Articles Posted in DUI/OUI

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Detail of a ambulance light.

The Supreme Judicial Court recently dealt a blow to motions to suppress in roadblock cases in Commonwealth v. Baker.

In this OUI prosecution, the Appeals Court ruled that the motion judge erred in suppressing evidence of the defendant’s intoxication at a sobriety checkpoint. The basic facts were as follows. Under the direction of State Police Captain Majenski, “a detail of State troopers and police officers from the town of Abington (the town)” “conduct[ed] a saturation patrol and sobriety checkpoint.” The police had a “written operational plan” containing guidelines for implementing the checkpoint. “During the roadblock, the defendant was pulled over and greeted by Sergeant … Cutter of the town police…. Cutter observed signs of intoxication in the defendant and directed him to the ‘pit’ area. The defendant refused ‘to drive the vehicle.’ He then was escorted from the vehicle to the pit area where [another officer] of the town police asked him to perform sobriety tests. After the tests, the defendant was placed under arrest.” Upon issuance of a criminal complaint for operating while under the influence of alcohol and negligent operation, the defendant “moved to suppress evidence of his intoxication, arguing that the evidence was secured from a sobriety checkpoint not conducted in strict and absolute compliance with the written operational plan.” The judge allowed the motion on the ground “that the roadblock deviated from the plan in four respects: (1) a number of officers arrived after the reporting time detailed in the plan, (2) while Captain Majenski was briefing the late officers, he was not performing supervisory duties as instructed, (3) one trooper, who was not the officer involved with stopping the defendant’s vehicle, did not sign the duty roster affirming [that] he had reviewed the plan and other relevant documents, and (4) after the roadblock was completed, several officers failed to submit a report as required by the plan.” Continue reading →

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need-an-ambulance-1512594In a decision recently issued by the Appeals Court – Commonwealth v. Palacios – the Court held that ambulance records are admissible under G. L. c. 233, § 79G, which governs the admissibility of hospital records. Therefore, the Court held that the trial judge’s decision to admit such records was not an error.

The background of the case was as follows. “The defendant ran a stop sign and crashed into … another driver’s car…. The responding police officer found the defendant to be glassy-eyed and unsteady on her feet…. [I]n response to [the officer’s] questioning, [the defendant stated] that ‘she had been drinking and had approximately two to three drinks.’ Because the defendant claimed to be injured,” she was transported by Cataldo Ambulance Services to Whidden Memorial Hospital. “Cataldo emergency medical technicians (EMTs) made several observations of the defendant, which they recorded on a form that was admitted as an exhibit in redacted form. The ‘clinical impressions’ section of the form states, ‘Primary Impression: pain — arm; Secondary Impressions: intoxication — alcohol acute.’ The ‘narrative’ section of the form include[s] details of the defendant’s condition, including references to her consumption of alcohol: ‘…. Pt is A&Ox4 but smelling of alcohol…. [P]t … complaining of left arm pain…. [B]ecause she is inebriated pt is counseled to be transported to hospital for evaluation and agrees.’ The Whidden records of the defendant’s visit were also admitted in evidence in redacted form. [Those] records convey that the defendant … had neck and arm pain. [They also] contain notes about the defendant’s alcohol consumption including, ‘alcohol intoxication’; ‘Acute alcohol intoxication’; ‘Patient … also intoxicated’; and ‘Pt admits to drinking tonight.’” The defendant was ultimately charged with operating under the influence alcohol under G. L. c. 90, § 24.

At trial, the Commonwealth filed a motion in limine, seeking to admit both the Cataldo and Whidden records under G.L. c.233, §§79 and 79G. “The defendant filed a cross motion to exclude the records, arguing that the references therein to intoxication were inadmissible because they were not sufficiently related to her treatment or medical history and touched on the ultimate issue of her guilt. The judge ordered the words ‘alcohol acute’ to be redacted from the ambulance records, and the words ‘alcohol intoxication’ to be redacted from the hospital records. Both sets of records, so redacted, were admitted in evidence over the defendant’s objection to the remaining references to her intoxication.” On appeal, “[t]he defendant claim[ed] that the ambulance records were erroneously admitted as hospital records [and] that references to her intoxication should have been redacted.” Continue reading →

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booze-1481628The Supreme Judicial Court recently issued a decision in a case addressed in this blog earlier this year: Commonwealth v. Neary-French. In its decision, the SJC held that a defendant does not have a right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution, or art. 12 of the Massachusetts Declaration of rights, before the defendant decides whether to take a breathalyzer test.

The legal and factual backgrounds are as follows. In 1989, the SJC issued a decision in Commonwealth v. Brazelton, 404 Mass. 783, 785 (1989) dealing with the same issues raised by Neary-French in this case. In Brazelton, the SJC ruled that the defendant had no right to counsel before deciding whether to take a breathalyzer test. Subsequently, in 2003, the Legislature amended the OUI statute (G. L. c. 90, §24). The amendment makes it “a violation to operate a motor vehicle not only under the influence of intoxicating liquor, but also with a blood alcohol level of .08 or more.” This rule is known as a ‘per se’ violation.” In other words, even if the defendant is driving perfectly, he or she may still be guilty of operating under the influence if his or her blood alcohol level is .08 or more.

Neary-French was arrested for operating while under the influence of intoxicating liquor and was not given an opportunity to consult with counsel before having to decide whether to submit to a breathalyzer test. The defendant filed a motion to suppress the results of the breathalyzer test [which indicated that her blood alcohol level was greater than .08], arguing that she had a [constitutional] right to counsel … before deciding whether to submit to [such] a … test.” After an evidentiary hearing on the motion, the judge reported the following question of law to the SJC: “‘Whether the 2003 amendment to G. L. c.90, §24, which created a new “.08 or greater” theory by which to prove an [operating while under the influence of intoxicating liquor] offense, where a breath test reading of .08 or greater is an element of the offense, now makes the decision by a defendant whether or not to take the breath test itself a critical stage of the criminal proceedings requiring that the defendant be advised of their right to counsel prior to making that decision, pursuant to art. 12 of the Massachusetts Declaration of Rights and the Sixth and Fourteenth Amendments of the United States Constitution.’” Continue reading →

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White wine bottle in an ice bucket, macro close up with copy space

White wine bottle in an ice bucket, macro close up with copy space

According to an article in the MetroWest Daily News, a Framingham woman who was recently arrested for operating under the influence sang to the officers that arrested her. The article states that the police reportedly found the woman sleeping in her parked car on Concord Road at 2:45am. The article describes the car as “partially obstructing traffic” and states that it was in a parking spot, but hanging out into the street by “several feet.” The police apparently knocked on the car’s windows in an attempt to rouse the woman but were unsuccessful. The police then opened the car doors and yelled at the woman to wake her up. When she did awaken, she began singing to the officers and reportedly made several sexual gestures. One of the officers asked the woman if she had taken any drugs to which she responded “I don’t know what I took, but I took something.” She also admitted to having between eight and twelve glasses of wine. It is unclear when she may have taken any substances, and/or when she drank the wine. The officers also had her perform some field sobriety tests. Although the article states that the woman reportedly failed the tests, there is no further information as to what tasks she may have performed incorrectly. The police ultimately charged the woman with driving under the influence under  G. L. c. 90, § 24, and civilly cited her for obstructing traffic.

For the Commonwealth to obtain a conviction against the woman for this offense, it would have to prove the following beyond a reasonable doubt: (1) that the defendant operated a motor vehicle; (2) that she did so on a public way; (3) that while operating the vehicle, the defendant was under the influence of intoxicating liquor. As to the first element, a person “operates” a motor vehicle not only while doing all of the well-known things that drivers do as they travel on a street or highway, but also when doing any act which directly tends to set the vehicle in motion. The law is that a person is “operating” a motor vehicle whenever he or she is in the vehicle and intentionally manipulates some mechanical or electrical part of the vehicle — like the gear shift or the ignition — which, alone or in sequence, will set the vehicle in motion. Continue reading →

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OLYMPUS DIGITAL CAMERA

According to an article in the MetroWest Daily News, a man involved in a car crash on Route 9 in Southborough fled the scene after he was pulled out of his smoking car. The article states that the driver rolled his car during the course of the accident and that it was resting on its side when others arrived on the scene. The passersby noticed that the car was smoking and worked together to pull the man out, breaking windows in the car to do so. When they pulled the driver out, they noticed that he was unsteady and possibly drunk. One of the passersby stated that the driver stumbled and nearly vomited after being taken from the car. He further stated that driver did not seem not understand what his rescuers were trying to do, even though his car was filling with smoke. Following the rescue, the driver reportedly “took off running into the swamp.” Police searched for the man and eventually apprehended him.

Although it’s unclear what charges will issue against the driver, it is likely that the police will seek a complaint for operating under the influence, under G. L. c. 90, § 24 given the description provided by the other individuals at the scene. For the Commonwealth to obtain a conviction against a person for this offense, it would have to prove the following beyond a reasonable doubt: (1) that the defendant operated a motor vehicle; (2) that he did so on a public way; (3) that while operating the vehicle, the defendant was under the influence of intoxicating liquor. Continue reading →

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shooter-1569885According to an article in the MetroWest Daily News, a man was recently arrested following a car accident on Winthrop Street in Framingham.  The article states that several people flagged a Framingham police officer down and told him there was a serious crash.  The officer proceeded to the location of the crash and found a Toyota Celica on its roof on the lawn of 197 Winthrop Street.  The article states that the car appeared to have “veered right and completely off the road into the driveway,” and that the car “appeared to be speeding.”  The officer found three individuals outside the car – two women, ages seventeen and eighteen, and a man, later identified as the driver.  The two women stated that they were passengers.  One of the women stated that she was pregnant and asked to go to the hospital.  The driver was also injured and had numerous lacerations on his arms, face, and knee.  The car had apparently hit a street sign, and damaged the house as well.  The responding officer reportedly noticed an odor of alcohol coming from the driver’s mouth, and observed his eyes to be bloodshot.  The officer apparently questioned the driver, who initially denied having had anything to drink.  At some later point, however, he admitted to having had two shots of vodka.  The driver refused to perform any field sobriety tests, and refused to take a breathalyzer.  He also apparently told the officer “I don’t care about myself. I am not going to the hospital. I just care about them,” in reference to the passengers.  The man was ultimately charged for operating under the influence and driving to endanger.  He was also civilly cited for speeding and a marked lanes violation.

For the Commonwealth to obtain a conviction against the driver for operating under the influence under G. L. c. 90, § 24, it would have to prove the following elements beyond a reasonable doubt: (1) that the driver operated a motor vehicle; (2) that the driver did so on a public way; and (3) that while operating the vehicle, the driver was under the influence of intoxicating liquor.  As to the third element, a person is under the influence of alcohol if he has consumed enough alcohol to reduce his ability to operate a motor vehicle safely by decreasing his alertness, judgment and ability to respond promptly.  The Commonwealth is not required to prove that the driver was in fact drunk or that he actually drove in an unsafe or erratic manner, but it is required to prove that his ability to drive safely was diminished by alcohol.

For the Commonwealth to obtain a conviction for driving to endanger (under the same statute), it would have to prove the following beyond a reasonable doubt: (1) that the driver operated a motor vehicle; (2) that he did so on a public way; and (3) that he did so in a negligent manner so that the lives or safety of the public might have been endangered.  As to the third element, a person acts negligently when he fails to use due care, that is, when he acts in a way that a reasonable person would not act.  This can happen either by doing something that a reasonably prudent person would not do under those circumstances, or by failing to do something that a reasonably prudent person would do. A driver acted negligently if he drove in a way that a reasonable person would not have, and by doing so created an unnecessary danger to other people, a danger that he could have avoided by driving more carefully. Continue reading →

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dutch-weed-1251539According to an article in the MetroWest Daily News, a Worcester man was recently arrested for various driving offenses because he admitted to officers that he had been smoking marijuana while operating his car. This past Wednesday, several officers were working on a detail on Union Avenue in Framingham when a passing Toyota sedan drew their attention. The article specifically states that all the officers noticed an “extremely strong odor of burnt marijuana” coming from the car as it passed. One of the officers pulled over the driver and spoke to him. The driver acknowledged that he had been smoking marijuana and handed the officer a joint. The driver went on to state that he “always” smokes and drives because it “relaxes” him. The officer then told the driver that it is “illegal to drive under the influence of marijuana” and proceeded to arrest him. The defendant was ultimately charged with driving under the influence of drugs (marijuana) and driving to endanger. Police also cited him for possession of less than an ounce of marijuana, as the driver provided the officers with a small bag of marijuana.

For the Commonwealth to obtain a conviction against the defendant for operating under the influence of drugs, it would have to prove the following beyond a reasonable doubt: (1) that the defendant operated a motor vehicle; (2) that he operated it on a public way; and (3) that while the defendant was operating the vehicle, he was under the influence of marijuana. As to the third element, someone is under the influence whenever he has consumed enough marijuana to reduce his ability to operate a motor vehicle safely by diminishing his alertness, judgment, and ability to respond promptly. This would include anyone who has consumed enough marijuana to reduce his mental clarity, self-control and reflexes, and thereby left him with a reduced ability to drive safely. The Commonwealth is not required to prove that the defendant actually drove in an unsafe or erratic manner, but it must prove that the defendant had a diminished capacity or ability to drive safely.

For the Commonwealth to obtain a conviction against the defendant for driving to endanger (under the same statute), the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the defendant operated a motor vehicle; (2) that he did so on a public way; (3) that he did so in a negligent manner so that the lives or safety of the public might have been endangered. As to the third element, a person acts negligently when he fails to use due care, that is, when he acts in a way that a reasonable person would not act. This can happen either by doing something that a reasonably prudent person would not do under those circumstances, or by failing to do something that a reasonably prudent person would do. The defendant acted negligently if he drove in a way that a reasonable person would not have, and by doing so created an unnecessary danger to other people, a danger that he could have avoided by driving more carefully. A person can be found to have driven negligently even if no accident resulted, and even if there was no one else actually on the road to be put in danger. A person is negligent if he drives in a way that has the potential to cause an accident or to endanger anyone who might be on the road. Continue reading →

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shooter-1569885According to an article in the Berkshire Eagle, the Supreme Judicial Court is scheduled to hear argument in a Berkshire OUI case – Commonwealth v. Neary French – that may impact the way drunk driving cases are prosecuted across the entire state.

The facts of the case are as follows: the defendant was seen making multiple attempts to pull out of a parking space in downtown Lenox at approximately 1:15pm on November 28, 2012.  According to the article, the police stated that “the vehicle was unable to navigate its way out of the parking spot,” and “collided with another vehicle slightly, several times,” despite the fact that “there was no real reason that vehicle couldn’t exit its parking spot.”  The police removed the defendant from the car, made observations of her, and had her perform field sobriety tests.  According to the police, the defendant “displayed all the signs of an intoxicated operator.”  The police then arrested the defendant on an OUI charge, first offense under G. L. c. 90, § 24.  At the police station, the defendant agreed to take a breath test, the result of which exceeded the legal 0.08 blood alcohol limit.

During the course of the court case, the defendant’s attorney moved to suppress the breath test result.  The attorney argued that the defendant should have had the option to contact an attorney before taking the test.  In her argument, the defendant’s attorney specifically cited to a defendant’s right to legal counsel under the Massachusetts Declaration of Rights, as well as the 6th and 14th amendments of the U.S. Constitution guaranteeing due process.  The attorney argued that a 2003 amendment to the OUI statute indicates that a breath test of .08 or greater is direct evidence proving legal intoxication, and therefore constitutes “a critical stage in the criminal process” (prior to this amendment, breathalyzer results were considered to be just one piece of evidence in determining the outcome of an OUI case).  The attorney went on to argue that because the breath test constitutes a critical state of the criminal process, a motorist should have the opportunity to consult with an attorney within a reasonable period of time before taking a breath test.  The attorney ultimately asked the court to find that the defendant was denied her right to legal counsel at the “critical stage” of the court case, in violation of the U.S. Constitution and the state’s Declaration of Rights.  Continue reading →

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taking-a-drink-1325299According to an article in the MetroWest Daily News, a Walpole man was recently charged with his fifth drunken driving offense. The article states that the defendant was riding in the passenger seat of his car, which his girlfriend was driving. According to the girlfriend, the defendant was intoxicated and threw a cellular telephone at her. The phone did not hit the girlfriend, but when she pulled over to pick it up, the defendant reportedly hit the her in the face with his hand. The girlfriend then drove to a nearby pizza shop in Ashland to try and get help. When she exited the vehicle, the defendant reportedly grabbed her and tried to pull her back into the car. He then got into the driver’s seat and drove away from her, but hit a parked car as he left. The police stopped the defendant a short distance away, still in the vehicle. The police asked the defendant if he had been drinking, and he stated that he had not. The police also asked if he would be willing to perform field sobriety tests, which he declined to do. According to the article, the police found empty beer cans and nips in the car. When the police ran the defendant’s record, they saw that he had four prior convictions for operating under the influence of liquor. He was subsequently charged with the following offenses: (1) driving under the influence of liquor (fifth offense)); (2) driving to endanger; (3) driving with a license suspended for drunken driving while intoxicated; (4) leaving the scene of an accident; and (5) domestic assault and battery.

Fortunately for the defendant, he appears to at least of have a strong defense as to the most serious charge: driving under the influence of liquor, 5th offense. To obtain a conviction for this offense under G. L. c. 90, § 24, the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the defendant operated a motor vehicle; (2) that the defendant did so on a public way or in a place where the public has a right of access or in a place where members of the public have access as invitees or licensees; (3) that while operating the vehicle, the defendant was under the influence of intoxicating liquor; and (4) that the defendant was convicted of this offense on four prior occasions. Continue reading →

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According to a recent article in the MetroWest Daily News, the state’s Office of Alcohol Testing (OAT), which certifies breath testing machines used around Massachusetts, appears to have known about a software issue that complicated dozens of drunken driving cases months before anyone moved to fix the problem. The article states that OAT recognized breath testing machines were failing to properly detect errors during calibration tests as early as February 2014. Although some police departments were instructed to give calibration tests extra scrutiny, it was not until fourteen months later, in April 2015, that the secretary of public safety asked the manufacturer of the machines to come up with a solution to the defective equipment.

Massachusetts began rolling out new breath testing machines in 2011. To demonstrate they are working properly, the machines are designed to measure a small sample of gas with an alcohol concentration of .080 percent. Under state regulations, the machines must return a measurement between .074 and .086 percent in order to pass the calibration test. By default, however, the machines are programmed with a wider tolerance. The machines accept measurements between .070 and .090 unless they are reprogrammed by the manufacturer. The state failed to customize the instruments with the correct settings when it bought them four years ago. Some calibration tests that should have failed under the state’s tighter regulations were therefore allowed to pass.

Police departments are required to periodically check their breath testing equipment by running a series of calibration tests. If any one of the measurements is outside the allowable range, the so-called “periodic test” has failed. Every subsequent breath test conducted with the machine is then called into question until the device completes another successful periodic test. Given the fact that the police are required to conduct these periodic checks, public safety officials maintain that the police should have caught the errors and thereby prevented breath test evidence from becoming tainted. The more significant issue, however, is that the Executive Office of Public Safety and Security (EOPSS) failed to notify court officials and defendants about the issues for a significant period of time. The article states that court records and interviews with defendants show that in some cases, it was months before people who were on probation for drunken driving charges learned of problems with the evidence in their cases.

Continue reading →