Massachusetts DUI Attorney Blog

The Beverly Hills Patch recently reported statistics for DUI checkpoint arrests in one of the nation's ritziest areas.

While on the other coast, the presentation by Lt Mark Rosen provides a window into the manpower and logistics of performing a DUI checkpoint. Rosen also attempted to provide justification for the continued use of a law enforcement tool that has little practical value.

"The main objective of the checkpoint is not to arrest drunk drivers," Rosen said. "The real objective ... is to bring DUI driving to the forefront of people's thought process."

A Massachusetts DUI defense attorney should always be called to handle such cases. DUI checkpoint arrests can be challenged on many fronts; police must conduct such roadblocks in accordance with strict guidelines. Each motorist must be treated the same. There must be a written operational plan and each officer must have the appropriate training. All of this is in addition to the more routine challenges that are part of a good defense to any drunk driving arrest.

Among the statistic provided by Rosen:

-25 to 30 officers are used to staff checkpoint operations.

-Each checkpoint costs $10,000 to operate.

-The department conducted 7 checkpoints last year.

-Of 2,200 vehicles to pass through each checkpoint -- 480 drivers are stopped and questions. Or about 1 in 5.

-An average of 1 drunk driver is arrested.

These statistics show the relative worthlessness of DUI checkpoints as an enforcement tool. One DUI arrest costs the department $10,000 and the time of 30 officers. More than 2,000 motorists were inconvenienced. Nearly 500 were really inconvenienced.

The California Department of Motor Vehicles reports more than 200,000 DUI arrests are made each year in the state. The seven checkpoints in Beverly Hills cost $70,000 and resulted in 7 arrests.

The truth of the matter is that sobriety checkpoints have not been a valid law enforcement tool in a long time. The advent of smartphones, Facebook and Twitter have spread the location of such checkpoints like wildfire.

Such roadblocks violate the rights of innocent motorists, often result in marginal or unfair arrests, and put the lives of police officers and the motoring public at risk. But they pay overtime. And they are legal.

So, as Lt. Rosen admits, they will continue to be conducted for whatever marginal public relations value they offer. But if you are arrested at one, consult an attorney and fight back.

Continue reading "West Coast Presentation Illustrates Questionable Value of Massachusetts DUI Checkpoints" »

What are the consequences when a Massachusetts OUI charge is resolved with a CWOF or continuance without a finding? This is a common source of confusion as to the meaning of a continuance without a finding when an OUI charge is resolved.

According to the Patriot Ledger, a Duxbury firefighter had his Massachusetts drunk driving case resolved in the Wareham District Court. The Patriot Ledger reports that the case is likely to be dismissed. However, it appears from the news report that the case was resolved with a Continuance Without a Finding, or CWOF, which is not the same as a dismissal of the charge.

A CWOF on a Massachusetts OUI charge is an admission that someone drove under the influence of alcohol and counts as a first offense OUI conviction. While the case eventually gets dismissed, when the probationary period is concluded, it will still show up in on an individual's record and will still count as a prior OUI conviction throughout the lifetime of the individual. The case gets dismissed in the sense that it is closed as an as open court case. However, when a drunk driving cases is dismissed, is commonly thought that the charge was thrown out by the court based on a legal challenge. When a case is resolved through a CWOF, a defendant is technically not convicted of the charge because a CWOF is not considered a conviction but an admission to sufficient facts that would support a guilty finding. However, in many respects, including when the RMV counts prior OUI offenses a CWOF will still qualify as a conviction.

Continue reading "Massachusetts OUI charge resolved with a CWOF, Continuance Without a Finding, for Duxbury firefighter " »

A 48-year-old Bridgewater woman is facing vehicular homicide charges in Massachusetts after a fatal weekend car accident in Stoughton.

Patricia Neville-Colp, also faces charges of driving under the influence of alcohol or drugs in the accident, which claimed the life of a 57-year-old Easton woman and seriously injured two others. Police say she failed five sobriety tests after her vehicle collided with the KIA in which the victims were riding.

A Stoughton DUI defense attorney will look hard at the "5 sobriety tests" the defendant allegedly failed. There are only three recognized field sobriety tests (the pen test, walk and turn and stand on one leg), though officers are fond of having motorists attempt to perform all sorts of antics. Motorists are not obligated to take these tests and the results amount to nothing more than the opinion of an officer regarding your level of intoxication. In this case, police asked her to recite the alphabet and count backwards. She also reportedly had to attempt the breath test five times, before police say she tested .13 -- above the .08 limit for drunk driving in Massachusetts.

The results of a breathalyzer can be challenged -- though a blood test is typically performed after a serious accident. And the training and conduct of officers involved will also be reviewed and may be challenged by experienced defense counsel.

But the media is reporting this woman will also have to battle previous convictions on her driving record -- which prosecutors will seek to use against her wherever possible and which the judge can't help but consider at sentencing. Fighting to keep convictions off your record can save jail time and license suspensions, as well as thousands in fines and skyrocketing insurance premiums. But where motorists really benefit is in the event of a subsequent arrest; this is never more true than when a serious or fatal accident is involved.

The Boston Herald reported that the defendant has been in seven surchargeable accidents between 1985 and 2008. She was being held on $100,000 bail and will be back in court on Oct. 11.

Fifteen marijuana cigarettes were also allegedly found in her car.

Continue reading "Driver facing Stoughton DUI Charges with Bad Driving Record " »

Those facing a drunk driving charge in Massachusetts may be confused by some terminology used in court. Some common terms of confusions are: OUI, CWOF and what is a pretrial conference.

A drunk driving charge in Massachusetts is formally known as an OUI charge, for operating under the influence of alcohol. Many states refer to the charge as DUI, for driving under the influence, DWI, for driving while intoxicated or even OWI, operating while intoxicated, but the meanings are all the same, that a drunk driving charge has been brought. To read about other state laws on drunk driving click on this link to the National College of DUI Defense.

A CWOF is formally known as a continuance without a finding. A CWOF is essentially an admission that the allegations in the criminal complaint are true. In an OUI case, a CWOF is an admission to driving under the influence of alcohol. The technical meaning of a CWOF is that the court could find an individual guilty, but the judge does not impose a guilty finding but continues the case without a finding of guilty for a period of time, typically one year. If after that one year period there are no violations of probation, the case is closed. A CWOF carries almost all of the same consequences as a finding of guilty after trial for the purposes of an OUI charge, except that a CWOF is not technically a conviction under the law. A CWOF will count as a first offense OUI conviction with the Massachusetts Registry of Motor Vehicles.

The final common source of confusion with court terminology is the meaning of the pretrial conference. Cases do not proceed straight to trial after arraignment but are given pretrial conference dates for the prosecutor and Massachusetts OUI lawyer to discuss the case. Depending on the circumstances of each individual case, it may take a few pretrial conferences and a motion date prior to arriving at a trial date.

Continue reading "Understanding Common terms when charged with OUI in Massachusetts " »

A Wisconsin college dean was not prosecuted for allegedly threatening his wife because of understaffing, the district attorney said.

In Atlanta, former Boston Red Sox pitcher Derek Lowe had DUI and reckless driving charges dropped after he was arrested in April.

But in Massachusetts, prosecutors often continue to push cases even when a defendant is determined to have a blood-alcohol level below the legal limit of .08. That's why defending against an OUI charge in Attleboro is so critical. The prosecution is aggressive, so the defendant should hire an experienced and aggressive Dedham DUI Defense Attorney of their own to combat the Commonwealth.

According to the news story out of Wisconsin, the dean of a University of Wisconsin campus was arrested on a charge of suspicion of first-degree recklessly endangering safety, a felony there. He allegedly tried to run his wife off the road with his car last fall. But upon review, prosecutors said the evidence couldn't support the felony charge, but they could have filed a misdemeanor charge. However, because they are understaffed, they declined.

In Georgia, Lowe was arrested April 28 in a posh area of the city near his home. Florida State Troopers alleged that an Aston Martin and Camaro were racing. Lowe, who drives a Porche Panamera, was pulled over and a trooper said he detected a "strong odor of an alcoholic beverage." Yet, Lowe's attorney believes the officer smelled Lowe's chewing tobacco and that the 15-year Major Leaguer did well in field sobriety testing. Yet, he was arrested and charges were later dropped.

In Massachusetts, neither of these scenarios would be likely to play out. In the case of the Wisconsin man, it would be likely that prosecutors would go forward with the charges until the bitter end. In Lowe's case, the prosecution would probably keep the charges in tact, even if the evidence doesn't support a conviction under the law.

The fact is that district attorneys are told to prosecute cases to the full extent of the law. There have been cases where breathalyzer results spit out a reading of .06, or .07, even though the legal limit is .08 and drivers are still arrested.

Without a proper defense, a motorist could be left with a criminal record.

Trying to defend an OUI charge alone in Massachusetts is like waving the white flag. But if you hire an experienced Attleboro DUI Attorney, who will aggressively fight the charges, you will have legal knowledge and an advocate on your side. Don't attempt to fight an OUI allegation in Massachusetts by yourself; trust in someone who will do all that can be done to fight the charges.

Continue reading "Massachusetts OUI Cases Get Prosecuted Below .08 BAC" »

Authorities in Florida are facing higher costs of prosecuting DUI offenders because of questionable breath test results and aggressive defense of clients tested by the Intoxilizer 8000.

Massachusetts DUI defense attorneys know how unreliable breathalyzer tests can be. Currently, high-profile examples include Washington D.C. (authorities quit using their machines altogether), California (thousands of cases are being reviewed or dismissed because of questionable test results) and Florida, where judges have ruled that a defendant's right to confront his accuser permits defense lawyers to review the computer code that generates the Intoxilizer results.

CMI Inc., the Kentucky manufacturer of the machine, continues to ignore subpoenas to turn over the computer code -- a move that has forced prosecutors to hire experts to testify in contested DUI cases.

Fighting a DUI charge in Massachusetts can be done on any number of fronts: Reasonable suspicion for the traffic stop can be questioned, as can the basis for ordering you from the car to request that you submit to field sobriety examinations. And the results of those tests can be challenged -- as can the training and conduct of officers involved. As this issue illustrates, simply challenging your case may be enough to induce the state to offer you a deal to move your case through the system. Discussing your options with an experienced criminal defense attorney at the earliest possible stage of your case is the best option for a successful resolution.

The Sarasota Herald-Tribune reports the cost is about $3,000 for an expert's flight from Georgia, cost of the hotel, and two days of testimony. That might buy prosecutors resolution on four or five cases -- less than a week's worth. Costs for the year could total $156,000. The five-year battle over the Intoxilizer 8000 has caused prosecutors to drop cases, offer pleas to lesser charges and take other actions to move cases through the system.

Nor can departments go buy another machine -- the Intoxilier is the only machine approved for use by the Florida Department of Law Enforcement.

As we recently reported on our Massachusetts DUI Attorney Blog, police in Washington D.C. were told to abandon use of the breathalyzer altogether after a whistleblower came forward to claim the machines were not producing accurate results.

Instead, police are using urine samples. Defense lawyers and the police union report cases are routinely being dismissed.

The breathalyzers had not been officially certified and may not have been producing accurate results since 2008.

In California, the Supreme Court issued a ruling earlier this summer that makes it easier for those charged with drunk driving to challenge breathalyzer results, according to the L.A. Times.

In the unanimous decision, the court ruled defendants can present evidence to show the breathalyzer failed to accurately reflect blood alcohol levels.

Continue reading "Breathalyzer Test Results Often Challenged in Massachusetts Drunk Driving Defense" »

In Commonwealth v. Sanford, decided August 23, 2011, the Massachusetts Supreme Judicial Court recently addressed the issue of what remedy a Massachusetts OUI lawyer is entitled to when evidence is lost of destroyed by the Commonwealth. The Sanford case can be found on the social law library website and by following this link.

Although the Sanford case was not a drunk driving case, its reasoning would apply in the DUI context. Sanford involved a gun charge where a judge endorse and order that no test firing of the handgun be performed without the defendant's expert present. Despite the court order, the Boston police officers test fired the gun without the giving the defense expert an opportunity to be present.

In attempting to exclude any evidence of test firing from evidence, the defendant argued that he was deprived of potential exculpatory evidence by being denied his right to be present during the test firing of the handgun. The Massachusetts Supreme Judicial Court held that it will review claims of lost or destroyed evidence under the framework set forth in Commonwealth v. Williams, 455 Mass. 706 (2010). Under the Williams case, there are two methods to seek suppression of evidence based on a claim of lost or destroyed potentially exculpatory evidence. The first is that the defendant must demonstrate the exculpatory nature of the destroyed evidence, by establishing a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the evidence would have produced evidence favorable to the defense of the case. If the defendant meets this initial burden, the court will proceed to balance the potential prejudice to the defendant. The SJC in Sanford remanded the case back to the motion judge to make findings under the standard articulated by the court.

The issue of lost or destroyed evidence arises in Massachusetts OUI arrests when the police lose or fail to record the booking when there is a policy by the police department to record the booking. While there is no requirement that police record the booking procedure, when the police do record the booking it should be turned over to a Massachusetts OUI attorney to review for potentially exculpatory evidence.

If the police claim that the booking video was lost or inadvertently taped over, a motion to dismiss or exclude evidence, such as breathalyzer evidence under the Williams and Sanford case would be appropriate.

Continue reading "Lost or destroyed evidence in Massachusetts OUI arrests, SJC discusses the standard for exclusion in recent case " »

A state lawmaker in Ohio is now facing constituents, who want him removed from office for allegedly driving drunk, the Dayton Daily News reports.

The story, out of Ohio, shows how quick the public is to rely on the word of law enforcement at first glance. Yet, when they are faced with a crime, they want everyone else to adhere to the "innocent until proven guilty" rule that makes our criminal justice system the best in the world.

Sadly, this man, like many others charged with OUI in Brockton and throughout Massachusetts, is facing the crushing realty of a drunken driving arrest -- people are quick to judge. This goes not only for the general public, but also family members and bosses. Companies are quick to fire someone when they are arrested, even before the person has made their way into a courthouse to face the charges.

A person can be arrested one night and be fired the next. And with jobs so scarce and the economy in a tough spot, losing a job can be very difficult for many people out there. But there are instances when aggressively defending against the charges with an experienced Attleboro OUI Lawyer, and getting an acquittal or charges dropped, can lead to a job being restored.

In mid August, the embattled legislator told the news media he wasn't going to resign over three alleged alcohol-related incidents despite leaders calling for him to do so. He said constituents have sent him calls of support, yet an open records request by a newspaper found that more people have asked for his resignation than showed him support.

He was arrested in July and charged with drunken driving and child endangerment. The charges stem from an incident in which state police pulled him over after alleging his pickup truck drifted over the center line of a road and his trailer didn't have taillights. He refused to take field sobriety tests. His brother-in-law, who was a passenger, has signed an affidavit saying that the man drank three beers over more than two and a half hours that day and that he didn't appear to be impaired.

The penalties for OUI in Massachusetts are more severe than other similarly unsophisticated, minor crimes. A person who steals something from a store or house can sometimes get less serious penalties than a person who is accused of driving over the legal limit.

For first-time OUI offenders, possible penalties include:

A maximum of 2.5 years in prison
A one-year driver's license suspension
Possible one-year probation term

Every case varies and usually by the judge, the prosecutor and certainly the defendant's choice of a Massachusetts OU DefenseI Attorney. Some first-time offenders can get out with completing an alcohol education program, probation and fines and fees. But sometimes judges can be out to make a point.

These penalties are on top of the aforementioned penalties a person can face outside the criminal justice system, which can be as daunting, at times. Defending the case and showing the flaws in the arrest and proving the Commonwealth doesn't have proof beyond a reasonable doubt can help restore your name and reputation.

Continue reading "OUI Penalties in Massachusetts Go Beyond the Legal System" »