Massachusetts DUI Attorney Blog

Massachusetts OUI lawyer Michael DelSignore has published a book that explains Massachusetts drunk driving laws for those recently charged with drunk driving. This book is intended to answer commonly asked questions for those who are charged with driving under the influence of alcohol. You can order a free copy of the book by clicking on this link, Understanding Massachusetts Drunk Driving Laws.

The Book answers common questions, such as explaining the court process, court terminology and common defenses used in defending DUI cases. The book also answers questions regarding the license consequences when you are charged and explains the different consequences when you refuse the breathalyzer test or take the test and fail. I would appreciate any feedback or comments on the book and can be found on Facebook at DelSignore Law. You can click on this Link to LIKE the facebook page. You can also find the book for sale on Amazon but I would be happy to provide a free copy if you request one through my website.

You can contact me directly at 781-686-5924 for questions regarding Massachusetts OUI laws or to request a copy of the book.

The Massachusetts OUI lawyer for President Obama's uncle is challenging the stop as being unconstitutional. This was reported by Norman Miller of the Metro Daily News.

The Boston Herald reported that the basis of the motion is that the police officer could not see Obama's uncle proceed through the stop sign. The defense claims that a building would have blocked the officer's view and apparently plans to call an expert witness to testify on this topic. Typically in a motion to suppress, the defense would not disclose the basis of the motion but file a generic motion challenging the stop; the reason is that the prosecutor would likely tailor the testimony to attack the defense theory if it was disclosed.

A motion to suppress challenging the legal basis of a stop is a very common motion in a Massachusetts drunk driving case. If successful, a motion to suppress would result in the entire case being dismissed as if there was not a lawful basis for the stop, under the exclusionary rule, the court would suppress all observations of the officer, results of field sobriety tests and any breathalyzer test results.

Even if a motion to suppress is unsuccessful, the motion can be beneficial in defending an OUI charge as it sets forth the testimony of the officer regarding the stop. In some cases, this testimony may reveal that the driving infraction was not as serious as indicated in the police report or it could reveal that at trial the officer will claim additional traffic infractions that were not mentioned in the police report. While an officer can be impeached if testimony differs from the police report, the impact of this impeachment would vary depending on how substantial the omission from the police report.

Other types of motion in a Massachusetts drunk driving arrests would include motion to suppress statements, challenges to the order to get out of the car and searches of the interior of the vehicle after a motorist has been arrested.

Continue reading "Massachusetts OUI lawyer for Obama's Uncle challenge stop as unconstitutional" »

In response to the Boston Globe Special Report on OUI bench trials in Massachusetts, the Globe reported that prosecutors are seeking legislation requiring prosecutors to consent to a bench trial. Assuming this report is accurate, this legislation would have to apply to every type of criminal case as legislation relating to criminal procedure cannot be crime specific. This legislation if proposed would be an unconstitutional violation of a defendant's right to a fair trial under the Sixth Amendment.

The apparent aim of the legislation is to combat the perceived high rate of not guilty verdicts in Massachusetts OUI bench trials. This legislation would clearly be unconstitutional under the Sixth Amendment. The Sixth Amendment provides that a defendant in a criminal case enjoys certain rights: These rights include the right to a speedy trial and the defendant enjoys a right to a trial by jury. The use of the word "enjoys" in the Constitution provides strong textual support for the argument that a defendant can waive this right.

The right to a trial by jury was added to the Bill of Rights because the Framers of the Constitution feared that judges would not be impartial to defendants because their salary depended on the rule of the King. The original intent of the jury trial was to limit the power of Government and ensure that citizens judged citizens. The right to a jury trial is not Constitutionally required in all cases; in minor offense, with no possibility of jail time, there is no Constitutional right to a jury trial.

The United States Supreme Court discussed the historical origins of the right to a jury trial in the case of Duncan v. Louisiana, 391 U.S. 145 (1968). This case held that a State could not deny a defendant a right to a jury trial because the 14th Amendment due process clause makes the right to a jury trial applicable to the States. The language of the Duncan decision clearly indicates that right to select a bench or jury trial is solely that of the defendant.

Constitutional rights are granted to defendant's in criminal case to ensure that the power of the Government is limited and that the rights of citizens are protected through an enduring Constitutional right and not made subject to the political climate of the time. Though the Constitution does not speak of a right to a bench trial, the right has been part of this country since its formation.

Similarly, while the Constitution grants a defendant a right to counsel, the United States Supreme Court held in Faretta v. California, 422 U.S. 806 (1975) that a defendant has the negative Constitutional right, that to waive counsel and represent himself pro se. Other Constitutional rights, like the right to a speedy trial, can also be waived by a defendant.

The historical context of the right to jury trial indicates that it has always included the negative right to waive a jury trial. Additionally, the history of the jury trial right has been in attempting to expand its application, to a greater number of offenses and to make it applicable to the States. Accordingly, there is strong historical support and textual support in the Constitution that the right to a jury or bench trial is the exclusive right of a defendant.

Further, in considering the Constitutionality of legislation, courts consider the intent of the legislature. The motivation for the legislation would be the Boston Globe Special report on OUI cases which signaled out a few judges for criticism based on statistics and the political agenda of district attorneys who were unhappy with decisions by selected judges. As a Massachusetts DUI lawyer, any legislation requiring prosecutors to consent to a bench trial would be a clear violation of the Sixth Amendment.

In defending charges of DUI in Massachusetts, one of the field sobriety tests that appears frequently in police reports and causes the most confusion for people arrested for drunk driving is the Horizontal Gaze and nystagmus field sobriety test, sometimes referred to by those arrested as the pen test.

It is understandable why this test causes some much confusion because it does not appear to have an scientific basis or reliability. You are on the side of the road, cars going by, and the officer is waiving a pen quickly in front of your face. If you stopped and asked most officers what they are looking for, many probably could not correctly explain the correct procedure in administering the test.

Fortunately, the HGN test is typically not admitted into evidence at a Massachusetts DUI trial as a result of the decision of the Massachusetts Supreme Judicial Court in Commonwealth v. Sands. The HGN test can be admitted; however most prosecutors do not attempt to admit the test into evidence.

In some cases, I have used the HGN test to discredit the officer and demonstrate that the investigation was not properly conducted, so what are the signs that someone exhibits nystagmus.

The first clue that the officer looks for is lack of smooth pursuit. The officer is suppose to start with the pen in the center and move it to the left, taking two seconds out and two seconds back for a complete pass and following the same procedure for the right eye. The idea is that the officer is looking to detect any involuntary jerking of the eye, called nystagmus of which alcohol is one of many causes. Click here to read about court decisions regarding the HGN test.

The second clue is referred to as distinct and sustained nystagmus at maximum deviation. For this clue, the officer is suppose to move the pen until the eye has gone as far to the side as possible. The officer is then required to hold the pen in this position for a minimum of four seconds and observe to determine if there is an involuntary jerking of the eye. In many cases, the officer does not recall that the correct administration of this part of the test requires that the pen be held for four seconds at maximum deviation.

The final clue on the HGN test is called onset of nystagmus prior to 45 degrees. The officer is suppose to start with the stimulus in the middle and move it toward the right shoulder at a speed that would take four seconds to reach the edge of the left shoulder. In many cases, when officer perform this test, they are rapidly moving the stimulus contrary to the clear instruction of the police training manual.

With this clue, the officer is looking to see if there is any involuntary jerking of the eye prior to 45 degrees and is suppose to hold the stimulus to verify that it continues.

Although this test is rarely used in Massachusetts, according to the National Highway Traffic Safety Administration Study, the HGN test is the most accurate of the field sobriety tests at 77% reliable, as compared to 68% for the nine step walk and turn and 65% for the one leg stand. The head Police officer for the Massachusetts State police who speaks occasionally at drunk driving seminars for lawyers has repeatedly indicated his confidence in the reliability of the test. I have had an officer testify that he has never had a suspect fail the HGN test who was under the legal limit. During that hearing, the officer demonstrated how he conducts the test and did it in a very rapid fashion contrary to the careful and deliberate process outlined in the police manual.

Continue reading " OUI lawyer in Massachusetts discusses HGN field sobriety test" »

A Massachusetts DUI charge will almost always require a trial in order to avoid a DUI conviction. While it is possible that a prosecutor could dismiss a Massachusetts drunk driving charge, it typically does not happen as the district attorney's office in each county has policies against dismissing a Massachusetts OUI charge. In other States, such as Georgia and in Rhode Island, it is common for prosecutors to reduce a charge of drunk driving to reckless driving when the case is not particularly strong for the Government. As a Drunk Driving Lawyer in Massachusetts, it would be rare for a DUI to be dismissed even if the case is a weak case for the Commonwealth.

In the case of Derek Lowe, his attorney William Head, who is one of the top DUI lawyers in the United States, was able to persuade prosecutors to reduce the charge to reckless driving based in part on a cruiser camera video showing that Lowe performed extremely well on field sobriety tests. In a Massachusetts DUI charge, most police departments do not have cameras in the cruiser that show how someone performed on field sobriety tests. In fact, in OUI charges in Bristol and Norfolk county, none of the departments have cruiser cameras. The police departments that most frequently have video and generally high quality video tend to be in Worcester County. In some cases, these videos can provide strong evidence that a motorist was not under the influence or that the field sobriety tests were not performed as badly as the officer claims in the police report.

Continue reading "Can a Massachusetts DUI charge be reduced to reckless driving " »

The Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Zoanne Zeininger which addressed the issue of whether the Sixth Amendment requires the Commonwealth to present the live testimony of a witness from the Office of Alcohol Testing in order to admit breathalyzer test results at a Massachusetts DUI trial. Click here to read in SJC decision in Zeininger.

At trial, the Massachusetts OUI attorney, argued that the Office of Alcohol Testing documents could not be admitted into evidence without the live testimony of a witness from OAT in order to preserve the defendant's right of confrontation under the Sixth Amendment and the recent case of Melendez-Diaz v. Massachusetts. At a DUI trial, the Commonwealth generally subpoenas a packet of documents from the OAT that show compliance with the annual certification and periodic testing requirements of Massachusetts drunk driving law. The Commonwealth generally seeks to admit these documents into evidence as business records without live testimony from the Office of Alcohol Testing. The Zeininger case raised the issue of whether this practice satisfied constitutional requirements.

The Massachusetts Supreme Judicial Court held that the court undergoes a two part inquiry to determine whether out-of-court statements are admissible at a criminal trial. First, it determines whether the statement is admissible under a hearsay evidence exception and second whether it satisfies the requirements of the Confrontation Clause of the Sixth Amendment.

The SJC held that the OAT documents are made by a public official having a statutory duty to comply with a rigorous regulatory certification. The Court held that these records do not express any opinion but memorialize routine scientific measurements. Further, the court stated that the records qualify as business records because they were not created essentially for use in court, but pursuant to the mandates of Massachusetts statutes creating the regulatory scheme. Accordingly, the court held that the records are admissible under Massachusetts evidence law.

The SJC also rejected challenges to the admissibility of the OAT records based on the Sixth Amendment Confrontation Clause. The SJC held that the Oat records are not made for the purpose of proving some fact at trial but to comply with its statutory mandate.

As a Massachusetts OUI lawyer, the court's decision is contrary to the United States Supreme Court's Melendez-Diaz decision as the only purpose for the OAT records is to establish the reliability of the breathalyzer test at trial. But for the fact that breathalyzer results are used in court, there would be no purpose for the records or testing of the machine. Accordingly, the Court 's suggestion that the records are not prepared primarily for trial is simply incorrect.

Additionally, the SJC's claim that the records the records memorialize routine scientific measurements is inconsistent with the language of Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009) which held that the Confrontation Clause is essential to ensure the reliability of scientific procedures in court. The SJC ignores the language of the Supreme Court in Melendez-Diaz by suggesting that the OAT testing procedure is simple so that confrontation is not required.

As a Massachusetts DUI lawyer, the court's decision and reasoning is incorrect and contrary to the requirements of the Confrontation Clause as set forth in the United States Supreme Court case law. The United States Supreme Court is expected to release its decision in Bullcoming v. New Mexico by the end of the terms, which may undermine the SJC reasoning in Zeininger.

Continue reading "Massachusetts DUI lawyer comments on recent case regarding admissibility of breathalyzer test results " »

When you are charged with a Second Offense DUI in Massachusetts, how does the Commonwealth prove that you had a prior conviction. The Appeals Court addressed this issue in the case of Commonwealth v. Ellis which was decided on April 25, 2011.

The Ellis case involved an appeal of a Fourth Offense OUI conviction from the Chelsea District Court. However, regardless of whether you have a second, third or fourth offense, drunk driving charge, the method of proof is the same. With a third or fourth offense, the Commonwealth needs to prove either two or three prior convictions rather than just one prior conviction as for a second offense Massachusetts DUI charge.

In a Massachusetts Second Offense DUI charge, the Commonwealth can prove the existence of the prior conviction in a number of different ways. First, the Commonwealth can offer into evidence a certified copy of the conviction from the court in which the prior offense occurred. This is the most common method used by prosecutors. Second, the Commonwealth can offer into evidence a certified copy of your Registry of Motor Vehicle driving record showing the prior conviction. Lastly, the Commonwealth can offer into evidence a copy of your probation record.

The Massachusetts OUI lawyer representing Ellis challenged the method of proving the prior convictions of the defendant. The Commonwealth attempted to offer the defendant's probation record into evidence as a business record. If a record is a business record, then it can come into evidence at a criminal trial without requiring the maker of the record to testify. To qualify as a business record a record must be kept in the ordinary course of business and not prepared in anticipation of litigation. If a record is a business record, it is considered nontestimonial and the Commonwealth does not have to present live testimony of the author of the record in court.

The court rejected the classification of probation records as business records and held that these records are prepared in anticipation of litigation and according fall outside of the hearsay exception for business records. The Appeals Court adopted the argument of the lawyer in this case that under Melendez-Diaz the probation records were testimonial and required the Government to present a witness to admit the records into evidence. To read more about Melendez-Diaz and the right of confrontation, you can click on my prior blogs on this issue and refer to a Law Review Article from Creighton University, attached here.

Despite upholding the Massachusetts DUI lawyers objection to the probation records coming into evidence, the Court ultimately found that the error was harmless as the Government also admitted the defendant's driving records from the Registry of Motor Vehicles. The court held that RMV documents are nontestimonial and can come into evidence without the presentation of a live witness.

Continue reading "Proving Prior Convictions in Second Offense Massachusetts DUI arrest " »

As an Attleboro DUI lawyer, often at this time of year, I meet someone charged with a Massachusetts OUI for the first time. Typically, the person may be coming from a holiday party or a family gathering. While being charged with a Massachusetts OUI charge is a difficult experience, it is important to realize that being charged and being convicted are two different things. Hiring an experienced Massachusetts DUI lawyer can make the difference between obtaining a not guilty verdict and accepting a plea agreement in a case that could have been won at trial.

For the Commonwealth to convict you of drunk driving, the Commonwealth must prove beyond a reasonable doubt that you were under the influence of alcohol. The Commonwealth will rely on the officer's observations regarding your driving and your performance on the field sobriety tests. While the police report will emphasize what the officer claims you did wrong, the officer will leave out of the report the facts favorable to your defense. At your office appointment, I will review the report to show you the numerous facts favorable to your case that the officer left out of the report and would likely acknowledge at the time of trial in your case.

Roadside field sobriety tests must be performed according to the standard of the National Highway Traffic Safety Administration guidelines to be deemed reliable. Any deviation from these standards renders the field sobriety tests meaningless. Most officers do not realize that field sobriety tests cannot be performed the way the officer feels like administering the exercises.

As an Attleboro OUI lawyer, at your trial, the officer can be confronted as to whether he performed these tests in accordance with his police training. Many officers incorrectly score the field sobriety tests, make the tests more difficult to perform and do not know the clues that their training manual requires them to look for in scoring the tests.

There are many ways a Massachusetts OUI lawyer can attack field sobriety tests to prove that you were not under the influence of alcohol. In addition to attacking the administration of the test, in some cases weather conditions or medical conditions make it impossible for the tests to be fairly administered.

Continue reading "Attleboro DUI lawyer's advice to those charged with a First Offense Massachusetts OUI " »

Those arrested for OUI in Massachusetts often ask, should I hire a lawyer to defend my case in court. The answer, yes. Anyone charged with a Massachusetts OUI should hire an experienced lawyer that handles and takes drunk driving cases to trial. I have taken many OUI case to trial with not guilty verdicts; in some cases, it is difficult to judge the strength of the case until a complete investigation is performed, which requires obtaining all documents from the Commonwealth and conducting an independent investigation of the facts behind the arrest.

Here are the top 10 reasons why you should hire a DUI attorney:

1. An OUI charge is difficult for the Commonwealth to prove because it relies heavily on the opinion of the arresting officer.

2. The officer's opinion in a DUI case is based on field sobriety tests that most judges and jurors understand are not reliable evidence. These tests are difficult for most people to do even if they have not consumed alcohol. This fact can be emphasized to the jury during your trial.

3. If you are found guilty after trial, most judges will not penalize you for going to trial on a first offense; accordingly, you receive substantially the same disposition as if you had accepted a plea agreement.

4. Even if you eventually resolve the case prior to trial, a Massachusetts DUI lawyer can explain the likely license consequences you will face at the Registry of Motor Vehicles. If you are an out of state resident, acceptance of a plea in Massachusetts may have serious implications on your ability to drive in your home state as most states treat an out-of-state offense as if it happened in your home state.

5. In Massachusetts, there is a lifetime look back for prior offenses; accordingly, you will always have to deal with the consequences of a plea on an OUI charge if you are charged in the future. Under Massachusetts OUI law, penalties for second and third offenses increase dramatically and include the requirement of installation of the ignition interlock device.

6. A DUI lawyer can advise you as to whether your case should proceed before a judge or jury.

7. The burden of proof is on the Commonwealth in a drunk driving case, like any criminal case; you will not have to testify at court and an attorney can discuss whether or not you should testify.

8. You may have a legal defense to your case resulting in it getting dismissed as a result of your lawyer filing a motion to suppress.

9. You will face increased insurance costs as a result of an OUI conviction.

10. If you refused a breathalyzer test, there are strict time limits to appeal to the Registry of Motor Vehicles that you must follow in order to have your appeal heard.