Massachusetts DUI Attorney Blog

The uncle of President Barack Obama was recently arrested and charged with DUI and is now being held without bail on an ICE detainer, Fox News reports

Being arrested and charged with OUI in Framingham can be frightening for anyone, especially an illegal immigrant.

One of the more important tasks facing any noncitizen is to understand the immigration consequences of a criminal conviction. Generally, a first offense Massachusetts OUI will not be a bar for citizenship for someone lawfully in the country. However, it is always important to individually assess any immigration consequences of a plea to a drunk driving charge and to understand those consequences if convicted after trial.

Onyango Obama, 67, was arrested in Framingham after police allege he nearly hit a police cruiser with his SUV after making a rolling stop through a stop sign.

Onyango Obama is originally from Kenya and is the half brother of the president's late father. He has pleaded not guilty and yet is being held on a U.S. Immigration and Customs Enforcement detainer. Court documents cited by Fox News state that he previously had a removal order or a deportation order active.

Fox News could not determine his immigration status, but removal orders are typically for people living in the country illegally. Few government sources are commenting on the situation.

According to police, Obama was charged with operating under the influence of alcohol, failure to yield the right of way and negligent operation of a motor vehicle. According to police, the officer barely avoided the SUV and was forced to slam on his brakes to avoid a wreck. The 67-year-old allegedly told police at first that he hadn't had anything to drink but later said he had two beers.

Police said he failed several field sobriety tests and blew a 0.14 on a breath test, nearly twice the state's .08 legal limit.

In any case of OUI in Framingham, regardless of the status of the driver, there are many defenses. They start with the police officer or law enforcement officer who made the stop. First off, what an officer observes, if witnesses or dash camera footage can dispute it, can go a long way to showing the Commonwealth doesn't have proof beyond a reasonable doubt that the crime occurred.

Other factors, such as weather conditions or human error, can also affect an OUI case in Boston. Breathalyzers, devices that are designed to give a blood-alcohol level output of a driver, have been known to be faulty and can be affected by weather conditions. Condensation that builds up inside can alter a reading. Manufacturing defects or uncalibrated machines can also lead to arrest, but be exposed at trial for an acquittal.

There are many ways for a case to be fought in court. The public sometimes believes that an arrest is proof positive that a crime has been committed, but that's only the beginning.

Continue reading "President Obama's Uncle Charged with OUI in Framingham, Massachusetts " »

In this series of Blogs, I have attempted to describe all aspects of a Massachusetts drunk driving charge and how the case will be defended by a Massachusetts DUI lawyer. Prior blogs, have addressed the HGN test, nine step walk and turn, one leg stand test and nonstandard field sobriety tests. This post will address the driving factors and observations that the officer is looking for and how these can be used to form your defense. This is the final post in this series.

A critical part of defending your case will involve the reasons why the officer stopped your car. If there was no dangerous or erratic driving, you already have the framework for a strong defense of your case. The reason is that the purpose of the field sobriety tests is to determine your ability to drive safely and if there is no erratic driving than your driving itself provides part of the proof that you were not under the influence of alcohol.

What are some of the clues that a police officer looks for regarding the driving that will be used to demonstrate you were under the influence of alcohol:

The National Highway Traffic Safety Administrations lists the driving clues that officer may find. I have attached a link to a police field sobriety testing training manual.

Of significance regarding this list, is that speeding is not a sign that a motorist is under the influence of alcohol.

Here are a list of the driving clues:

• weaving


• straddling a lane line


• turning with a wide radius


• drifting


• almost striking a vehicle or object


• stopping problems, too far, too short, or jerking


• accelerating or decelerating rapidly


• driving too slow


• slow response to traffic signals

I generally break up the driving between the initial observations of the officer and the driving once the police officer puts on the blue lights. Police officers are trained to think of these two incidents as separate driving sequences.

The officer's training when the blue lights go on is referred to as the stop sequence. The officer is taught to view this as an important point during the encounter to determine whether a motorist is under the influence of alcohol. The signal to stop divides a motorist's attention between paying attention to the blue lights to stop and pulling over safely. The idea is that the signal to stop divides a driver's attention. The field sobriety tests, like the nine step walk and turn and one leg stand are designed to achieve a similar purpose of dividing a driver's attention. Even though the officer may claim you failed field sobriety tests, the driving itself is evidence of good mental ability and good coordination skills necessary for driving.

Accordingly, when a police report reads that a driver pulled over immediately after the blue lights go on, an effective cross examination by a Massachusetts DUI attorney will emphasize that this demonstrates that the motorist was not under the influence of alcohol. To listen to a further explanation of this defense, click here for a video explaining how this idea is used at trial.

Continue reading "Massachusetts OUI Lawyer explains drunk driving defenses based on police training" »

A clerk magistrate hearing has been scheduled in the case of Dina Fonseca who is alleged to have struck a pedestrian causing death and left the scene of the accident, according to a report in the Herald News. The defendant surrendered to the police when she learned that the police were looking for the driver of a Lexus RX 300 SUV.

In a charge of leaving the scene of an accident, death resulting, the Commonwealth needs to establish probable cause that the motorist was involved in an accident, knew that an accident occurred and left the scene without making her identity known.

A clerk magistrate hearing is a hearing that is scheduled to determine if there is enough evidence to proceed with criminal charges. If the clerk finds probable cause, the case would proceed to arraignment in district court. A Fall River Criminal lawyer could file a motion challenging the probable cause and request a judge to dismiss the matter for lack of probable cause.

At the clerk hearing, a Fall River criminal attorney could present evidence to demonstrate that the defendant was unaware that she struck a pedestrian and could attempt to support that evidence with expert testimony and circumstantial evidence. According to prior news account, the defendant claimed that she thought she struck an animal and did not believe that she struck a person. It appears as though sixty-eight year old Lydia Ciesla was crossing Route 6 at appropriately 9:30 at night. Given the hour and location of the accident, the fact that the defendant drove a large SUV, this circumstantial evidence would bolster the defendant's claim of believing she struck an animal.

A defendant can testify at a clerk magistrate hearing in Massachusetts; however, given the low standard of proof at a clerk hearing, in many cases a defendant will not testify at a clerk's hearing.

State representative Geoffrey Diehl of Whitman is one of the co-sponsors of a bill that would increase penalties for repeat traffic offenders. The current version of Massachusetts law governing repeat traffic offenders is referred to as the Habitual Offender Statute and can be found at Chapter 90 Section 22F of Massachusetts General Laws. Click here to read the statute. Under this statute, any driver that incurs three criminal motor vehicle convictions within five years faces a four year license loss while any driver with 12 surchargable events within five years also faces a four year license loss.

The new legislation was prompted when Paul Baran of Taunton was charged with leaving the scene death resulting in Taunton District Court. According to prosecutors at the arraignment, Baran had a record of numerous traffic violations and criminal motor vehicle offenses. The prosecutor claimed that the record was one of the worst he has seen.

The proposed legislation would create a tiered system for suspensions of habitual traffic offenders. Under the new level two category, drivers who were already habitual traffic offenders would face a five to 15 year suspension for future violations. A level three category would create a lifetime ban.

Continue reading "Massachusetts legislatures propose increasing punishment for repeat traffic offenders " »

An intensive Massachusetts DUI patrol has been set up by State police during the Labor day holiday weekend. Police have dubbed the crackdown, as driver sober or get pulled over, according to a report in the Attleboro Sun Chronicle. The increased patrol in the Attleboro and Bristol County area is consistent with increased DUI enforcement throughout the country.

The program is funded by a grant from the State Office of Public Safety and Security. Police from the following towns within Bristol County are joining the State police in the increased patrol, including, Attleboro, North Attleboro, Mansfield and Taunton. Police departments indicate that they will add patrol officer and will aggressively look for impaired drivers.

While the patrol will likely result in many drunk drivers being taken off of the road, in some cases, with police officer trained and expected to make Massachusetts DUI arrests, being nervous and having trouble with balance on difficult coordination exercises, will be mistaken as a sign of drunk driving. As an Attleboro DUI lawyer, I have the training an expertise to show a judge or jury when in an effort to arrest drunk drivers', police officers mistakenly arrest a responsible motorist who was not impaired by alcohol.

Continue reading "Increased DUI Enforcement in Attleboro and throughout Bristol County" »

The Massachusetts Appeals Court in the case of Commonwealth v. Addy, decided on July 26, 2011 addressed the issue of whether expert accident reconstruction testimonial was properly admitted in a charge of DUI Motor vehicle Homicide.

The Massachusetts drunk driving lawyer in the case argued that the court should exclude the accident reconstruction testimonial of the Commonwealth. The case involved the following circumstances.

The defendant Matthew Addy was alleged to have struck a motorcycle operate while being under the influence of alcohol. At a motion to exclude the expert's testimony of the Commonwealth's accident reconstructionist, a police officer, the officer testified that he was dispatched to an accident shortly after it occurred. He observed the defendant's vehicle and the decedents motorcycle in the soutbound lane of travel. The decedent was rejected from the motorcycle and struck the windshield of the defendant's car. The trooper conducting the accident reconstruction observed gouge marks, scratches and scuff marks on the southbound lane. The trooper took photographs and spoke to a witness that indicated that the defendant traveled over the center line prior to the collision. The accident reconstruction reported stated that the accident was caused by the defendant's failure to stay within the mark lanes.

The Massachusetts DUI lawyer argued that the testimony of the accident reconstruction expert should be excluded from evidence because the expert did not utilize scientific method, analysis or mathematical calculations. Typically, in a Massachusetts DUI homicide case, an expert will make mathematical calculations to provide an expert opinion on the speed of the vehicles involved in the accident.

The Appeals Court held that the trial judge did not error in admitting the expert's testimony and further rejected the argument that the judge committed error in not holding a Daubert-Lanigan hearing to determine whether the expert should be allowed to testify prior to trial.

In Massachusetts DUI homicide cases or negligent homicide charges, challenging expert testimony and presenting an opposing expert viewpoint regarding the cause of an accident is often critical in defending these cases. These cases require that you hire an experienced lawyer immediate to begin investigating the case and framing your defense. In some cases, a clerk magistrate hearing will be held prior to the issuance of the complaint, providing an opportunity to avoid having a criminal charge filed. These hearings are usually scheduled within three to four weeks of the date of the incident so it is important to prepare a defense immediately.

My goals as a Boston DUI lawyer in creating a series of blogs on field sobriety testing is to help those arrested, reading their police report for the first time, understand what to look for and how these exercised will be attacked at the time of trial. There are three field sobriety tests that are considered standardized and have been studied by the Government for reliability. These tests are

• Nine Step Walk and Turn
• One Leg Stand
• HGN test

Officers typically use additional tests. I will discuss some of the more common nonstandardized field sobriety tests that are given throughout Massachusetts. One common test is to require the motorist to recite the alphabet. Some officers will require from A to Z while some will try to make it more difficulty by requiring the motorist to start in the middle and stop before getting to the end of the alphabet, such as C to T. It is common for officers to claim that the person missed a letter, said the alphabet too fast or too slow and slurred the letters when reciting the alphabet.

Another common test is number counting backwards, from 91 to 78 for example. This exercise has never been studied for its reliability and accordingly its relevance in proving someone is under the influence can be minimized in front of a jury.

A final nonstandardized test used is the finger to nose test. This test appears extremely foolish and shows how the officer can make up almost any exercise and say failure means that someone is under the influence of alcohol. In this exercise, a motorist is required to lean back, close their eyes and follow the officers instructions to touch either the tip of their left or right finger to the nose. Often, police reports claim that the motorist missed, hitting the side of the nose or not touching directly the tip of the nose.

In some cases, an officer will perform the three standard field sobriety tests and perform one or two additional tests; generally, the more tests the officers performs the easier it is to argue that the officer was unsure, needed more information and was having trouble deciding whether to make the decision to arrest. As a Boston OUI attorney, I argue to the jury that if the officer has trouble deciding whether to make an arrest, then the jury has reasonable doubt. In a DUI trial, proof beyond a reasonable doubt requires the jury to have an abiding conviction to a near moral certitude.

As an Attleboro criminal lawyer, a common charge that is brought in Attleboro District Court is the charge of being a minor in possession of alcohol. This is a very common charge brought by the Mansfield police after concerts at the Comcast Center and during the school year the Norton police enforce this law, particularly in the area of Wheaton College.

According to David Linton's report in the Attleboro Sun Chronicle, the North Attleboro police received a grant from the Executive Office of Public Safety and Security to reduce and curb underage drinking. While having a charge of underage drinking does not carry the risk of any jail time, the maximum penalty is a fine of $ 50.00, the real consequence is that a conviction will result in a ninety day license loss from the Registry of Motor Vehicles. I have attached a copy of Massachusetts General Laws Chapter 138 Section 34 which governs the charge of minor in possession of alcohol and provides the penalty upon conviction. Click here to read the statute. To avoid this consequence it is important to have the charge dismissed without an admission of guilt.

Continue reading "North Attleboro police receive grant to enforce laws against Underage Drinking and Minors in Possession of Alcohol" »

A man was arrested on a charge of OUI in Abington recently -- for the second time since May, the Enterprise News reports.

Being arrested and charged with OUI in Massachusetts can be a scary thought. Many people don't know where to turn and wonder what their future holds. The first thing a person should do is call an experienced Massachusetts OUI Attorney.

Mark G. Anderson was arrested in Abington after police say he had a beer spilled at his feet and several empty alcoholic containers in his back seat when he was arrested recently. He is charged with second-offense OUI, negligent operation of a motor vehicle and a marked lanes violation.

He was arraigned on the same charges in Hingham District Court on July 6. He also faced OUI charges in Hingham District Court in 2005, though the case was continued without finding, the newspaper reports.

According to police, they saw the driver swerve into the opposite lane on Brockton Avenue in a Chevrolet pick-up truck. Police observed the man with bloodshot, glassy eyes, the newspaper article states.

The man allegedly told police he had two drinks and he failed three out of five field sobriety tests. In one, he allegedly twice failed to balance on one foot. Investigators found empty beer cans and empty containers of other alcoholic beverages.

In May, he was charged with second-offense drunken driving, negligent driving and a marked lanes violation after being involved in a single-vehicle accident in Hingham that split his pick-up truck in two.

He was ordered to attend Alcoholics Anonymous meetings twice a week and isn't allowed to drink or possess alcohol or operate a motor vehicle, the newspaper reports.

In this case, the article states officers asked the driver to perform five field sobriety tests, though there are only three recognized by the National Highway Traffic Safety Administration: walk and turn, one leg stand and horizontal gaze nystagmus. In each of these tests, officers make observations about walking heel to toe, standing on one leg and following an object from side to side.

While some may think these are black-and-white tests, they are not. An officer's training or lack of training can make a big difference. As can weather conditions, whether the person is under duress (they're usually extremely nervous, at least) and physical conditions of the person. Some people have a natural imbalance, so asking them to perform tests that require balance may be unfair.

Continue reading "Scituate Man Faces Second Massachusetts OUI arrest" »