Massachusetts DUI Attorney Blog

The Appeals court has thrown out a defendant's conviction on a seventh Massachusetts OUI charge, the Boston Herald reported.

The court set aside the conviction on Tuesday over what it called an illegal seizure by an off-duty police officer. This case perfectly illustrates the importance of hiring a skilled Massachusetts drunk driving defense lawyer when facing an OUI charge. When authorities act inappropriately, as in cases where an illegal search or seizure leads to your arrest, an experienced attorney can seek to have the evidence suppressed in your case and the charges reduced or dismissed. And, even in cases where a judge won't dismiss the evidence, a successful appeal can nullify the charge.

That's precisely what happened in this case -- the appeals court ruled the trial court erred in denying a motion to suppress evidence.

The defendant actually struck a car driven by an off-duty Somerville police officer. Suspecting the driver was drunk, the officer took the keys out of his ignition and called police.

The court ruled the officer's actions constituted an illegal seizure because he did not have authority to make an arrest outside his jurisdiction. The ruling means the man will be released from prison and bail where he has served about half of a six-year sentence.

The case is Commonwealth v. Limone.

Continue reading "Court overturns man's seventh Massachusetts OUI conviction; cites illegal seizure by police" »

Recently I wrote about Massachusetts drivers being unfairly charged with OUI at sobriety checkpoints. Despite the problems with these checkpoints, such as checkpoints' inefficiency in stopping drunk driving, police agencies in Massachusetts and around the U.S. continue to use them. Five Beverly police officers and fifteen Massachusetts State Police officers conducted a sobriety checkpoint roadblock on a recent weekend. Of about 200 cars stopped between midnight and 2:30 AM on Feb. 22, six people were arrested--four for OUI and two for narcotics charges. The State Police brought their "BAT mobile," a large vehicle that has two Breathalyzers, satellite links to the RMV's records, and holding cells for those arrested. The links to the RMV's records allow police to immediately suspend the license of anyone who fails a Breathalyzer test.

According to The Salem News, police officers set up traffic cones to move all traffic into one lane, and stopped every car that crossed the Beverly-Salem bridge during the roadblock. They chose this location because it precludes escape -- in other locations, some drivers make U-turns to avoid checkpoints. Police tapped on each driver's window with their flashlights to get them to roll down their window, spoke with the driver while shining their flashlights into the car, and looked for signs of intoxication like bloodshot eyes, slurred speech, the smell of alcohol or open containers of alcohol. Fourteen drivers were selected for field sobriety tests, after which some drivers were detained in the BAT mobile.

As a Massachusetts OUI attorney, I strongly urge those who are arrested at sobriety checkpoint roadblocks to seek legal counsel. The Massachusetts Supreme Judicial Court and the U.S. Supreme Court have established strict criteria for roadblocks, and an experienced Massachusetts DUI lawyer can challenge the prosecution to prove that the roadblock was conducted according to constitutional standards. Even if the roadblock was done correctly, a Massachusetts OUI lawyer may be able to get the Breathalyzer test results excluded or attack the reliability of the results.

The Alaska Supreme Court has recently ruled that a police officer signaling a driver to back up constitutes a "seizure." As a result, police officers must have a legitimate reason for waving or signaling a driver to stop before making an arrest.

In Majaev v. State, as the driver - Majaev - was pulling away from the site of an alleged underaged drinking party, an Alaskan State Trooper, Bordner, stepped into the road to read Majaev's license plate. Bordner realized that Majaev could see him in his rear-view mirror and signaled him to come back to talk.

Majaev backed-up and rolled down his window. At that point, Bordner smelled alcohol and saw beer cans in the back of the truck. After Majaev failed the field sobriety tests, Bordner arrested Majaev and charged him with driving under the influence.

The District Court ruled, and the Court of Appeals affirmed, that the wave of an arm does not constitute a sufficient show of authority to make a person believe he was not free to leave. The Alaska Supreme Court disagreed, reasoning that most people would respond to the hand signal of a police officer, and would believe that they would be prosecuted if they drove off. As a result, Bordner's wave was considered a "seizure."

The case has now been sent back to the trial court to determine whether a "legitimate basis" existed to stop Majaev.

Similarly, in Massachusetts, a police officer must have a legitimate reason for detaining a driver. Under the Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights, a police officer need a reasonable suspicion that a person is committing a criminal act before he can make a motor vehicle stop.

Continue reading "Police officers making Massachusetts OUI stops must have a valid reason to detain drivers " »

A fifth offense Massachusetts OUI case was dismissed as the judge concluded the police unlawfully seized the motorist. Under the Fourth Amendment to the United States Constitution and Article 14 to the Massachusetts Declaration of Rights, a police officer needs reasonable suspicion that a person is committing a criminal act to be able to make a motor vehicle stop.

Generally, reasonable suspicion is provided by police testimony that a traffic infraction was observed. In the Marshfield case from the Plymouth District Court, the police saw the defendant parked in his car and approached the defendant based on a tip from another driver. In these types of cases where the police rely on a 911 call or citizen tip, the police must be able to establish the credibility and reliability of the tip before a judge will find reasonable suspicion to justify a seizure under the Fourth Amendment. If the identity of the citizen caller is unknown, the Commonwealth will have a difficult time demonstrating the veracity and reliability of a tip. In those cases, the police will lack reasonable suspicion to seize and detain a motorist.

Continue reading "OUI Fifth offense in Massachusetts dismissed as police acted unconstitutionally" »

In Arizona v. Gant, decided April 21, 2009, the United States Supreme Court held that a police officer may search the passenger compartment of a vehicle incident to a recent occupant arrest only it is is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of the arrest. The United States Supreme Court in Gant, narrowed its holding in New York v. Belton, 453 U.S. 454 (1981), which had been interpreted by some courts to allow a search of the passengers compartment of a vehicle even if there was no possibility that the arrestee might gain access to the vehicle.

In the context of a Massachusetts DUI arrest, Gant may provide a basis to have evidence suppressed found inside of the car after the arrest, such as open containers of alcohol or other evidence found through a search of the vehicle. While the police may be able to get this evidence admitted under other exceptions to the warrant requirement, Gant limits the ability of officers to search a vehicle after an arrest and in the context of a Massachusetts OUI case, it will be difficult for the officer to contend that the search of the car was justified to obtain evidence of the offense.

Continue reading "DUI stops in Massachusetts after United States Supreme Court Gant decision" »