Massachusetts DUI Attorney Blog

A man was arrested on a charge of OUI in Abington recently -- for the second time since May, the Enterprise News reports.

Being arrested and charged with OUI in Massachusetts can be a scary thought. Many people don't know where to turn and wonder what their future holds. The first thing a person should do is call an experienced Massachusetts OUI Attorney.

Mark G. Anderson was arrested in Abington after police say he had a beer spilled at his feet and several empty alcoholic containers in his back seat when he was arrested recently. He is charged with second-offense OUI, negligent operation of a motor vehicle and a marked lanes violation.

He was arraigned on the same charges in Hingham District Court on July 6. He also faced OUI charges in Hingham District Court in 2005, though the case was continued without finding, the newspaper reports.

According to police, they saw the driver swerve into the opposite lane on Brockton Avenue in a Chevrolet pick-up truck. Police observed the man with bloodshot, glassy eyes, the newspaper article states.

The man allegedly told police he had two drinks and he failed three out of five field sobriety tests. In one, he allegedly twice failed to balance on one foot. Investigators found empty beer cans and empty containers of other alcoholic beverages.

In May, he was charged with second-offense drunken driving, negligent driving and a marked lanes violation after being involved in a single-vehicle accident in Hingham that split his pick-up truck in two.

He was ordered to attend Alcoholics Anonymous meetings twice a week and isn't allowed to drink or possess alcohol or operate a motor vehicle, the newspaper reports.

In this case, the article states officers asked the driver to perform five field sobriety tests, though there are only three recognized by the National Highway Traffic Safety Administration: walk and turn, one leg stand and horizontal gaze nystagmus. In each of these tests, officers make observations about walking heel to toe, standing on one leg and following an object from side to side.

While some may think these are black-and-white tests, they are not. An officer's training or lack of training can make a big difference. As can weather conditions, whether the person is under duress (they're usually extremely nervous, at least) and physical conditions of the person. Some people have a natural imbalance, so asking them to perform tests that require balance may be unfair.

Continue reading "Scituate Man Faces Second Massachusetts OUI arrest" »

A second Offense Massachusetts drunk driving charge was brought against a Hingham man, according to a news report in the Patriot Ledger. The news report indicates that the defendant did not stop at the scene of the crash but within the area of the crash as he was found near the accident scene. The motorist was charged with leaving the scene of property damage.

Leaving the scene of property damage, is a common charge that sometimes accompanies a Massachusetts OUI charge when a defendant is not at the scene of an accident. However, in some cases, as in the Patriot Ledger news report, the charge is brought even though a motorist is within the vicinity of the accident. Depending on the circumstances of the accident and the road conditions, the charge could be defended on the grounds that there was no intent to leave the scene, especially when police easily locate a defendant around the accident scene.

The news account also indicates that the motorist claimed he should not have been driving and refused field sobriety tests. While the refusal to take field sobriety tests is inadmissible at the time of trial under the Massachusetts Constitution, the statement that the motorist should not have been driving could be admissible. A Massachusetts DUI lawyer defending this case could file a motion to exclude this statement from evidence. A motion to suppress statements can be filed to exclude incriminating statements; these motions are heard prior to trial and allow an attorney to determine prior to trial the strength of the Commonwealth's case.

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 " »

A 46-year-old woman is facing drunk driving charges in Quincy after authorities say she crashed into a police cruiser and seriously injured a state trooper on I-93, according to the Boston Globe.

These are very serious cases and an OUI defense lawyer in Quincy should be contacted as soon as possible after the accident. Last summer, Massachusetts State Police began increased enforcement after a trooper was killed. At least 20 troopers have been injured in each of the last two years as a result of accidents with alleged drunk drivers.

We certainly hope the trooper in this case makes a complete recovery. And, of course, we appreciate the men and women of the highway patrol who work to keep our roads safe and to assist motorists in the event of an emergency. But the truth of the matter is that motorists rarely are given the benefit of the doubt in an accident with a law enforcement officer. And a stopped emergency vehicle can back up traffic, cause distractions and increase the risk of an accident. Those two factors go a long way toward explaining why dozens of motorists are facing Massachusetts OUI charges in connection with traffic crashes involving troopers.

The accused motorist in this case, Leslie K. Minasian, of East Bridgewater, walked out of Quincy District Court after posting $6,500 bail. It is her second-offense Massachusetts OUI. The media reports her license was suspended in 1988 after she refused a breath test.

Exit 5 in Randolph was where the accident occurred. Police say the left lane was closed and the 41-year-old trooper was working a construction detail when the defendant rear-ended his cruiser with a Land Rover at about 2:30 a.m.

She was charged with operating under the influence of liquor, second offense; operating under the influence of liquor causing serious injury; negligent operation of a motor vehicle; failure to change lanes for an emergency vehicle; and a marked lanes violation.

Continue reading "Woman charged with OUI in Quincy after Striking Trooper's Cruiser" »

A Holbrook man is facing a second-offense Massachusetts OUI charge and a charge of assaulting a police officer in Abington, according to a report in the Patriot Ledger.

Hiring an experienced Brockton DUI defense attorney is critical whenever a defendant is facing allegations of drunk driving. But a second-offense makes it particularly important. The penalties for a second offense are more serious. Keeping a second offense off your record whenever possible is also critical because of the 8-year license suspension in the event of a third offense.

In this case, police also slapped the defendant with a charge of resisting arrest and assault and battery on a police officer because he apparently lashed out when police woke him up after reportedly finding him asleep behind the wheel of his car.

Patrick Magee-Bertoni, 21, will be back in Brockton District Court for a pretrial hearing May 19 -- his 22nd birthday.

Police report responding to a large fight on North Quincy Street shortly after 3 a.m. Sunday.That's when they say they found the defendant behind the wheel of a brown 1995 Nissan Maxima, which was allegedly in drive and resting against the bumper of a box truck. He had abrasions on his face and told police he had been assaulted.

Police say he swung at them as they tried to pull him out of his car. He was ultimately subdued, pepper-sprayed and taken to the Abington police station. They say he was in possession of an ounce of marijuana and was issued a $100 citation.

Continue reading "Holbrook man faces Brockton DUI charge, assault on a police officer, possession of marijuana in Brockton" »

A fatal Massachusetts drunk driving accident has resulted in a second offense OUI charge in Lynnfield being filed against a 25-year-old defendant, according to the Boston Globe.

The Melrose defendant was scheduled for arraignment on Monday in Peabody District Court on charges that include motor vehicle homicide and driving under the influence of narcotics. This case has a number of complex factors and should only be handled by a veteran Massachusetts OUI defense lawyer.

A thorough review of the accident should be conducted, and a thorough defense of a second-offense OUI charge will need to be prepared. If a defendant can be shown either not at fault in the accident or not guilty of drunk driving, he typically will not be convicted of the most serious charges associated with a drunk driving crash in Massachusetts. Additionally, an allegation involving driving under the influence of drugs presents its own unique challenges. Just because a defendant tests positive for the presence of drugs does not mean that he or she was under the influence at the time of the crash. Marijuana, for instance, can remain in a person's system for up to a month after consumption -- long after the time it could possibly impact a defendant's ability to drive.

Massachusetts State Police report the defendant was driving an SUV on Route 1 in Lynnfield when he entered the breakdown lane and struck a 42-year-old taxi driver. The victim was pronounced dead at North Shore Medical Center Union Hospital.

Police allege the defendant tossed small baggies of marijuana from his vehicle after the crash. The cab had been parked at the side of the road after a minor traffic accident. A 6-year-old boy in the other vehicle was also seriously injured, according to police.

The defendant was also charged with possession of a Class D substance with intent to distribute, speeding and a marked lanes violation.

Continue reading "Second-offense OUI alleged in fatal Lynnfield accident involving marijuana " »

A 40-year-old woman is facing OUI charges in Fitchburg after police say she crashed her car into a house on Albee Street, the Telegram reported.

Police say Stephanie J. Rennex, of 65 Everett St., failed to appear at her arraignment in Fitchburg District Court and a warrant was issued for her arrest.

She is charged with driving under the influence of alcohol, second offense, driving recklessly, and a marked lanes violation in connection with the Massachusetts drunk driving accident

Consulting an experienced Worcester OUI lawyer is your best course of action in the wake of a drunk driving charge. Failure to appear in court can compound your legal issues. But, even then, consulting an attorney can get you back on track without suffering the type of legal consequences that can result if you wait until you are arrested again by police.

Authorities report that Rennex's 2004 Mitsubishi Endeavor was found embedded in the home about 30 yards off the roadway. She was not injured and told police she lost control when she was cut off by another vehicle while traveling northbound on Albee Street. Police report finding an open beer and several empty schnapps bottles in the vehicle. They also found marijuana and a marijuana pipe, according to court documents.

She reportedly asked police to give her a break after they told her she failed the field sobriety tests. She refused the breathalyzer examination.

Continue reading "Warrant issued after woman allegedly fails to show for court in Fitchburg OUI car accident case" »

DUI Roadblocks in Massachusetts will be scheduled for Halloween weekend. The Massachusetts State police will be conducting a DUI roadblocks, also known as a sobriety checkpoint in Hampden County, Massachusetts. A DUI roadblock is when the State police stop every car in order to ensure that drivers are not operating under the influence of alcohol. Generally, the police will stop every car; roadblocks are set up on secondary streets where they can be safely conducted and where there is room for cars to be pulled into a screening area for additional testing, including having motorists perform field sobriety tests if there is an indication that the driver may be under the influence. State across the country are also increasing DUI enforcement over the Halloween holiday weekend.

Continue reading "DUI arrests in Massachusetts likely to increase over Halloween weekend with increased DUI patrol" »

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.

When a motorist is charged with a Massachusetts Second Offense OUI, the Commonwealth has to prove the defendant previously was convicted of OUI in Massachusetts or in some other State with an equivalent State statute. If a motorist is charged with a third or fourth offense, the process is the same with the Commonwealth required to prove the additional convictions.

A case from the Indiana Supreme Court may assist Massachusetts OUI lawyers in excluding prior convictions made when the motorist admitted to the charge pro se, or without a lawyer. In the case of Hopper v. Indiana, decided, September 28, 2010, the Indiana Supreme Court held that it would require judges at a plea hearing to advise a defendant of the dangers of going to trial without a lawyer, that an attorney is usually more experienced in plea negotiations and better able to identify and evaluate any potential defenses and evidentiary or procedural problems in the prosecution's case.

The Indiana Supreme Court imposed this new rule not pursuant to the federal or its State Constitution but under its supervisory powers over the Court. In Iowa v. Tovar, 541 U.S. 77 (2004), the United States Supreme Court rejected the argument that the Sixth Amendment requires an enhanced warning against the dangers of self-representation.

The Indiana Supreme Court in Hopper emphasized that the additional advisement would not consume significant court time and participation of counsel is likely to further plea bargain as well as delays in litigating cases.

As a lawyer defending Second Offense Massachusetts DUI charges, this decision represents a way to challenge a prior conviction at trial. The decision may prove even more helpful in cases of Third and Fourth Offenses to assist a defendant in avoiding mandatory jail time.

Continue reading "Challenging prior conviction in Massachusetts Second Offense OUI charge" »

A Sacramento police officer, Brandon Mullock, is accused of falsifying information on 79 DUI police reports. In some of these cases, the State has already obtained a conviction. The fabrication of the officer was discovered when a prosecutor noticed that the police dashcam differed substantially from the written police report of the officer.

DUI charges in Massachusetts, and throughout the country, are based primarily on the opinion of the arresting officer. In many Massachusetts DUI arrests, the police officer testifies to subjective factors that the officer claims shows an individual is under the influence. These factors include that the officer claims that the motorist was unsteady getting out of the car, spoke with slurred speech or had difficulty retrieving his or her license. Additionally, when an officer administers a field sobriety test, like the nine step walk and turn, the difference between an officer claiming that the defendant passed or failed is based on small details. Many officers will testify that they are unaware that missing heel to toe is a clue on the test only if there is more than a two inch gap. It is easy for an officer to claim on the report that the defendant failed to touch heel to toe either through not knowing how the test is scored or through embellishing to justify an arrest.

At an OUI trial in Massachusetts, cross examination can demonstrate that an officer overstated, embellished or exaggerated in the police report. The fact that so much of the evidence is opinion based evidence, which can be distorted, fabricated and misinterpreted by the officer demonstrates the importance of hiring an experienced Massachusetts OUI lawyer.

In Massachusetts, a defendant can challenge the basis for the stop at a motion to suppress which would require the officer to testify in court and can challenge the officer's opinion at trial. These opportunities to confront witnesses granted by the Sixth Amendment to the United States Constitution are the only way that a motorist can challenge the opinion of the arresting officer.

In California, the corrupt police officer was discovered as a result of a prosecutor comparing the dashcam to the written police report. In Massachusetts, police departments vary as to whether they have any dashcam or even booking video. As a Massachusetts criminal defense lawyer, I have argued that a lack of video taped evidence should be held against the Commonwealth at trial and support reasonable doubt. Yet in many cases, there will be no video evidence to contradict the officer; the only way to challenge the officer's opinion will be through cross examination at trial by a skilled Massachusetts DUI trial attorney.

Continue reading "Drunk Driving charges in 79 cases could be dismissed as a result of allegations that California police officer falsified police reports to justify DUI arrests " »

A lieutenant with the Weston Fire Department has been convicted of a Massachusetts drunk driving charge, according to the MetroWest Daily News.

A Framingham District Court judge found Lt. Christopher MacMillan guilty of second offense Massachusetts OUI and negligent driving. A charge of leaving the scene of an accident was dismissed.

He was arrested on Feb. 3 after police say he drove along the railroad tracks downtown and got his car stuck in the mud near a drainage pond.

Under Massachusetts Law (Chapter 90 Section 24), a second OUI offense is punishable by a license suspension for two years, up to 2 years in prison and a $10,000 fine.

His defense attorney made a motion for the dismissal of all charges during a bench trial on Thursday. One decision any OUI attorney in Massachusetts must discuss is whether to proceed with a bench or jury trial. Often the decision can be a difficult decision based on the attorney's experience with a particular judge and the likely composition of the jury pool.

Continue reading "Weston Fire Department Lieutenant convicted of second-offense Massachusetts OUI in Framingham" »

A 49-year-old defendant is facing drunk driving charges in Attleboro after allegedly causing two hit-and-run accidents before crashing his van into a tree in Foxboro, the Sun Chronicle reported.

Thomas Trask, of 41 West St. in Foxboro, pleaded not guilty in Attleboro District Court to a second-offense drunk driving charge. Under Massachusetts Law (Chapter 90 Section 24), a second-offense OUI is a serious charge carrying a penalty of up to two years in jail, license suspension for two years and a $10,000 fine.

Trask was ordered held in jail on $5,000 bail and is due back in court on Sept. 27.

Police say his min-van burst into flames after striking a tree at Route 106 and North Grove. Police report they had attempted to stop the van on Route 106 but broke off the pursuit as Trask sped into Foxboro at speeds of more than 50 mph. The pursuing officer had lost site of Trask's vehicle when he came upon the accident, according to the police version of events. Police report he was also wanted for a prior hit-and-run in Easton.

In addition to the drunk driving charge, he is charged with driving to endanger, refusing to stop for police, failure to stop for a traffic signal, leaving these scene of an accident with personal injury and driving with a suspended license.

Trask allegedly told police he had been drinking at a barbecue. An experienced Attleboro OUI defense lawyer will always advise you to remain silent in the wake of an arrest. Nothing you say will help your case.

Continue reading "Man faces Attleboro OUI charge after striking tree in Foxboro " »

A Massachusetts Second Offense OUI charge was brought against an Attleboro woman, Tarsha Hall, after she was allegedly involved in an accident side swiping three parked cars, according to a news account.

Witness statements according the the Attleboro Sun news account state that Hall's vehicle lurched to the right as she was traveling on Holman Street and side swiped three cars. Hall got out of the car and started walking when she was found by the police. Police administered field sobriety tests and the defendant is alleged to have consented to a breathalyzer test resulting in a reading of .34.

Given the high breathalyzer reading, Hall's Attleboro OUI lawyer will have to review the documents carefully from the police station and the Office of Alcohol testing to determine if the machine was functioning properly on the date of the test given in this case. Additionally, Hall performance on the field sobriety tests may provide a basis to challenge the accuracy of the breathalyzer machine. Given the breathalyzer reading, if it was accurate, it would be expected that Hall would not have even come close to performing these tests accurately.

Continue reading "Second Offense Massachusetts OUI charge brought against Attleboro woman" »

A Quincy man is accused of numerous criminal charges in connection with a Massachusetts DUI accident that seriously injured two teenage women, the Patriot Ledger reported.

Rene M. Lumaghini, 26, of 335 Granite St., Quincy, was ordered held without bail after his arraignment Monday in Quincy District Court. Authorities contend he failed to comply with court-ordered rehab and went bar hopping before driving into a tree and leaving two 19-year-old women trapped in the wreckage. He has a history of drug and alcohol violations and a warrant had been issued for his arrest last week for allegedly failing to report to a court-ordered treatment program at South Shore Recovery Home in Quincy.

A 22-year-old passenger was not hurt and told police the four had been drinking at three area bars, including Joe's American Bar & Grille in Braintree and at Darcy's Pub in Quincy.

One of the 19-year-old women was transported to Boston Medical Center where she remains in critical condition with severe head injuries.

Police report that the defendant's mother had promised he would turn himself in, but Lumaghini did not appear and police found him hiding in a closet at the Long Island Shelter drug treatment facility. He has been previously convicted of drunk driving, assault and battery on a police officer and assault and battery with a deadly weapon, for which he remains on probation. In this case, he has been charged with operating under the influence of liquor, leaving the scene of an accident after causing personal injury and negligent operation of a motor vehicle.

He is due back in court on May 20.

Continue reading "Man charged in Quincy OUI accident that critically injures teenage passenger" »