Articles Posted in OUI/DUI/DWI

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Last month, prosecutors in certain Massachusetts counties suspended the use of Breathalyzer test results in OUI cases. Meanwhile, the State Police reviewed whether the test procedures were reliable. In March, prosecutors were told about concerns with the tests, which caused a number of attorneys to look at older cases to see whether there were Breathalyzer test results with issues.

A spokesperson for the Executive Office of Public Safety and Security stated that when properly maintained, the breath test instrument is one of the most accurate tools available to identify drunk drivers. However, the district attorney for Middlesex County claimed that the issue was the calibration of Breathalyzers, and her staff was temporarily ordered to stop using test results in cases. Similarly, the Cape and Islands district attorney issued an order not to introduce the breath test in any case until further information is obtained. One official initially claimed that 69 out of 6,000 tests administered throughout the state were involved.

At the end of April, the Public Safety Secretary Daniel Bennett announced that only a small number of 39,000 breath analysis tests were flawed because police officers had made mistakes calibrating the machines. He claimed the tests themselves were not malfunctioning.
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If you hurt someone while drunk driving in Massachusetts, you may be charged with multiple counts, some of which may seem quite similar. In a recent case, a Massachusetts defendant was convicted of (1) drunk driving (operating under the influence or OUI), (2) drunk driving that caused a serious bodily injury, (3) driving on a suspended license, (4) manslaughter by motor vehicle, and (5) motor vehicle homicide. The case arose because the defendant was driving drunk on the wrong side of an access road and crashed into a Saturn. A 17-year-old passenger in the Saturn was killed and the driver seriously injured.

A state police trooper later testified that when the crash happened, the defendant was driving at 55 mph in a 25-mph zone, and the defendant didn’t try to avoid the crash. The defendant claimed he had drunk two 16-oz. mojitos and a vodka-Red Bull drink before the crash happened. The trooper also noted the defendant’s slurred speech, glassy eyes, unsteadiness, and failure to pass a sobriety test. The trooper arrested the defendant.

During the booking process, blood ran from the defendant’s ear, and he asked for medical assistance. Paramedics examined him. He agreed to a breathalyzer test with two measurements, and his blood alcohol level measured at .17 and .18. Next, he was taken to the hospital, where his blood alcohol level was measured at .15.
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On this blog, we often discuss how due to the serious nature of criminal offenses, the government bears the burden of proving all elements of a crime beyond a reasonable doubt. However, in certain cases, that is not the only burden of proof that the Commonwealth must bear. For example, as one Appeals Court decision affirms, in charging and sentencing based upon prior offenses, the prosecution must also prove that it was the same individual who committed the prior relevant offenses.In the case, Commonwealth v. Cruz, Mass. App. Ct. (2013), the defendant was subjected to a two part trial. In the initial phase of the trial, the jury convicted the defendant of operating under the influence of intoxicating liquor (OUI) and of negligent operation of a motor vehicle. In the second part, the jury convicted the defendant on the subsequent (third) offense portion of the operating under the influence charge. However, the defendant, Michelle Cruz, appealed on the later charge, arguing that there was insufficient evidence to establish that she was the individual who committed the two prior OUI offenses.

According to the opinion, the only evidence introduced by the Commonwealth to establish the defendant’s identity, was a certified copy of Michele MacCord’s 1993 OUI conviction and a certified copy of Michele Fortenbacher’s 2003 OUI conviction. Both of those conviction records reflected a birth date of March 17, 1962.
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The Supreme Judicial Court issued an opinion earlier this month, that held the common practice of eliciting opinion testimony from police officers regarding impairment in OUI cases is not permissible as evidence.This case is noteworthy, because in practice, many prosecutors have developed a habit of simply asking officers their opinion regarding whether a driver was impaired at the time of the arrest, which the court held is a legal issue upon which a lay witness is not qualified to speak.

The case involved the stop of a driver in 2009. In addition to recanting facts regarding the circumstances of the driver’s field sobriety tests, the prosecutor asked the officer whether he had formed any opinions regarding the driver’s sobriety. To this, the officer replied, “I believed that his ability to drive was diminished.” This is testimony that the court held was impermissible, as it comes close to an opinion on the ultimate issue of guilt or innocence, in this case the standard for the OUI charge is whether “the defendant’s consumption of alcohol diminished the defendant’s ability to operate a motor vehicle safely.” Therefore, due to the well established law that “[n]o witness, including a police witness, may testify as to a defendant’s guilt or innocence,” this type of testimony is not allowed.
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If this is your first time being charged with Operating Under the Influence, or OUI, you may be feeling incredibly stressed and uncertain of what’s to come. There are also some things you should know about the nature of the allegations against you.First and foremost, even in the case of a first offense, OUI is deemed a criminal offense. The crime itself is defined as a person operating a motor vehicle (which can include a boat or other vehicle, not only a car), while under the influence of alcohol and/or drugs. Keep in mind also that “operating a vehicle” does not necessarily mean driving on the street. Depending upon the circumstances, even sitting within a car to sober up could be considered operating a vehicle, depending upon the officer’s impression of your behavior, and also the surrounding factual circumstances. In other words, it doesn’t take erratic driving or a dramatic car crash to potentially implicate these charges.

The state of Massachusetts felt that current law was not harsh enough on drivers found guilty of OUI, so in 2005 it passed Melanie’s Law, increasing the penalties for OUI cases. Due to the state’s stance on these types of cases, it is of the utmost importance that you hire a Massachusetts defense lawyer who is knowledgeable about the nature of the charges, and also experienced in representing individuals charged with OUI offenses.

For example, an experienced Massachusetts OUI defense attorney may successfully be able to reduce the potential sentence you are facing as a first time offender from a maximum of two and a half years in jail, a $5,000 fine, and a five year license suspension, to a state-approved alcohol education program. This reduction is not possible after the first offense, and it is not a default reduction. That means the court will not automatically grant it; your attorney will have to secure it for you.
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Melanie’s Law was enacted to impose harsher penalties and sanctions against people that are charged with Operating Under the Influence in Massachusetts. The law has created new offenses that were not present prior to 2005 when it was signed into law. For instance, if someone who already has their license suspended for a previous operating under the influence (OUI), is arrested for operating under the influence again, they may now be charged with two offenses at the same time: OUI and OUI with a suspended license. This charge requires a mandatory jail sentence of at least one year and can be up to two and a half years, as well as a fine between $2,500-$10,000. In addition, a new crime was created for operating a motor vehicle under the influence of alcohol while there was child under the age of 14 in the vehicle. The driver can be charged with not only OUI, but also child endangerment while OUI. The punishment for a first offense is 90 days to 2.5 years imprisonment, a fine between $1,000-$5,000, as well as a yearlong suspension of the driver’s license. The crime of Manslaughter by Motor Vehicle was also created and implemented by Melanie’s Law. If a driver is under the influence of drugs or alcohol while operating a vehicle commits manslaughter, the driver will be charged with Manslaughter by Motor Vehicle. The minimum sentence is 5 years imprisonment and can be up to 20 years, as well as a fine up to $25,000.

Under Melanie’s Law, if a person has been convicted of OUI two (2) times, and is eligible for a hardship license, or in order to have their license reinstated, the driver will be required to have an Ignition Interlock Device installed in any vehicle that that person owns, leases or operates. The driver is required to pay for the expenses to install the device as well. The device requires that the driver have a blood alcohol reading of less than .02 in order for the vehicle to start. If the driver registers higher than .02, the vehicle will not start. The driver must report to company that installed the device every 30 days at which point the vendor uploads the data from the device and transmits it to the Registry of Motor Vehicles. If the device is necessary under the hardship license requirement, then the device must be used for the entire life of the hardship license, as well as an additional two (2) years after the license has been reinstated. If the driver is simply eligible for license reinstatement, then the device will be required for a mandatory two years. If the driver does not comply with the requirements, their license will be revoked for a minimum of 10 years, with the possibility of the revocation being for life.

Melanie’s Law does not specifically relate to just OUI offenders either. It is also applicable to persons that allow or hire an unlicensed individual or an individual with a suspended license to operate a motor vehicle. If an employer hires an individual with a suspended license to operate a motor vehicle, there is a $500 fine for the first offense, and up to one year in jail for a second offense. If person that owns or is in possession of a vehicle allows an individual that is unlicensed to operate the vehicle, the first offense is a sentence of one-year imprisonment and a fine up to $500. The same penalty is applicable if someone allows a person with an Ignition Interlock restriction to operate a vehicle without the device.
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In Massachusetts, the terms operating under the influence (OUI), driving under the influence (DUI), driving while intoxicated (DWI) are synonymous. The official charge is Massachusetts is known as Operating Under the Influence (OUI). This charge is a criminal offense in which a person is found to be operating a vehicle after having ingested any alcoholic beverage or chemical substance which impairs their ability to drive safely.Additionally, with the passage of Melanie’s Law in 2005, the penalties for OUI can be incredibly harsh. First time offenders may face a potential sentence of up to 2.5 years in prison, license suspension for one year, and an accompanying fine of $500-$5,000. However, if it is your first offense, your attorney may be able to convince the court to allow you to complete an alcohol education course in order to reduce your license suspension period.

Many individuals may be surprised to learn that the OUI laws apply not only to operation of a car or other motor vehicle on the roadway, but also to any other motor vehicle, such as a boat. Boating under the Influence (BUI) also carries a potential penalty of up to 30 months in prison and/or a $1,000 fine,in addition to loss of license and registration for up to a year. Additionally, if convicted of a BUI which also caused substantial bodily injury, an individual could face up to 10 years in prison, and a fine of up to $5,000. Furthermore, Massachusetts law explicitly states that, by choosing to operate a vessel on the state’s waters, you have given your implied consent to submit to alcohol testing if you are arrested for a BUI.
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Last month, the U.S. Supreme Court issued a landmark decision in the area of Driving Under the Influence (DUI) Blood Alcohol Content (BAC) evidence collection, and the rammifications of the case are certain to have an impact on police departments everywhere.

The case, Missouri v. McNeely, dealt with an ordinary enough sounding traffic stop. The defendant in the case, Tyler McNeely was pulled over by a Missouri police officer for speeding and crossing over the centerline. He then exercised his right to refuse a breathalyzer test (the refusal of which the Supreme Court ruled, in South Dakota v. Neville, is permissible as evidence against a defendant in a subsequent trial, and could potentially be construed as evidence of guilt). He was then arrested and transported to a nearby hospital for blood testing. He refused consent, but the officer directed the lab technician to take the sample anyway. His blood tested significantly above the limit, and he was charged with Driving While Intoxicated (DWI).

McNeely motioned to suppress the blood test results, arguing that they violated his Fourth Amendment rights against a warrantless search. The trial court and state supreme courts agreed with McNeely, stating that there was no evidence of exigent circumstances justifying the officer’s failure to first secure a search warrant.

The U.S. Supreme Court agreed with the lower courts, holding that the warrentless nonconsensual test violated McNeely’s Fourth Amendment rights. The opinion holds that the natural metabolization of alcohol is not a sufficient exigent circumstance to justify a per se rule that warrantless nonconsensual blood tests are permissible in every case. It further remarks on the fact that the metabolization argument is flawed for the fact that the process will occur during the transport from traffic stop to hospital anyway.
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In Massachusetts, the crimes of operating under the influence of alcohol or drugs is a very serious criminal offense, for which a conviction can severely impact your future. The official charge is Massachusetts is known as Operating Under the Influence (OUI), and any individual found to be operating a vehicle after having ingested any alcoholic beverage or chemical substance that impairs their ability to drive safely may be charged. In order to establish the requisite probable cause necessary to make an arrest, police officers use field sobriety tests, breath tests, blood tests and other tests to determine whether a person is under the influence of drugs or alcohol. The use of Field Sobriety Tests has become an increasingly regular routine in the United States, as they allow police officers to make roadside determinations of intoxication. In the event that you refused field sobriety tests, a talented Boston, Massachusetts OUI attorney will be able to file what is known as a Motion in Limine to prohibit the introduction of a defendant’s refusal of field sobriety tests. With the help of your attorney, your refusal of field sobriety tests will be blocked from trial, poking a huge hole in the prosecution’s strongest piece of evidence. Under the current case law in this area, the refusal to submit to field sobriety testing is not admissible as evidence against the defendant. Commonwealth v. McGrail, Commonwealth v. Ranieri.

WHAT IS A MOTION IN LIMINE?

A motion in limine is a legal written request filed by an attorney at a pre-trial hearing requesting that the judge rule that certain testimony regarding evidence or information may be excluded from the trial. A Motion in Limine means that the admissibility determination will be held away from the eyes and ears of the jury in a private meeting before the judge. This distinction prevents the jury from being prejudiced against the defendant due to evidence of the test result. In OUI cases, the prosecution must prove that (1) the car was operated, (2) on a public way or area members of the public have a right of access to, and (3) the operator of the vehicle was under the influence of some intoxicant. Thus, without the evidence of a refusal to take a field sobriety test, the remaining evidence may generally fall short in proving that the defendant was under the influence of drugs or alcohol. Similar to this motion is what is known as a Pierre Motion, which works to suppress the results of a breath test in OUI cases. In Commonwealth v. Pierre, the Court held that a breath test result is considered to be inadmissible at trial unless and until the Commonwealth proves the result’s admissibility by establishing compliance with breath test regulations. In the event that the administration of the test was not in compliance with State standards, the breath test result is not considered reliable evidence and therefore the test result will be barred from entered as evidence. Especially in OUI cases, having a smart and strategic OUI defense lawyer on your side can be hugely beneficial to the outcome of your case.
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In Massachusetts, the crimes of OUI, DUI, and DWI are very serious criminal offenses, for which a conviction can severely impact your future. The official charge is Massachusetts is known as Operating Under the Influence (OUI), and any individual found to be operating a vehicle after having ingested any alcoholic beverage or chemical substance that impairs their ability to drive safely may be charged. In order to establish the requisite probable cause necessary to make an arrest, police officers use field sobriety tests, breath tests, blood tests and other tests to determine whether a person is under the influence of drugs or alcohol. The use of Field Sobriety Tests has become an increasingly regular routine in the United States, as they allow police officers to make roadside determinations of intoxication. In the event that you refused field sobriety tests, a talented Boston, Massachusetts OUI attorney will be able to file what is known as a Motion in Limine to prohibit the introduction of a defendant’s refusal of field sobriety tests. With the help of your attorney, your refusal of field sobriety tests will be blocked from trial, poking a huge hole in the prosecution’s strongest piece of evidence. Under the current case law in this area, the refusal to submit to field sobriety testing is not admissible as evidence against the defendant. Commonwealth v. McGrail, Commonwealth v. Ranieri.

WHAT IS A MOTION IN LIMINE?
A motion in limine is a legal written request filed by an attorney at a pre-trial hearing requesting that the judge rule that certain testimony regarding evidence or information may be excluded from the trial. A Motion in Limine means that the admissibility determination will be held away from the eyes and ears of the jury in a private meeting before the judge. This distinction prevents the jury from being prejudiced against the defendant due to evidence of the test result. In OUI cases, the prosecution must prove that (1) the car was operated, (2) on a public way or area members of the public have a right of access to, and (3) the operator of the vehicle was under the influence of some intoxicant. Thus, without the evidence of a refusal to take a field sobriety test, the remaining evidence will generally fall short in proving that the defendant was under the influence of drugs or alcohol. Similar to this motion is what is known as a Pierre Motion, which works to suppress the results of a breath test in OUI cases. In Commonwealth v. Pierre, the Court held that a breath test result is considered to be inadmissible at trial unless and until the Commonwealth proves the result’s admissibility by establishing compliance with breath test regulations. In the event that the administration of the test was not in compliance with State standards, the breath test result is not considered reliable evidence and therefore the test result will be barred from entered as evidence. Especially in OUI cases, having a smart and strategic OUI defense lawyer on your side can be hugely beneficial to the outcome of your case.

The most common field sobriety tests utilized by police officers are the walk-and-turn test, the one-leg stand test, alcohol breath test, and horizontal gaze nystagmus test. The National Highway Traffic Safety Administration permits field sobriety tests to be administered because they have found the results of these tests to be reliable indicators for distinguishing blood alcohol content beyond the legal limit for driving, assuming that the tests were administered in a standardized manner by a properly trained police officer. Thus, a motion in limine can be an extremely beneficial tool to suppress evidence that the defendant refused to take field sobriety tests. Tests such as these are usually the crucial piece of evidence in an OUI case, as without it, extraneous factors such as blood-shot eyes, swerving while driving, or even slurred words can be explained in many other ways.
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