Massachusetts DUI Attorney Blog

As the Massachusetts DUI Attorney Blog recently reported, former NBA player and ESPN analyst Jalen Rose was sent to jail for 20 days in response to a March 11 DUI accident in Michigan.

His attorneys argued that the sentence was more excessive than sentences handed down in other DUI cases, both in Michigan and throughout the nation. A new report by USA Today shows that the attorneys are correct -- where a person is arrested for DUI makes a huge difference about what type of sentence a person may receive.

But also, who the person hires is important. Hiring an experienced Attleboro OUI Attorney who knows the system and has been defending clients for years can be a critical factor in how a case is handled and the sentence a defendant receives. Obviously, the facts of the case vary, but the penalties for OUI in Quincy and throughout Massachusetts can be steep:

• Up to two and a half years of incarceration


• Up to one year driver's license suspension


• Fines and fees


• Completion of a self-funded alcohol education course

But it's different in Massachusetts than in other states, the USA Today article reveals that not only do judges use their discretion on a case-by-case and city-by-city basis, but that states vary in the penalties for even first-time DUI defendants.

Experts cited in the article believe that jail time is less of a deterrent for repeat offending than sanctions such as the ignition interlock device, which includes a tube that convicts must blow into in order to start the vehicle. If the device measures higher than the state's .08 blood-alcohol level content, it won't start.

Rose was arrested in March in the Detroit suburb of West Bloomfield. Research shows that had he been arrested in other area cities he likely wouldn't have faced any jail time. Rose crashed his Cadillac Escalade on March 11 and was arrested that day.

The case shows how different sentences can be for DUI, a crime that was responsible for 12,744 traffic deaths in 2009, according to the National Highway Traffic Safety Administration. FBI statistics show that DUI is easily the most commonly filed charge, with 1.4 million people arrested each year for it.

Alaska, Tennessee and Georgia are among the states with mandatory jail time for first offenders, locking up defendants for three, two and one day, respectively. California, Connecticut and Indiana, however, don't require jail time for first-time offenders.

In Wisconsin, a first-time offense for DUI isn't even a crime. It's a civil infraction that results in a ticket.

"There are no set guidelines on this. There's no national standard on this," said Alex R. Piquero, a criminology professor at the University of Texas-Dallas, who has studied drunken driving for more than 20 years. "There is a lot of discretion. It's like a ref on the football field. Everyone holds on every play. Which one is the most egregious of the offense?"

Yet the trend is evident: Politicians continue to pass tougher DUI laws each year. We don't know what the penalty for conviction will be next month or next year. But we can assume the sanctions will be more severe than they are today. Just one more reason it's critical to fight DUI charges.

Continue reading "Jalen Rose Sentence Shows Disparity Between States for DUI Convictions" »

Jalen Rose, a 13-year NBA guard and current analyst, was sentenced to 20 days in a Michigan jail recently following a March DUI crash, the Detroit Free Press reports.

It seems like celebrities charged with crimes sometimes get lenient sentences compared to everyday people. But in this case, the judge went out of her way to send a message, knowing that the media would be picking up the story.

And in more in more cases, DUI defendants are facing serious penalties -- regardless of who they are. OUI penalties in Massachusetts can be complicated by accidents, previous convictions or other charges. Unlike other misdemeanor offenses, OUI in Massachusetts carries a range of penalties most misdemeanor charges don't require. And that's why hiring an experienced Massachusetts OUI Attorney is critical.

Consider the possible penalties for even a first-time DUI offender in Massachusetts:

• Up to two and a half years in the House of Correction
• Up to one year driver's license suspension
• Completion of an alcohol education program
• Possible 1 year probation sentence

And a conviction is expensive. By some estimates, a drunk driving conviction can cost as much as $20,000, counting fines, lost work, court costs, jail time, treatment, probation and skyrocketing insurance premiums. Most misdemeanor charges are penalized by days to months in jail without all the other possible penalties. But lawmakers have used their positions to continually enhance the penalties against these those accused of driving under the influence of alcohol or drugs. .

According to the news article, Rose was arrested March 11 after he crashed his Cadillac Escalade in a town outside Detroit. He registered a .08 blood alcohol content level on a preliminary breath test at the scene and later registered a .12 blood alcohol content in a blood test.

Under Michigan law, .08 is legally drunk. He pleaded guilty in May to one count of driving while under the influence, a misdemeanor in Michigan. Rose's attorneys believe the judge abused her power because a newspaper analysis showed that most judges in metro Detroit and nationwide sentence first-time offenders to time served or a few days in jail if their blood-alcohol level is about .17.

What should be noted are a mistake Rose made as well as a possible area of defense. According to the article, Rose blew a .08 when given a breathalyzer test. In Massachusetts, refusing a breath test can result in a driver's license suspension, but it also denies the prosecution some key evidence against the defendant.

There are several defenses to a breath test. A breathalyzer is a device that has a tube at the end and is supposed to measure a person's blood-alcohol content level. But the devices can only estimate a person's BAA because the devices are inherently faulty. There have been problems nationwide regarding reliability of these devices.

The article also states he was given a blood test. It's possible for a defendant to refuse to provide these tests, but law enforcement officers will sometimes seek a warrant from a judge in order to force the test. This is particularly true when an accident is involved. An experienced and aggressive Massachusetts OUI attorney can fight to keep this evidence from making its way to trial.

Continue reading "ESPN Analyst, Former NBA Player Jalen Rose Sent to Jail for DUI" »

In defending charges of DUI in Massachusetts, one of the field sobriety tests that appears frequently in police reports and causes the most confusion for people arrested for drunk driving is the Horizontal Gaze and nystagmus field sobriety test, sometimes referred to by those arrested as the pen test.

It is understandable why this test causes some much confusion because it does not appear to have an scientific basis or reliability. You are on the side of the road, cars going by, and the officer is waiving a pen quickly in front of your face. If you stopped and asked most officers what they are looking for, many probably could not correctly explain the correct procedure in administering the test.

Fortunately, the HGN test is typically not admitted into evidence at a Massachusetts DUI trial as a result of the decision of the Massachusetts Supreme Judicial Court in Commonwealth v. Sands. The HGN test can be admitted; however most prosecutors do not attempt to admit the test into evidence.

In some cases, I have used the HGN test to discredit the officer and demonstrate that the investigation was not properly conducted, so what are the signs that someone exhibits nystagmus.

The first clue that the officer looks for is lack of smooth pursuit. The officer is suppose to start with the pen in the center and move it to the left, taking two seconds out and two seconds back for a complete pass and following the same procedure for the right eye. The idea is that the officer is looking to detect any involuntary jerking of the eye, called nystagmus of which alcohol is one of many causes. Click here to read about court decisions regarding the HGN test.

The second clue is referred to as distinct and sustained nystagmus at maximum deviation. For this clue, the officer is suppose to move the pen until the eye has gone as far to the side as possible. The officer is then required to hold the pen in this position for a minimum of four seconds and observe to determine if there is an involuntary jerking of the eye. In many cases, the officer does not recall that the correct administration of this part of the test requires that the pen be held for four seconds at maximum deviation.

The final clue on the HGN test is called onset of nystagmus prior to 45 degrees. The officer is suppose to start with the stimulus in the middle and move it toward the right shoulder at a speed that would take four seconds to reach the edge of the left shoulder. In many cases, when officer perform this test, they are rapidly moving the stimulus contrary to the clear instruction of the police training manual.

With this clue, the officer is looking to see if there is any involuntary jerking of the eye prior to 45 degrees and is suppose to hold the stimulus to verify that it continues.

Although this test is rarely used in Massachusetts, according to the National Highway Traffic Safety Administration Study, the HGN test is the most accurate of the field sobriety tests at 77% reliable, as compared to 68% for the nine step walk and turn and 65% for the one leg stand. The head Police officer for the Massachusetts State police who speaks occasionally at drunk driving seminars for lawyers has repeatedly indicated his confidence in the reliability of the test. I have had an officer testify that he has never had a suspect fail the HGN test who was under the legal limit. During that hearing, the officer demonstrated how he conducts the test and did it in a very rapid fashion contrary to the careful and deliberate process outlined in the police manual.

Continue reading " OUI lawyer in Massachusetts discusses HGN field sobriety test" »

A Hanover man, Harry Bennett, Jr. was convicted of a 4th Offense Massachusetts DUI after a trial in the Quincy District Court according to a news report in the Patriot Ledger. The trial judge sentenced the defendant to the maximum sentence of 2.5 years in the house of correction on the 4th Offense DUI charge and also imposed an addition one year on and after sentence on the charge of driving with a license suspended for OUI. The 2.5 year sentence on a four offense OUI charge is not surprising following a trial. Massachusetts DUI law then requires that the additional time for operating with a license suspended for OUI be imposed on and after the OUI portion of the sentence.

A Fourth Offense DUI charge in Massachusetts carries a ten year license loss; additionally, if the breathalyzer was refused in the case, the refusal itself with three prior convictions would result in a lifetime loss of license. Accordingly, to save his license from a lifetime ban, assuming no other suspensions, Bennett would have had to prevail on a refusal hearing and through the appeal process in the district courts challenging the refusal suspension or would not had to be found not guilty on the 4th Offense OUI and have the judge allow a motion to reinstate his license. Even after a not guilty, on third and fourth offenses, it would not be uncommon for a judge to deny a motion for reinstatement, citing the alleged driving violations and the safety of the public as grounds for denying the motion.

Continue reading "Hanover man convicted of 4th Offense Massachusetts OUI sentenced to 3.5 years " »

A Marshfield man is being accused of operating a power boat while he was drunk and sending he and a passenger overboard in an accident, The Patriot Ledger reports.

Some would argue that boating under the influence in Massachusetts is as dangerous as operating a vehicle under the influence. While vehicles can certainly be dangerous, so can boats and the water presents the possibility of drowning if an accident occurs. However, enforcement is sporadic, uneven and often unfair. Whether on the water or on the road, police must still prove their case. Many of the same problems exist with breathalyzers, probable cause and other evidence. Either case requires an experienced defense. If you are arrested and charged with BUI, contact an experienced Massachusetts BUI attorney today.

In the Marshfield case, 22-year-old Justin McDonald pleaded innocent to a single charge of BUI in Plymouth District Court. He is free on $10,000 bail.

According to the newspaper, McDonald and another man were boating near Scituate and that he was "a little buzzed, but I was pretty good, not drunk," a police report states. He apparently told police he had consumed about 10 beers prior to the incident, the newspaper says. When a defendant makes damaging admissions, often a defense lawyer will file a motion to suppress to attempt to have the statements excluded from evidence at trial.

After leaving a meeting with other friends, McDonald said at one point the boat's steering wheel pulled uncontrollably to the left, throwing he and his friend, 23-year-old Zac Woods of Marshfield, overboard.

After McDonald went into the water, he saw that the boat was running in a circle and realized he could be injured if he got too close. A kayaker rescued McDonald, but the article doesn't state how Woods fared.

Police boarded the boat after it stalled and noted that the throttle was in the full-speed position and there was an empty 18-pack of Coors Light beer and open cans of Jeremiah Weed, a bourbon whiskey-based drink in the boat. McDonald declined to submit a breath test.

In Massachusetts, BUI can be punished as severely as OUI. Your driver's license and boat registration will be suspended for a year. If a person is seriously injured in a boating accident where alcohol was consumed by the captain, a person can face up to 10 years in prison and a $5,000 fine.

Be safe on the water, but if you're arrested, seek an attorney who will stick by your side, assume you are innocent and work hard to prove it in a court of law.

Continue reading "Marshfield Man Free on Bail As He Awaits Massachusetts BUI Trial" »

Massachusetts OUI arrests are on the rise over the last five years according to a report in the Boston Herald. State police claims that the increased numbers are the result of increased enforcement by the police, including the use of sobriety checkpoints, also known as DUI roadblocks.
Some contend that the higher number of arrests warrants increasing Massachusetts OUI penalties, including a proposal that would require the ignition interlock device for first time offenders.

Efforts to gauge the number of drunk drivers on the road based on arrests can be misleading. The number of Massachusetts DUI convictions is substantially lower than the arrest total. Further, it is easy to get arrested for drunk driving in Massachusetts. While it is not illegal to have a drink and drive home, chances are slim that a police officer who pull someone over and smell and odor of alcohol will make an arrest. Field sobriety tests are test designed for failure, many cannot do without consuming any alcohol and are generally used to justify an arrest decision that has already been made.

It is understand that police will error on the side of making an arrest. No officer wants to take the chance with his or her employment prospects by incorrectly releasing a drunk driver back onto the road. Police officers naturally error on the side of making an arrest, leaving it to the courts, to resolve the ultimate issue of whether a motorist was under the influence of alcohol. Statistics that simply reference the number of arrest can be misleading. A more accurate depiction of enforcement efforts would be to review statistics regarding conviction rates.

40 people were arrested for drunk driving in Austin, Texas on the first week of what is referred to as a No Refusal Weekend. A No Refusal Weekend is when the State has a judge on call to issue a search warrant for a blood test in the event that a motorist refuses to submit to a breathalyzer test. In order for a judge to issue a search warrant for a house or residence, a judge most have probable cause to issue the warrant under the Fourth Amendment to the United States Constitution. By establishing a blanket policy of No refusal weekend and having an on call judge, the Texas policy is eroding the rights of its citizens and turning the warrant requirement into a mere formality, as the mere smell of alcohol and red eyes late at night should not be enough to justify such an evasive procedure.

As a Massachusetts DUI attorney, I believe the No Refusal Weekend DWI policy is a serious deprivation of the protections of the 4th Amendment to the Constitution.

This is Massachusetts DUI lawyer, Michael DelSignore Second blog on field sobriety testing as part of a five part blog series that will be published on this Blog.

The One Leg Stand field sobriety test is the most difficult test given by the police because many people cannot perform this test even if no alcohol is consumed. Accordingly, the idea that failure on this test means someone is under the influence of alcohol is flawed from the start. Even when given under ideal conditions, the test is only 65% reliable according to the studies regarding this exercise. I have attached a link to a field sobriety test student manual used by police officers.

The One Leg stand has the following clues that the officer is suppose to observe:

• Sways while balancing
• Using arms for balance
• Hopping
• Puts foot down

If a person exhibits two or more clues, that is considered a failure. Though not listed as clues, an experienced Massachusetts OUI attorney will also point out other factors showing good mental ability and coordination.

Like the nine step walk and turn, the one leg stand has an instruction phase. Accordingly, when a person maintains balance during the instruction phase, and starts the test at the appropriate time, those factors showing that the motorist can follow instructions demonstrating, a normal mental ability. Typically, there is no mention of any difficulty maintaining balance during the instruction phase. The idea behind this test is to stress for the jury that the motorist had normal balance other than when required to perform the difficult exercise of balancing on one leg.

While the test requires someone to balance until the count of 30, most jurors probably would consider the test as successfully completed with someone who balances for a much shorter period of time. Further, the inaccuracies of the scoring can be pointed out as typically the officer will not put the details in the report that justified the conclusion. One of the clues on the one leg stand is that a person cannot use their arms for balance; however, the training of the officer states that the arms have to be more than six inches from the body. In many cases the details of how someone performed are missing from the police report.

If you read your police report and see that the officer found you failed the one leg stand, your case can still be won. In almost all cases, the police will claim that a motorist failed field sobriety tests. The one leg stand is the most difficult exercise to perform; even the police training manual, states that some people cannot perform the test, including someone over 50 pounds overweight or over the age of 65. As a result, the officer would have to admit that the test is easier for someone younger and in shape, then for someone older, who has been working throughout their life and may have physical injuries. In fact, the early versions of the police training manual stated that some people could not perform the one leg stand test even without consuming any alcohol; this language has since been removed from the manual.

Techniques to minimize the one leg stand at trial:

• Point out that the motorist had no trouble with balance when on two feet, listening to the instruction to the one leg stand, no trouble with balance getting out of the car, did not stumble when walking on the nine step walk and turn, and had no difficulty with balance during booking.
• Stress that this is a physical fitness test and is one size fits all, the officer gives the same test to a college student as a carpenter who has spent years working doing manual labor. The older person, with physical aliments, is disadvantaged from the start.
• underscore that even the Government study indicates that the test is only 65% reliable, under perfect conditions. A 35% failure rate should raise a reasonable doubt.

Continue reading "Drunk Driving Lawyer in Massachusetts discusses attacking the one leg stand field sobriety test at a DUI trial" »

Massachusetts OUI motor vehicle homicide charges were brought against Monica Mitchell out of the Falmouth District Court after police allege that she struck and killed a 16 year-old boy and failed to stop after the accident, according to the Boston Herald news report.

According to news accounts, the police received a report of a car striking a boy and taking off after the accident around 10:20 pm. Police saw the defendant in her vehicle near the accident scene with significant damage to her vehicle and stopped her.

Key to Mitchell's defense will be excluding statements that she allegedly made to the police that she consumed four glasses of wine while watching fireworks at a friend's house. The news accounts state that Mitchell appeared confused and said that she thought she hit something but was not sure. The police allege that Mitchell was asked to recite the alphabet and got through R before saying the letter X and that Mitchell's car contained a cup of wine in the center console.

As a Massachusetts DUI lawyer, one method of defending this case would be to challenge the admissibility of the statements made by the defendant as violating her rights under Miranda v. Arizona. Since the police clearly suspected that the defendant was involved in a hit and run accident, an argument could be made that the defendant should have been advised of her Miranda rights as she was in custody at the time of the police questioning. Even if this motion is unsuccessful, it would assist the defense by setting forth the likely testimony at the time of trial.

One possible weakness in the Commonwealth's case is the lack of field sobriety testing at the scene. In some cases, officers will make a quick and incomplete investigation. Here, the news reports mention only one field sobriety test and do not contain any details of Mitchell being unsteady on her feet, staggering or having trouble with balance. Additionally, drunk driving cases involving accidents often involve accident reconstruction testimony which could come from either the Commonwealth or the defense. One issue in the case will be identifying the location of the impact and where the boys were walking as well as the lighting conditions in the area. The severity of the erratic driving is important both in regards to a defense at trial and mitigation should a disposition be sought by the defendant.

A Massachusetts OUI motor vehicle homicide charge carries with it a minimum mandatory jail sentence of one year house of correction in district court. In this case, involving a 16 year old victim, the Commonwealth could seek an indictment and move the case to superior court, changing the sentence range from 2.5 years maximum in district court to a 15 year maximum sentence in superior court.

A second Offense Massachusetts drunk driving charge was brought against a Hingham man, according to a news report in the Patriot Ledger. The news report indicates that the defendant did not stop at the scene of the crash but within the area of the crash as he was found near the accident scene. The motorist was charged with leaving the scene of property damage.

Leaving the scene of property damage, is a common charge that sometimes accompanies a Massachusetts OUI charge when a defendant is not at the scene of an accident. However, in some cases, as in the Patriot Ledger news report, the charge is brought even though a motorist is within the vicinity of the accident. Depending on the circumstances of the accident and the road conditions, the charge could be defended on the grounds that there was no intent to leave the scene, especially when police easily locate a defendant around the accident scene.

The news account also indicates that the motorist claimed he should not have been driving and refused field sobriety tests. While the refusal to take field sobriety tests is inadmissible at the time of trial under the Massachusetts Constitution, the statement that the motorist should not have been driving could be admissible. A Massachusetts DUI lawyer defending this case could file a motion to exclude this statement from evidence. A motion to suppress statements can be filed to exclude incriminating statements; these motions are heard prior to trial and allow an attorney to determine prior to trial the strength of the Commonwealth's case.

Fighting a Massachusetts DUI charge at trial often involves contesting the reliability of field sobriety tests. To help readers better understand how these tests should be performed, what clues to look for and way to challenge these exercises at trial, I am going to write a series of blogs on the three standardized field sobriety tests, the nine step walk and turn, one leg stand, horizontal gaze test, other non-standardized tests that are used by police. The final Blog in this series will discuss what the police training manuals tells the officer to look for when observing your driving and making the initial contact with you at the scene of the motorist vehicle stop. In this Blog, I will discuss the nine step walk and turn field sobriety test.

The walk and turn field sobriety test is an exercise that many people perform very well on even when arrested for drunk driving in Massachusetts. While the officer will likely say you failed, the purpose of this blog is to explain to you what the officer should have been looking for and how the results of this test can be used in front of a jury to argue that you were not under the influence of alcohol and to achieve a not guilty verdict.

A police officer is suppose to score the nine step walk and turn according to his police training, which is based on the National Highway and Detection Field Sobriety Test Manual. I have a copy of these manuals for the various officer; there are about four different manuals depending on when an officer was trained; however, the testing procedure is basically the same for each manual. Click here to see a copy of a police training manual.

What does an officer look for on the nine step walk and turn.

• Cannot keep balance during the instructions; this is maintaining the heel to toe stance during the instruction phase
• Starts before the instructions are finished
• Stops while walking
• Does not touch heel to toe: This is an important clue because some officers make the test more difficult to perform by not recognizing that the feet do not have to touch. The training manual of the officer indicates that there can be a one-half inch space. Most officer do not recall from their training that the heel and toe do not have to touch for the test to be performed correctly.
• Steps off of the line
• Uses arms for balance: This is another clue that requires the arms to be more than 6 inches from the body. The arms do not have to be glued to the person's body. Most officers do not tell the suspect that the arms do not have to be stuck to the person's side.
• Improper turn
• Incorrect number of steps

It is considered a failure on the nine step walk and turn if two or more clues are present. However, the test is only deemed 68% reliable if given under ideal conditions. There are many ways to attack the reliability of the exercise based on medical conditions, weather conditions or conditions of the roadway where the test was performed, but for the purpose of this Blog Post, I will discuss how taking the officer's training, this exercise can be used to help demonstrate normal coordination and mental ability, which is vital to winning a DUI trial.

In using this test at trial, one common method for a Massachusetts DUI lawyer is to change the jury view of the scoring on the test. Many reports do not contain any details of a motorist stepping off the line. Typically, there is no designated line, making the test harder. Given there are nine steps forward and nine back, one way to look at the scoring is to divide up each of the clues and base the scoring on a maximum of 18 points for each part of the test done correctly. This method of changing the scoring on the field sobriety tests is stressed at conferences held by the National College of DUI Defense.

Missing heel to toe: in some reports the officer states that the person missed heel to toe on 2 or 3 steps; if this is the case, the idea is to show the jury that overall the motorist did very well, scoring 16 for 18, on an unfamiliar test, under difficult conditions.

Taking the correct number of steps is also a good opportunity to demonstrate good mental ability, because it requires the person to count while performing a physical exercise.

Since the nine step walk and turn has so many different components and potential places for a defendant to make a mistake on the exercise, it provides a DUI lawyer with many opportunity to stress positive aspects of the performance that demonstrate good ability to follow instruction, to think clearly and to demonstrate good coordination.

When looking at your police report in your case, it is important to understand how the exercise is to be scored, what other clues the officer could have found, to evaluate how this exercise will be used at trial.

Continue reading "Massachusetts DUI lawyer discusses the Nine Step Walk and turn field sobriety test" »