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Eighteen-year-old Aaron Deveau is the first Massachusetts resident to be charged with texting while operating a motor vehicle negligently and causing injury. Deveau is also charged with one count of vehicular homicide. If convicted of both charges, the Haverhill teen faces up to four and half years in jail. Authorities say the teen was sending and receiving text messages on February 20, 2010 at the same time he crossed over the center-line and crashed head-on into a vehicle, killing the 55 year old driver. The Safe Driving Act was signed into legislature on September 30, 2010 in an effort to prohibit drivers from texting and junior drivers from talking on a cell phone. Massachusetts became the 29th state to enact a law of this type, which bans texting, e-mailing, searching on the Internet, and other activities on a phone, laptop, or other electronic device by the operator of a vehicle. This also applies to drivers waiting at traffic lights and stop signs. The Safe Driving Act also bans drivers under eighteen from talking on a mobile phone while operating a vehicle, and requires drivers aged 75 or older to complete a vision test when applying for or renewing a driver’s license.

While the Safe Driving Act imposes six new violations for Massachusetts’ drivers, the violation of ‘Negligent Operation and Injury from Mobile Phone Use’ is the only new violation deemed a criminal infraction, and carries with it the most significant penalties. To be convicted of Negligent Operating & Injury from Mobile Phone Use, the Commonwealth must prove that while using a mobile phone as a minor (§ 8M); using a phone or texting as a public transportation operator (§ 12A); or sending or receiving a “text” (§ 13B), the operator drove negligently so that the lives and safety of the public might be endangered; and caused injury to some other person, vehicle or property. Keep your teens and family safe by staying up to date with the changes in Massachusetts driving laws, talk to your teens about the dangers of using a mobile phone while driving, and consult the best Massachusetts criminal defense attorney in the event someone you love is charged with a violation.

PENALTIES ATTACHED
The penalties attached to this new law are separated into two categories: junior operators license penalties, and over 18 penalties. For those with a junior operators license (JOL) the penalties include license suspension of 180 days for the first offense, a 1-year license suspension if the second offense is within three years of the first, and a $500 reinstatement fee. For those over the age of 18, the penalties amount to a 60 day suspension for the first offense, 1-year license suspension if the second offense in within three year of the first, and a $500 reinstatement fee. While the punishment imposed on violators of this law may not seem that severe, it is important to keep in mind due to the criminality of the charge, it also carries with it an insurance surcharge. The criminal offense surcharge applies to injury or property damage resulting from the following incidents:
• Use of any type of mobile phone or mobile electronic device by a junior operator;
• Use of any type of mobile phone or mobile electronic device by an operator of any type of public transportation; or • Use of any type of mobile phone or any handheld device capable of access the Internet to manually compose, send or read an electronic message while operating a motor vehicle.
For a complete summary of the penalties for violations of the Safe Driving Act, please click here.
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Over 80% of OUI cases heard by a Massachusetts Judge and 50% of OUI cases in a jury trial are dismissed. This high rate of acquittals led the Boston Globe to launch a spotlight investigation on the matter in December of 2011. The findings of the final report show that the high rate of acquittals is due to the reluctance of prosecutors to dismiss flawed OUI cases, the improper administration of breath and blood tests, the inaccuracies from the results of those tests, and the prosecutions’ high burden of proof in regards to satisfying the elements of an OUI case. Most frequently, the arresting officer improperly administers the breath test on the suspect, thus leading to the inadmissibility of the evidence and the failure of the prosecution to proffer evidence of the suspect’s blood alcohol concentration (BAC).

Breath testing instruments are small hand held pieces of technology, which like most technology, are often prone to errors. In fact, research indicates that breath tests can vary at least 15% from actual blood alcohol concentration. At least 23% (that’s about one out of every four) of all individuals tested will have a BAC reading higher than their actual BAC. Therefore, the findings of the test leave a lot to be interpreted and analyzed by your attorney and the judge presiding over your case.

DEFENSES TO BREATH TEST RESULTS
Breath testing instruments most commonly experience problems with calibration, interfering substances, and mouth alcohol. Most breathalyzers require recalibration at least once a year to maintain accuracy. Thus, if the tester has not received the proper recalibration maintenance, it may lead to inaccuracies and false readings of the machine. Additionally, there are non-alcoholic substances that can contribute to a false reading such as the weight, health, metabolism, diet, and mental health of the subject. Medical illnesses such as diabetes, emphysema, bronchitis, and asthma can also have a dramatic impact on the results of the test. Breath testing instruments are also quite sensitive to temperature; the machine is calibrated to test the breath at 34 degrees centigrade, but studies show that at the time of OUI arrest, people generally come closer to 35.5 degrees centigrade. The result of this can mean a 10-20% higher reading.
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Operating under the influence of drugs and/or alcohol is a serious offense in the United States, and carries severe penalties for those found guilty. In 2009, 10,839 people were killed in alcohol-impaired driving crashes, accounting for nearly one-third (32%) of all traffic-related deaths in the United States. The increased perception of driving while drinking as a serious problem has, in the past two decades resulted in tightening of the legal limit of blood alcohol – blood alcohol content (BAC). It has also produced another classification of driving under the influence (DUI) in many states. For instance, just recently, a man in Arizona was arrested and is now facing charges after it was determined that he had a blood alcohol level four times greater than the legal limit. This is an extreme OUI.

Normally, OUI is defined as an individual found to be operating a motor vehicle while under the influence of drugs or while registering a BAC level of 0.08. Presently in Massachusetts third offense OUI and above are treated as felony offenses. In cases of extreme OUI, an individual must be found to have a significantly higher BAC level – between 0.15 and 0.20. That is nearly double the legal limit for drivers. Statistics show that nearly two-third of all accidents resulting in an alcohol related fatality involves a driver with a BAC of at least 0.15%, or nearly twice the legal limit. This poses an extreme threat to the safety of the society and its citizens.

Legislatures attribute persistent drinking and the rise in binge drinking to the increase in extreme OUI cases. When a person consumes alcohol on a regular and continuous basis, they develop a tolerance towards the substance. Once an individual has built up a tolerance to alcohol, the amount of alcohol required to achieve a state of drunkenness is magnified. At this stage of tolerance, many people feel they are fine even after several drinks of alcohol. But the fact is that they are impaired of their driving ability due to slow reaction time, poor visibility, multitasking and coordinating various activities at a time. Usually people do not factor in extraneous circumstances, such as mood swings, fatigue and food consumed, which can have a significant effect on how your body reacts to alcohol consumption.
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The Law Office of Patrick J. Murphy has succeeded in convincing the Supreme Judicial Court of Massachusetts for Suffolk County to allow an interlocutory appeal to review the denial of a motion to suppress evidence seized from a defendant through an unlawful and warrantless search of a cell phone. The case originated from the Boston Municipal Court, East Boston Division. The SJC Docket No. is SJ-2012-0144.

At issue is whether the police acted improperly by searching the defendant’s cellular telephone without a search warrant after seizing it pursuant to a lawful arrest while the defendant was in custody back at the police station. Although the lower court denied the motion to suppress of the alleged cell phone evidence that the police said tied the defendant to the crime, in his decision, the judge at the motion hearing recognized that neither the Supreme Judicial Court of Massachusetts nor the Massachusetts Appeals Court have addressed the issue of a warrantless search of a cell phone after the defendant is in custody.

Unfortunately, there is conflicting case law among the federal circuits. Attorney Patrick Murphy is urging the Supreme Judicial Court of Massachusetts to uphold the protections of the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights to require that the police show deference to the warrant requirement before such a search should take place.
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The Boston Globe reported that a Norfolk woman is facing a second drunken driving charge after allegedly causing a multiple car collision in Attleboro according to several 911 callers. State Police charged her with operating under the influence of liquor, second offense, negligent operation of a motor vehicle, unlicensed operation, and marked lanes violations. After interviewing other drivers and administering field sobriety tests, State Police determined that the woman was driving while intoxicated. Police arrested her and took her into custody, transporting her to the State Police barracks in Foxborough. Three people not seriously injured were taken to local hospitals for treatment. The woman was arraigned on Monday in the Attleboro District Court and was ordered held on $3,000 bail with pretrial probation conditions to remain alcohol-free and to refrain from driving an automobile. Her license to operate an automobile was confiscated by the State Police and revoked indefinitely because police deemed her an immediate threat.

If convicted of a second offense OUI, a judge could sentence a defendant to prison for not less than 60 days or up to 2 ½ years in a house of correction. There is a mandatory 30 days that must be served in a house of correction, which may be served at a designated treatment facility for alcohol issues. If a defendant has less than 2 prior convictions he or she is eligible for 2 years of probation in addition to a 14 day in-patient residential alcohol treatment facility. The Registry of Motor Vehicles in Massachusetts will also suspend your license for 2 years. A defendant can apply for a hardship license after a year with the requirement of an alcohol interlocking device in the car during the period of hardship.
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In a recent ruling representing a change in the interpretation of Melanie’s Law, the Supreme Judicial Court of Massachusetts has ruled that the Massachusetts Legislature did not intend that an “admission to sufficient facts” also known as a “CWOF” or “continuance without a finding of guilt” in a drunk driving case to be treated as a conviction by the Registry of Motor Vehicles when acting pursuant to G.L. c.90, § 24(1)(f)(1) to suspend an operator’s driver’s license for more that 180 days due to the driver’s refusal to take a breathalyzer test.

In so holding, the SJC decided that a person charged with operating under the influence of alcohol who receives a continuance without a finding -a routine disposition for first-time drunk driving offenders-shall not have their case counted as a first offense conviction on their record. The lawyer for the Registry of Motor Vehicles contended that a CWOF should be treated as a conviction subjecting a repeat (DWI/OUI) offenders to the additional license suspension penalties.

The case name is Souza v. Registry of Motor Vehicles and was decided on May 17, 2012 as reported in the Boston Herald. In this case, a defendant arrested and charged with OUI admitted to sufficient facts for a finding of guilty but he did not plead guilty and his case was continued without a finding and later dismissed after he successfully completed his probationary terms. The defendant was arrested again thirteen years later and he had refused to submit to a breathalyzer test. Later, the Massachusetts Registry of Motor Vehicles suspended his driver’s license for three years pursuant to G.L. c.90, § 24(1)(f)(1) which directs that the RMV suspend the license for three years for a breath test refusal if the driver has been previously convicted of an OUI crime. If there is no previous conviction, the RMV suspension is for 180 days.
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When you are charged with operating a vehicle under the influence of alcohol or drugs, the official charge in Massachusetts is Operating Under the Influence (OUI). Today, the terms ‘OUI’ ‘DUI’ and ‘DWI’ are used interchangeably. Operating under the influence has become one of the most commonly encountered offenses in Massachusetts. In fact, it is estimated that nearly 17,500 people were killed in automobile collisions involving alcohol in 2002. According to the National Highway Traffic Safety Administration (NHTSA), this represents 41 percent of the 42,815 people killed in all traffic accidents and crashes that year. Statistical evidence such as this lead to the passing of ‘Melanie’s Law’ in 2005, the purpose of which was to enhance the penalties attached to OUI offenders.

Being charged with an OUI is a serious offense in the state of Massachusetts, and someone charged would be well advised to seek legal counsel. A person may be found guilty of Operating Under the Influence (OUI) if they are 1) at least 21 and 2) register at .08% or higher when tested for your blood alcohol concentration (BAC). If you’re younger than 21, you will face administrative penalties if you test at .02 or higher, plus standard charges at .08 or higher. If you are convicted, the penalties can be harsh and include imprisonment, significant fines, and suspension of driver’s license, probation, community service sentence, and mandatory enrollment in DUI traffic school.

PENALTIES ATTACHED

Being charged with OUI for the first time can be an extremely stressful and frightening experience. However, retaining an experienced Massachusetts defense attorney for your case can relax the situation and minimize the apprehension. In the event one is found guilty of an OUI first-offense, an individual faces a maximum 2 ½ years in jail, a $5,000 fine, and a 5-year license suspension at your RMV hearing. Drivers arrested for a first OUI offense can get their sentences reduced by agreeing to complete a state-approved alcohol education program. This is not an option after the first offense.

As you probably expected, the penalties for a second offense OUI are more severe. In any case, a qualified OUI defense attorney can significantly reduce the harsh penalties you will be facing. If convicted of a second offense it is possible you will be punished by a fine of at least $600 to the maximum $10,000, and imprisonment for a minimum of 60 days ranging to 2 ½ years; Mass. Gen. Laws Ann. ch. 90, § 24. In addition, the Registry of Motor Vehicles will suspend your driver’s license for 2 years when you are convicted on a second offense OUI.
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Significant changes to the Massachusetts Criminal Offender Record Information (CORI) law go into effect on May 4, 2012. Under the 2010 CORI reform we have already seen changes that were implemented as of November 4, 2010. As of that date employers are banned from asking questions about your criminal history on the initial written job application,unless the conviction information is required for a particular job pursuant to federal or state law. As of May 4, 2012, an employer must provide a copy of any criminal record information in that employer’s possession prior to questioning an applicant about their criminal history. If an adverse employment decision is made due to that individual’s criminal record, the prospective employer must give the job seeker a copy of the record that their decision was based upon.

SEALING YOUR CORI/WAITING PERIODS

One of the most significant changes under the new CORI reform relates to the waiting periods for sealing felony and misdemeanor cases. Under the new law the waiting period for sealing is now 10 years for felonies and 5 years for misdemeanors. The clock begins to tick when an individual is released from incarceration. If the sentence did not include a period of incarceration, the clock begins to tech at the time all court proceedings have been included including the end of any probationary term. It is important to note that an intervening conviction will reset the clock. Moreover, sealing your record does not occur automatically. It is very important to hire an experienced Massachusetts CORI rights defense attorney who will be able to review your entire criminal history, scan it for potential errors and inaccurate information, and file paperwork to correct your record so that you may be able eligible for sealing the record as soon as possible.

Under the new CORI reform law, there are procedures now in place to allow people the right to inspect and obtain a copy of their own criminal records. Moreover, new guidelines will be published to to help deal with the problem of correcting inaccurate information. The new law established a Criminal Record Review Board to hear complaints pertaining to violations of the CORI law, including the failure to provide a copy of your record before questioning by a potential employer or after an adverse decision regarding employment has been made.
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The interaction between airline personal and members of the general public since September 11, 2001 seems to have changed and not in a positive way. Indeed, news reports of incidents involving people accused of crimes such as assaulting or harassing flight crew attendants or interfering with a member of a flight crew or operation of the aircraft in any way seem to have increased dramatically since 9/11. Is this change due in part to the hyper-sensitive reaction of flight attendants or flight crew to any criticism or concern raised by members of the flying public? If you find yourself in the position of being under arrest in these circumstances you just might think so.

Unfortunately, some conversations between flight attendants and the general public are often viewed as arguments or complaints that have escalated to the point where what we see now is the innocent individual being detained on the plane, arrested upon landing and prosecuted in the nearest court within the airport’s jurisdiction. The police take the statements of the airline crew at face value to substantiate the arrest and they seem more than happy to provide information that the person was in some way disruptive or disorderly while on a plane. Ultimately, the post-9/11 airline crackdown on alleged bad behavior may have had a chilling effect on speech and has led to many improper arrests of members of the flying public.

In Massachusetts, under M.G.L. Chapter 90, Section 40, a person can be prosecuted for interfering with, or threatening to interfere with the operation of an aircraft. The penalty for violation of this law is significant and involves imprisonment for not less than one month or not more than six months. Fines ranging from $10 to $500 may be imposed in addition to any incarceration. If a person is convicted of this crime also referred to as “interference with a flight crew”, the clerk magistrate of the court must report the conviction to the Massachusetts Aeronautics Commission.

If you have been accused of a crime while on an airplane that lands at Logan Airport in Boston, Massachusetts, you may be taken into custody by a trooper from the Massachusetts State Police (Troop F). Your case will fall under the jurisdiction of the East Boston Division of the Boston Municipal Court located at 37 Meridian Street in Maverick Square, East Boston, Massachusetts. You will either be released after posting bail at the F Troop State Police barracks and given a date to appear for arraignment in court or you will be detained by the police and taken to the East Boston District Court on the day or your arrest or the next available date if you cannot post bail and your arrest occurs over the weekend or on a day when the court is closed.
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It happens all the time. A couple gets into a spat and someone calls the police to complain or a neighbor or passerby dials 911 because they hear an argument, some screaming or a loud noise and think that domestic abuse is involved. If the police or an ambulance is requested, the authorities will come to your home to carefully investigate whether some wrongdoing has occurred. The police always aggressively handle 911 emergency calls and there is a built-in presumption that some violence has taken place. Even if there is a change of heart by the person that dialed 911 the police are mandated to make an arrest and the prosecution will pursue the case with vigor. When the police call you back after an accidental 911 call or hang up they will come to investigate even if you are clear in telling them that nothing has happened and it was just an argument. The call cannot be cancelled and the police must come to the location of the call to speak with the parties involved and they will often arrest someone, usually the male party.

Under the law, the police shall arrest any person the law officer witnesses or has probable cause to believe has violated a restraining order or no-contact order or judgment. Even when there is no such order under Massachusetts law an “arrest shall be the preferred response” where an officer suspects domestic assault and battery even when there is a lack of physical evidence. When the 911 call is made the legal troubles usually begin in earnest. Indeed it has often been said the decent into hell begins when someone calls 911, even when you are innocent or where the other party was the first aggressor. The ramifications of the 911 call are wide and include the destruction of relationships, marriages and problems with family and children. In Massachusetts district court penalties for assault and battery include jail time of up to two and a half years in the house of correction. Conditions of any probation can also include a lengthy and costly batterer’s program, anger management classes or drug and alcohol abuse counseling. Some other problems that may result include the loss of a job with a conviction and your ability to exercise your Second Amendment rights to carry a firearm. Domestic assault cases are often reported in town police blotters causing unfair embarrassment and shame in the community.

Many times 911 calls are made on a Friday night or over the weekend when families are together. The courts are closed and the person arrested will remain in police custody for days until the courts reopen. Fortunately, with the help of a competent and experienced Massachusetts criminal defense attorney, domestic assault cases that begin with a 911 can often be won prior to trial or at the trial stage. Changes in evidence law and other factors have also helped to level the playing field and allow for direct confrontation and cross examination of witnesses and alleged victims when the police are relying simply on a 911 tape to prove their case. So It is unwise and foolish to represent yourself in a domestic assault and battery case or enter into a plea bargain. You must contact an aggressive and knowledgeable 911 Massachusetts criminal defense lawyer right away in order to protect all of your legal rights.
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