second Offense is for the court to conduct a separate trial regarding the number of prior OUI offense an individual has had in his or her lifetime. In this case, the defendant elected a bench trial on this issue. Typically, the trial on the number of prior offense would be before a judge rather than a jury.

As a result of the lack of reliability in the alleged prior convictions from New Hampshire, the trial judge found the defendant guilty of a third offense OUI and imposed a split sentence with 2.5 years committed in the house of correction, six to serve and the balance suspended with probation for three years.

Continue reading "Attleboro OUI attorney comments on recent Fifth Offense DUI trial" »

The United States Supreme Court issued its decision in Bullcoming v. New Mexico today, holding that the Sixth Amendment precludes the State from introducing a lab report of a forensic blood test without calling the analyst who conducted the analysis. The State attempted to satisfy the confrontation clause by calling a different analyst who did not conduct the test but was familiar with blood testing procedures. The United States Supreme Court found that the defendant's right of confrontation was violated by this procedure in a 5-4 decision. Click this link to read a copy of the decision.

The decision of the Court is notable in that four justices viewed the result to be governed by the Court's decision in Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009). The Court rejected the argument that the seeming reliability of scientific evidence does not exclude this evidence from being subject to the Confrontation Clause. The Court cited argument raised in the brief of the National Association of Criminal Defense Lawyers that errors in forensic blood test are not so remote to be negligible.

Finally, the court rejected the argument that requiring live testimony is too burdensome for the State. As in Melendez-Diaz, the Court stressed that notice and demand procedures can be used to help reduce the expense of having a forensic expert testify in court.

As a Massachusetts DUI lawyer, the importance of this decision in terms of predicting how the Court will decide future cases can be found in the concurring opinion of Justice Sotomayor. Assuming the current composition on the court remains unchanged, Justice Sotomayor appears to be the swing vote on confrontation clause cases.

Justice Sotomayor emphasized that she would apply the "primary purpose" test that the Court emphasized in the recent case of Michigan v. Bryant, 562 U.S. ___ (2011). Rather than emphasizing that the Bullcoming case was a direct application of Melendez-Diaz, Justice Sotomayor stressed that the primary purpose of the laboratory report was clearly for use at trial and she applied the balancing approach used in Bryant by underscoring the formality inherent in the certification, as being an indication that the primary purpose was for use in court.

Of most importance to a Massachusetts DUI lawyer is that Justice Sotomayor listed the factual circumstances not raised by this case, indicating a limitation on the court's holding:

1. if there was an alternative purpose for lab report, such as if it was part of a medical record and obtained in the course of medical treatment.
2. If another analyst or supervisor observed the testing procedures;
3. If an expert witness was asked about a report not admitted into evidence; and
4. if there was only a machine generated result.

Justice Sotomayor raised the issue of whether raw data alone, without statement regarding the procedure used, would violate the confrontation clause. This would include not only blood test results but also apply to breathalyzer evidence. The Court's Bullcoming and Melendez-Diaz decision should be interpreted to require live testimony for the presentation of scientific evidence, including breathalyzer test results. The Bullcoming opinion stressed that the purported reliability of scientific evidence cannot justify a departure from the requirement that the Constitution requires the right of confrontation. Based on the language of the court and even applying the "primary purpose test", the Court should hold if confronted with the issue that a live witness is necessary to testify to the accuracy of breathalyzer test results. The Bullcoming decision indicates that the Massachusetts Supreme Judicial Court's recent decision in Commonwealth v. Zeininger, may no longer be good law as the SJC held that breathalyzer records showing the accuracy of the breathalyzer machine are nontestimonial.

Washington D.C. police and prosecutors will have to wait a year to have what they believe is a reliable and accurate breath-testing program, The Washington Post recently reported.

Breathalyzers haven't been used in about a year, according to the article, because inaccuracies from miscalibrated equipment had overstated breath-test scores in about 400 convictions dating back to 2008.

This is just another example of how bad breathalyzers are and how their inaccuracies have caused harm to drivers who weren't drunk but who were penalized. As Massachusetts DUI Attorney Blog has pointed out, breathalyzer testing is inherently inaccurate. But police continue to use them to try to secure OUI convictions in Boston.

According to the article, the absence of a breath-test program contributed to a drop of about 42 percent in drunk driving arrests by district police. Officials have said drunken driving prosecution has "stalled" because police have been using more cumbersome methods, such as urine samples and roadside sobriety testing, to make arrests. Even a local medical examiner office toxicologist said alcohol levels registered through urine testing have "very little correlation to blood concentrations for alcohol."

According to a web page by a State University of New York at Potsdam professor emeritus, a breathalyzer can only "estimate" a person's blood-alcohol concentration. Only a sample of the person's blood can "measure" a person's blood-alcohol content. And while blood testing is considered to be accurate, breath testing can be manipulated by breathing heavily, lightly, eating certain foods on top of operator error and miscalculated machines.

In Massachusetts, a driver who refuses a breathalyzer test automatically has their driver's license suspended for 180 days, pending an appeal, which must be made within 15 days of your arrest. The hearing is held at the Massachusetts Registry of Motor Vehicles in Boston, regardless of where the offense occurred. for those with prior OUI convictions, a breathalyzer refusal after one prior conviction requires a three-year license suspension, five years after two priors and a lifetime suspension after three prior convictions.

But refusing a breath test denies the Commonwealth a potentially large piece of evidence against you. If prosecutors are unable to use breath testing to convince a jury the driver was drunk, they must rely solely on the officer's testimony, which is sometimes faulty.

If a breathalyzer test isn't refused, it should be fought in court. An officer not telling the driver they have a right to an independent medical exam, not allowing for a 15-minute observation period to have breathalyzer testing admitted into evidence and prosecutors not having proper documentation to show the machine is reliable are all reasons a Massachusetts OUI Lawyer can win cases in Massachusetts.

Continue reading "Washington D.C. DUI Program Shows Problems With Breathalyzer Testing in Boston, Elsewhere" »

Massachusetts State Senator Robert Hedlund proposed increasing the penalties for a First Offense DUI in Massachusetts. The Senator's proposal would amend Melanie Law which was enacted five years ago and drastically increased drunk driving penalties in Massachusetts.

Senator Hedlund's proposal would require anyone convicted of a first offense OUI to have the ignition interlock installed prior to reinstatement of an individual's license. The proposal would be modeled after laws passed in other states requiring the ignition interlock for first time offenders.

Continue reading "State Senator proposes legislation to increase Massachusetts First Offense DUI penalties " »

As a Massachusetts drunk driving lawyer, the decision of the Appeals Court in Commonwealth v. McLaughlin, decided on June 13, 2010 is of interest in defending DUI cases involving motor vehicle accidents. The McLaughlin case arose out of a 3rd offense Massachusetts OUI charge out of the Plymouth District Court. The defendant was involved in a motor vehicle accident and brought to the hospital for medical treatment.

At trial, the Commonwealth sought to introduce the hospital medical records of the defendant to prove his blood alcohol level to be above the legal limit of .08. The Commonwealth called a toxicologist to explain the meaning of the hospital records and how the serum alcohol blood alcohol reading converted to a blood alcohol content on the night of the incident. The Commonwealth did not call the keeper of the hospital records to testify but relied exclusively on the medical affidavit statute to have the records admitted into evidence.

Under Massachusetts General Laws Chapter 233 Section 79G, medical records may be admitted in the discretion of the court by way of affidavit relating to treatment and medical history, but nothing admissible shall relate to the question of liability. The Appeals Court held that the admission of the toxicology report did not violate the medical affidavit statute.

Further, the Appeals court rejected the challenge of the Massachusetts DUI lawyer in the case that the admission of the hospital medical records violated the defendant's right of confrontation under the Sixth Amendment or Article 12 of the Massachusetts Declaration of Rights.

Continue reading "Massachusetts drunk driving lawyer comments on recent Appeals Court decision regarding admissibility of hospital medical records at DUI trial " »

Attorneys in Upstate New York are arguing with New York State Police why information about a breath-alcohol analysis machine with glitches in 2009 was never revealed to DUI defendants or their attorneys, the Observer-Dispatch reports.

New York is not alone in its problems with bad breathalyzer testing, Massachusetts DUI Attorney Blog reported in May. Many states have had breathalyzer testing come back far above what the actual blood-alcohol content of the driver was. But sometimes the driver has already been convicted based on the wrong information. This is why hiring an experienced Attleboro DUI defense attorney can make the difference between justice and injustice. Between keeping a drunk driving conviction off your record or setting yourself up for the much stiffer penalties that can come with a repeat violation.

According to the news article, a Utica-area attorney is challenging why information about a flaw in Drager Alcotest 9510 machines was never revealed in court. And he's now asking for maintenance records from the state that they won't turn over.

"How many people are in state prison now throughout the state that never had a chance to know that the machine they blew into potentially had a problem," Leonard said recently. "District attorneys continue to prosecute defendants on machines they know potentially have a problem, and the defendants never had an opportunity to put that issue in front of the jury."

In 17 cases in 2009, the machines had error messages that revealed a defect in one of the two tests used to measure a driver's blood-alcohol level through their breath. State police told prosecutors that even in an error, the machine would kick out readings that were lower than was acceptable, not higher. Without proof, Leonard told the newspaper, the words are meaningless.

Sadly, these types of cases are far from rare and are cropping up time and time again all over the country. From Vermont to Philadelphia across the nation to California, prosecutors are having to review cases and even throw away convictions because of poorly managed and illegitimate breathalyzer testing.

That's why it is so important for people charged with DUI in Boston to consult with an experienced DUI defense lawyer who can challenge breathalyzer results with aggression.

While refusing a breathalyzer test in Massachusetts can result in at least a 180-day driver's license suspension, it keeps from the Commonwealth potentially incriminating evidence. But driver's license suspensions can be fought within 15 days or a hardship license can be obtained with an experienced Massachusetts OUI attorney.

Which attorney you hire is the most important decision you make after being arrested for DUI. Fight the charge, but don't fight it alone.

Continue reading "NY Attorneys Fighting State Over Breath Analysis Machine Could Affect Massachusetts OUI Cases" »

The Massachusetts Supreme Judicial Court decided today that Registry of Motor Vehicle documents are testimonial, requiring the Commonwealth to present the testimony of a live witness to admit the records into evidence at the time of trial. The SJC announced its decision in the case of Commonwealth v. Parenteau.

In the case of Peter Parenteau, a judge of the Ayer District Court admitted a certification from the RMV stating that the defendant was mailed notice that his license was suspended for ten years. The defendant had accepted a guilty plea to an OUI charge in the Palmer District Court and believed that his license was suspended for two years. It is likely that the prosecutor did not know of the other, likely out-of-state convictions, and believed that the defendant only had one prior OUI offense; however, the RMV records must have indicated that the defendant had three other Prior DUI convictions in addition to the Palmer conviction to trigger the ten year license suspension. A Fourth Offense Massachusetts DUI charge carries with it a ten year license loss; in some case the RMV records differ from the record of conviction possessed by the court, in those cases, the RMV will always rely on its own records in imposing a license suspension.

In Parenteau, the RMV purported to mail the notice to the home of the defendant's parents and at the time he was no longer living at that residence. Accordingly, at trial, the defendant was contesting the issue of whether he received notice of the suspension.

The SJC, following the landmark United States Supreme Court decision in Melendez Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) held that the RMV documents were testimonial because they were used to establish the fact that the defendant was mailed notice of the suspension. The Court held that the RMV documents were no different than the drug certification at issue in Melendez-Diaz as the certification was a solemn declaration created for the purpose of proving some fact.

The SJC rejected the Commonwealth's argument that the RMV certification was a business record because the court held that it was not created at the time that the notice was purportedly mailed. The SJC indicated that it would have considered the notice a business record if the notice was created contemporaneous with the mailing of the notice to the defendant.

The SJC's decision will likely result in the RMV changing its policy to create a contemporaneous business record when mailing notice of a license suspension. Even if a business record existed in this case, the defendant was contesting the issue of where the notice was sent and whether it was sent to the correct address; accordingly, the defendant still would have had the right to confront a witness from the RMV regarding where and when the notice was sent.

As a Massachusetts DUI lawyer, the decision of the SJC was contrary to several recent decisions rejecting Confrontation Clause challenges and could signal a change in the court's interpretation of the right of confrontation. In the context of the Parenteau case, where the trial centered around the issue of whether the defendant received notice, it is clear that the SJC made the correct decision as the defendant was essentially denied any opportunity to contest the issue at trial without being provided the opportunity for cross examination.

For Massachusetts OUI lawyers, this decision may mean that the Commonwealth will be unable to prove any charge of operating with a license suspended for OUI or other unlicensed charges as the RMV does not have contemporaneous business records and likely has no ability to track the identity of the person who sent the notice to present live witness testimony. Accordingly, I would expect that many of these charges will be dismissed as a result of this decision.

Continue reading "Massachusetts Supreme Judicial Court holds that RMV documents are testimonial requiring the opportunity for Confrontation under the Sixth Amendment. " »

The Patriot Ledger is reporting on so-called "drug recognition" experts and the training they undergo, which reportedly allows them to spot those driving under the influence of drugs in Massachusetts.

Brockton drunk driving defense lawyers treat such "experts" with the same skepticism with which we treat field sobriety testing. The results are nothing more than an officer's opinion about whether or not you are under the influence. When you take into account the fact that the officer's job is to gather evidence of your guilt, the chances of a driver not being found under the influence are somewhere between slim and none.

The report indicates 77 officers in Massachusetts have been "specially certified" to spot signs of drivers impaired by drugs. The certification includes two weeks of classroom training and a 12-step evaluation process. The process used to take as long as six months.

The National Highway Traffic Safety Administration is pushing for the crackdown on drivers suspected of operating a motor vehicle under the influence of drugs. The government reports nearly 1 in 5 drivers killed in crashes in 2009 tested positive for drugs. That's up from 13 percent in 2005.

However, even the federal government describes the process of arresting and prosecuting such offenders as "evolving."

"While it's clear that science and state policies regarding drugs and driving are evolving, one fact is indisputable. If you are taking any drugs that might impair your ability to drive safely, then you need to put common sense and caution to the forefront, and give your keys to someone else," NHTSA Administrator David Strickland said. "It doesn't matter if its drugs or alcohol, if you're impaired, don't drive."

The federal program has trained more than 1,000 instructors and 6,000 police officers in 46 states. Now, Massachusetts sends officers to training in Arizona, which is completed in as little as a week.

The Patriot Ledger reports the feds are not putting their money where their mouth is: While announcing the renewed emphasis on catching drugged drivers in December, the government slashed funding grants for such training by 60 percent this year.

Currently five officers are certified in Bridgewater, East Bridgewater, Stoughton and Middleboro. Five others are expected to be certified in time for the July 4th weekend.

Continue reading "Allegations of DUI Drugs in Massachusetts Best Handled by Aggressive DUI Defense Attorney" »

A Massachusetts Fourth Offense OUI conviction was upheld by the Appeals Court in the case of Commonwealth v. Russell Beaulieu, decided on March 18, 2011. The Beaulieu decision also involved the issue of refusing field sobriety tests which was the subject of an earlier blog.

In the Beaulieu case, the Massachusetts DUI lawyer argued that because the defendant was charged with a Fourth Offense drunk driving charge and the charge of operating with a suspended license because of an OUI conviction that the court should bifurcate the counts of the criminal complaint in order to ensure the defendant a right to a fair trial.

Ordinarily, in a charge of a Second or Third DUI, the jury does not learn of the prior convictions. The jury decides whether the driver operated under the influence of alcohol and in a separate proceeding either a judge or the same jury decides the number of prior offenses. Because of the charge of operating on a suspended license for OUI, the jury learned of the prior conviction.

The Massachusetts Appeals Court did not address the obvious prejudice to the defendant in refusing to severe the counts for trial, but held that the evidence of the prior conviction was necessary to prove the Count of operating on a suspended license for OUI. Additionally, the Court noted that the jury was properly instructed on the purpose for which that evidence was offered.

The Appeals Court distinguished the reason for the separate trial on the number of prior DUI offenses because it held that in those situations the court was dealing with a sentence enhancement and not an element of the offense.

As a Massachusetts DUI attorney, I would expect the Massachusetts Supreme Judicial Court to grant further appellate review. While courts do not like to severe counts of a criminal complaint because it is more time consuming for the court, here, that was required to preserve the defendant's Sixth Amendment right to a fair trial. Having heard that the defendant had a prior OUI offense and continued to drive, the defendant was clearly prejudiced in front of the jury regarding this count.

While the defendant may not have been willing to accept a plea on the Operating on a suspended license charge, as it would have involved jail time, it would have been a way to avoid the prejudice of this evidence coming in at the time of trial. However, it is unfair to require a defendant to surrender his right to a jury trial in order to obtain a fair trial. In this case, the only avenue will be an appeal to the SJC in the hopes that the highest court in Massachusetts, reverses the conviction and orders a new trial.

Continue reading "Fourth Offense Massachusetts OUI conviction upheld by the Appeals Court" »

A Massachusetts DUI charge will almost always require a trial in order to avoid a DUI conviction. While it is possible that a prosecutor could dismiss a Massachusetts drunk driving charge, it typically does not happen as the district attorney's office in each county has policies against dismissing a Massachusetts OUI charge. In other States, such as Georgia and in Rhode Island, it is common for prosecutors to reduce a charge of drunk driving to reckless driving when the case is not particularly strong for the Government. As a Drunk Driving Lawyer in Massachusetts, it would be rare for a DUI to be dismissed even if the case is a weak case for the Commonwealth.

In the case of Derek Lowe, his attorney William Head, who is one of the top DUI lawyers in the United States, was able to persuade prosecutors to reduce the charge to reckless driving based in part on a cruiser camera video showing that Lowe performed extremely well on field sobriety tests. In a Massachusetts DUI charge, most police departments do not have cameras in the cruiser that show how someone performed on field sobriety tests. In fact, in OUI charges in Bristol and Norfolk county, none of the departments have cruiser cameras. The police departments that most frequently have video and generally high quality video tend to be in Worcester County. In some cases, these videos can provide strong evidence that a motorist was not under the influence or that the field sobriety tests were not performed as badly as the officer claims in the police report.

Continue reading "Can a Massachusetts DUI charge be reduced to reckless driving " »