Massachusetts DUI Attorney Blog

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.

Continue reading "Preliminary breathalyzer test (PBT) results inadmissible in Massachusetts OUI cases " »

A 39-year-old Attleboro man faces Massachusetts drunk driving charges after state police say he passed a marked police cruiser at over 100 mph on Interstate 95, the Sun Chronicle reported.

He pleaded not guilty to the charges in Attleboro District Court and was released without bail. An experienced Attleboro OUI lawyer should represent anyone facing drunk driving charges in Attleboro District Court.

Police reported the defendant passed the cruiser at high speed in the pre-dawn hours Sunday morning on I-95 South in North Attleboro. He was reportedly weaving in and out of traffic and nearly collided with several cars.

He was stopped in Attleboro after he was clocked on radar traveling 115 mph, according to state police. The defendant is due back in court on Feb. 22.

Continue reading "Attleboro, Massachusetts DUI charge alleges defendant passed cruiser at 115 mph" »

The Massachusetts Appeals Court decided a case, Commonwealth v. Junior Martinez-Guzman which stated in a footnote that Registry of Motor Vehicle documents are admissible as business records without live testimony. The case involved a prosecution of a defendant for driving with a suspended license for OUI while committing another OUI offense, referred to in the court as OAS for OUI. The issue in the case was how the Commonwealth was required to prove that the defendant's license was suspended for OUI. The Commonwealth offered into evidence an attested copy of the defendant's driving record from the Registry of Motor Vehicles.

At trial, the defendant objected to the admission of the RMV documents claiming that the RMV signature was not properly attested. On appeal, the defendant raised for the first time the confrontation clause issue under Melendez-Diaz, arguing that the Registry documents were inadmissible under the Confrontation Clause because the defendant was deprived of his right to confront and cross examine any witness from the Registry of Motor Vehicles.

The court in a footnote, held that the issue was waived for appeal, but then addressed the issue, rejecting the argument that Registry documents require live testimony. The court held that RMV documents are not prepared in anticipation of litigation and qualify as business records.

It is unfortunate that the court addressed this issue in this case without it being properly raised in the lower court. Given that the issue was not properly raised in the lower court, this issue of the admissibility of Registry of Motor Vehicle documents as well as proof of prior convictions without live testimony should be raised in all cases.

Massachusetts OUI lawyers are likely to raise 6th Amendment confrontation defenses under Melendez-Diaz v. Massachusetts when the Commonwealth attempts to offer prior convictions to prove a second or subsequent offense DUI.

Three individuals were charged with drunk driving in Dedham, Massachusetts over the weekend. In one of the cases, regarding Christopher Reissfelder, the Dedham police found him standing outside of his car. According to the newspaper report, the police indicate that the defendant slurred his words, was unsteady on his feet and made statements that he was going to jail.

Experienced Massachusetts DUI lawyers can challenge the fairly common statements in police reports that a motorist was unsteady on their feet and had slurred speech. In some cases, officers put these observations into police report out of habit and when challenged in cross examination at a DUI trial reveal that the motorists did not have trouble with balance or communicating with the officer.

Generally, an officer will put in the police report that he noted the motorist had slurred speech, yet at the same time will be able to understand everything said by the driver, have detailed statements of the motorist and will have complete biographical information, suggesting that there was no difficulty communicating with the driver.

The observation of unsteadiness also can be challenged by noting whether the driver was able to get out of the car, walk to the area to take the field sobriety tests, walk into the police station and stand appropriately for the booking photograph and during the instructions when the officer demonstrates the field sobriety tests.

Continue reading "Three Massachusetts OUI arrests in Dedham" »

A 52 year old man from Whitinsville was charged with a Fifth Offense OUI and the case will be heard in the Milford District Court. A fifth offense OUI is a felony in Massachusetts and carries with it a minimum mandatory jail sentence of two years and a lifetime license loss. Further, the Commonwealth often will seek to indict a fifth offense so that the case will be heard in superior court. A fifth offense OUI carries with it a maximum penalty of five years state prison. However, if the case remains in district court, a district court judge can only sentence a defendant to a period of incarceration for two and one half years. Accordingly, if the Commonwealth is looking for the maximum penalty, the case will have to be brought to the superior court.

According to the Worcester Telegram article, Mr. Couillard was riding a motorcycle, lost control and went off of the road and was brought to the hospital. The Commonwealth will likely attempt to subpoena the medical records in order to prove the blood alcohol percentage.

Cases involving evidence of blood alcohol level based on hospital medical records can be difficult for the Commonwealth to prove. Defense counsel will likely attempt to review the records before the Commonwealth can subpoena the records to see if they are detrimental. If the records hurt the defendant's case, the defendant can attempt to prevent the release of the records on medical privacy grounds.

If a judge orders the release of the records, the defense can challenge the introduction of the records on a number of grounds, including requiring the Commonwealth to prove the chain of custody as to who took the blood and the details of how it was drawn and whether any sterilizing agents were used.

Assuming that the Commonwealth can establish the chain of custody regarding the blood test, the Commonwealth will also have to convert the hospital blood alcohol level to fit within the requirements of Massachusetts General Laws 90 Section 24.

Massachusetts OUI case involving blood alcohol evidence from hospital records can often defensible as the Commonwealth has numerous evidentiary hurdles to surpass to get the records admitted into evidence.

Continue reading "5th Offense OUI charge for Massachusetts man charged in the Milford District Court" »

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.

Continue reading "4th Offense OUI conviction overturned by Massachusetts Appeals Court" »