Massachusetts DUI Attorney Blog

The Patriot Ledger is reporting on so-called "drug recognition" experts and the training they undergo, which reportedly allows them to spot those driving under the influence of drugs in Massachusetts.

Brockton drunk driving defense lawyers treat such "experts" with the same skepticism with which we treat field sobriety testing. The results are nothing more than an officer's opinion about whether or not you are under the influence. When you take into account the fact that the officer's job is to gather evidence of your guilt, the chances of a driver not being found under the influence are somewhere between slim and none.

The report indicates 77 officers in Massachusetts have been "specially certified" to spot signs of drivers impaired by drugs. The certification includes two weeks of classroom training and a 12-step evaluation process. The process used to take as long as six months.

The National Highway Traffic Safety Administration is pushing for the crackdown on drivers suspected of operating a motor vehicle under the influence of drugs. The government reports nearly 1 in 5 drivers killed in crashes in 2009 tested positive for drugs. That's up from 13 percent in 2005.

However, even the federal government describes the process of arresting and prosecuting such offenders as "evolving."

"While it's clear that science and state policies regarding drugs and driving are evolving, one fact is indisputable. If you are taking any drugs that might impair your ability to drive safely, then you need to put common sense and caution to the forefront, and give your keys to someone else," NHTSA Administrator David Strickland said. "It doesn't matter if its drugs or alcohol, if you're impaired, don't drive."

The federal program has trained more than 1,000 instructors and 6,000 police officers in 46 states. Now, Massachusetts sends officers to training in Arizona, which is completed in as little as a week.

The Patriot Ledger reports the feds are not putting their money where their mouth is: While announcing the renewed emphasis on catching drugged drivers in December, the government slashed funding grants for such training by 60 percent this year.

Currently five officers are certified in Bridgewater, East Bridgewater, Stoughton and Middleboro. Five others are expected to be certified in time for the July 4th weekend.

Continue reading "Allegations of DUI Drugs in Massachusetts Best Handled by Aggressive DUI Defense Attorney" »

A Rhode Island lawmaker has been charged with driving under the influence and possession of marijuana and drug paraphernalia after being stopped at a DUI checkpoint in Connecticut, Channel 12 News reported.

A Massachusetts criminal defense lawyer has more ground upon which to challenge charges that result from a car stop at a sobriety checkpoint. These stops infringe upon your Fourth Amendment rights to be free from unreasonable search and seizure.

Massachusetts sobriety checkpoints and law enforcement roadblocks in Connecticut are permitted under state law, though law enforcement must obey strict rules regarding the checkpoint's operation to ensure everyone is treated equally. The training of officers involved, the probable cause to request that you submit to field sobriety testing or a breathalyzer examination and the probable cause for any search of your vehicle or person are all issues a defense attorney may challenge in defending a client charged as a result of a DUI checkpoint.

Roadblocks in Rhode Island have been deemed unconstitutional and are not permitted under the state constitution.

House Minority Leader Robert Watson, R-East Greenwich-West Greenwich, was among those arrested Friday at a checkpoint in East Haven Connecticut. NBC 10 News reports Watson is expected to keep his leadership position despite the arrest after Republican House members voted unanimously to support him.

Watson denied failing the field sobriety tests and stated that he wished there were cameras. In many cases, a driver charged with DUI in Massachusetts will dispute the version of the police contained in the police report. Many motorists are upset when reading the police which often is inaccurate, exaggerates what occurred and distorts innocent activity to justify the arrest. According to the police report, the officer observed only three clues on the nine step walk and turn out of a total of eight clues. While the officer concluded Watson failed, his DUI lawyer will be able to use this test to show that he had normal balance, coordination and mental ability given the substantial number of things he did correct in performing the test.

The Providence Journal reported Watson was flagged over while driving his Ford Ranger. Police report that he smelled of alcohol and marijuana. A bag of suspected marijuana and a wood pipe were found upon a search of the vehicle.

A test of his blood-alcohol level at the station was .05, below the legal limit of .08. However, the presence of marijuana could complicate the case as prosecutors could argue he was driving under the influence of drugs as well as alcohol.

In Massachusetts, there is a presumption that a driver is not under the influence if a breathalyzer reading is .05 or below. If the breathalyzer reading is .06 or .07, the Commonwealth may still charge a motorist with DUI and will proceed under an impairment theory. Most cases of under .06 and .07 result in not guilty verdicts after a bench trial. However, when there is allegations of driving under the influence of drugs, the Commonwealth may charge OUI drugs in the alternative.

Continue reading "Rhode Island Legislator Charged with Drunk Driving, Possession of Marijuana, at Sobriety Checkpoint" »

A fatal Massachusetts drunk driving accident has resulted in a second offense OUI charge in Lynnfield being filed against a 25-year-old defendant, according to the Boston Globe.

The Melrose defendant was scheduled for arraignment on Monday in Peabody District Court on charges that include motor vehicle homicide and driving under the influence of narcotics. This case has a number of complex factors and should only be handled by a veteran Massachusetts OUI defense lawyer.

A thorough review of the accident should be conducted, and a thorough defense of a second-offense OUI charge will need to be prepared. If a defendant can be shown either not at fault in the accident or not guilty of drunk driving, he typically will not be convicted of the most serious charges associated with a drunk driving crash in Massachusetts. Additionally, an allegation involving driving under the influence of drugs presents its own unique challenges. Just because a defendant tests positive for the presence of drugs does not mean that he or she was under the influence at the time of the crash. Marijuana, for instance, can remain in a person's system for up to a month after consumption -- long after the time it could possibly impact a defendant's ability to drive.

Massachusetts State Police report the defendant was driving an SUV on Route 1 in Lynnfield when he entered the breakdown lane and struck a 42-year-old taxi driver. The victim was pronounced dead at North Shore Medical Center Union Hospital.

Police allege the defendant tossed small baggies of marijuana from his vehicle after the crash. The cab had been parked at the side of the road after a minor traffic accident. A 6-year-old boy in the other vehicle was also seriously injured, according to police.

The defendant was also charged with possession of a Class D substance with intent to distribute, speeding and a marked lanes violation.

Continue reading "Second-offense OUI alleged in fatal Lynnfield accident involving marijuana " »

Charge of driving under the influence of drugs, DUI or OUI drugs are on the rise in Massachusetts and throughout the country. Police departments have undertaken increased training of officers in order to detect motorists under the influence of drugs. A charge of OUI drugs in Massachusetts can be difficult to prove as the signs of a motorist being under the influence of drugs are less obvious than the signs of someone under the influence of alcohol. Further, many officers are not trained in how to investigate whether someone is under the influence of drugs.

Officers will generally undertake what is known as a 12 step Drug Recognition Exam to determine whether a motorist is under the influence of drug.

The 12 steps are as follows:
1. Breath alcohol test to rule out alcohol as a cause of the impairment.
2. interview with the motorist where the officer attempts to gain admissions regarding consumption of drugs.
3. The officer inquiries about the suspects medical condition, looks for signs of illness or injury, suggesting drug use, checks the pulse and looks at the eyes to see how they react, whether they are bloodshot and for signs of trauma.
4. An eye examination is performed where the officer will administer a horizontal gaze and nystagmus test, which is also used for investigating charges of operating under the influence of alcohol. The officer will also perform a Vertical Gaze and Nystagmus test, which is typically not used in OUI alcohol cases, but tests the ability of the suspect to tract an object up and down. Under Commonwealth v. Sands, in many Massachusetts OUI arrests the Commonwealth is unable to get HGN evidence admitted at trial.
5. Field sobriety tests, such as the Romberg Balance, walk and turn and finger to nose, all commonly given in OUI alcohol cases, though the Romberg balance test is used less frequently in Massachusetts OUI cases.
6. Vital Signs are checked, pulse, temperature and blood pressure.
7. a darkroom examination is performed where the defendant's pupils are measured in four different lighting conditions and the oral and nasal cavities are also examined for signs of ingestion.
8. a physical examination is performed for muscle rigidity.
9. search for needle marks
10. further questioning of the defendant
11. opinion is given by the officer
12. toxicology exam to determine the presence of drugs.

Courts in other jurisdictions have allowed an officer to testify as to the DRE process but have held that the process is not scientific and that officer should not be referred to as experts, but that the process simply aids the officer in making observations. The case of State v. Klawitter, 518 N.W. 2d 577 (Minn. 1994), from the Minnesota Supreme Court provides an excellent discussion of the issues facing courts when confronting DRE testimony. A recent case from Wisconsin, City of Mequon v. Haynor, from the Wisconsin Court of Appeals followed Klawitter but also expressed some reservations about the Drug recognition protocol. Both courts allowed testimony about the 12 steps process subject to a proper foundation being laid and allowed the jury to assign any appropriate weight to the process.

Massachusetts criminal defense lawyers faced with a DUI drugs case should continue to attack the drug recognition protocol as unscientific, immaterial and irrelevant and as lacking a proper foundation based on the training and experience of the arresting officer. Additionally, once an officer suspects a motorist is under the influence of drugs, the entire evaluation suffers from a confirmation bias in that the officer is conducting the evaluation to confirm an opinion that the motorist is under the influence of drugs. The Wisconsin Court of Appeals discussed this issue in Haynor and it should be used by defense counsel to undermine the reliability of the opinion of the arresting officer.

Continue reading "Challenging a Massachusetts OUI drug charge in Court and attacking the drug recognition officer " »

A 28-year-old man is facing 11 criminal charges in Taunton District Court after police report he led them on a high-speed chase through Taunton, Dighton and Somerset, the Enterprise News reported.

The defendant faces a Massachusetts assault charge as well as kidnapping, driving under the influence of drugs, failure to stop for police, driving with a suspended license, refusing to identify himself to police, use of a motor vehicle without authorization and other traffic violations. A Massachusetts kidnapping charge is a serious felony, carrying a penalty of up to 10 years in prison.

Police say that Henry M. Stanley Jr., of 2125 Winthrop St., Dighton, reached speeds of 100 mph in a stolen Lexus sedan while being chased along Route 138 by a Massachusetts State Police cruiser.

The chase started at about 1:30 a.m. Tuesday after a trooper noticed the gray Lexus parked on High Street outside the Taunton District Court House. As the car drove away, the trooper identified it as the one wanted for eluding Brockton police on Route 24 just minutes earlier.

The trooper followed the car without lights and sirens while awaiting backup. The defendant reportedly realized he was being followed and began fleeing near the Taunton-Dighton line. Authorities report clocking him at 100 mph along Somerset Avenue, where the speed limit is 40 mph. Police slowed the Lexus by puncturing the front tires with tire deflation devices strewn in the roadway. The defendant finally stopped on route 138 near Buffington Street in Somerset.

A female passenger fell out the front door and police report the defendant again fled, nearly running the woman over and almost colliding with several police cars. The Lexus finally crashed into a utility pole near Harrison Avenue, where they found Stanley slumped over the wheel and disoriented.

He began vomiting and told police he had spent the day doing heroine, cocaine and crack. Police were told the 42-year-old woman in the vehicle was offered a ride home after meeting him outside the courthouse.

The defendant was held on $15,000 bail and is due back in court for a hearing on June 7.

Continue reading "OUI charge in Taunton, Massachusetts brought as a result of high speed chase" »

A 32-year-old Randolph man as been arrested by Stoughton police on Massachusetts drunk driving charges after his car struck a telephone pole on Central Street near the Route 138 intersection, according to the Stoughton Journal.

Police responded to the scene shortly before 5 a.m. Saturday and were told by a witness that the driver fled behind a home on nearby Packard Road. Based on the description of the driver provided by the witness, officers spotted the man near the rear of the house and called out for him to stop.

The defendant then reportedly ran, jumped a fence, and continued to run from officers. As officers closed in on the suspect, he allegedly reached toward his waistband as if he had a weapon, according to Stoughton police. Officers stopped him at gunpoint and no weapon was found.

Police identified the man as Emerson Dabresil, 32, of Randolph, and said he failed a series of field sobriety tests. Police also report the defendant had unauthorized prescription medication in his possession.

Dabresil was arrested and charged with operating under the influence of liquor, disorderly conduct, leaving an accident scene after property damage, possession of a Class E drug and negligent operation of a motor vehicle.

Continue reading "Stoughton defendant faces Massachusetts OUI charge, drug possession, after foot-chase" »

A Norton man allegedly on prescription drugs was arrested after nearly striking a detective's car and attempting to assault the officer at a red light, the Sun Chronicle reported.

An Attleboro defense lawyer should represent anyone facing Massachusetts OUI charges or charges of assaulting a police officer.

John Houlihan, of Plain Street, was arrested after police report he crossed lanes of traffic on Mill Street and nearly collided head-on with the detective's car. The officer turned around and followed the defendant, pulling behind his vehicle at a stoplight on South Main Street. Houlihan then reportedly charged the detective's unmarked cruiser in an aggressive manner.

The detective turned on his cruiser strobes and arrested Houlihan with assistance from another police officer. Police reported finding a prescription pill bottle with 27 Oxycontin pain pills missing along with $3,845 in cash in Houlihan's pocket.

Police say he failed a field sobriety test and admitted to consuming 10 to 15 Oxycontin pills. Houlihan was charged with operating under the influence of drugs, negligent operation of a motor vehicle, disturbing the peace, disorderly conduct, distribution of a Class B substance and assault.

He was jailed on $1,000 cash bail, pending arraignment this week in Attleboro District Court.

Continue reading "Prescription drugs lead to OUI drugs charges in Attleboro District Court " »

According to the Patriot Ledger, Massachusetts DUI drug cases are on the rise statewide. Arrests for DUI drugs nearly equal the total for all of last year for the first six months of 2009. The survey from the federal government states that Massachusetts has the third highest rate of drug driving in the nation. The increase in DUI drug arrests in Massachusetts is probably a result of increased officer training as more officer are being trained as DREs, drugged recognition experts.

A DUI drugs case involves officer giving a different set of tests and evaluation than for a DUI alcohol case. In some cases, a DUI drug arrest results when a suspect passes a breathalyzer test and the officer is still under the belief that the individual was impaired. If an officer finds evidence of drug use either through statements of the driver or smells an odor of marijuana or other narcotics, than the suspect may be charged with DUI drugs.

Continue reading "Drug Driving, DUI/OUI drug arrests on the rise in Massachusetts " »

According to some recent studies, cases involving DUI alcohol are down nationwide while cases of DUI drugs are on the rise. In Massachusetts, it is difficult for a prosecutor to prove an OUI drugs charge. Under Massachusetts Law, Chapter 90 Section 24(1)(a)(1), it is illegal to operate a motor vehicle under the influence of a narcotic drug, depressant or stimulant. To prove that a substance is an illegal drug the Commonwealth would have to show that the defendant was under the influence of a drug listed in Chapter 94C Section 1 of the Massachusetts General Laws. The statute also encompasses drugs listed by the United States Secretary of Health, Education and Welfare as habit forming.

In the case of Commonwealth v. Ferola, 72 Mass. App. Ct. 170 (2008), the Massachusetts Appeals Court held that the Commonwealth proved that the defendant was operating under the influence of Klonopin and amitriptyline and that the defendant's ability to operate a motor vehicle was impaired. The court stated that the Commonwealth had to also show that the substance is a drug that contains any quantity of a substance which the United States Attorney has by regulation designated as potentially habit forming. The court held that the Commonwealth would have to submit proof to the court by way of expert testimony, submitting the regulation into evidence or asking the court to take judicial notice that a substance is listed in the United States Attorney regulations. Accordingly, the court vacated the defendant's conviction.

While this issue was not raised in Ferola, in some case of driving under the influence of drugs, an issue, like in OUI alcohol cases, is whether the defendant is impaired. In DUI drug cases, generally the Commonwealth will rely on the training of a DRE, drug recognition expert to conclude that someone is under the influence of drugs. While every officer is trained to administer field sobriety tests, there are few DRE experts within each police department. Accordingly, it is more difficult to prove that a driver was under the influence of drugs in some cases because the officer will not have the necessary training to arrive at that conclusion.

Continue reading "DUI drugs in Massachusetts" »