Massachusetts DUI Attorney Blog

A 27-year-old woman faces drunk driving charges for allegedly trying to drive home to Rhode Island in a car that was missing a tire, the Taunton Daily Gazette reported.

Diane Monteiro, of 38 Cotter St., appeared in Taunton District Court on Tuesday, where she was arraigned on charges of operating under the influence of liquor, operating a motor vehicle with a suspended license, negligent operation of a motor vehicle, operating an uninsured motor vehicle, leaving the scene of property damage and a marked lanes violation. She was released on $100 cash bail.

Monteiro was arrested April 18 on Winthrop Street in Rehoboth when officers spotted a car traveling eastbound with lopsided headlights. As the Nissan Altima passed the police cruiser, officers noticed it was driving on three tires and its taillights were not functioning.

Police report she drifted into the breakdown lane, where she drove for another quarter mile on the rim, sending sparks shooting into the air as the car scrapped along the pavement. The officers pulled her over just east of Earl Dias Interiors, where they report the Providence woman failed several field sobriety tests.

An inspection of the car revealed it had dents and scratches, as well as a missing side mirror, where police allege Monteiro crashed into a mailbox shortly before being spotted by the officers. The mirror was found on Route 44 in the 500 block of Winthrop Street, where a mailbox had also been damaged.

Authorities reported the defendant smelled of alcohol and appeared "extremely disoriented." She told officers she had consumed two mixed drinks. However, a breathalyzer test at the Rehoboth Police Station registered a blood-alcohol level of .22, nearly three times the legal limit of .08 in Massachusetts.

Monteiro is scheduled to be back in court May 17.

Continue reading "Woman faces Taunton OUI charge; allegedly passes police in vehicle missing a wheel" »

Breathalyzer machines used by the Washington D.C. have been given inaccurate test results according to an article in the Washington Post. This has caused police to review prior DUI charges brought against arrested motorists. As a result of the errors with breathalyzer testing equipment, the department plans to purchase new machines to replace the old machines and will require officers to be retrained.

Nine of the ten machines in use are being examined with the problem in the machines arising when the machines were not correctly recalibrated after repairs were made to the motor. The police department plans to replace the Intoxilyzer 5000 with the Intoximeter. It is unknown how many cases may be impacted by the defective breathalyzer machine. In Massachusetts OUI arrests police use a machine known as the Draeger 6800. The Intoxilyzer 5000 is still used in the State of Rhode Island along with numerous other states which have yet to replace the machine.

Continue reading "Inaccurate Washington D.C. breathalyzer machine affirms the need to hire a Massachusetts OUI lawyer to challenge breathalyzer test results" »

Two area men face Massachusetts OUI charges after recent arrests. One was allegedly involved in a single-vehicle accident; the other was arrested after a phone call to police about an erratic driver in a residential neighborhood.

A Massachusetts criminal defense attorney experienced in handling drunk driving charges should be called to represent anyone facing charges of operating under the influence in Massachusetts. Drunk driving charges can have serious consequences, including hefty fines, jail time, the loss of your license and higher insurance premiums. A Massachusetts drunk driving conviction may even prevent you from remaining employed or obtaining future employment for certain jobs.

A 36-year-old man pleaded innocent on Monday in Attleboro District Court to drunk driving charges in connection with a single-vehicle accident over the weekend at Thacher and South Main streets.

The Sun Chronicle reported that the Rhode Island defendant was driving an SUV that struck a utility pole around 3 a.m. Saturday.

Police reported that a blood alcohol test found the defendant was twice the legal limit of .08. He was charged with drunk driving, driving to endanger and driving without a license and is due back in court on April 9.

In a separate case, Dedham police arrested a 27-year-old Westwood man on Massachusetts OUI charges. Police responded to Bridge Street shortly after 5 p.m. after receiving calls about an erratic driver, according to the Dedham Transcript.

Police questioned the defendant, who was driving a red Honda Civic, and claim he was swaying back and forth and smelled of alcohol. A police lieutenant reported the defendant admitted to drinking alcohol and was arrested and charged with driving under the influence.

The defendant made his first appearance in Dedham District Court and a pre-trial hearing has been set.

Continue reading "Aggressive defense of Massachusetts OUI charges essential to protecting your rights" »

Virginia's House of Representative passed a law that would require all first-time DUI offenders to have ignition interlock devices placed on their car, which would prevent them from starting if a breath test detects alcohol on the driver, the News & Messenger reported.

Massachusetts law requires the devices for anyone with two or more OUI convictions; anyone charged with a First or Second Offense Massachusetts OUI should hire an experienced Massachusetts OUI Lawyer.

Ignition interlocks are just another example of the serious consequences a Massachusetts OUI conviction can have on your lifestyle and personal freedom. A Massachusetts OUI attorney can often fight for a reduction in charges or a not guilty verdict at trial, which can both reduce the penalty and the chances of the more serious consequences a future conviction can bring.

The bill, which would be one of the toughest in the country, now heads to the Virginia Senate.

"In polling that's been done I can say it has widespread support," said Mother's Against Drunk Driving spokesman Christopher Konschak. "On the Senate side, we've really never been able to get the bill to the full Senate because it gets killed in a smaller committee every time, and their concern is always its too harsh of a penalty for someone who has driven drunk one time."

Current Virginia law does not require interlocks for first-time offenders unless their blood-alcohol level was more than twice the legal limit. MADD's stated goal is to require interlock devices, which refuse to allow a vehicle to start for a driver when alcohol is detected, for all drunk driving offenders.

Other alcohol-related legislation in Virginia would institute harsher penalties for school bus drivers convicted of drunk driving, remove a mandate that an officer be present during a breathalyzer test and place limits on where families can permit an underage family member to consume alcohol.

Of particular concern from a legal-defense standpoint, is any law that would reduce the requirements and restrictions on administers of breathalyzer and field-sobriety tests. Defendants can often challenge the results of tests not administered properly or administered by an inexperienced operator.

Virginia is not alone in its tough stance against drunk drivers -- despite significant declines seen in alcohol-related traffic fatalities. Last year, the state posted the fewest alcohol-related traffic fatalities since 1996.

MADD also contends the devices would reduce other court-ordered but hard-to-enforce restrictions, such as driving privileges to and from work. If approved, the measure would require offenders to keep interlock devices on their cars for six months and pay a $65 monthly fee. Any positive tests for alcohol during the six months would start the six-month period over again.

Continue reading "Virginia suggests tough new interlock law for DUI offenders " »

Drunk Driving charges were brought against Miami Dolphins cornerback Will Allen. According to the news account, Allen attempted to drive through a police barricade that was used to create a detour. Allen is reported to have taken a breathalyzer at the police station with readings of .152 and .167.

Under Massachusetts OUI law, a motorist is given two breathalyzer tests. If a driver is only given one breathalyzer test, the results would be inadmissible. The lower of the two readings is the only admissible breathalyzer reading that would be presented to a jury. This aspect of Massachusetts DUI law was recently reaffirmed by a case decided by the Massachusetts Appeals Court.

In Allen's case, there is a disparity between the two breathalyzer tests results. This could be from a defect in the machine or failure of the police officer to follow proper procedures in administering the test. In some cases an expert is necessary to explain the defect in the breathalyzer testing process to a jury.

Continue reading "DUI charge brought against Miami Dolphins cornerback Will Allen" »

Preliminary breathalyzer test result, PBT, are inadmissible to prove a DUI offense in Massachusetts. Accordingly, if you failed a portable breathalyzer test the Commonwealth cannot offer that evidence to the jury.

A case from Wisconsin raised an interesting issue of whether a defendant can offer preliminary breathalyzer test results to show that the defendant's blood alcohol level was lower at the time of driving. The DUI lawyer in this case retained an expert who used the results of the preliminary breathalyzer test to argue to the jury that the defendant was still in the absorption phase and his blood alcohol level was lower at the time of driving than at the time the breathalyzer test was given.

The answer to this question would seem to be yes, how can the state disclaim the scientific reliability of its own evidence and deprive the defendant of his right to present a defense and exculpatory evidence. The Wisconsin Supreme Court rejected this argument, relying on the intent of the legislature to limit the admissibility of portable breathalyzer test results.

The court's ruling reconciles two Wisconsin Statutes - Wis. Stat. sec. 343.303 and Wis.Stat.sec. 907.03. Wis. Stat. sec. 343.303 expressly prohibits the use of a PBT to prosecute a motorist accused of operating a motor vehicle while intoxicated. On the other hand, Wis.Stat.sec 907.03. provides for the admissibility of expert opinion testimony regardless of the admissibility of the underlying data. The defendant contended that even though the portable breathalyzer is inadmissible that his expert's opinion should be allowed because the expert relied upon it in reaching his opinion. The defendant attempted to draw a distinction between offering the PBT results. which he was not doing and offering testimony that relied on the PBT results. The court held that is no distinction and the statute prohibiting PBT results from being admitted into evidence would be violated by allowing the expert to rely on them in forming his opinion.

The Court held that the legislative policy was clear that portable breathalyzer test results are inadmissible. The court reasoned the legislative intent behind limiting the admissibility of PBT results "helps law enforcement officers do their jobs with more cooperation from drivers than they would otherwise be likely to get if the results were admissible in court. The court noted that a PBT may be requested when an officer has a basis to justify an investigative stop but has not established probable cause to justify an arrest.

Similarly under Massachusetts law, preliminary breathalyzer tests are inadmissible. PBT have never been deemed scientifically reliable and as a result, may not be used as evidence against a defendant.

The Massachusetts courts have not addressed whether a defendant can offer the PBT. If this occurred in Massachusetts, the court probably would allow a defendant to offer the results of the PBT as the decision of the Wisconsin Supreme Court appears to deny the defendant his right to present a defense and cross examine the State's evidence under the Sixth Amendment and Fourteenth Amendment to the United States Constitution.

Continue reading "Preliminary breathalyzer test (PBT) results inadmissible in Massachusetts OUI cases " »

A 39-year-old Attleboro man faces Massachusetts drunk driving charges after state police say he passed a marked police cruiser at over 100 mph on Interstate 95, the Sun Chronicle reported.

He pleaded not guilty to the charges in Attleboro District Court and was released without bail. An experienced Attleboro OUI lawyer should represent anyone facing drunk driving charges in Attleboro District Court.

Police reported the defendant passed the cruiser at high speed in the pre-dawn hours Sunday morning on I-95 South in North Attleboro. He was reportedly weaving in and out of traffic and nearly collided with several cars.

He was stopped in Attleboro after he was clocked on radar traveling 115 mph, according to state police. The defendant is due back in court on Feb. 22.

Continue reading "Attleboro, Massachusetts DUI charge alleges defendant passed cruiser at 115 mph" »

Those charged with a Massachusetts OUI based on breathalyzer test results should contest their OUI charge in court. There are many ways in which a good DUI lawyer can exclude breathalyzer evidence.

According to a news report from Denver, Colorado, hundreds of DUI cases may be affected by the discovery of problems with breathalyzer testing equipment in the lab in Colorado Springs.

Inaccuracies and defects in breathalyzer are not limited to Colorado. In February 2009, Dr. Barry Logan, head of the state crime and toxicology labs in Washington State resigned over discovery of deficiencies in the way DUI testing. Irregularities were uncovered in late summer 2007 in the state toxicology lab. A senior manager was found to have signed off on tests she did not perform. This discovery led to an investigation into other problems, including errors could have impacted 130 DUI cases. Problems with breathalyzer testing can come from mechanical problems with the breathalyzer machine, including design defects, source code errors and human error.

Continue reading "Breathalyzer testing produces inaccurate results underscoring need to contest Massachusetts OUI charges " »

In a Massachusetts OUI case, a police officer is required to administer two valid breathalyzer tests to a motorist. The only breathalyzer result admitted into evidence is the lower of the two test results. The two breathalyzer test results must agree with .02 of one another or a third test must be given to the motorist.

A recent case from the Massachusetts Supreme Judicial Court, Commonwealth v. Steele, raised the issue of whether the Commonwealth could admit into evidence the higher of the two test results. The Commonwealth argued that it is the regulation and not the statute that states that only the lower of the two test results is admissible. The Commonwealth argued that admitting only the lower of the two test results benefits the motorist.

The Massachusetts Supreme Judicial Court held that the statute delegated the authority to the Secretary of Public Health to create regulations governing breathalyzer testing. The court held that the regulation permitting only the lower test result to be admitted into evidence is a reasonable regulation designed to promote accurate and reliable breathalyzer test results.

Continue reading "Breathalyzer testing in Massachusetts OUI cases and lower of two test results" »

A Massachusetts DUI arrest by the Milford police revealed that there was a problem with the breathalyzer machine possessed by the Milford police department. The defendant, Clayton Dealmeida was brought to the Hopedale police station because there was a problem with the breathalyzer machine at the Milford police station.

The issue of why the breathalyzer machine at the Milford police station is broken may create defenses for other defendants as this would make for a useful basis of discovery. An experienced Massachusetts DUI lawyer would want to know when the police detected that the machine was in need of repair, the nature of the repairs, how the discovery was made and who found that the machine was not working properly.

The discovery of the problem with the machine arose out of the arrest of Dealmeida which involved a police pursuit. An interesting aspect of Dealmeida's case may be the time between the observation driving and the administration of the breathalyzer test. A breathalyzer test is only admissible if performed within a reasonable time after driving, generally three hours is deemed reasonable.

Continue reading "Milford, Massachusetts DUI arrest reveals problems with Milford police breathalyzer machine" »

In Massachusetts, the refusal of a motorist to take a breathalyzer test is inadmissible at trial. While Massachusetts DUI law penalties a motorist's refusal to take a breathalyzer test with a license loss, the fact of the refusal is inadmissible in the criminal trial. In a DUI refusal case, a motorist faces a license loss for the refusal with a right of appeal to the RMV in Boston and then to the district court. This refusal appeal is considered a civil appeal against the RMV.

The DUI case proceeds in the district court. During the OUI/DUI trial, the jury will not hear evidence that the motorist refused a breathalyzer test. In a case decided by the Massachusetts Supreme Judicial Court, Opinion of the Justices to the Senate, 412 Mass. 1201 (1992), The Massachusetts Supreme Judicial Court held that to admit evidence of a breathalyzer refusal during a criminal trial would violate the provision of the Massachusetts State Constitution, the Declaration of Rights, which provides that no person shall be compelled to accuse or furnish evidence against himself. The Massachusetts Constitution provides a greater privilege against self-incrimination than the Fifth Amendment to the United States Constitution.

In a case decided on September 30, 2009, by the Ohio Supreme Court, State v. Hoover, the Ohio Supreme Court upheld an Ohio law that imposes ten additional days of jail time on a driver with a prior DUI offense that refuses to submit to a chemical test. The court rejected the defendant's contention that the law was unconstitutional because it penalties the defendant's refusal to consent to s warrantless search of his person.

Continue reading "Refusal of breathalyzer test in Massachusetts and use at DUI trial" »

The admissibility of breathalyzer evidence in Massachusetts may be impacted by a confrontation clause case from Virginia that the United States Supreme Court agreed to hear for the upcoming term. Commonwealth v. Briscoe. The appeal in Briscoe concerns several cases that were consolidated and all raise the same issue of whether Virginia's notice and demand statute satisfies the Constitutional requirements of the Sixth Amendment confrontation clause.

The Briscoe cases involves the issue of the admissibility of a drug certificate of analysis. Unlike the Melendez-Diaz case where the Supreme Court required live testimony, the Virginia statute only allows the certificate to be admitted if the State gives the defendant notice and demand of their intent to rely on the affidavit seven days prior to trial and files this with the court. The defendant is then given the opportunity to call the chemist as an adverse witness with the cost of the summons, incurring to the State.

The Melendez-Diaz decision suggested that States could enact law requires a defendant to assert the right of confrontation prior to trial, suggesting that notice and demand statutes would satisfy the Sixth Amendment requirements. Additionally, the Melendez-Diaz decision clearly indicated that the right of confrontation could be waived.

The Virginia statute appears contrary to the language of Melendez-Diaz and the court should strike it down, though it would be anticipated the decision would essentially direct states as to how to pass a Constitutional notice and demand statute. The flaw in the Virginia statute appears that it requires the defendant to subpoena the lab technician and call the lab technician as a witness in the defense case. In a criminal trial, the burden is always on the Government to call witnesses to establish the essential elements of the offense and the due process clause is violated by efforts to shift the burden to the defendant. The language of the Sixth Amendment also underscores that the Government has to call witness against the defendant to preserve the defendant's right to confront witnesses against him.

In addition to the language of the Melendez-Diaz decision, the defense counsel's brief in Briscoe depicts other flaw with the Virginia statute that the right to call the chemist as an adverse witness in the defense case is not the same as being provided with the opportunity for cross examination after the chemist testified as a witness on direct examination for the Government. Further, the defense brief points out that this essentially time saving procedure has no logical limitation and could be expanded to other cases not involving drug analysis, reverting back to the rejected concept of trials based on affidavit.

The United States Supreme Court should strike down the Virginia statute. Massachusetts has yet to enact any similar notice and demand statutes in DUI case or drug cases. The impact of the United States Supreme Court confrontation clause will have a major impact on the admission of breathalyzer evidence as the confrontation clause cases define how the Government must proceed to have documents regarding the accuracy and reliability of the breathalyzer machine placed before the court.

By the time Briscoe is decided by the Supreme Court, likely to be June 2010, there will be numerous decision from state courts applying Melendez-Diaz to the admissibility of breathalyzer evidence. The Briscoe decision is likely to shape the method by which states enact notice and demand statutes.

Continue reading "Massachusetts DUI evidence and the impact of Briscoe on the right of confrontation" »

The admissibility of breathalyzer evidence in Massachusetts DUI cases may depend upon how the courts apply the United States Supreme Court's decision in Melendez-Diaz v. Massachusetts. The Melendez-Diaz case held that the Commonwealth cannot convict a defendant of a crime where the Government relies on an affidavit to prove an element of the offense without, providing the defendant with an opportunity to confront any witness against a defendant by cross examination.

The application of this rule to DUI cases in Massachusetts involving breathalyzer testing is working its way through the courts. The issue was address in a Virginia case, Grant v. Commonwealth on September 1, 2009.

In Grant, the Virginia Court of Appeals ruled that a trial judge improperly allowed a breathalyzer test to be admitted into evidence without the live testimony of the officer that conducted the test. In Massachusetts, the Commonwealth would generally call the officer that conducted the breathalyzer test as a witness. Based on United States Supreme Court case law, and reaffirmed by Grant, is that the Government must call the breathalyzer operator as a witness.

The case suggests a further requirement on the Government, which may result in breathalyzer evidence being excluded in Massachusetts DUI cases. The court states that once the legislature sets forth by statute how breathalyzer evidence is to be admitted in a DUI trial, then the Commonwealth must prove those facts by live testimony. Under Massachusetts OUI law, the Commonwealth must prove that the breathalyzer machine complies with the annual certification and the periodic testing requirement. Generally, the Commonwealth relies on an affidavit from the Office of Alcohol Testing to prove compliance with the annual certification and periodic testing requirements of the law. The Grant case suggests that live testimony is necessary to prove compliance with the foundation requirements to admit breathalyzer evidence. Accordingly, a Massachusetts DUI lawyer may be able to exclude breathalyzer evidence under the reasoning of the Grant case.

Continue reading "Breathalyzer testing in Massachusetts DUI cases and recent Sixth Amendment defenses" »

The admissibility of breathalyzer evidence was alternated when the Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Colturi, 448 Mass. 809 (2007). In Colturi, the court held that the Commonwealth does not have to produce expert testimony to prove that the defendant's blood alcohol at the time of driving is the same as at the time of the test as long as the breathalyzer testing is done within a reasonable period of time after the operation. The court held that three hours would generally be a reasonable time, but allowed for the possibility that a shorter period should apply depending on each individual case.

A case from Mississippi recently raised issues similar to those litigated in Colturi. In a Mississippi case, State v. Evans, that will be decided by the Mississippi Supreme Court, the defendant registered a .09 just above the legal limit of .08. The defendant was stopped at 12:50 am and not given a breathalyzer test until 1:58 am according to news accounts. The court refused to allow the defendant to present retrograde extrapolation evidence that the defendant was below the legal limit at the time of operation. Given that the issue with any breathalyzer is whether it accurate reflects the blood alcohol content at the time of driving, the judge appears to be incorrect in precluding the defendant from offering the evidence and presenting a defense. The court of appeals reversed the trial judge and the case will be heard by the State's highest court.

Massachusetts DUI law under Colturi should not preclude a defendant from offering evidence proving that the blood alcohol level was lower at the time of driving. Though Colturi held that the Commonwealth does not have to present this evidence to prove a violation under the per se law, that case does not bar a DUI attorney from presenting this defense before a jury.

In a case involving a .09 breathalyzer, an OUI lawyer would want to consider whether a margin or error defense would be more effective, given that the machine has a margin of error that could put the reading below .08. Additionally, if field sobriety tests show that the defendant was coordinated and had good balance, an attorney could argue that there is a conflict or disconnection between the breathalyzer evidence and the officer's observations that should cause a jury to distrust the reliability of the machine.

Continue reading "Massachusetts DUI and breathalyzer testing after Colturi" »

Mothers Against Drunk Driving, MADD, an organization dedicated to curbing drunk driving nationally and in the Commonwealth of Massachusetts, has criticized President Obama for hosting what became known as the "beer summit" to mend fences between Sergeant Crowley and Professor Gates.

A spokes person for MADD said that the idea of having a beer to soften the dispute between the professor and the officer was not a good idea because young people tend to mimic the actions of adults. In Massachusetts as in every state, it is not illegal to consume alcoholic beverages and drive.

In a Massachusetts OUI charge, the issue is whether the consumption of alcohol diminished a driver's ability to operate a motor vehicle safely. When someone is stopped for DUI, the officer's observations generally fall into standard categories: driving ability, ability to respond appropriately to questions, demonstrating mental alertness and physical coordination as demonstrated by field sobriety tests. Also, the officer will judge a suspects mental alertness by whether or not the individual listens to instructions on field sobriety tests and starts the tests when told to do so.

In many DUI arrests, a motorist will admit to consuming alcohol; however, typically the Commonwealth cannot establish the time of consumption. An individual charged with a Massachusetts DUI based on admissions to drinking may have a strong case as the Commonwealth cannot prove a DUI case based on admissions to consumption of alcohol alone without demonstrating that the alcohol actually impaired a drivers ability to operate a motor vehicle safely.

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