Massachusetts DUI Attorney Blog

Actress Lindsay Lohan was ordered to jail this week for violating probation and failure to undergo alcohol counseling, the New York Post reported.

A Massachusetts OUI charge carries the threat of significant penalties, including jail time, mandatory counseling, probation, fines and court costs. Sometimes defendants find themselves in additional trouble for failing to properly comply with the terms of probation.

Drunk driving charges frequently involve motorists with little or no experience with the criminal justice system. An experienced Boston OUI lawyer can make sure you understand what you need to do to remain in compliance and will have the knowledge and experience necessary to defend you if you are ever brought to the court for a probation violation hearing, sometimes referred to as a probation surrender hearing in Massachusetts.

In Lohan's case, the L.A. judge sent her to jail for 90 days for failure to attend educational classes ordered as part of her plea agreement to two DUI arrests in 2007. Lohan had fallen behind in class attendance and had been ordered in December to begin attending once a week. Instead, she missed seven weeks of classes and a court date in May when she was at the Cannes Film Festival and said she lost her passport.

The actress was ordered to report to jail on July 20. Jail personnel said she would likely serve about 25 percent of her sentence, or about 25 days behind bars. Lohan was sentenced to 30 days for reckless driving, and 30 days for two separate DUI arrests that came in May and July of last year.

The judge also ordered Lohan to enter an inpatient substance abuse treatment program within two days of her release. Prosecutors were not allowed to introduce evidence that Lohan's alcohol monitoring bracelet indicated she had consumed alcohol on June 7, the night of the MTV Movie Awards.

It is the latest is a series of legal problems for the actress, who had her probation revoked in May after missing a hearing stemming from a three-year-old drug and alcohol case.

Continue reading "Jail sentence for Lindsey Lohan highlights risks of Massachusetts probation violations" »

On March 2, the Massachusetts Senate voted to deal with the threat of drivers distracted by text messaging, accepting a Massachusetts House plan to make texting while driving a primary offense. This means that police officers may pull over and cite drivers for texting, regardless of any other infractions the driver may be committing. It also opens up the possibility that drivers caught texting could also be cited for secondary offenses such as not wearing a seat belt.

Texting while driving has been recognized as an increasingly serious problem on the roads. As the New York Times reported last summer, the Virginia Tech Transportation Institute (VTTI) researched the issue and found the risk of crashing twenty-three times higher than it would be for a driver who is not distracted. VTTI Director Dr. Tom Dingus commented on the drastically increased crash risk for texters: "You should never do this. It should be illegal." Texting takes drivers' eyes and concentration away from the task of driving for much longer than other distractions like changing a radio station. According to Dr. Rich Hanowski, Director of the Center for Truck and Bus Safety at VTTI, "texting is in its own universe of risk." Further study is underway, but the message is clear.

Even more interestingly for Massachusetts OUI criminal defense attorneys like me, some research shows that texting while driving may actually be more dangerous than driving drunk. Scientists at the University of Utah found that texting leaves drivers twice as impaired as drivers with a blood-alcohol concentration of 0.08 or higher. The lead researcher, David Strayer, concluded that you're more likely to be hit by a texter than a drunk driver. However, as of May 2009, Utah is the only state that treats texting drivers as harshly as drunk drivers who cause deaths, with up to 15 years in prison. In many other states, the practice is still completely legal, or legal for drivers over 21, while drivers who blow a 0.08 or higher face mandatory license suspensions and jail time.

Continue reading "Texting While Driving May Become a Primary Offense in Massachusetts" »

A Massachusetts Legislature recently proposed legislation to amend the definition of public way to include college campuses. Under Massachusetts OUI law, the Commonwealth has to prove three elements, that the motorist operated a motor vehicle, on a public way and while under the influence of alcohol. While most Massachusetts OUI trials focus on the element of whether the driver was under the influence, cases have arises focusing on the public way element. An Auburn, Massachusetts man was recently found not guilty by a district court judge who found that Assumption College Campus was not a public way under the Massachusetts DUI/OUI criminal law.

A public way, is any way that the public has a right of access as licensee or invitees, which includes any road open to the public. Some College campus roads may not be public ways if there is no access to the road by the general public. This would occur in circumstances where there is a gate to the college campus. Many colleges allow access by the public and accordingly these roads probably would be considered public ways.

Continue reading "Proposed legislation to amend Massachusetts OUI law and to include college campuses in the definition of pubic way" »

A Second Offense Massachusetts DUI charge involves a two step process. Like any alleged multiple offense DUI, whether, second, third or fourth offense, the first phase involves the Commonwealth proving the underlying offense. At this trial, the jury is not allowed to hear that a motorist has prior DUI offenses, but hears only the evidence on the underlying offense.

If the Commonwealth proves the DUI case beyond a reasonable doubt, the next phase is called the subsequent offense portion. The proceeding on any prior offense DUI is called a bifurcated proceeding with a trial on the underlying offense, followed by a trial on the enhancement.

Massachusetts OUI law Chapter 90 Section 24 provides that the Commonwealth can prove a prior conviction by offering evidence of a certified copy of the docket of conviction, certified copy of the defendant's biographical information from the department of probation or house of correction or the registry shall be prima facie evidence of a prior conviction. The statute provides that the Commonwealth is not required to produce live testimony to prove the prior conviction.

Massachusetts courts have held that the Commonwealth has to prove more than mere identify of name. In other words at the subsequent offense portion of the trial, the Commonwealth must be able to match the defendant before the court with the prior conviction, by showing the same address, date of birth, physical appearance and other identifying traits. Generally, the subsequent offense portion would be a bench trial though a defendant has a right to elect a jury trial on the issue of the prior offense DUI.

Ina case from Pennsylvania, the Pennsylvania Supreme Court held that a DUI defendant could not be convicted of a prior offense when he was arrested for two DUIs in the same night. The court held that the defendant must have been convicted of a prior offense prior to being charged with a second offense DUI. The same result would likely follow in Massachusetts; however, a judge would likely sentence a defendant in accordance with a second offense and the Massachusetts Registry of Motor Vehicles would impose any license suspension for the DUI in accordance with a second offense status upon conviction of both offenses.

Continue reading "Second Offense Drunk Driving charge in Massachusetts and prior convictions " »

The admissibility of breathalyzer evidence in Massachusetts may be impacted by a confrontation clause case from Virginia that the United States Supreme Court agreed to hear for the upcoming term. Commonwealth v. Briscoe. The appeal in Briscoe concerns several cases that were consolidated and all raise the same issue of whether Virginia's notice and demand statute satisfies the Constitutional requirements of the Sixth Amendment confrontation clause.

The Briscoe cases involves the issue of the admissibility of a drug certificate of analysis. Unlike the Melendez-Diaz case where the Supreme Court required live testimony, the Virginia statute only allows the certificate to be admitted if the State gives the defendant notice and demand of their intent to rely on the affidavit seven days prior to trial and files this with the court. The defendant is then given the opportunity to call the chemist as an adverse witness with the cost of the summons, incurring to the State.

The Melendez-Diaz decision suggested that States could enact law requires a defendant to assert the right of confrontation prior to trial, suggesting that notice and demand statutes would satisfy the Sixth Amendment requirements. Additionally, the Melendez-Diaz decision clearly indicated that the right of confrontation could be waived.

The Virginia statute appears contrary to the language of Melendez-Diaz and the court should strike it down, though it would be anticipated the decision would essentially direct states as to how to pass a Constitutional notice and demand statute. The flaw in the Virginia statute appears that it requires the defendant to subpoena the lab technician and call the lab technician as a witness in the defense case. In a criminal trial, the burden is always on the Government to call witnesses to establish the essential elements of the offense and the due process clause is violated by efforts to shift the burden to the defendant. The language of the Sixth Amendment also underscores that the Government has to call witness against the defendant to preserve the defendant's right to confront witnesses against him.

In addition to the language of the Melendez-Diaz decision, the defense counsel's brief in Briscoe depicts other flaw with the Virginia statute that the right to call the chemist as an adverse witness in the defense case is not the same as being provided with the opportunity for cross examination after the chemist testified as a witness on direct examination for the Government. Further, the defense brief points out that this essentially time saving procedure has no logical limitation and could be expanded to other cases not involving drug analysis, reverting back to the rejected concept of trials based on affidavit.

The United States Supreme Court should strike down the Virginia statute. Massachusetts has yet to enact any similar notice and demand statutes in DUI case or drug cases. The impact of the United States Supreme Court confrontation clause will have a major impact on the admission of breathalyzer evidence as the confrontation clause cases define how the Government must proceed to have documents regarding the accuracy and reliability of the breathalyzer machine placed before the court.

By the time Briscoe is decided by the Supreme Court, likely to be June 2010, there will be numerous decision from state courts applying Melendez-Diaz to the admissibility of breathalyzer evidence. The Briscoe decision is likely to shape the method by which states enact notice and demand statutes.

Continue reading "Massachusetts DUI evidence and the impact of Briscoe on the right of confrontation" »

Under Massachusetts OUI law, Chapter 90 Section 24, if a person is found guilty of a first offense or admits to sufficient facts for a finding of guilty, known as a Continuance Without a finding or CWOF as commonly referred to in court, the court will generally impose a 45 day loss of license and require the motorist to complete the 24D alcohol education program. With the 24D disposition, Massachusetts DUI law allows a motorist to obtain a hardship license for the purposes of work or education within three business days by going to the Registry of Motor Vehicles and requesting a hearing to obtain a hardship license.

A hardship license, sometimes called a Cinderella license, is obtained by presenting documentation to the registry of motor vehicles regarding the need for the hardship, work, education or regular medical appointments and a letter stating that public transportation is not reasonably available. The hardship is available only for the same 12 hour period daily and requires enrollment in the alcohol education program, as well as payment of the reinstatement fee. This hardship license is only available after any penalty for breathalyzer refusal has already expired.

It is only with a second offense that Massachusetts imposes any requirement of installation of an interlock device prior to restoration of driver's license. A law passed in Illinois allows first time offenders to get their license back earlier. Under Illinois law, a driver is suspended for one year for refusing the breathalyzer and six months for a first offense OUI. The new Illinois law allows a motorist to obtain earlier reinstatement of their license provided they install the ignition interlock device in their car.

The legislature enacted increased OUI penalties in Massachusetts with the enactment of Melanie's law. Accordingly, the OUI laws in the Commonwealth strike the appropriate balance between fairness and punishment. However, legislation in other states will put pressure on Massachusetts to increase penalties for DUI.

Continue reading "Massachusetts OUI law and recent state trends" »