Massachusetts DUI Attorney Blog

A Cohasset, Massachusetts mother faces a Massachusetts OUI charge as well as a charge of child endangerment as police claim, the Cohasset mother was driving under the influence of alcohol according to a report in the Patriot Ledger. The Patriot Ledger reports that an OUI child endangerment charge comes with stricter sentencing guidelines. A child endangerment charge cannot be continued without a finding, but mandates that the court impose upon conviction a ninety day jail sentence. The statute would allow for that sentence to be suspended, meaning that a motorist would not actually have to serve ninety days. The OUI child endangerment statute was added to Massachusetts DUI laws as part of Melanie's Law and can be found at Chapter 90 Section 24V of the General Laws.

The child endangerment charge makes the decision whether to elect a trial or resolve the case more complex. Upon conviction of child endangerment, there is a one year license loss. In some cases, a prosecutor may agree to drop the endangerment charge in exchange for a plea to the OUI offense.

This case may present strong defenses. The observations reported in the Patriot Ledger all appear to be observations that can be minimized at trial. No driver drives perfectly straight down the road at all times; in fact it is common to see drivers make errors and correct their steering. In this case, it appears that the car drifted over the double yellow line. It is likely that after the officer put his blue lights on, the driving was normal and appropriately. This can be used to argue that the drifting resulted from inattention to the road rather than alcohol consumption.

Additionally, the news account claims that the motorist had trouble finding the registration and handed the officer a pile of papers. In many police reports, the officer will claim almost any action is a sign of someone under the influence; either the motorist took too long looking for the correct document or being nervous gave the officer several documents to find the registration.

In some cases, police reports can appear extremely negative to someone charged with a Massachusetts OUI offense. However, I have met with many motorists and explained what appeared to be a very negative report presents some important defenses in the case. If you have any questions about the significance of any observations made by an officer in your police report, feel free to call me at 781-686-5924 or send an email through this website addressing your question.

Massachusetts DUI patrol will be increased over the Thanksgiving holiday weekend. Massachusetts, likes States throughout the country, will put additional state and local police officers on the streets to ensure that drunk drivers are caught.

While the Thanksgiving Day holiday provides a great opportunity to take time off, relax with friends and enjoy the company of family, as a Massachusetts OUI lawyer, I encourage everyone to make sure you drink responsibly, consider taking a taxi cab to any event or party and or consider staying overnight.

A Massachusetts DUI charge, even if it results in a not guilty verdict at trial, will put an enormous stress on your life, jeopardize your job and require time out of work to attend court. The best way to avoid these consequences is to ensure you do not drink too much before driving.

I wish everyone a safe and happy holiday.

The Massachusetts OUI lawyer for President Obama's uncle is challenging the stop as being unconstitutional. This was reported by Norman Miller of the Metro Daily News.

The Boston Herald reported that the basis of the motion is that the police officer could not see Obama's uncle proceed through the stop sign. The defense claims that a building would have blocked the officer's view and apparently plans to call an expert witness to testify on this topic. Typically in a motion to suppress, the defense would not disclose the basis of the motion but file a generic motion challenging the stop; the reason is that the prosecutor would likely tailor the testimony to attack the defense theory if it was disclosed.

A motion to suppress challenging the legal basis of a stop is a very common motion in a Massachusetts drunk driving case. If successful, a motion to suppress would result in the entire case being dismissed as if there was not a lawful basis for the stop, under the exclusionary rule, the court would suppress all observations of the officer, results of field sobriety tests and any breathalyzer test results.

Even if a motion to suppress is unsuccessful, the motion can be beneficial in defending an OUI charge as it sets forth the testimony of the officer regarding the stop. In some cases, this testimony may reveal that the driving infraction was not as serious as indicated in the police report or it could reveal that at trial the officer will claim additional traffic infractions that were not mentioned in the police report. While an officer can be impeached if testimony differs from the police report, the impact of this impeachment would vary depending on how substantial the omission from the police report.

Other types of motion in a Massachusetts drunk driving arrests would include motion to suppress statements, challenges to the order to get out of the car and searches of the interior of the vehicle after a motorist has been arrested.

Continue reading "Massachusetts OUI lawyer for Obama's Uncle challenge stop as unconstitutional" »

The state's highest appeals court, the Supreme Judicial Court, recently reinstated a man's 7th OUI conviction after a lower appeals court overturned it, The Boston Globe reports.

Picking up even one charge of OUI in Attleboro can be a frightening experience. There are hefty penalties, including fines and fees, possible jail time, driver's license suspension, an alcohol education course and probation.

All of that can be costly, both financially and in damage to a person's reputation. Job loss and family problems may also result. The best way to approach an OUI case is to hire an experienced Massachusetts OUI lawyer, one who will stand by your side and work to build a sound defense.

In this case, a man was accused of rear-ending a police officer in Woburn in 2006. The police officer, however, was from Somerville. That means he was out of his jurisdiction.

The off-duty officer was wearing his police uniform and carrying his gun when he and the driver, in his 60s, began exchanging papers. The officer detected alcohol on the man's breath and told him to return to his car and he called Woburn police. The key point of the case is that he took the man's keys.

The officer who arrived on scene ordered field sobriety tests, which the article states the man failed. He registered a blood alcohol level of .12, higher than the 0.08 legal limit. He had a bottle of whiskey on his lap, the court stated.

After the man was convicted, the Massachusetts Appeals Court overturned the conviction, saying that the off-duty officer was out of his jurisdiction and made an illegal arrest when he took the man's keys.

The court ruled that it wouldn't create a 'Superman' rule where off-duty officers would have to change into street clothes in order to avoid having cases shut down because of jurisdiction issues. The SJC ruled that if the officer had changed into plain clothes there would not have been a jurisdictional issue here. Accordingly, the SJC reinstated the Massachusetts OUI conviction that was overturned by the Appeals Court.

Continue reading "7th Massachusetts OUI Conviction Reinstated By Massachusetts Supreme Judicial Court" »

A 50-year-old man was recently arraigned in Wrentham District Court after picking up his seventh drunken driving charge, The Boston Globe reports.

Charges of OUI in Wrentham require careful investigation in order to formulate a defense. This seventh-offense charge will likely be brought in Superior Court, where the defendant will face a 5-year state prison sentence, rather than 2.5 years in the house of corrections, which would be the maximum penalty if the case stayed in district court.

In this case, Howard Stockbridge was allegedly involved in a crash and then left the scene, The Globe reports. The newspaper reports he was driving despite having a 10-year license revocation at the time. He was charged with rear-ending a vehicle on Interstate 495 in Foxborough.

A 30-year-old Rhode Island man called police after he said he was struck by a pickup truck driven by a while male. The man said the driver kept heading north. Witnesses supposedly caught the registration number and told them the vehicle was disabled on I-495 northbound near Route 106. The driver then allegedly ran into the woods.

Police found the truck and saw that it was registered to a Taunton woman, but they say Stockbridge lives there. They found a photo and the Rhode Island man confirmed Stockbridge was the man who hit him.

Inside the vehicle, police found empty beer bottles in a cooler and another on the passenger seat. The truck had "extensive" damage and problems with the radiator. Troopers found Stockbridge in a Green Street parking lot. He told them he was coming from a gym and pointed to a nearby fitness center.

He is now charged with operating under the influence of liquor-seventh offense, negligent operation of a motor vehicle and leaving the scene of a property damage crash and three other offenses. No one was injured.

MyFoxBoston reports that troopers detected an odor of alcohol on his breath when he was arrested.

As in any criminal case, the veracity of a witness' statement can be challenged and verified with other independent witnesses and the facts of the case. While police investigating OUI-related cases tend to focus on the first person they suspect may be guilty, an experienced lawyer will explore all options and defenses.

Continue reading "Taunton Man Faces Multiple Offense Massachusetts DUI charge" »

In response to the Boston Globe Special Report on OUI bench trials in Massachusetts, the Globe reported that prosecutors are seeking legislation requiring prosecutors to consent to a bench trial. Assuming this report is accurate, this legislation would have to apply to every type of criminal case as legislation relating to criminal procedure cannot be crime specific. This legislation if proposed would be an unconstitutional violation of a defendant's right to a fair trial under the Sixth Amendment.

The apparent aim of the legislation is to combat the perceived high rate of not guilty verdicts in Massachusetts OUI bench trials. This legislation would clearly be unconstitutional under the Sixth Amendment. The Sixth Amendment provides that a defendant in a criminal case enjoys certain rights: These rights include the right to a speedy trial and the defendant enjoys a right to a trial by jury. The use of the word "enjoys" in the Constitution provides strong textual support for the argument that a defendant can waive this right.

The right to a trial by jury was added to the Bill of Rights because the Framers of the Constitution feared that judges would not be impartial to defendants because their salary depended on the rule of the King. The original intent of the jury trial was to limit the power of Government and ensure that citizens judged citizens. The right to a jury trial is not Constitutionally required in all cases; in minor offense, with no possibility of jail time, there is no Constitutional right to a jury trial.

The United States Supreme Court discussed the historical origins of the right to a jury trial in the case of Duncan v. Louisiana, 391 U.S. 145 (1968). This case held that a State could not deny a defendant a right to a jury trial because the 14th Amendment due process clause makes the right to a jury trial applicable to the States. The language of the Duncan decision clearly indicates that right to select a bench or jury trial is solely that of the defendant.

Constitutional rights are granted to defendant's in criminal case to ensure that the power of the Government is limited and that the rights of citizens are protected through an enduring Constitutional right and not made subject to the political climate of the time. Though the Constitution does not speak of a right to a bench trial, the right has been part of this country since its formation.

Similarly, while the Constitution grants a defendant a right to counsel, the United States Supreme Court held in Faretta v. California, 422 U.S. 806 (1975) that a defendant has the negative Constitutional right, that to waive counsel and represent himself pro se. Other Constitutional rights, like the right to a speedy trial, can also be waived by a defendant.

The historical context of the right to jury trial indicates that it has always included the negative right to waive a jury trial. Additionally, the history of the jury trial right has been in attempting to expand its application, to a greater number of offenses and to make it applicable to the States. Accordingly, there is strong historical support and textual support in the Constitution that the right to a jury or bench trial is the exclusive right of a defendant.

Further, in considering the Constitutionality of legislation, courts consider the intent of the legislature. The motivation for the legislation would be the Boston Globe Special report on OUI cases which signaled out a few judges for criticism based on statistics and the political agenda of district attorneys who were unhappy with decisions by selected judges. As a Massachusetts DUI lawyer, any legislation requiring prosecutors to consent to a bench trial would be a clear violation of the Sixth Amendment.

A Worcester woman has been charged in connection with a June 8 accident at Main and Mill streets that led to the death of an 86-year-old pedestrian, the Telegram reports.

A charge of vehicle homicide or OUI motor vehicle homicide in Worcester is a serious offense that in Massachusetts can lead to a minimum of more than two years in prison or up to 15 years behind bars. If alcohol isn't a factor, a person can still face up to 2 and a half years in prison, if convicted.

Westborough OUI defense lawyers have seen how a simple accident can change a person's life forever. Whether the driver was under the influence of alcohol or not, no one sets out to cause a serious accident.

The 49-year-old woman from Worcester, Elizabeth Eisnor, is the second person charged in the case. Previously charged was 19-year-old Jesus Pantoja, of Worcester.

According to police, Eisnor and Pantoja collided in the intersection that day. After impact, Pantoja's vehicle spun out of control and pinned the 86-year-old father of 21 between the vehicle and a building. The man died as a result of his injuries.

The Telegram reports that Pantoja was heading south on Main Street behind a tractor-trailer cab that was making a left turn. The 19-year-old then drove his Honda Civic through the red light, went around the cab and into the intersection.

Eisnor was driving a Chevrolet Impala west on Mill Street. Police say she stopped at the light for a few cycles and was trying to head into the intersection. She accelerated her vehicle as she hit the middle of the intersection, hitting the Civic's rear driver's side wheel, causing the spin.

Police allege she also ran a red light before striking his vehicle. Eisnor is charged with vehicular homicide by negligent driving. Pantoja is charged with motor vehicle homicide, a red light violation, failure to stop or yield and driving so as to endanger.

But the police department's scene reconstruction is slightly confusing. It states both Pantoja and Eisnor ran red lights, which would seem difficult to prove since they were going in different directions.

In vehicle homicide cases, it is critical for the defendant to hire their own scene reconstruction expert, typically a retired or former police officer, to do the same work that police do in setting up the scene. It is often possible to see something differently than police see and prove that the facts don't line up as investigators say they do.

In scene reconstruction, experts take measurements, using the photos, police reports and other evidence provided by prosecutors. Experts go to the scene of the crash and go over what it looks like to see if what is alleged physically could have occurred. They may even talk with witnesses to get their view of the incident. It is a scientific process than can be used to combat what the state alleges happened.

This is important in showing reasonable doubt. Given the extent of the possible penalties for drivers convicted of these serious charges, every step should be taken to ensure a fair trial is had. That means assessing all evidence and ensuring all facts are taken into consideration.

Continue reading "Worcester Woman Faces OUI Motor Vehicle Homicide Charge" »

The Boston Globe published its second of three installments on drunk driving bench trials in Massachusetts. The Globe claimed to have researched the number of not guilty verdicts from selected judges that were targeted by prosecutors and published statistics of their rate of not guilty verdicts. Click here to read Part II of the Globe's special report. This special report focused primarily on Plymouth County OUI cases but also targeted many of the same judges criticized in the first part of its report. To read my Blog regarding Part I of the special report, you can click here.

The Globe's article is clearly motivated to further the political agenda of prosecutors. An example of this is that the Globe was critical of one Taunton District Court judge who finds that the lack of video tape evidence can be used against the Commonwealth when determining whether the standard of proof beyond a reasonable doubt is satisfied. Instead, the Globe purports to adopt the reasoning of the State police that video is not used because it does not show the subtle signs of someone under the influence of alcohol.

While the Globe compared Massachusetts to other States in its rate of bench trial not guilty verdicts, the Globe did not consider that other police departments around the country routinely record not only the booking but have police cruiser camera. The suggestion that video should not be used because it may not be incriminating as the State police would like is clearly an attempt to keep relevant evidence from a judge or jury and keep control of the evidence in the hands of police officers. With video in OUI cases, there would be objective evidence, precluding officers from overstating and exaggerating conclusions that a motorist is under the influence of alcohol. Instead, without video, the only method to challenge an officer's opinion is through cross examination.

Judges are clearly entitled to consider lack of evidence in determining proof beyond a reasonable doubt. The Globe article overlooks the fact that the Massachusetts Supreme Judicial Court held in the confession context that it favors the recording of confessions and would allow a jury instruction, telling the jury they can view an unrecorded confession with skepticism, in a case where the police fail to record an alleged confession. Clearly, there is a preference to have the most reliable evidence brought to the attention of a judge or jury and by not recording the booking, the State police is depriving the court of reliable evidence that could be easily made available.

As a Massachusetts OUI lawyer, the idea that judges will be monitored by the press or judiciary with some statistic regarding OUI conviction rates may force more attorney to elect jury trials in drunk driving cases. This week the Massachusetts SJC announced that it would also undertake an investigation into the Globe report.

The decision whether to elect a bench or jury trial is always a difficult decision. The Globe special report may not only influence how judges rule in bench trials, but could influence potential jurors and attorney will have to seek more questioning during jury selection regarding a juror's views on the Boston Globe report and their knowledge of it and views on the accuracy of the content.

Mother's Against Drunk Driving has urged Massachusetts legislatures to enact legislation that would require anyone convicted of even a First Offense Massachusetts OUI charge to have the ignition interlock device installed in their vehicle. This was according to a Patriot Ledger news report by Christian Schiavone.

Under the current version of Massachusetts OUI laws only a Second Offense requires an individual to have the ignition interlock device installed.

The legislation is being pushed by the family of Melanie Powell who pushed for more stringent penalties in the 2004 revisions to Massachusetts OUI laws now referred to as Melanie's Law. Ron Personi the grandfather of Melanie spoke about the proposed changes on the Sixth Anniversary of Melanie's Law.

Statistics show that since the passage of Melanie's law OUI fatalities in Massachusetts have decreased by 24%. Ignition Interlock legislation is a priority for Mother's Against Drunk Driving. Currently 27 States have an ignition interlock requirement for first time offenders.

The threat of ignition interlock legislation would make it more imperative for anyone charged with a Massachusetts OUI offense to hire an experienced attorney to ensure that there case can be proven by the Commonwealth.