Articles Posted in DUI/OUI

The 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 Daubert–Lanigan 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 →

In 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 →

In 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 →

The 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 →