Massachusetts DUI Attorney Blog

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:

A Duxbury man with seven prior OUI convictions in Massachusetts and who was recently arrested on a new charge, was found to be dangerous by a judge and is being held in jail, the Patriot Ledger reports.

Being charged with OUI in Massachusetts is a serious offense, but a driver's past can make a new charge even more difficult to deal with. That's because in Massachusetts, prior OUI convictions can make future penalties for a drunken driver more severe.

Having past convictions affect a future sentence may not seem fair, but that's how the laws are written. The tiered nature of the state's drunk driving law make it critical to fight each charge. A first-offense DUI in Massachusetts is often the most beatable. Taking a plea today can put your future at risk tomorrow.

In order to prove a person is facing their eighth OUI charge in Massachusetts, the prosecution must be able to prove the past convictions. In many cases, a person may have been charged and convicted of a drunken driving related crime in a different state, many years ago. The court case recording system in many states wasn't very good, so prosecutors sometimes have difficulty proving past convictions. In some cases, the documentation is lost, deleted or doesn't show the necessary information to prove a conviction.

In this case, prosecutors believe a Duxbury man has seven prior OUI convictions and he was recently arrested on another OUI charge. The man will be held in a jail until his next court date in mid-February.

Mark Dirsa was ordered held in a Plymouth jail after a Plymouth District Court judge ruled that he's "dangerous" and must be held in custody. He was arrested Dec. 28 in Kingston after police allege he crashed into a sedan.

He is next scheduled to appear in court Feb. 13 for a pretrial hearing. The newspaper reports that if he is convicted of OUI he would face a lifetime driver's license suspension as well as more than two years in jail.

The newspaper reports that state records show the 54-year-old has an eight page-long driving infraction record. But his prior drunken driving convictions go back to the 1980s and 1990s. Based on the state's lifetime look-back law, all previous convictions can be counted at sentencing.

Police say the man is dependent on oxycodone and told police that he took the drug on the morning of the crash. Police reported that they found 11 pill bottles in his truck's glove compartment. He also faces charges of falsifying a prescription last year to obtain oxycodone.

The newspaper article doesn't provide additional details about why police suspect he was under the influence of drugs or alcohol. Simply admitting to taking a pain pill the morning of an afternoon accident doesn't rise to the standard of proof for an OUI conviction. Unless other testing was done to show this wasn't simply an accident, the defendant may have an opportunity to fight this charge.

Continue reading "Duxbury OUI Driver Found to Be Dangerous, Held in Jail" »

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" »

An Abington, Massachusetts man, Vicent Benoit, faces a fourth offense Massachusetts OUI charge out of the Brockton District Court. This was reported in the Brockton Enterprise by Matt Stout.

The case appears very defensible as the blood-alcohol test results registered .06, under the legal limit of .08. Despite the fact that the breathalyzer test result is 20% below the legal limit, the Plymouth County District Attorney's Office will aggressively prosecute the case, brought in the Brockton District Court.

Even if this was a first offense OUI, district attorneys do not dismiss or reduce these charges to negligent operation, but force a defendant to prevail at trial. Typically, cases with the .06 or .07 breathalyzer test result are very strong case for the defense and often would result in a not guilty verdict at trial. Given that Benoit is charged with a fourth offense, he will likely have to take his case before a jury. You can read more about .06/.07 breathalyzer test result case by clicking here.

The police claim that Benoit nearly hit a police car coming around a turn. It would be helpful for Benoit to have pictures of the turn; in many cases, the pictures of the road may show that the officer's testimony is exaggerated. The defendant is alleged to have failed three of four field sobriety tests, though it is unclear which test the defendant past.

This case demonstrates that any OUI charge regardless of whether the breathalyzer test results are below .08, will require a trial in order to avoid an OUI conviction. Had the defendant's breathalyzer test results been .05 or less, under Massachusetts law, he would not of been charge with OUI.

A case of a .06 breathalyzer test results allows for a Massachusetts OUI lawyer to argue that the breathalyzer test result establish that the defendant was not under the influence of alcohol, given that it is perceived by the police as the most reliable test. During cross examination, a police officer would have to acknowledge that a breathalyzer test is offered in every case, even if field sobriety tests are not given, and that the officer wants everyone to take a breathalyzer test, because it is perceived as the top evidence possessed by the Commonwealth. Accordingly, a Massachusetts OUI attorney would argue that the Commonwealth's best evidence shows that Benoit is not under the influence and that should allow a jury to find that the Commonwealth has not proven its case beyond a reasonable doubt.

The recent case of a man charged with OUI in Attleboro shows just how disruptive an OUI conviction can be in a person's life.

The 69-year-old now must spend the next year in jail. Massachusetts OUI lawyers fight these cases so aggressively because we know the potential penalties can be so disruptive for families.

In this situation, according to The Sun Chronicle, the man pleaded guilty after driving on the wrong side of Route 1 and nearly colliding with two cars. Authorities say he was operating a vehicle under the influence.

John J. Michaelson entered a plea and was sentenced by Judge Daniel O'Shea in Attleboro District Court. He could have faced up to 2 1/2 years in jail, but was sentenced to a year. Because he had already been in custody for a year awaiting trial, he was released on the day he entered his plea. A defendant who is held in custody prior to sentencing or plea is entitled to credit for the jail time served awaiting a resolution of the case.

The article states that the rest of the jail term was suspended with probation and a condition that he submit random urine testing and undergo an alcohol assessment. He will have his license suspended for ten years as a result of the conviction of a 4th Offense OUI in Massachusetts. If the defendant has any other convictions for DUI, that were unknown to the court, but recorded by the RMV, he would face a lifetime license loss. The license suspension for a Massachusetts OUI offense is governed by the number of OUI offense throughout a person's lifetime that are required in the RMV records.

He was arrested Oct. 10, 2010 after spotted by an off-duty Walpole police officer. He was driving south in the northbound lanes of Route 1. The man has a history of drunken-driving arrests, dating back to 1981, prosecutors said in asking for a two-year jail term.

The defendant is a U.S. Army Veteran who served during the Cuban missile crisis in 1962 and has advanced degrees in engineering and industrial technology, along with a business degree. He is going to enter an alcohol treatment program, his attorney said.

It's a good thing that the defendant is taking the steps to enroll in an alcohol treatment program and has gone 13 years without an arrest. These are things that can always help a defendant in an OUI case.

Continue reading "4th Offense OUI conviction from Attleboro District Court results in one year jail sentence " »

A Hanover man, Harry Bennett, Jr. was convicted of a 4th Offense Massachusetts DUI after a trial in the Quincy District Court according to a news report in the Patriot Ledger. The trial judge sentenced the defendant to the maximum sentence of 2.5 years in the house of correction on the 4th Offense DUI charge and also imposed an addition one year on and after sentence on the charge of driving with a license suspended for OUI. The 2.5 year sentence on a four offense OUI charge is not surprising following a trial. Massachusetts DUI law then requires that the additional time for operating with a license suspended for OUI be imposed on and after the OUI portion of the sentence.

A Fourth Offense DUI charge in Massachusetts carries a ten year license loss; additionally, if the breathalyzer was refused in the case, the refusal itself with three prior convictions would result in a lifetime loss of license. Accordingly, to save his license from a lifetime ban, assuming no other suspensions, Bennett would have had to prevail on a refusal hearing and through the appeal process in the district courts challenging the refusal suspension or would not had to be found not guilty on the 4th Offense OUI and have the judge allow a motion to reinstate his license. Even after a not guilty, on third and fourth offenses, it would not be uncommon for a judge to deny a motion for reinstatement, citing the alleged driving violations and the safety of the public as grounds for denying the motion.

Continue reading "Hanover man convicted of 4th Offense Massachusetts OUI sentenced to 3.5 years " »

A Massachusetts Fourth Offense OUI conviction was upheld by the Appeals Court in the case of Commonwealth v. Russell Beaulieu, decided on March 18, 2011. The Beaulieu decision also involved the issue of refusing field sobriety tests which was the subject of an earlier blog.

In the Beaulieu case, the Massachusetts DUI lawyer argued that because the defendant was charged with a Fourth Offense drunk driving charge and the charge of operating with a suspended license because of an OUI conviction that the court should bifurcate the counts of the criminal complaint in order to ensure the defendant a right to a fair trial.

Ordinarily, in a charge of a Second or Third DUI, the jury does not learn of the prior convictions. The jury decides whether the driver operated under the influence of alcohol and in a separate proceeding either a judge or the same jury decides the number of prior offenses. Because of the charge of operating on a suspended license for OUI, the jury learned of the prior conviction.

The Massachusetts Appeals Court did not address the obvious prejudice to the defendant in refusing to severe the counts for trial, but held that the evidence of the prior conviction was necessary to prove the Count of operating on a suspended license for OUI. Additionally, the Court noted that the jury was properly instructed on the purpose for which that evidence was offered.

The Appeals Court distinguished the reason for the separate trial on the number of prior DUI offenses because it held that in those situations the court was dealing with a sentence enhancement and not an element of the offense.

As a Massachusetts DUI attorney, I would expect the Massachusetts Supreme Judicial Court to grant further appellate review. While courts do not like to severe counts of a criminal complaint because it is more time consuming for the court, here, that was required to preserve the defendant's Sixth Amendment right to a fair trial. Having heard that the defendant had a prior OUI offense and continued to drive, the defendant was clearly prejudiced in front of the jury regarding this count.

While the defendant may not have been willing to accept a plea on the Operating on a suspended license charge, as it would have involved jail time, it would have been a way to avoid the prejudice of this evidence coming in at the time of trial. However, it is unfair to require a defendant to surrender his right to a jury trial in order to obtain a fair trial. In this case, the only avenue will be an appeal to the SJC in the hopes that the highest court in Massachusetts, reverses the conviction and orders a new trial.

Continue reading "Fourth Offense Massachusetts OUI conviction upheld by the Appeals Court" »

A Norton, Massachusetts man faces a dangerousness hearing after being charged with a Fourth Offense Massachusetts DUI out of the Attleboro District Court. Kevin Whiting is being held without bail pending a dangerousness hearing according to the Attleboro Sun. For a defendant to be held without bail pursuant to the Massachusetts dangerousness statute, the Commonwealth needs to prove that no condition of release can reasonably assure the safety of the community.

When the court holds a dangerousness hearing, the Commonwealth will present the testimony of the officers that arrested the defendant; these officers will testify as to the basis of stopping the defendant as well as the defendant performance on field sobriety tests. An Attleboro DUI lawyer will have the opportunity to cross examine the officer. In most DUI trials in Massachusetts, a defendant does not have the opportunity for a complete cross examination of the officer prior to trial. Though a finding that a defendant is a danger to the community, will result in a defendant being held without bail, a drunk driving defense attorney is provided an opportunity to preview the Commonwealth's case prior to trial. By obtaining a transcript of the hearing, an attorney can use this prior testimony in preparing a defense at the time of trial.

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.

Continue reading "Hanover man sentenced in Fourth Offense Massachusetts OUI charge out of the Hingham District Court" »

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.

Continue reading "Cape Cod man faces Fourth Offense OUI charge in Massachusetts " »

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.

Continue reading "Massachusetts court rules Melendez-Diaz does not preclude admission of RMV records to prove prior conviction at subsequent offense DUI trial" »

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.

Continue reading "4th Offense Massachusetts OUI charge brought against man driving a moped" »

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.

Continue reading "Massachusetts Fourth Offense OUI charge brought against Framingham woman" »

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.

Continue reading "Weymouth man faces fourth offense Massachusetts OUI charge in Quincy District Court" »

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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