Massachusetts DUI Attorney Blog

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" »

In another high-profile drunk driving arrest, Washington Redskins cornerback Byron Westbrook has been charged with drunk driving in Charles County, Maryland, according to The Washington Post.

The paper reported that Westbrook was stopped and arrested after a deputy saw him driving erratically on a state highway in Waldorf. Westbrook, who lives in Herndon, was driving a gray Mercedes on Route 5 near Lake Place. Shortly before 2 a.m., the deputy said Westbrook crossed the lane marker several times. Deputies reported detecting a strong odor of alcohol and said he failed several field sobriety tests but declined the breath test.

Many times, an experienced Massachusetts OUI defense lawyer can challenge such evidence; law enforcement commonly uses lane violations (which may or may not have even occurred) to pull over vehicles; filed sobriety tests are also subjective and can be scrutinized by an attorney experienced in fighting for the rights of clients facing Massachusetts drunk driving charges or DUI charges in Maryland or elsewhere in New England.

Westbrook was charged with driving under the influence of alcohol, driving while impaired, negligent driving and failing to stay on the right side of the road, the Post reported. He was released pending a court appearance.

The Redskins said the organization has been made aware of the arrest. "We take these issues very seriously," GM Bruce Allen said. "Moving forward, we plan to meet with Byron and will continue to monitor the situation."

The Maryland driving under the influence of alcohol charge is the most serious charge he faces and carries a penalty of up to a year in jail and a $1,000 fine, as well as a six-month license suspension.

He is the second Redskins player to face alcohol charges this off season. Lineman Chad Rinehart was charged with public intoxication last month in Iowa.

Continue reading "Redskins' Westbrook charged with drunk driving in Maryland" »

A study using government crash data found an increasing number of young women are involved in fatal car accidents blamed on drunk driving, Business Week reported.

Many times drivers who face a Massachusetts OUI charge have never been in trouble with the law. In some cases they simply make a mistake and in other cases they can be unfairly targeted by law enforcement. Often an experienced Boston defense lawyer can successfully fight Massachusetts drunk driving charges for first-time offenders.

Unfortunately, many unfamiliar with the legal system underestimate the seriousness of a drunk driving charge and fail to consult a Boston defense attorney experienced in defending clients against Massachusetts drunk driving charges. Massachusetts drunk driving charges can result in jail time, fines, loss of your driver's license and can even impact your ability to hold certain jobs. Massachusetts drunk driving charges involving a car accident can be especially serious and should always be handled by an experienced DUI lawyer.

"Young women in particular turn to drugs and alcohol to cope and to feel like a part of the crowd or lose their inhibitions," said Laura Dean-Mooney, national president of Mothers Against Drunk Driving (MADD).

The study, based on data from the National Highway Traffic Safety Administration, found incidents of fatal crashes involving female drivers actually increased between1995 to 2007.

In 2008, one-third of all fatal Massachusetts car accidents (124 of 363) involved a drunk driver, accocrding to NHTSA.

The finding about the increase in drunk driving among women is published Feb. 18 in Injury Prevention.

During the 12 years examined, 179,891 fatal car accidents were recorded among drivers 16 to 24 years old. Accident rates declined slightly among young men. Accident rates increased for young women ages 19 to 24. Additionally, young women involved in fatal crashes were almost three times more likely to have alcohol in their system, researchers noted.

Continue reading "Study suggests fatal drunk driving accidents increasing among young women" »

Former NHL player Chris Chelios avoided a license loss for refusing a breathalyzer as the judge ruled that the police did not have enough evidence to support the one year license loss under Illinois DUI law for breathalyzer refusal. The judge reviewed a video of Chelios that showed him sway a little during the one leg stand, but Chelios presented evidence that he had nine knee operations during his NHL career. Accordingly, the judge ruled that there was insufficient evidence to support the license suspension for breathalzyer refusal.

While Chelios' knee injuries are well documented, given he played 24 years in the NHL for the Red Wings and Blackhawks, those arrested for a Massachusetts OUI can also present medical evidence to rebut claims of lack of balance and coordination on field sobriety tests.

Continue reading "Former NHL player Chris Chelios charged with DUI avoids breathalyzer refusal license suspension " »

The United States Supreme Court addressed the right of confrontation in a case called Briscoe v. Virginia. In Melendez Diaz v. Massachusetts, the United States Supreme Court held that the Commonwealth of Massachusetts could not offer a drug certificate of analysis without providing the defendant with an opportunity for cross examination. This decision ended the practice of trial by affidavit where prosecutors would prove that drugs were illegal narcotics by offering an affidavit from the chemist who conducted the analysis. The United States Supreme Court's Melendez-Diaz decision resulted in many drug convictions and gun charges being overturned by the court, though many were affirmed as the court found that the lack of confrontation to be harmless error.

Briscoe raised the issue of what type of notice and demand statute would satisfy the confrontation clause. At the time the United States Supreme Court granted cert in Briscoe, the Virginia notice and demand statute required the Government to give the defendant seven days notice of its intent to rely on the affidavit of the chemist and to file the notice with the court. The defendant is given an opportunity to call the chemist as an adverse witness with the state paying the cost for the subpoena. Since the United States Supreme Court granted review, Virginia amended its statute requiring the State to provide 28 days notice to the defendant and requiring the defendant to object 14 days prior to trial. Further, the new statute states that if the defendant properly objects the certificate is inadmissible without live testimony. Under the earlier statute at issue in the Briscoe case, the defendant would be allowed to call the chemist in the defendant's case in chief, which appear contrary to the holding of Melendez-Diaz and an attempt to shift the burden to a defendant in a criminal case.

Rather than address the issue, the court vacated the decision of the Virginia court and remanded the case for a decision not inconsistent with the Melendez-Diaz decision. The Briscoe decision is interesting as the court essentially declined to expand upon the Confrontation clause jurisprudence of the court. Instead, the court left the issue to be addressed by the lower courts.

The issue of the scope of the 6th Amendment confrontation clause will continue to be raised as a defense in DUI cases, to exclude breathalyzer test results and evidence of prior convictions.

Continue reading "United States Supreme Court decides 6th Amendment confrontation case Briscoe v. Virginia" »

A 25-year-old North Attleboro woman is appealing her conviction after being sentenced to jail earlier this month for Massachusetts vehicular homicide charges, The Sun-Chronicle reported.

A Quincy OUI defense lawyer, or a Boston criminal defense attorney experienced in representing people facing criminal charges as a result of a Massachusetts OUI car accident, should be called to defend anyone facing serious traffic or felony charges in the Boston area.

In this case, the defendant was found innocent of Massachusetts drunk driving charges and possession of marijuana. Her Quincy defense lawyer filed a Massachusetts notice of intent to appeal the conviction, after arguing at trial in Taunton District Court that the woman was not speeding or driving recklessly when she struck pedestrians on a darkened portion of the highway where there was no crosswalk.

The Aug. 8, 2004 car accident on Route 1 near Stop & Shop resulted in the death of two pedestrians, including a pregnant woman and her unborn child.

The defendant is serving a three-month jail sentence after her Jan. 12 conviction on the three charges of motor vehicle homicide. She was also sentenced to three-months home confinement. The balance of her 2 1/2 year jail term was suspended.

Continue reading "Massachusetts vehicular homicide conviction on appeal after not-guilty verdict on alcohol and drug charges " »

Distracted driving has a powerful new foe this year after the National Highway Traffic Safety Administration announced the creation of FocusDriven, the first nationwide non-profit organization dedicated to fighting distracted driving.

Massachusetts Criminal Defense Attorney Michael DelSignore reminds motorists that causing an accident while distracted, or under the influence of alcohol or drugs, can have serious consequences. Anyone criminally charged in the wake of a Massachusetts traffic accident should seek the advice of a qualified Boston defense lawyer right away.

FocusDriven will campaign for cell-phone free driving. The National Safety Council estimates more than 1 in 4 car accidents involve talking or texting on a cell phone. The government reports those using a cell phone have slower reaction times than people who are legally drunk with a blood-alcohol level of .08.

And the federal government estimates as many as one-third of all fatal car accidents involve a drunk driver. State law imposes serious penalties on anyone convicted of causing serious injury or death as a result of a Massachusetts DUI car accident. Consulting an experienced Boston DUI defense lawyer can help protect your legal rights.

"We're addicted," FocusDriven CEO and co-founder Jennifer Smith told ABC News. "We didn't think about how dangerous it could be ... a lot of people think, 'I'm fine.'"

Smith, whose mother was killed in September 2008 by a distracted driver, said, "Our brains just can't handle" texting or talking while driving.

Continue reading "Drunk or distracted driving could lead to criminal charges in Massachusetts" »

A 45-year-old Attleboro man faces a fifth-offense Massachusetts drunk driving charge after a motorist called police on a cell phone and followed the man's vehicle, claiming he was "all over the road," The Sun Chronicle reported over the weekend.

This is a very serious charge. A fifth-offense DUI charge carries a mandatory two-year jail sentence, a sentence of up to five years; a fine of up to $50,000 and a lifetime loss of driving privileges with no hardship consideration, under Massachusetts drunk driving law.

In this case, an experienced Massachusetts DUI lawyer should represent the defendant in Attleboro District Court.

The man was arrested in North Attleboro at Landry Avenue and Mt. Hope Street at about 8:45 p.m. Thursday. The patrolman spotted the defendant's pickup truck on Route 1 at Orne Street after receiving a dispatch to be on the lookout for an erratic driver, according to police.

A motorist who called police said he first spotted the vehicle in Walpole before spotting it again on Route 1 in Plainville. Police reported recovering an empty bottle of vodka from the vehicle.

The man faces charges of drunk driving, failure to drive within marked lanes, driving without a license, driving to endanger, and driving a motor vehicle with an open container of alcohol.

Continue reading "Attleboro man faces 5th Massachusetts drunk driving charge" »

A Massachusetts DUI stop must be based on the officer having reasonable suspicion that a motorist is committing a traffic violation or some violation of the criminal laws. In a DUI case, if there is not a lawful basis for the stop, a DUI lawyer may be able to have the entire case dismissed as a result of the unconstitutional stop.

Chief Justice Roberts of the United States Supreme Court in a dissenting opinion from the denial of certiorari in a case from Virginia, suggested that he would support a lowering of the standard of reasonable suspicion and allow motor vehicle stops based on anonymous tips even if the police do not witness any traffic violation. The Chief Justice stated that the impact of requiring a tipster to be known to the police or the officer to witness a traffic violation is that a drunk driver gets one free swerve before they can be legally pulled over.

The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizure and an anonymous tip has no indication of reliability, that the tip is accurate, that is not made to harass the motorist, for revenge, or that the tipster is being truthful with the police. A truly anonymous tip cannot be lawfully used to stop a motorist for an alleged drunk driving just as an anonymous tipster cannot tell the police that an individual has a weapon on them and justify the police to search the individual. The United States Supreme Court in Florida v. J.L., 529 U.S. 266 (2000) made this holding clear. The Chief Justice is essential trying to create a DUI exception to the Fourth Amendment prohibition against unreasonable search and seizures and established case law.

If a caller does not wish to leave contact information or to identify themselves to a police dispatch, the reliability of the caller is clearly called into question. In fact, few tips are truly anonymous. Courts use the fact that cell phones can be traced to hold that the tip was not anonymous. Many courts will find that a tip is not anonymous if the police could have discovered the identity of the caller or if the caller put their anonymity at risk in any way. Accordingly, in Massachusetts the issue in a DUI tip case will be whether the tip is anonymous; if the tip is truly anonymous, a Massachusetts DUI lawyer should be successful in having the case dismissed based on a violation of the motorist's Fourth Amendment and Article 14 rights under the Massachusetts Constitution.

Continue reading "Massachusetts OUI arrest based on 911 call and Chief Justice Roberts speaks out on DUI cases" »

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" »

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" »

Hingham police stopped and arrested a Brockton, Massachusetts man, Dennis Benoit for OUI. According to the news account, a Hingham police officer saw Benoit driving with a headlight out. The officer turned around and began following Benoit and claims to have witnessed him swerve and nearly strike a telephone pole.

Benoit's DUI lawyer will want to view the scene, photograph and perhaps video tape the roadway. It is common for police officers to claim that a DUI suspect almost struck an object. However, many roads are extremely narrow, or have conditions that if shown to the officer through a picture, video or goggle map, undermine the officer's claim at trial.

While the officer also noticed damage to Benoit's car, it does not appear that the police ever witnessed Benoit being involved in an accident and nor does it appear as though there is evidence of when the accident occurred. Accordingly, if the driving observations can be undermined through a careful investigation, the defendant's lawyer will have a better opportunity to obtain an acquittal at trial.

Continue reading "DUI charge for Brockton, Massachusetts Man in the Hingham District Court" »

Massachusetts has two methods for a prosecutor to prove a DUI case in court. First, the prosecutor can proceed under the per se prong of the Massachusetts DUI statute, Chapter 90 Section 24 and submit evidence that the breathalyzer result was over the legal limit of .08. This is known as the per se law. A second method of proof is to present evidence that the defendant's operation was impaired by the affects of alcohol to the extent that the defendant could not operate a motor vehicle safely. Under the impairment prong, the evidence consists of the officer's observations of the motorist's speech, appearance, balance and coordination as measured by the field sobriety tests and mental alertness as indicated by responses to the officers questions and ability to follow instructions.

The Massachusetts OUI law, Chapter 90 Section 24 provides that in any prosecution evidence of percentage of weight of alcohol in the defendant's blood at the time of the alleged offense, as shown by chemical test or analysis of breath, shall be admissible and deemed relevant to the determination of the question of whether the defendant was operating under the influence of alcohol.

A major DUI decision was issued by the California Supreme Court in People v. McNeil on July 9, 2009. The California Supreme Court addressed whether a defendant could present evidence on the partition ratio in a case where the Government charged a defendant with both violating the per se prong and impairment prong of California's DUI law.

The Court explained the science behind breathalyzer testing relying on a treatise from Attorneys Taylor and Taynac from California. The court explained that when a person blows into a breathalyzer machine, the breathalyzer is measuring deep lung air from the alveolar. From this measurement of breath alcohol, a blood alcohol percentage is obtained through a mathematical constant using a theory of chemistry known as "Henry's Law". The breathalyzer machines in Massachusetts and throughout the country use a conversion factor of 2100 to 1, which means that the amount of alcohol in 2100 milliliters of alveolar breath is equivalent to the amount of alcohol in one milliliter of blood.

One defense that DUI lawyers pursued in McNeil and that is also available in defending a Massachusetts OUI charge is whether that assumption regarding the conversion ratio of breath to blood alcohol percentage is accurate for the person being tested. The conversion ratio for individuals will vary depending on body temperature, medical condition and sex, as well as a number of other factors. The ratio used by the breathalyzer machine was considered a rough estimate.

DUI lawyers attacked the accuracy of the breathalyzer test that is was unfair to group everyone together on a machine that would make unfair assumptions regarding an individual's partition ratio. Accordingly, the legislature amended the California DUI law to remove this defense by defining the DUI offense as failing the breathalyzer test despite the assumption of the machine. The law defined the DUI offense as being based on grams of alcohol per 210 liters of breath. Accordingly, the California courts precluded defendants from presenting evidence of the partition ratio on the grounds that the new law made the difference irrelevant.

The McNeil case hold that when the Government is pursuing a conviction both based on the per se portion of the law and the traditional impairment approach, relying on observations, field tests and opinion testimony, then the defense can introduce evidence challenging the assumptions behind the breathalyzer and evidence regarding the partition ratio. Significantly, the court indicated that it would allow evidence of the general impact of the partition ratio not related specifically to the defendant into evidence.

Partition ratio evidence has never been ruled inadmissible in Massachusetts and given the language of the Massachusetts OUI statute it would be difficult to foresee Massachusetts courts excluding the evidence from the jury. A partition ratio defense could be presented by retaining an expert to offer an opinion as to what a particular individuals breath to blood alcohol conversion ratio is or it can be used to attack generally the theoretical foundation behind breathalyzer testing and the fact that the machine is making generalized assumptions to obtain a specific reading. The theory behind a partition ratio defense is to convince the jury that the standard formula assumed by the breathalyzer machine overstates an individuals blood alcohol content. This will occur when an individual has a lower partition ratio than assumed by the breathalyzer machine.

Continue reading "Defense to the breathalyzer in Massachusetts and the partition ratio" »

Former Bills star Bruce Smith was convicted of DUI in Virginia. According to
news reports, Smith's attorney argued that he failed the field sobriety tests as a result of various injuries and surgeries from his football playing days. According to the police training manuals, medical issues, such as back and knee problems can undermine the reliability of the field sobriety tests. While in Smith's case medical records should not have been necessary, in most Massachusetts DUI cases it is best to introduce medical records verifying any injury that is claimed to have caused an inability to take field sobriety tests. Massachusetts has a law that allows a defendant to introduce medical evidence by way of affidavit to avoid the cost of having the doctor appear to testify.

In Smith's case, the prosecutor presented evidence from police cruiser cameras. The cruiser camera showed that Smith was polite and cooperative, but had difficulty following the instructions on the field sobriety tests. Smith is appealing his conviction.

An interesting issue on appeal may be whether the judge improperly precluded Smith from questioning the officer on his pending DUI arrest. According to newspaper reports, the arresting officer was arrested for DUI in June when he crashed his car and failed three field sobriety tests.

It appears that the judge excluded the evidence arguing that a pending DUI charge does not go to the credibility of the officer. However, the evidence would have been relevant to the reliability of the field sobriety tests. Assuming the officer is pleading not guilty and contesting his case, he would be challenging the reliability of the same tests that he used to conclude that Smith was impaired. Smith's attorney may be able to have the conviction reversed on appeal as it appears as though his right to cross examine the officer under the Sixth Amendment to the United States Constitution was improperly limited, depriving his of a fair opportunity to contest the DUI allegations.

Continue reading "DUI Conviction for former Bills Star Bruce Smith" »