Massachusetts DUI Attorney Blog

As a Massachusetts drunk driving criminal defense attorney, I was surprised to see that the Stoughton police made five intoxicated driving arrests in one day recently. As is routine in Massachusetts OUI cases, all five had their driver's licenses seized. All of the drivers were released on bail or on their own recognizance.

Most of the arrests were for first OUI offenses. But one 49-year-old Stoughton man was arrested on a second and more serious drunk driving charge. Around 2 a.m. on Feb. 20, a Stoughton police officer spotted a vehicle speeding on Central Street. He also heard a loud noise and realized that both passenger-side tires had blown out, causing them to smoke as the vehicle moved. When the officer stopped this driver, he found an open container of an unspecified type of alcohol. Richard Eugene Tweedy was charged with having an open container in a motor vehicle, as well as with a second-offense OUI. He was arraigned in Stoughton District Court and will have to return to court in April.

The help of an experienced Massachusetts OUI lawyer is crucial in a case like this, because the penalties for a second OUI are more severe than for a first offense. With a conviction for a second-offense OUI, drivers face mandatory 30-day jail sentences. They lose their licenses for two years -- not just one -- and must wait 18 months rather than three before they're eligible for a hardship license that lets them get to work or school. If they do get the hardship licenses, they must install ignition interlock devices, at their own expense, in their vehicles for two years. They also are required to go to alcohol or drug treatment and, at the judge's discretion, can even serve up to two and a half years of jail time. There are exceptions, but by far the best way to avoid these harsh second-OUI penalties is to avoid having a first OUI to begin with. That's why you should hire an Massachusetts OUI defense attorney to handle any first charge, before it can set you up for harsh, avoidable penalties down the road.

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A 24-year-old Brockton man is facing Massachusetts OUI charges after police say he rear-ended another car on Friday morning, the Patriot Ledger reported.

In this case, Braintree police issued a summons for the defendant to appear in Quincy District Court.

Police charged him with second-offense operating under the influence of alcohol, as well as operating on a suspended driver's license, negligent operation of a motor vehicle and having an open container of alcohol in a motor vehicle.

The defendant allegedly crashed his Nissan Altima into the rear of a Mazda driven by a Weymouth woman. The woman was stopped on Commercial Street at the Elm Street intersection.

Neither driver was seriously injured, according to the Patriot Ledger.

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A Weymouth, Massachusetts man, Donald J. McNicol, was charged with a Fourth Offense OUI. McNicol was charged with DUI after news reports from the Patriot Ledger indicate that he sped past a police car and failed to stop at a red light. Quincy police found an open can of beer in the car and assert that McNicol failed field sobriety tests.

A Massachusetts Fourth Offense DUI is a serious charge that carries a likely potential that a motorist will receive the maximum penalty after trial in the district court of 2.5 years in the house of correction. A Fourth Offense carries a mandatory minimum jail sentence of one year to serve without the possibility of parole or credit for good time. A fourth offense OUI is a felony offense and carries with it a ten year loss of license.

On a fourth offense, many judges would be unwilling to impose a sentence of minimum jail time, particularly after trial. Depending on the strength of the case, in some cases a Massachusetts DUI lawyer can obtain a reduction in the offense level. This occurs for a number of reasons, either because of the relative strength of the Commonwealth's case or because the Commonwealth will have difficulty proving prior convictions. A fourth offense OUI will require a vigorous defense to prevail at trial or to obtain a favorable plea agreement if the defendant wants to resolve the case. Bail will typically be requested by the Commonwealth on any offense over a third offense.

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A 45-year-old Attleboro man faces a fifth-offense Massachusetts drunk driving charge after a motorist called police on a cell phone and followed the man's vehicle, claiming he was "all over the road," The Sun Chronicle reported over the weekend.

This is a very serious charge. A fifth-offense DUI charge carries a mandatory two-year jail sentence, a sentence of up to five years; a fine of up to $50,000 and a lifetime loss of driving privileges with no hardship consideration, under Massachusetts drunk driving law.

In this case, an experienced Massachusetts DUI lawyer should represent the defendant in Attleboro District Court.

The man was arrested in North Attleboro at Landry Avenue and Mt. Hope Street at about 8:45 p.m. Thursday. The patrolman spotted the defendant's pickup truck on Route 1 at Orne Street after receiving a dispatch to be on the lookout for an erratic driver, according to police.

A motorist who called police said he first spotted the vehicle in Walpole before spotting it again on Route 1 in Plainville. Police reported recovering an empty bottle of vodka from the vehicle.

The man faces charges of drunk driving, failure to drive within marked lanes, driving without a license, driving to endanger, and driving a motor vehicle with an open container of alcohol.

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An Attleboro, Massachusetts man, Thomas Powers, was arrested and charged with a Fourth Offense OUI. According to the news report, Powers was charged with operating on a revoked license for a prior DUI charge. If Powers is found guilty of a DUI in Massachusetts while driving on a revoked license for DUI, he faces a mandatory jail sentence of one year on the charge of driving on a license suspended for DUI.

Additionally, Massachusetts DUI law Chapter 90 Section 23 requires that any sentence on the charge of driving with a license suspended for OUI while under the influence run on and after any sentence on the underlying OUI charge. Accordingly, Powers would still face the Fourth offense OUI charge which also carries a mandatory minimum jail sentence of one year. That sentence, unless the district attorney agrees to drop or reduce the license suspension charge, would run on and after the charge of driving on a suspended license for OUI while OUI.

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A Massachusetts second or subsequent offense DUI/OUI charge requires the Commonwealth to proceed in a two step fashion. First, the Commonwealth must prevail at the trial of the underlying OUI offense. Once the Commonwealth obtains a convictions, the next issue is for the judge or jury to determine whether the Commonwealth can prove the number of prior offenses. At the trial on the underlying offense, if a jury trial, the jury does not know that a defendant has a second or subsequent offense OUI conviction.

Generally, the trial of the number of prior offenses is resolved through a bench trial. At the trial, the Commonwealth must offer a certified conviction of the prior offenses, the docket sheet and any entry of appearance by an attorney. The Commonwealth may also try to prove a prior offense by relying on probation records of conviction.

The documents used to prove a prior Massachusetts OUI conviction must match the defendant by indicating the same biographical information and identifying information. Massachusetts OUI law Section 24 provides that the prosecutor can prove a prior conviction by either attested copies of the original court papers, or certified copies of the defendant's biographical data and informational data from the department of probation, any jail or house of correction or the registry.

In a case regarding subsequent offense DUI convictions from the State of Montana, State v. Blue, the Montana Supreme Court rejected a defendant's argument that because the state reduced his prior third offense DUI to a second offense DUI, the state was precluded from now convicting him of a Fourth offense without first obtaining a conviction on a third offense. The court held that the defendant got the benefit of a reduction in offense level on his third offense, but that did not preclude the State from later prosecuting based on his number of prior offenses in his criminal record.

In Massachusetts, prosecutors will sometimes reduce a charge to a lower offense level. If faced with a similar case, a Massachusetts court would likely not preclude the Government from prosecuting based on the actual offense level even though a defendant received the benefit of a prior reduction. With any agreement to reduce an offense level, for purposes of license suspension, the Registry suspends based on its own records of prior offenses and will not be bound by a court reduction in offense level for the purposes of a Massachusetts license suspension for DUI.

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Massachusetts DUI law allows the Commonwealth to move for forfeiture of the motor vehicle of any motorist convicted of three or more DUI offenses. A Fall River man may face forfeiture proceedings as the Easton police will attempt to seize the motor vehicle of Ronald Marovelli.

Under Massachusetts law, Chapter 90 Section 24W the Commonwealth can petition the court for forfeiture of the motor vehicle of any motorist convicted of three prior OUI offenses in Massachusetts or any other state. The forfeiture proceeding is a civil suit that the Commonwealth can initiate either in the district or superior court having jurisdiction over the criminal case. If the motor vehicle is jointly owned, the OUI defendant shall have the burden of proving that the vehicle is not subject to forfeiture because the claimant is dependent on the motor vehicle for the livelihood or maintenance of his or her family.

A Fall River, Massachusetts man, Ronald Marovelli with a pending Massachusetts OUI charge in Dedham District Court was arrested in Easton for DUI and charged with a Fourth offense according to news accounts. Given that Marovelli was on bail when arrested, he could face the potential for a bail revocation as any time an individual is released on bail, in a DUI case or any other type of case, and charged with a new offense, there is the potential for a bail revocation which can result in a defendant being held without bail for up to sixty days.

A motorist convicted of a second offense Massachusetts DUI appealed to the Massachusetts Appeals Court, claiming that the requirement that he install the ignition interlock device in his vehicle prior to reinstatement violated his rights under the State and federal constitution. Under Massachusetts statute, any motorist convicted of a second or greater offense DUI in Massachusetts or any other state, is required to have an ignition interlock device installed in their vehicle for two years prior to reinstatement of a Massachusetts driver's license.

In the case of the Registry of Motor Vehicles v. Gordon, the motorist had been convicted of a First offense Massachusetts OUI in 1989 and received a second offense conviction in 2003. The motorist was eligible for reinstatement in December of 2005, but did not seek reinstatement until January of 2006, two days after the ignition interlock component of Melanie's law went into effect.

The court rejected the motorist's challenges to the ignition interlock requirement for second offense OUI convictions and upheld the statute against Constitutional challenges. The Gordon case reaffirms the Constitutionality of the strict and harsh penalties imposed on drivers convicted of a second or subsequent offense DUI.

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A Stoughton, Massachusetts man was held without bail after being charged with a 4th offense DUI. A Massachusetts Fourth Offense OUI is a felony and carries with it the possibility of 2.5 years in the house of correction and carries a mandatory sentence of two years in the house of correction with a one year mandatory minimum sentence.

According to news accounts, the suspect Paul Davenport, allegedly was involved in a hit and run accident and was stopped when police identified the car as being involved in an accident with heavy front end damage. The police did not observe any erratic operation and claim that the defendant failed two out of four field sobriety tests.

Davenport's DUI lawyer appears to have a strong case as according to the police own testimony the defendant passed two field tests. The police deemed Davenport to have failed the one leg stand, despite evidence that the motorist had an injury to his left leg. At trial, in addition to challenge the general unreliability of the one leg stand test, a DUI attorney could present medical records documenting the motorist's medical problems with his left leg, explaining any officer testimony regarding a lack of balance.

Continue reading "4th offense Massachusetts DUI charge for Stoughton man out of the Attleboro District Court. " »

The admissibility of breathalyzer evidence was alternated when the Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Colturi, 448 Mass. 809 (2007). In Colturi, the court held that the Commonwealth does not have to produce expert testimony to prove that the defendant's blood alcohol at the time of driving is the same as at the time of the test as long as the breathalyzer testing is done within a reasonable period of time after the operation. The court held that three hours would generally be a reasonable time, but allowed for the possibility that a shorter period should apply depending on each individual case.

A case from Mississippi recently raised issues similar to those litigated in Colturi. In a Mississippi case, State v. Evans, that will be decided by the Mississippi Supreme Court, the defendant registered a .09 just above the legal limit of .08. The defendant was stopped at 12:50 am and not given a breathalyzer test until 1:58 am according to news accounts. The court refused to allow the defendant to present retrograde extrapolation evidence that the defendant was below the legal limit at the time of operation. Given that the issue with any breathalyzer is whether it accurate reflects the blood alcohol content at the time of driving, the judge appears to be incorrect in precluding the defendant from offering the evidence and presenting a defense. The court of appeals reversed the trial judge and the case will be heard by the State's highest court.

Massachusetts DUI law under Colturi should not preclude a defendant from offering evidence proving that the blood alcohol level was lower at the time of driving. Though Colturi held that the Commonwealth does not have to present this evidence to prove a violation under the per se law, that case does not bar a DUI attorney from presenting this defense before a jury.

In a case involving a .09 breathalyzer, an OUI lawyer would want to consider whether a margin or error defense would be more effective, given that the machine has a margin of error that could put the reading below .08. Additionally, if field sobriety tests show that the defendant was coordinated and had good balance, an attorney could argue that there is a conflict or disconnection between the breathalyzer evidence and the officer's observations that should cause a jury to distrust the reliability of the machine.

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A Taunton, Massachusetts resident was arrested for OUI on July 24, 2009. Brian Santos was charged with a third offense OUI. Santos was allegedly stopped for going 35 mph over the speed limit. Since speeding is common, it is not considered a sign of impaired driving by the National Highway Traffic Safety Administration.

Santos took a breathalyzer test and blew a .10. Santos' DUI attorney will try to exclude the breathalyzer test results from evidence. There are numerous ways to exclude the breathalyzer test from evidence, including the failure of the officer to obtain a defendant's consent, failure to observe the 15 minute waiting period and failure of the Commonwealth to satisfy the legal requirements to admit the test results by producing documents from the office of alcohol testing.

Given that the breathalyzer reading is close to the legal limit, Santos' OUI lawyer may try to present a margin of error defense. Like all machines, a breathalyzer machine has a margin of error. When the Commonwealth conducts its periodic testing of the machine as required by law, the Commonwealth considers the machine to be working properly if it comes with plus or minus .01 percent. Additionally, other factors could result in a lowering of a defendant's blood alcohol percentage, including medical issues, failure of the machine to account for temperature and defects with the particular machine that the defendant was tested on. When a breathalyzer reading is near the legal limit, as in Santos' case, a DUI lawyer can pursue a margin of error defense if the judge allows the breathalyzer evidence to be admitted at trial.

Continue reading "Taunton, Massachusetts resident charged with 3rd offense OUI " »

A Norton Massachusetts man, Steven Lahey, received a 4-5 year State prison sentence on a fifth offense OUI charge after a jury trial in the New Bedford Superior Court. A fifth offense OUI charge is a concurrent felony, meaning that the case can stay in the district court or the Commonwealth can seek an indictment and bringing the case to the superior court. If the case stays in the district court, the maximum penalty for a fifth offense is 2.5 years in the house of correction.

In Mr. Lahey's case, the Commonwealth brought the case to the superior court as is typical with a fifth offense. Unlike a trial in the district court which consists of a jury of six, a trial in the superior court affords the defendant a jury of 12. The judge sentenced Mr. Lahey to 4-5 years on the OUI with 2.5 on and after that sentence on the suspended license charge.

A fifth offense Massachusetts OUI charge for an Attleboro man, Timothy Donovan, has resulted in him being held without bail pending a dangerousness hearing in the Attleboro District Court. A dangerousness hearing is a hearing under Massachusetts General Laws Chapter 276 Section 58A that the Commonwealth can request for certain types of felony offenses where the Commonwealth has to establish probable cause that the offense occurred and that no condition of release can reasonably assure the safety of the community. A dangerousness hearing is not possible for a First or Second offense OUI as first and second offense drunk driving charges are misdemeanor offenses. The Commonwealth has the discretion weather or not to request a dangerousness hearing and it is not particularly common for the Commonwealth to make the request unless the offense is a fifth offense or greater.

Unlike at a DUI trial where the Commonwealth has to prove the elements beyond a reasonable doubt, at a dangerousness hearing the standard of proof is clear and convincing evidence. This standard, allow the Commonwealth to hold the defendant without bail for up to 90 days. In other words, the Commonwealth attempts to establish that no conditions of release, such as, setting a cash bail, conditions of release, GPS monitoring, or other conditions, will be sufficient to protect the safety of the public and that the only way to protect the public is through detaining the defendant without bail for up to 90 days.

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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.

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