Massachusetts DUI Attorney Blog

The Massachusetts Court of Appeals again addressed the definition of operation under Massachusetts OUI law. In the case of Commonwealth v. Cabral, decided, August 5, 2010, the defense attorney on appeals conceded that the under the influence element was satisfied and appealed on the operation and public way elements of the offense. Under Chapter 90 Section 24, to convict a driver of OUI in Massachusetts the Commonwealth must prove the following elements beyond a reasonable doubt:

1. that you operated a motor vehicle
2. on a public way or a way which the public has a right of access;
3. while you were under the influence of alcohol.

In most cases, the defense centers around the third element of a DUI offense, under the influence. In Cabral's case, the court found that the Commonwealth proved operation because she was behind the wheel, and the tires were spinning on the vehicle, even though it was not moving and she was not driving but trying to back the truck up. Further, the truck was off of the road and appeared to have been in an accident. The Appeals Court found that operation could be proven by circumstantial evidence and affirmed the defendant's conviction.

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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.

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The Massachusetts Appeals Court addressed the public way element of Massachusetts OUI law in the case of Commonwealth v. Gregory Belliveau. The issue in the case is whether Pier 4 in Charlestown Navy Yard is a public way. The defendant argued that it was not a public way because there is a closed gate leading to the pier and because only authorized vehicles were allowed on the pier.

The Appeals Court discussed its prior decisions addressing the public way element of Massachusetts OUI law. The court contrasted the case of Belliveau with the case of Commonwealth v. George, where the Massachusetts Supreme Judicial Court found that the public way element was not satisfied when a defendant drove drunk on a baseball field. In that case, the court held that the baseball field was not a public way because the public did not have access to the field by way of a motor vehicle. Unlike the George case, the court decided that although access to the pier was restricted, the public could gain access. The court indicated that it considered the issue a close question, but would find the pier to be a public way. However, the court held that it did not need to resolve this close question because even if the pier was not a public way, the defendant's conviction would be affirmed because the defendant drove on public ways prior to reaching the pier.

One Justice of the Appeals Court, Justice Sikora, wrote a separate concurring opinion criticizing the court's interpretation of the public way element of the Massachusetts OUI statute. Justice Sikora suggests that the court has misinterpreted the language of the statute by defining the term access as referring to public access by motor vehicles. Justice Sikora would interpret the statute to encompass any drunk driving where the public has a right of access, regardless of whether by motor vehicle or as pedestrians.

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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.

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Massachusetts DUI roadblocks are likely to increase in light of campaigns by law enforcement to curb drunk driving by putting more police officers on patrol and increasing the number of DUI roadblocks. One issue that may arise in Massachusetts is whether a police officer can stop a motorist under the Fourth Amendment when the driver lawfully attempts to avoid a DUI roadblock.

This issue arose in a case decided by the New Mexico Supreme Court on August 25, 2009 in the case of State v. Anaya. In that case, the New Mexico Court of Appeals affirmed a trial judge who held that the police officer had no reasonable suspicion to stop a driver who lawfully made a u-turn prior to a DUI roadblock. As a result of the motion to suppress being granted, the DUI lawyer suppressed all evidence gathered as a result of the stop, including observations of the officer and results of field sobriety tests.

The State appealed from the trial judge's ruling. The Court of Appeals affirmed and the State appealed to the New Mexico Supreme Court, which reversed the lower courts. Under the Fourth Amendment to the United States Constitution, police officers need reasonable suspicion to stop a motorist. This requires that the officer have a specific basis for believing that the motorist committing a traffic infraction or violated the criminal laws in some fashion. The Fourth Amendment prohibits a police officer from detaining a driver based on what the law refers to as a mere hunch.

The New Mexico Supreme Court's decision is inconsistent with clearly established Fourth Amendment case law. The court holds that the roadblock begins when the motorists could first become aware of its presence. According to the court, the roadblock starts when it is in sight of the motorist which would greatly expand the scope of the roadblock. The court attempts to limit its ruling by stating that not all case of avoiding a roadblock will constitute reasonable suspicion, depending on the time of day, proximity to the roadblock and traffic patterns.

However, in Anaya, the motorist made a legal u-turn. Nothing other than the officer's speculation could support a basis to stop the motorist which is insufficient to provide a constitutional justification for the police to seize an individual.

If this issue were to arise in a Massachusetts drunk driving case, the Massachusetts courts would be unlikely to follow the New Mexico Supreme Court in light of other case law by the Massachusetts courts interpreting the Fourth Amendment and State Constitution.

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Massachusetts OUI lawyers will continue to raise Sixth Amendment confrontation issues to challenge the admission of breathalyzer evidence at trial in light of the United States Supreme Court's decision in Melendez-Diaz v. Massachusetts. In Melendez-Diaz, the United States Supreme Court reversed a defendant's drug conviction because the defendant was denied his right of confrontation under the Sixth Amendment by the Commonwealth introducing the drug analysis without live testimony of the chemist who conducted the analysis.

Prior to Melendez-Diaz, prosecutors in Massachusetts would prove that a substance was an illegal narcotics by introducing evidence of a drug certification showing that a chemist at the State lab tested the substance and concluded that it was an illegal narcotic. Often, the chemist would not even test the entire sample, but part of a sample and assume it was all consistent. The Massachusetts courts upheld that practice . The Melendez-Diaz will require that prosecutors summons in a chemist at a drug trial to prove that a substance is an illegal drug unless the defendant waives this right.

The Melendez-Diaz decision could also be applied in cases where the Commonwealth is trying to introduce breathalyzer test results into evidence. The Commonwealth must establish under the Barbeau case from the Massachusetts Supreme Judicial Court that the machine was periodically tested for accuracy. Typically, the Commonwealth calls the breathalyzer operator to testify, but does not always call the officer who performed the periodic testing and instead relies on the affidavit from the Office of Alcohol Testing to establish the periodic testing requirements.

Given the Melendez-Diaz decision, that reliance on an affidavit to establish the periodic testing and reliability of the machine could constitute a violation of a defendant's Sixth Amendment right of confrontation. The United States Supreme Court has taken a strong pro-defendant interpretation of the confrontation clause, with Justice Scalia authoring both the Melendez-Diaz decision and the Crawford decision. The Sixth Amendment remains a viable tool for the Massachusetts OUI lawyer to exclude breathalyzer test results from admission into evidence.

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The Massachusetts Court of Appeals in Commonwealth v. Stoddard, reversed an OUI conviction for a motorist because the Commonwealth did not prove that the defendant was operating under the influence on a public way. In order to prove an operating under the influence charge, the Commonwealth must demonstrate that the defendant was operating a motor vehicle, on a public way, while under the influence of alcohol. Generally, the public way element is not at issue in most operating under the influence cases. In Stoddard, it was an issue in the case because the defendant was driving within a gated camp ground that was closed to the public. The camp ground could only be entered by inserting a card to unlock the gate.

In finding that the public way element was not satisfied, the court focused on the fact that the camp ground excludes access by the general public. Significantly, the court raises the possibility that private gated communities, some college campuses, or private resorts that restrict access by the general public may not satisfy the public way element.

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Massachusetts DUI law defines operation of a motor vehicle as occurring whenever a person is intentionally manipulating some mechanical or electrical part of the vehicle, like the gear shift or the ignition, which alone or in sequence, will set the vehicle in motion. A recent case from the Connecticut Supreme Court, State v. Cyr, raises the issue of how far the court would extend the definition of operation.

In Cyr, the defendant started his car with a remote starter and was behind the wheel, but never inserted his key in the ignition. Without the key being in the ignition, the car could not be operated. The court held that the lack of the key being in the ignition was but a temporary impediment to the vehicle being operated. Interestingly, the court stated that if the vehicle could not be operated, or had a permanent impediment to being driven, it would hold that the operation element was not met.

I have had numerous cases involving operation defenses, including situations where the driver is behind the wheel of a parked car, outside of their car after an accident or outside of the car when the police receive a tip that the motorist is possibly under the influence. These situations present a possible defense to your OUI charged based on a lack of operation or an inability of the Commonwealth to prove operation beyond a reasonable doubt.

In Commonwealth v. Plowman, a case decided by the Massachusetts Appeals Court, the court held that sitting in a park car with the engine running does not compel a finding of operation. In that case, the trial judge precluded the defendant from providing his reasons for sitting in the drivers seat unrelated to operator of the motor vehicle. The result in the Cyr case appear to stretch the definition of operation and probably would not be followed by Massachusetts courts.

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If you are charged with a second or subsequent offense OUI in Massachusetts, the jury will not know that you have had prior convictions of OUI in Massachusetts. Instead, your trial on the underlying offense OUI will occur just as it would if this were your first offense OUI.

In Gonsalves, the Appeals Court reversed the defendant's conviction when a copy of the subpoena for medical records of the defendant was inadvertently showed to the jury which said OUI 4th Offense. The jury then asked the judge a questions asking if the indication on the evidence sheet is that it is the defendant's 4th offense. The judge denied the defendant's request for a mistrial and advised the jury that the prior convictions were not in evidence and that they should limit themselves to the evidence. Five minutes later, the jury returned a guilty verdict.

The Appeals court reversed emphasizing that whether the defendant previous committed three prior offenses of OUI should not have been brought to the attention of the jury. Under Massachusetts law, when a defendant has a prior OUI offense, the court bifurcates the trial with the jury first deciding whether the defendant violated the Massachusetts OUI law; and then secondly, whether the defendant has prior offenses. In most cases, a defendant will elect a bench trial on the issue of whether he has committed prior offenses of OUI, but can have a jury trial on the issue of subsequent offenses. However, typically the jury that heard the evidence on the underlying offense will be held for the subsequent offense portion of the case.

The Appeals Court also reaffirmed its prior holdings that post-arrest silence cannot be used against a defendant. The prosecutor improperly tried to have the jury draw a negative inference from the defendant's refusal to answer booking questions.

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