Massachusetts DUI Attorney Blog

In Quincy District Court on November 25, 2009, Michael Cocomile was charged with a 3rd Offense Massachusetts OUI while on probation for a second offense. Accordingly, Cocomile has two cases to deal with, defending the 3rd offense OUI charge while also dealing with a probation violation hearing on the second offense.

A Massachusetts probation violation hearing is a hearing to determine whether a defendant violated the terms and conditions of probation. A violation of probation can be a technical violation, like failing to report, pay money or complete a program such as alcohol or drug counseling. A probation violation can also arise when a defendant is arrested for a new offense. While a motorist has a right to a violation hearing, the standard at this hearing is very low, not proof beyond a reasonable doubt, but a standard of preponderance of the evidence. Though the preference is for live witness testimony, the law does not allow the probation department to simply rely on the police report to prove a violation in certain circumstances.

From the news account, it appears as though a violation will be found, meaning that Cocomile will face a sentencing on the second offense OUI, typically a second offense sentence is a 90 or 60 day sentence suspended, meaning that a defendant can only receive a maximum jail sentence of 90 or 60 days on the violation.

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An Attleboro man. Stephen Parker, was charged with a Massachusetts third offense OUI. A third offense OUI is a felony offense and has a mandatory minimum jail sentence of 150 days. Prosecutors will typically seek a sentence greater than the minimum penalty and generally ask for at least one year committed on a third offense. Additionally, a third offense carries with it an eight year loss of license.

If the news accounts are correct, the Attleboro OUI defendant would also face a five year loss of license as a result of refusing to submit to a breathalyzer test. According to the article, it appears as though the police did not observe any erratic operation, but stopped Parker leaving the convenient store after allegedly trying to pick a fight with a patron. It is not clear what basis the officer had to stop the vehicle as the police would need reasonable suspicion to stop a motor vehicle to conduct an OUI arrest. It appears that a Massachusetts OUI lawyer would explore the basis of the stop as a potential DUI defense in this case.

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