Articles Posted in DUI/OUI

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In a disappointing decision – Commonwealth v. Faherty – the Appeals Court affirmed the defendant’s conviction of operating a motor vehicle while under the influence of alcohol (OUI), fourth offense.  In the decision, the Appeals Court specifically ruled that a defendant’s conviction as “a subsequent offen[der] may be based on a prior conviction for which the defendant was not entitled to (and presumably did not receive) appointed counsel because the prior offense carried no risk of incarceration.”

The background was as follows. “[T]he defendant was injured while riding his motorcycle…. A … State trooper at the scene of the accident noticed a strong odor of alcohol and later discovered four unopened nip bottles of … bourbon in the defendant’s saddle bag. The defendant was transported to a hospital. Hospital records recorded that the defendant’s serum alcohol level was 359 milligrams per deciliter. An expert from the … State Police Crime Laboratory testified that this was the equivalent of a blood alcohol level of between .30 percent and .32 percent. The defendant testified that the accident was caused by his hitting something in the road while momentarily distracted. He testified that he did not drink any alcohol prior to the accident but decided to drink six nip bottles of bourbon to dull the pain while waiting for medical assistance. The jury convicted the defendant on both available theories under the statute: a theory of impairment and a theory of having a blood alcohol level of .08 percent or higher. At the jury-waived trial on the subsequent offense portion of the complaint, the Commonwealth presented evidence that the defendant had received a continuance without a finding for OUI in District Court in 1989. The Commonwealth then introduced, over objection, evidence of two convictions for OUI in New Hampshire, from 1992 and 2005. The New Hampshire cases were prosecuted as first offenses, and the defendant received no incarceration but instead was fined and had his license revoked. The judge [here] found the defendant guilty as a fourth [OUI] offender.” Continue reading →

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1174747_by_a_beerIn Commonwealth v. Camblin, the SJC affirmed the denial of the defendant’s “motion to exclude [breathalyzer] evidence as scientifically unreliable” in the defendant’s trial for operating under the influence of alcohol.

The background was as follows. The defendant was charged “with operating a motor vehicle while under the influence of alcohol…. Before trial, the defendant moved to exclude admission of breath test evidence generated by the” breathalyzer utilized by the police, the Alcotest 7110 MK III-C (Alcotest). The judge denied the motion without conducting a DaubertLanigan hearing as to the scientific reliability of the Alcotest. The case proceeded to a jury trial at which the defendant was found “guilty of operating a motor vehicle while under the influence of alcohol and operating a motor vehicle with a blood alcohol level of or exceeding 0.08 per cent.” In response to the defendant’s direct appeal, in which he challenged the scientific reliability of the Alcotest, the SJC remanded the case to the trial court. On remand, the judge conducted a DaubertLanigan hearing, after which he “found that the Alcotest was capable of producing scientifically reliable breath test results, and denied the defendant’s motion to exclude this evidence at his trial.” In the present appeal, “[t]he defendant … contend[ed] that the judge abused his discretion in finding that the Alcotest satisfies the DaubertLanigan standard for the admissibility of scientific evidence.” The “focus of the defendant’s challenge … [was] that,” contrary to the judge’s finding, the Alcotest “cannot distinguish ethanol from other ‘interfering’ substances that might be present in a breath sample.” Continue reading →

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slow-shutter-1171923-1-300x200In a recent Appeals Court decision, Commonwealth v. Ross, the Appeals Court ruled that the evidence was sufficient to support the defendant’s conviction of negligent operation of a motor vehicle.

The background was as follows. At 9:50 p.m., a police officer observed the defendant driving his vehicle at a high rate of speed on “a public two-lane road with narrow, unpaved shoulders and no breakdown lane. The road is lined by trees, telephone poles, and residential fences along where the incident occurred. The officer testified that the speed limit was thirty-five miles per hour. Using radar, [he] determined that the defendant was travelling at fifty miles per hour. The officer activated his police cruiser’s lights, and the defendant promptly pulled over to the side of the road. The officer observed that the defendant was the driver and noticed two … passengers in the [vehicle]. When the defendant lowered the driver’s side window, the officer ‘immediately detected … a strong odor of an alcoholic beverage’ and observed that the defendant’s eyes appeared ‘very glossy.’ The officer asked the defendant to get out of the vehicle and then performed three field sobriety tests on him.” “The officer testified that, in his opinion, the defendant failed to perform two [of the] tests satisfactorily, and failed to perform [the] third test ‘[a]s instructed.’” Also, “[w]hile conducting the sobriety tests, the officer observed that the defendant … spoke in ‘thick,’ slurred language; and … emitted the smell of alcohol as he spoke.” “The defendant ultimately was tried by a jury on a complaint charging him with (1) operating a vehicle while under the influence of intoxicating liquor (OUI) … and (2) negligent operation of a motor vehicle. The jury acquitted the defendant of OUI and convicted him of negligent operation.” Continue reading →

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booze-1481628-300x226The Supreme Judicial Court recently issued a decision – Commonwealth v. Wolfe – which vacated a defendant’s conviction of operating a motor vehicle while under the influence of alcohol because the judge erroneously instructed that the jury “should disregard the lack of evidence of a breathalyzer test, blood test, or field sobriety test.”

The background was as follows. At 2:00 a.m. on the date in question, a police officer observed the defendant’s vehicle “being driven with a broken taillight. The officer followed the vehicle for [several] minutes. During that time, [he] witnessed the vehicle cross the double yellow line in a ‘jerking motion’ to avoid hitting a snow bank, and later saw the vehicle cross the double yellow line again while executing a turn. The officer then stopped the vehicle…. Upon approaching the vehicle, the officer observed the defendant in the driver’s seat with ‘bloodshot glassy eyes, slurred speech and a distinct odor of alcohol coming from his breath when he spoke.’…. The defendant gave ‘delayed’ responses to several of the officer’s questions. The officer then asked the defendant to step out of the vehicle and walk back to the officer’s patrol vehicle. During this walk, the defendant used his own vehicle ‘for balance.’ Another officer at the scene testified that the defendant was ‘swaying’ and ‘unsteady on his feet.’ The defendant was placed under arrest and transported to the … police station for booking.” At the defendant’s trial, “[t]here was no mention … of the lack of a breathalyzer test or other alcohol-test evidence. Nevertheless, the judge instructed the jury, over the defendant’s objection, not to consider the absence of breathalyzer tests, field sobriety tests, or blood tests.” In his appeal, the defendant challenged the judge’s instruction. Continue reading →

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dpd-1497175-300x225In Commonwealth v. O’Leary, a divided panel of the Appeals Court reversed the trial court judge’s order “dismissing a multiple-count indictment [which charged the defendant with various motor vehicle offenses] on the ground that the police failed to make a timely delivery of the citation pursuant to G.L. c.90C, §2.”

The background was as follows. The defendant was involved in a motor vehicle accident when the vehicle “he was driving left the highway, hit an exit sign, and rolled over five times.” The defendant and his passenger were seriously injured and were transported by ambulance to a hospital. A state trooper (Gray) “followed the ambulances to the hospital. When he arrived at the emergency room, he left his citation book in his patrol vehicle…. Gray … spoke with the defendant. Gray noticed that [the defendant’s] eyes were glassy and his speech was slurred. [Gray] also noticed the odor of alcohol coming from the defendant. The defendant told Gray he had had ‘a couple of beers.’…. At the time of the accident, the defendant was on probation for operating under the influence of alcohol, subsequent offense. His license was suspended and he was not legally permitted to drive…. Gray told the defendant he would be receiving ‘a criminal summons in the mail.’ Gray’s intent was to complete his investigation, file his report with his supervisor, and then send a citation to the defendant. After filing his report with his supervisor, Gray waited nine days for the report to be approved. Once it was approved …, it was mailed to an address on file with the State police. Due to an incorrect zip code, however, it was another five or six weeks before the defendant received the citation in the mail.” After the return of indictments charging the defendant with operating while under the influence of alcohol, negligent operation, and operating with a suspended or revoked license, the defendant filed a motion to dismiss, which was allowed. Continue reading →

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dutch-weed-1595294-200x300The Supreme Judicial Court recently issued a decision – Commonwealth v. Gerhardt – on the admissibility of field sobriety tests for marijuana use. The decision was issued in response to four reported questions by a trial judge in Worcester Country. In its opinion, the SJC set forth guidelines regarding “the admissibility of field sobriety tests (FSTs) where a police officer suspects that a driver has been operating under the influence  of marijuana.”

The background was as follows. At 12:20 a.m. of the date in question, a state trooper (French) stopped the vehicle being driven by Gerhardt because the rear lights were not on. French approached the vehicle, in which the defendant and two passengers were seated. The trooper “saw smoke inside the vehicle” and “detected ‘the distinct odor of burnt marijuana.’” He “asked when the occupants had smoked marijuana. One of the passengers responded that they had smoked about twenty minutes previously. Gerhardt said that it had been about three hours earlier. French walked to the driver’s side of the vehicle and noticed that the light switch was in the ‘off’ position. He asked Gerhardt how much he had smoked. Gerhardt responded that he had smoked approximately one gram of marijuana. French then asked Gerhardt to step out of the vehicle to perform” FSTs. “French administered a number of [tests], including the horizontal gaze nystagmus test (HGN); the nine-step walk-and-turn test (WAT); and the one-leg-stand test (OLS). French also asked Gerhardt to recite the alphabet from D to Q and to count backward from seventy-five to sixty-two. Gerhardt had no nystagmus indicators, and was able to recite the requested portion of the alphabet and to count backwards.” However, he did not perform the WAT or the OLS as instructed.” As a result, “French concluded that Gerhardt was under the influence of marijuana.” Subsequently, Gerhardt was charged “with operating a motor vehicle while under the influence of drugs, pursuant to G. L. c.90, §24(1)(a)(1), and traffic violations.” “Gerhardt filed a motion for a DaubertLanigan hearing, seeking to challenge the admissibility of evidence concerning his performance on [the] FSTs conducted after the stop…. After an evidentiary hearing, [the] judge reported four questions …, pursuant to Mass. R. Crim. P. 34[:] ‘1. Whether police officers may testify to the administration and results of standard [FSTs] in prosecutions for [o]perating [u]nder the [i]nfluence of [m]arijuana as they do in [o]perating [u]nder the [i]nfluence of [a]lcohol prosecutions? 2. Are the effects of marijuana consumption sufficiently within the common knowledge and experience of a lay person, such that a non-expert witness may offer opinion evidence whether a person is “high” on marijuana? 3. May a police officer, who has not been qualified as an expert witness, testify to the effects of marijuana on a person such as bloodshot eyes, lack of coordination and/or balance, reaction times, slow speech, paranoia, or relaxed responses[?] 4. May a juror rely on their own experience and common sense about the effects of marijuana as they may do in an [o]perating [u]nder the [i]nfluence of [a]lcohol prosecution?’” Continue reading →

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booze-1481628-300x225In a recent decision, Commonwealth v. Dayton, the Supreme Judicial Court responded to a reported question: whether, under G.L. c.276, §58A, a defendant who is charged with OUI third offense, must have three prior OUI convictions before he can be subjected to pretrial detention without bail under the statute.

The background was as follows. “[T]he defendant … was charged in the Superior Court with [several] motor vehicle violations, including two indictments for OUI, third offense…. Each OUI indictment alleged that [the defendant] had been convicted of OUI twice before — in 1988 and in 1989. The Commonwealth moved for a dangerousness hearing pursuant to §58A. This statute specifically allows the Commonwealth to move for a “dangerousness hearing” where a defendant is held “under arrest” and charged with a felony that involves, among other qualifying factors, a third or subsequent conviction for a violation of section 24 of chapter 90 – the OUI statute. During the hearing, the court must make a determination as to whether the defendant is in fact “dangerous” under the statute – i.e., that no conditions of release will reasonably assure the safety of any other person or the community. In the event that the defendant is found to be dangerous, the court may elect to release him with certain conditions. Alternatively, the court may determine that even the imposition of conditions would be insufficient to ensure the safety of another person or the community, and therefore order the defendant to be held without bail for up to 120 days. Continue reading →

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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 →