Massachusetts DUI Attorney Blog

A Hanover man, Shawn T. Heavey, was sentenced on a Fourth Offense Massachusetts OUI charge. Heavy received a two and one half year jail sentence with one year to serve and the balance of the sentence suspended. It is unclear as to what is alleged to have occurred based on the news account from the Patriot Ledger.

Generally, a defendant receives a reduced sentence when accepting a plea prior to trial. In Heavy's case, he received the minimum amount of time to serve based on the plea, but will incur a ten year license loss, to run on and after any other license suspensions. If he refused the breathalyzer in the case, he would have already lost his license for life unless he successfully appealed the refusal suspension to the RMV within 15 days.

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A Cape Cod man, Bruce Perry, is charged with a Massachusetts Fourth Offense OUI. The OUI charge arises after a news account indicates that Perry was involved in a hit and run accident in Plymouth. A Fourth Offense OUI charge requires the court to impose a jail sentence of two years with a one year mandatory minimum jail sentence. Additionally, a Fourth Offense carries a ten year license loss.

Police claim that Perry was driving drunk despite having the ignition interlock device in his vehicle. Anyone convicted of a repeat DUI offense of a second offense or greater has to have the ignition interlock device installed prior to reinstatement of driving privileges.

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The Massachusetts Court of Appeals, in Commonwealth v. McMullin, held that the Sixth Amendment right of confrontation as set forth in Melendez-Diaz v. Massachusetts did not preclude the Commonwealth from offering Registry of Motor Vehicle records to prove the number of prior offenses at a 4th Offense Massachusetts OUI trial. The court held that Melendez-Diaz explicitly recognized that admission of court records and RMV records would not be testimonial. Accordingly, the Commonwealth would not have to offer the testimony of a live witness to testify regarding the content of court records.

In two cases, Melendez-Diaz v. Massachusetts and Crawford v. Washington, the United States Supreme Court held that the confrontation clause precludes the Government from presenting testimonial evidence without providing the defendant the opportunity for cross examination. Melendez-Diaz applied the confrontation analysis set forth in Crawford to drug certificates by labs that were used by prosecutors to prove that a substance was an illegal drug. Prior to Melendez-Diaz, a prosecutor would prove that a substance was a drug by offering the lab certificate into evidence without presenting live testimony. The United States Supreme Court struck down this practice holding that the drug certificate was the equivalent of testimony against the defendant without providing the defendant with the opportunity for cross examination.

Following Melendez-Diaz, the issue arose as to how far the decision would extend. The Massachusetts Appeals Court held in McMullin that RMV records and court records are not the equivalent of testimony offered to prove a fact at trial. Accordingly, the court allowed the records into evidence.

Additionally, the court made another significant ruling for DUI lawyers in Massachusetts. The court held that to prove a prior offense the Commonwealth does not have to prove that the defendant did not have counsel or did not validly waive counsel, but that it is the defendant's burden to show lack of counsel and lack of a valid waiver of counsel.

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A Massachusetts 4th Offense OUI charge was brought against a man driving a moped. The North Attleboro police arrested Joseph Kelley after he was driving erratically on a public street according to the Sun Chronicle news account.

Since Kelley was charged with a 4th offense OUI, the Commonwealth requested that the judge hold Kelley without bail pending a dangerousness hearing. The court granted the Commonwealth's motion, resulting in Kelley's detention without bail unless he can successfully appeal the ruling of the district court.

Massachusetts OUI law defines a motor vehicle as:

all vehicles constructed and designed for propulsion by power other than muscular power including such vehicles when pulled or towed by another motor vehicle, except railroad and railway cars, vehicles operated by the system known as trolley motor or trackless trolley under chapter one hundred and sixty three or section ten of chapter five hundred and forty four of the acts of nineteen hundred and forty seven, vehicles running only upon rails or tracks, vehicles used for other purposes than the transportation of property and incapable of being driven at a speed exceeding twelve miles per hour and which are used exclusively for the building, repair and maintenance of highways or designed especially for use elsewhere than on the traveled part of ways, wheelchairs owned and operated by invalids and vehicles which are operated or guided by a person on foot; provided, however, that the exception for trackless trolleys provided herein shall not apply to sections seventeen, twenty one, twenty four, twenty four I, twenty five and twenty six. The definition of "Motor vehicles" shall not include motorized bicycles. In doubtful cases, the registrar may determine whether or not any particular vehicle is a motor vehicle as herein defined. If he determines that it should be so classified, he may require that it be registered under this chapter, but such determination shall not be admissible as evidence in any action at law arising out of the use or operation of such vehicle previous to such determination.

A person operating a motorized bicycle can be convicted of OUI in Massachusetts as Section 1B of Chapter 90 makes anyone driving a motorized bicycle subject to the same laws as all other vehicles.

The issue in determining whether a moped is a motor vehicle would center around the engine sizes of the bike and how fast it was capable of being driven. Assuming the Massachusetts DUI lawyer in this case does not have any defense on the public way element or under the influence element of the statute, the DUI lawyer is likely to formulate a defense based on the characteristics of the moped in an attempt to place it outside of the legal definition of a motor vehicle.

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Framingham police brought a Massachusetts Fourth Offense OUI charge against Yvonne A. Kadlik. According to the news account, Kadlik was traveling through the drive through at Walgreens to pick up a prescription when a store employee called the police claiming that she was under the influence of alcohol.

While the complete details are unclear from the news account, it appears as though Kadlick may have a viable basis for a motion to suppress, arguing that the police officer did not have a proper basis to stop her vehicle. Under the Fourth Amendment to the United States Constitution, a police officer needs reasonable suspicion to justify a motor vehicle stop. It appears as though the basis of the stop comes from the report from the store employee. At a motion to suppress hearing, the Commonwealth would have to produce testimony demonstrating the reliability and basis for the report by the store employee to justify the Fourth Amendment seizure.

A Massachusetts Fourth Offense OUI carries a mandatory one year jail sentence, a 10 year license loss and is a felony conviction. Further on a Fourth Offense, many judges will exceed the minimum mandatory jail sentence as the law allows for a sentence of up to 2.5 years house of correction in the district court.

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A Weymouth, Massachusetts man, Donald J. McNicol, was charged with a Fourth Offense OUI. McNicol was charged with DUI after news reports from the Patriot Ledger indicate that he sped past a police car and failed to stop at a red light. Quincy police found an open can of beer in the car and assert that McNicol failed field sobriety tests.

A Massachusetts Fourth Offense DUI is a serious charge that carries a likely potential that a motorist will receive the maximum penalty after trial in the district court of 2.5 years in the house of correction. A Fourth Offense carries a mandatory minimum jail sentence of one year to serve without the possibility of parole or credit for good time. A fourth offense OUI is a felony offense and carries with it a ten year loss of license.

On a fourth offense, many judges would be unwilling to impose a sentence of minimum jail time, particularly after trial. Depending on the strength of the case, in some cases a Massachusetts DUI lawyer can obtain a reduction in the offense level. This occurs for a number of reasons, either because of the relative strength of the Commonwealth's case or because the Commonwealth will have difficulty proving prior convictions. A fourth offense OUI will require a vigorous defense to prevail at trial or to obtain a favorable plea agreement if the defendant wants to resolve the case. Bail will typically be requested by the Commonwealth on any offense over a third offense.

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An Attleboro, Massachusetts man, Thomas Powers, was arrested and charged with a Fourth Offense OUI. According to the news report, Powers was charged with operating on a revoked license for a prior DUI charge. If Powers is found guilty of a DUI in Massachusetts while driving on a revoked license for DUI, he faces a mandatory jail sentence of one year on the charge of driving on a license suspended for DUI.

Additionally, Massachusetts DUI law Chapter 90 Section 23 requires that any sentence on the charge of driving with a license suspended for OUI while under the influence run on and after any sentence on the underlying OUI charge. Accordingly, Powers would still face the Fourth offense OUI charge which also carries a mandatory minimum jail sentence of one year. That sentence, unless the district attorney agrees to drop or reduce the license suspension charge, would run on and after the charge of driving on a suspended license for OUI while OUI.

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