Massachusetts DUI Attorney Blog

Police in New York are reporting that drug DUI cases are on the rise, which likely means that Massachusetts drug OUI cases are on the rise as well due to prescription drug abuse and an increased emphasis on enforcement.

The problem with this charge is that police are far behind in getting proper training to determine when someone is under the influence of drugs. Every law enforcement officer gets months of training to figure out when someone has been drinking and driving, but drugs are a different story. Drugs also stay in a person's system longer than alcohol, making such training suspect at best.

Consulting with an experienced Massachusetts OUI attorney is critical in cases like this because law enforcement officers sometimes get cases like these wrong. In cases where a person has used prescription drugs and driven, officers often lack the ability to properly make the determination of whether they have broken state law.

Very few officers are trained in as drug recognition experts. In fact, the group in Florida that trains officers reports that there are just over 5,000 officers certified as drug recognition experts in the world. That means that less than 1/10 of 1 percent of all officers worldwide hold this distinction.

The odds of small towns throughout Massachusetts having these experts are low. And an experienced Massachusetts Drug OUI lawyer places as much faith in these "experts" as they do in common OUI testing like field sobriety tests and breathalyzers. Much of what is used to determine OUI in Massachusetts is flawed and that can be pointed out in defense of the client.

According to the story out of New York, there were 352 arrests in 2008 in a three-county area north of New York City. The number dropped to 326 in 2010. Numbers overall are on the rise compared to 2001, when there were 145 drivers charged with the crime.

The interesting thing about the statistics is that this is such a low number of cases. The population in the three-county area is nearly 1.4 million and yet only 300 people a year face these charges. This is either because few people in this area use prescription drugs, which is unlikely, or police just don't know how to recognize and deal with the issue.

Officers quoted in the story say they are getting more and more training to recognize drug OUI cases, but they still aren't at the point where they can properly spot it. One officer admits that while there are breath testing devices that can provide estimates of blood alcohol levels in drivers, there is no such device for drug OUI cases.

This means that a driver who is charged with drug OUI in Massachusetts is arrested solely based on an officer's observations. If the person has balance problems and fails a field sobriety test, the officer could blame it on drugs, but that could be a defense. What happens if there are no drugs found in the vehicle and the driver doesn't admit to taking any drugs? How can an officer legitimately file a charge without any evidence that a drug was consumed?

These are issues that must be addressed by an experienced Massachusetts OUI lawyer. A driver cannot leave this up to chance because there are many options and defenses that a suspect can put together.

Continue reading "Massachusetts Drug OUI Cases On the Rise Due to Prescription Drug Abuse" »

Recent studies regarding Massachusetts DUI arrests continue to reflect a growing national trend of a greater number of DUI arrests involving women in Massachusetts . Although men still predominate with more than 3/4 of all DUI arrests, woman DUI drivers have increased nation wide. Recent FBI analysis found that while the number of DUI arrests for women are increasing, the arrests for male DUI's are dropping.

The Commericial Appeal discusses the FBI statistics comparing the 2001 and 2010 DUI data. The data shows the number of male drunken drivers decreased by 10%, while there was a 31% increase in women arrests. Law enforcement officers who investigate DUI related crashes say they are encountering more women drivers.

Due to this national rise in woman OUI offenders, AAA issued a press release last week cautioning women about basic reasons, such as body size that may cause women to reach the level of legal intoxication more quickly than men. Women's bodies have a higher percentage of fat and less water, causing them to have a lower concentration of an enzyme that metalbolizes alcohol. Under Massachusetts DUI law, breathalyzer tests results may be higher for a women consuming the same amount of alcohol do to their smaller size and reduced ability to process alcohol as compared with men.

Ads warning against the dangers of OUI in Massachusetts are displayed throughout the state. However, these advertisements are typically geared toward men. There has not been the same marketing efforts aimed toward women and educating them. The state and nation need to look at this is the near future.

Continue reading "Increase in OUI rates for Women In Massachusetts and Nation Wide" »

A Marlborough man facing, a repeat offense OUI charge in Massachusetts, a 7th offense, was found to be a danger to the public and was ordered to be held without bail until his trial. John Sawicki, 49, has a long record, according to the news account and was arrested last Tuesday after the stolen car he was driving was spotted by an officer. Sawicki was found in the driver's seat with the keys in the ignition. The officer allegedly smelled alcohol, vomit, and urine in the vehicle. Sawicki appeared to be impaired and kept nodding off during questioning. His arrest came after state and local police officials received multiple reports that the stolen car was erratically weaving on Interstate 290 East. The Metrowest Daily News reported that Sawicki's vehicle had several cold beer cans and assorted car parts. The vehicle was reported stolen by the DMV.

Police report that Sawicki swore at him and refused to take a sobriety test . The judge found Sawicki dangerous and ordered him held without bail. He is currently being charged with OUI (fifth offense or greater), receiving a stolen vehicle, possession of an open container of alcohol, and driving with a suspended Massachusetts license revoked for OUI .

A person in Massachusetts charged with a 4th OUI offense or greater may be required to attend a dangerousness hearing. This hearing is held to evaluate the defendant's danger to the community at large. During the dangerousness hearing in Massachusetts , the judge will consider several factors. For instance, the judge will look at the nature of the crime, along with other factors to determine if the person should be detained or the conditions upon release. This hearing is typically held at the defendant's first court experience, therefore it is crucial to hire an experienced Marlborough OUI attorney during this time. The attorney may request a continuance for a maximum of seven days to prepare a preliminary defense.

Dangerousness hearings differ from criminal hearings in that all the evidence is admissible when determining if the defendant is a danger to the community. The judge may also reopen the dangerousness hearing if new evidence comes to light that supports that the defendant poses a risk to society. The decision to hold a defendant will be made only after the hearing determines by clear and convincing evidence that the safety of the community will be at risk regardless of the conditions of release for the accused. The period of time that the court is allowed to detain a person in this situation, can not exceed 90 days.

A judge will look at a number of factors to determine whether or not bail should be granted when facing a multiple OUI charges in Massachusetts :
*The nature and seriousness of the danger that would be imposed upon the
community if the defendant were released
*The circumstances and the nature of the offenses charged
*The potential sentence of the crime
*History of mental illness and employment record
*Conviction record and prior charges/bail violations
*Reputation of the defendant and any family ties
*Controlled substance dependence

Sawicki's is being held without bail until his March 9th pre-trial hearing.

Continue reading "Marlborough Man Charged with 7th Massachusetts OUI is Held Without Bail After Dangerousness Hearing" »

Massachusetts OUI Roadblock in Springfield was challenged as being unconstitutional in the case of Commonwealth v. Aivano, decided on February 3, 2012. The Massachusetts Appeals Court held that a Massachusetts OUI roadblock was constitutional when the press release did not specify the correct area where the roadblock was being conducted.

The Appeals Court stressed that the defendant was not contending that the roadblock was not conducted according to the State police plan or that the roadblock was not set up in the correct area as set forth in the plan. In other cases, the Massachusetts Courts have held that these deviation from the State police plan are significant to make a roadblock unconstitutional, which would result in the dismissal of the Massachusetts DUI charge.

When an individual in Massachusetts is arrested at a DUI Roadblock or sobriety checkpoint, a motorist can file a motion challenging whether the roadblock complied with the strict requirements set forth by the Massachusetts Supreme Judicial Court.
In Aivano, the court stressed that strict compliance with the State police plan is required but that the deviation sited by the defendant amounted to a trivial noncompliance which did not justify suppression of the stop.

Continue reading "DUI Roadblock in Massachusetts found Constitutional when mistake in press release describing the location of the roadblock" »

The case of Cannella v. Florida, caught my attention as a Massachusetts drunk driving attorney because it involves the use of an admission by silence and whether that violates the Fifth Amendment privilege against self incrimination. To read the filings from the Cannella case, you can click on this link to the Scotus Blog.

In the Cannella case, the defendant was charged with two counts of DUI manslaughter. At trial, testimonial was brought out that when the defendant was interviewed he never told the officer that he had been drinking to the point that his blood alcohol level was .199. The DUI lawyer objected to this evidence coming in on the grounds that it commented on the defendant exercising his privilege against self-incrimination.

The defense lawyers filed a petition for certiorari to the United States Supreme Court, asking the Court to address whether pre-arrest silence can be used in the prosecution's case at trial. The Brief notes that Courts are split as to whether pre-arrest silence can be admitted as part of the Government's case at trial.

As a Massachusetts OUI attorney, I would expect that the Court would find that the 5th Amendment precludes a State from commenting on the defendant's silence either before or prior to an arrest as an individual's privilege against self incrimination does not depend on whether formal charges have been brought or not. Further, if an individual is forced to respond to questions prior to an arrest, it essentially requires a defendant to waive the 5th Amendment privilege. A defendant is never under any obligation to respond to the a police officer's questioning. I would expect that the Court if it grants certiorari in this case would find the trial court should not have allowed the testimony to be used at trial as it violated the defendant's 5th Amendment rights.

Being charged with a 4th OUI offense in Massachusetts is a felony charge. Massachusetts can still count decades old offenses against a person as priors. The penalties for a 4th OUI offense in Massachusetts include:

As an OUI lawyer in Massachusetts, Super Bowl Sunday is a day where police have extra patrol on the road and generally make a high number of arrests after the game. Super Bowl Sunday has become a national holiday as the Super Bowl is an event for everyone, including non-football fans. This year with the New England Patriots playing in the game, Massachusetts OUI patrol is likely to receive even greater enforcement in this area, in anticipation of the celebration of the team's fourth Super Bowl trophy.

News reports have well documented that police around the country, including in Massachusetts will be on heightened patrol. While it is not illegal to consume alcohol and drive, Massachusetts OUI law not only preclude someone from driving drunk, but whenever their ability to operate a motor vehicle safely is diminished or reduced by alcohol. While this is a difficult standard to satisfy at trial and to prove beyond a reasonable doubt, it takes very little for the police to have probable cause to make an arrest.

Accordingly, it is important if you drink to have a designated driver, walk or take a taxi cab to avoid facing a Massachusetts drunk driving charge.

Massachusetts OUI offenders who are convicted of their second offense are mandated to have breath test ignition devices installed in their vehicles. There are only fifteen states that require all convicted drink drivers, including first time offenders to use these devices. Massachusetts OUI law and some other states have laws that only mandate these devices after a second DUI offense. The ignition interlock prevents a driver from starting the engine if his/her blood alcohol exceeds a preset limit. The goal of this device is to protect both the public and the driver from continued unlawful operation of a motor vehicle.

Congress has been putting more effort into getting more states to require convicted drunk drivers to test their breath for alcohol before getting behind a steering wheel. A House transportation bill that was just proposed would offer additional highway funds to states that require ignition interlock devices for DUI offenders.

Melanie's Law was signed into law on October 28, 2005. Its purpose is to enhance the
penalties and administrative sanctions for Operating Under the Influence (OUI) offenders in Massachusetts. According to this law, any driver with a second or subsequent OUI who is eligible for a hardship license or for license reinstatement will be
required to have an Ignition Interlock Device attached to any vehicle the driver owns, leases, or operates (including an employer's vehicle) at the driver's expense.
A driver with a hardship license must use the device for the entire life of the hardship license and for two additional years after the license has been reinstated.
If a driver with two or more OUI offenses is eligible for license reinstatement, the Ignition
Interlock Device will be required for two years.

The Los Angeles Times reports that Los Angeles County and other California counties have installed these ignition devices for DUI offenders and is running a pilot study now through 2016. There is an on going national debate as to whether or not this breath test ignition devices are effective. The idea of requiring the devices for all drunk drivers nation wide is opposed by the American Beverage Institute. They feel that the use of the interlocks would "deny judges the ability to distinguish between a driver one sip over the limit and high -BAC repeat offenders." Many argue that dangling money in front of these financially strapped states to nudge them into requiring these devices is not justifiable.

Continue reading "Massachusetts OUI Law and Mandated Breath-Test Ignition Devices" »