Articles Posted in DUI/OUI

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According to an article in the MetroWest Daily News, district attorneys in multiple counties in Massachusetts are suspending the use of breathalyzer tests in drunk driving cases because of suspected problems with the breathalyzer machines, which test blood alcohol content. The exact issue, which may involve software or calibration of the machines, has not been released.

The concerns first came to light in mid-March, when the Massachusetts State Police apparently notified multiple district attorneys’ offices that there were issues with some of the breathalyzer tests given to defendants in their respective counties. The district attorneys’ offices contacted the defense attorneys in those specific cases, but the state police have now indicated that the problem may go beyond those isolated matters. The Executive Office of Public Safety has been unable to confirm exactly how many cases might be affected.

Given the fact that breathalyzer tests can play an important role in prosecutions and often persuade defendants charged with operating under the influence to plead guilty, the Massachusetts Bar drunk-drive-903509-mAssociation has called for an independent investigation into the reliability of breathalyzer tests used to prosecute people suspected of drunken driving and has urged a moratorium on introducing the tests as evidence until these concerns are resolved. The MBA’s chief legal counsel specifically stated that while “drunk driving is a very serious issue in Massachusetts…people’s constitutional rights are also important…[and the MBA does] not want to see people convicted and taking plea agreements based on faulty evidence.”

A state police spokesperson has issued a statement indicating that officers might have accepted test results from breathalyzer machines that were not properly calibrated. The spokesperson further stated that the state police have opened a review of the concerns regarding the questionable breathalyzer results, with findings expected next week.

In light of these issues, district attorneys in Middlesex, Essex, Suffolk, Worcester, Norfolk, Plymouth, and the Cape and Islands have decided to suspend use of the breathalyzer test results as evidence. The Berkshire district attorney is not suspending use of breathalyzer results – prosecutors there will apparently be reviewing the issue on a case-by-case basis. Continue reading →

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crashed-car-921217-mAccording to an article in the MetroWest Daily News, a Framingham woman was arrested after crashing her car into an apartment building this past week. The article states that the woman was driving her car in the area of Beaver Terrace Circle. She was reportedly circling through the area repeatedly and then parking and revving her car loudly. At one point, the woman apparently lost control of the car and crashed into a building at 107A Beaver Terrace Circle. She then reportedly reversed over the curb and hit a tree. The police were called to the scene and found the woman behind the wheel of the car with a bloody nose. She was reportedly speaking slowly and having trouble communicating, but she told police she had not been drinking and was not under the influence of drugs. Despite this statement, an officer overheard the woman tell a paramedic that she had taken Xanax. She was taken to Beth Israel Deaconess Medical Center in Boston to be treated, but police issued a summons for her to appear in court on a charge of driving to endanger. At the time that this alleged offense occurred, the woman was out on bail in a case out of the Marlborough District Court for charges of uttering and larceny. Because she was out on bail on the uttering and larceny case when she was charged with this new offense, the judge revoked her bail for ninety days at her arraignment on the new charge.

Under G. L. c. 276, § 58B, if a defendant is released on bail in a criminal matter and is subsequently charged with a new offense, a judge can revoke the defendant’s release on the open case and hold the defendant without bail for up to ninety days as long as three conditions are met. First, the court must find that there is probable cause to believe that the defendant committed a new offense while he or she was out on bail – generally a new arrest will satisfy this requirement. Second, the court must find that the defendant was given his or her “bail warning” at the arraignment on the pending case. In other words, the court must have warned the defendant that if s/he was arrested on a new case while s/he was out on bail then the bail in the pending matter could be revoked. The fact that such a warning was given should be marked on the court’s docket, and therefore a copy of the docket is generally sufficient to satisfy this requirement. Third, the court must find that there are no conditions of release that can satisfy the safety of the community, or a specific individual in the community. In other words, the court must find that there are not any conditions of release that could be imposed by the court that will ensure the community’s safety, or a particular person’s safety. Continue reading →

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vodka-2-500156-m.jpgThe Supreme Judicial Court recently issued an important decision about the admissibility of opinion evidence in operating under the influence (OUI) trials. In Commonwealth v. Canty, issued on November 6, 2013, the SJC held that a police officer is not permitted to offer opinion testimony as to whether a defendant’s ability to drive was impaired by alcohol.

The facts of the case are as follows:
On March 8, 2009, a Leicester police officer saw a motor vehicle driving erratically on Main Street in Leicester. The officer proceeded to follow the car and ultimately stopped it. The officer spoke to the driver, who was identified as Joseph Canty. During their interaction, the officer noticed that Canty had trouble retrieving his license, and that his eyes were bloodshot. The officer asked Canty whether he had had any alcoholic beverages that evening and Canty reported that he had. The officer then ordered Canty out of the vehicle and had him perform two field sobriety tests, both of which Canty failed. The officer then arrested Canty. After the arrest, the police found a half-empty bottle of brandy on the floor of the front passenger side of Canty’s vehicle.

Canty was charged with, among other things, operating a motor vehicle under the influence of alcohol, in violation of G. L. c. 90, § 24(1)(a)(1). To prove that Canty committed this crime, the Commonwealth had to show that Canty (1) operated a motor vehicle; (2) on a public way; and (3) was under the influence of intoxicating liquor while operating the vehicle. As to the third element, a person is “under the influence” of alcohol if he has consumed enough alcohol to reduce his mental clarity, self-control, and reflexes, and thereby impaired his ability to drive safely.

Prior to the commencement of the trial, Canty moved to exclude any testimony from police officers as to whether he was intoxicated, impaired, or otherwise under the influence of alcohol. Canty argued that whether he was in fact intoxicated, impaired, or otherwise under the influence was the ultimate issue for the jury to decide. The judge denied the motion, stating that a lay witness – in other words someone with no special expertise – can give an opinion as to an individual’s sobriety. During the course of the trial, the officer that stopped Canty testified that, based on his observations, Canty’s ability to drive was diminished, and that in his opinion, this diminished ability was the result of alcohol consumption.

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1226064_prison_cells_2.jpgAccording to the MetroWest Daily News, a 23 year old Haverhill woman was reportedly seen drinking at a Framingham bar on Friday April 12th, which violates the terms of her personal recognizance release. The defendant is accused of crashing her car on December 3, 2011 and killing a fellow Framingham State University student while drunk. The defendant was released on personal recognizance, but given a condition of release that she consume no alcohol. The defendant is now being held without bail until her next court date.

The defendant is facing charges of vehicular homicide, as well as driving under the influence of liquor, causing serious bodily injury and driving to endanger. She was allegedly drunk when she crashed her Honda Civic carrying four other people into a telephone pole on Badger Road in Framingham around 2:20 a.m. on December 3, 2011. Her blood alcohol level was reportedly .10 at the time of the crash, over the legal limit of .08.

The defendant allegedly ordered the drinks that she consumed before the accident from the same TGI Fridays in Framingham at which she was seen drinking on Friday. An officer who patrols Route 9 allegedly recognized the defendant and noticed she was drinking. The defendant reportedly stated that she was drinking cranberry juice; however, the bartender and the defendant’s friend allegedly stated that she was drinking a cranberry and vodka drink. The bartender also allegedly stated that the defendant had ordered the same drink at the bar the week before that. The probation department reportedly issued an arrest warrant, and police arrested the defendant the next day in Haverhill.

The defendant’s lawyer has stated that the defendant was not purposefully drinking alcohol but had ordered a cranberry juice. However, he said that the bartender was mistaken because the bar was loud and may have served the defendant liquor in the drink accidentally. The lawyer also stated that the defendant did order a drink with alcohol the week before but that it was for a friend. The judge, however, was not persuaded. The defendant will be held for 60 days in MCI-Framingham until her trial in June. The judge made the order without prejudice, which means that the defendant can appeal the decision.  She is also due in Middlesex Superior Court for a status hearing.

The defendant’s story is an important reminder of how seriously courts take the conditions placed upon defendants when they are released on probation, bail or personal recognizance. If your or a loved one is worried that you may have violated the terms of your probation or the conditions of your release between court dates, consulting your attorney is an important step to making sure that you remain in good standing with the court. Being arrested for violating the court’s orders can be a stressful situation, and can often result in your being looked upon unfavorably by the court at your next court date or in the future if you find yourself in court again. However, conditions that are placed upon defendants can often be confusing or difficult to follow. An experienced attorney may work with the judge or the probation department to make conditions more manageable. Being on top of the situation with your attorney is usually the best course of action.

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1174747_by_a_beer.jpgA 55 year old Northborough man was arrested on Wednesday night, April 17th after allegedly getting into a car accident on Route 9, according to an article in the MetroWest Daily News. The defendant has reportedly been charged with operating a motor vehicle under the influence of alcohol, making this his fourth time being charged with OUI.

An officer reportedly saw the defendant pulled over to the side of the road next to another car. The defendant and the other driver were standing outside of their cars, which prompted the officer to pull over and investigate the situation. The officer then allegedly smelled a strong odor of alcohol and noticed glassy, bloodshot eyes and slurred speech being exhibited by the defendant. A passenger in the other car was reportedly taken to a hospital with unspecified injuries.

The defendant reportedly told officers that he had drank some alcohol with dinner, but was inconsistent with his statements about how much alcohol and from where. The defendant also reportedly volunteered to do a field sobriety test. He allegedly did not successfully complete the commands during the sobriety test and was arrested. He was charged with operating under the influence of alcohol, driving to endanger, and driving without a license. His license reportedly expired on April 12th, 2013.

This arrest is the defendant’s fourth OUI arrest. His past drunk driving arrests all occurred nearly three decades ago. One arrest occurred in 1984, and two occurred in 1986.
At Framingham District Court on Thursday, the defendant was released without bail and ordered not to drive after drinking alcohol. He is due back in court on May 20.
The defendant is facing serious penalties if convicted of this charge because this is his fourth alleged OUI offense. Penalties for OUI offenses generally increase with each conviction. Mandatory sentences also make it difficult for judges to be lenient in many cases. Despite the almost thirty year time gap between his previous three offenses and the newest alleged offense, courts will still treat this at the defendant’s fourth offense, due in part to the changes brought into effect under Melanie’s law.

If convicted, the defendant is facing a mandatory two year jail sentence. A portion of that sentence could be suspended, but if convicted it is mandatory that he serve at least every day of 1 year in jail. When accused of OUI 4th offense it is essential to be represented by an experienced criminal defense litigator who may be able to win the case. Prosecutors are trained to prosecute multiple OUI offenses to the fullest extent of the law, so a plea bargain is rarely an option to avoid jail time. An experienced attorney can help the defendant determine if he has potential motions to suppress evidence or to dismiss the case. Also a skilled attorney can help him determine if taking the case to trial is the right decision.

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Taser.jpgA 32-year-old Southborough man, was charged with assault and battery on a police officer, operating under the influence (second offense), and malicious destruction of property over $250 in Framingham District Court on March 11, the MetroWest Daily News reported.

The man was arrested by Natick police officers over the weekend following an accident on Route 9. He allegedly rear-ended a car stopped at red light. Police claim that the man was uncooperative during the booking process. As a result, an officer attempted to escort him to a holding cell. At that point, police claim that the man became “combative” with the officer, swinging at him and knocking the officer’s eyeglasses onto the floor. Officers shocked the man with a Tazer.

In this particular article there is nothing suggesting there was any wrongdoing by the Natick Police Department. However, in general it is not unusual to sometimes see criminal defendants charged with assault and battery on a police officer after police use violence, unnecessary aggression, or unlawful force during an arrest. In order to protect themselves from allegations of unlawful use of police force, officers sometimes claim the defendant committed an assault and battery on an officer. The same is often true in resisting arrest scenarios. This is no secret to any experienced criminal attorney. It’s not unusual for defendants facing these charges to walk into lawyers’ offices having visible injuries. Luckily for defendants, in many departments the booking process is now videotaped, and some cruisers have video equipment. Particularly in commercial areas like Route 9, retail establishments might have video surveillance as well. Whenever possible it is always wise get a copy of the booking video or any other video evidence in order to look into what really happened during this encounter.

The malicious destruction of property over $250 charge relates to the officer’s eyeglasses. If the glasses were damaged during this alleged struggle, the man might argue that any damage was not “malicious.” Another possible defense would be that the value of or damage to the glasses was not really more than $250.

The article does not contain much information relative to the basis of the OUI 2nd charge, apart from the fact that there was an accident. Massachusetts law provides for increased penalties for second and subsequent drunk driving convictions. Prosecutors tend to be less sympathetic to OUI defendants when there has been an accident. The man might be facing some relatively serious penalties and should speak with an aggressive defense lawyer.

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1328089_half-frozen_lake.jpgA Sudbury man, who police have not yet identified, allegedly drove his car into Willis Pond on Thursday, January 24th, according to an article in the MetroWest Daily News. Police have alleged that the 27-year-old man was drunk when he drove out onto the ice. The front end of his car reportedly broke through the ice approximately 600 feet onto Willis Pond at about 12:45 a.m. Police are reportedly unsure what motivated the man to drive his car onto the ice.

The driver and a female passenger were reportedly pulled from the Toyota and taken to Emerson Hospital as a precautionary measure. Firefighters reportedly attempted to pull the car out of the pond but were unsuccessful. A towing company reportedly worked for nearly 17 hours before the car was successfully pulled out of the water. The Toyota reportedly was back on solid ground around 4:30 p.m.

The driver is facing charges of driving a recreational vehicle under the influence of alcohol and wanton destruction of property. Because the driver was not operating the vehicle on a street at the time police arrived, the police are charging him with driving a recreational vehicle, rather than operating a vehicle under the influence of alcohol. Police are reportedly charging him with wanton destruction of property based on the destruction of the car. Police reportedly said that the driver’s name would be available after the arraignment.

The driver is facing serious charges that could lead to fines and jail time. Because his car was not found on a street, the driver avoided a charge of operating a vehicle under the influence of alcohol. The charges he is facing are still quite serious, nonetheless. The driver needs a skilled Massachusetts criminal defense attorney to help him fight the charges he is facing.

In order to prove the charge of driving a recreational vehicle under the influence of alcohol, the prosecutors will have to prove that the driver operated the vehicle while having an intoxicating substance in his body beyond a reasonable doubt. The Commonwealth can establish that he was under the influence of an intoxicating substance by means of a blood test, Breathalyzer, or other test. The Commonwealth does not have to prove that he operated the vehicle on a public roadway. To prove the charge of wanton destruction of property, prosecutors will have to establish that the driver damaged or destroyed the personal property of another, that he did so wantonly, and that the amount of damage inflicted is more than $250. “Wanton” acts are acts committed recklessly or indifferently to the fact that the conduct will probably cause substantial damage to property.

If you or a loved one is facing a charge of destruction of property or an OUI or similar charge, you need an experienced and capable Massachusetts criminal defense attorney on your side. An attorney can help you fight for your freedom or negotiate a favorable plea deal with the prosecution.

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570798_red_cup.jpgA Framingham woman was arrested on Thursday, January 10th, according to an article in the MetroWest Daily News. The woman was reportedly arrested at approximately 11:00 a.m. after police reportedly found her sitting in a running car on West Union Street drinking rum from a plastic cup.

Police reportedly checked on the woman because she was sitting in her car for a long time. Police reportedly found her drinking from a cup. The woman was allegedly startled by police; the officers also allegedly smelled alcohol on her breath.

The woman allegedly denied drinking alcohol; however, she reportedly subsequently admitted that she had a drink and that she “likes to drink rum.” Police reportedly administered several field sobriety tests, which she allegedly failed. Police also reportedly tested the liquid in her cup; the liquid allegedly tested positive for alcohol. Finally, police reportedly administered a Breathalyzer test, and the woman reportedly blew a .20. The legal limit for blood alcohol while driving is .08, meaning that the woman reportedly tested two and a half times over the legal limit.

The woman is charged with driving under the influence of liquor, driving to endanger, and possession of an open container of liquor in a vehicle. The woman has reportedly been convicted of driving under the influence of alcohol once already, making this a subsequent offense for her. If she is convicted again of this charge, she is facing more severe penalties under Massachusetts law. However, the woman’s first OUI offense reportedly occurred in 1978. Therefore, the court may look more favorably on her than if she had been convicted of this offense more recently. Because this second offense is alleged to have occurred more than 10 years after the 1st offense, the woman is eligible for a disposition that would help her avoid some of the more serious penalties often associated with second offense OUI.

The woman pleaded not guilty at her Framingham District Court arraignment on Friday. She was released without bail. She is due back in court on February 11th for a pretrial conference.

To successfully obtain a conviction for the OUI charge, prosecutors will need to prove that the woman was operating a motor vehicle under the influence of an intoxicating liquor. Because the woman took a Breathalyzer test, the prosecutors can use the evidence from that test as evidence that she was under the influence of an intoxicating liquor. The woman may claim that the Breathalyzer test was not properly calibrated as a defense. For the driving to endanger charge, prosecutors will need to prove beyond a reasonable doubt that the woman was operating a motor vehicle on a public road so as to endanger any person, including her. Because the woman was sitting in a running car, but was not actually driving, she could have a defense against this charge.

If convicted of the OUI charge, the woman will be facing serious penalties, including fines and a suspension of her license. A driving to endanger conviction can lead to penalties, such as jail time.

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774604_car_accident_1.jpg The MetroWest Daily News recently published an article about an Upton woman who was arrested on Thursday November 29th for operating a motor vehicle under the influence of alcohol, driving to endanger, as well as driving with a license that was suspended for being a habitual traffic offender. The woman’s charge is a subsequent offense, meaning she has been convicted of the same offense in the past. Specifically, prosecutors allege that the woman was convicted of drunk driving twice in 2010.

Police reportedly arrived on the scene of the single-car accident after the woman’s pickup truck rolled over on Main Street in Hopkinton at 7:54 p.m. Officers reportedly found the woman trapped and standing in the cab of the truck. Police allege that they smelled alcohol coming from the woman and that the woman admitting to having consumed vodka earlier in the day when officers asked her if she had been drinking. Police further allege that the woman failed numerous field sobriety tests but refused to take a Breathalyzer test. The woman was reportedly not injured in the crash but was taken to the hospital as a precaution.

The woman was arraigned on Friday in the Framingham District Court. Prosecutors reportedly did not ask for her to be held. She was released without bail and is due back in Court on January 23rd for a pretrial conference.
Because the woman refused to take a Breathalyzer test, prosecutors will not be able to easily prove that she was over the legal limit while she was driving. Without a breath test prosecutors would need some other evidence like a blood test to actually prove the woman’s blood alcohol content on the night in question. It is much more likely prosecutors will go forward on a straight OUI charge without alleging there was a per se violation of her blood alcohol content limit. To prevail on an OUI charge prosecutors will have to prove that she was operating under the influence of an intoxicating liquor. Prosecutors will use all of the evidence mentioned by the police in their report to try to obtain a conviction in this case.

To prove the driving to endanger charge, prosecutors will have to establish that the woman was operating a motor vehicle on a public road so as to endanger any person, including her. This charge is a misdemeanor that does carry the possibility of jail time.

The woman is facing serious charges that may lead to fines and imprisonment. Additionally, she may have her license suspension time increased for refusing the breathalyzer because of prior convictions for OUI. Because the woman has been convicted of an OUI charge in the past, she is facing harsh consequences.

The woman’s defenses are seemingly limited in this case. Since the police came to the scene of her accident, as opposed to pulling her car over, she cannot argue that they did not have reasonable grounds to stop her car. She may be able to argue that she did not refuse the Breathalyzer. However, this defense could be difficult to prove.

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921217_crashed_car.jpgA recent article in the MetroWest Daily News tells the story of an accident that occurred recently in Wellesley. The woman involved in the accident was arrested Friday, November 9 at 8:45 a.m. for allegedly driving under the influence of alcohol and drugs. The woman is an emergency room doctor and was arrested on her way to work at Newton-Wellesley Hospital. According to witnesses, the woman’s car struck multiple cars, a fence, a post, and a tree; The woman’s car was airborne at one point before triggering a multiple-car crash at the intersection of Washington and State streets, outside the Whole Foods parking lot. One driver in the crash was reportedly taken to Newton-Wellesley Hospital with injuries but was later released.

While speaking with the woman after the crash, officers allege that they could detect the smell of alcohol.  The woman agreed to perform and subsequently failed two field sobriety tests, police said. The article does not state whether the police performed a breathalyzer test. If the woman did not register as .08 or above on a breathalyzer test, the police will have to prove that she was operating under the influence of an intoxicating liquor in order to prove the OUI charge pertaining to alcohol.

Police charged The woman with driving under the influence of alcohol, driving under the influence of drugs, operating recklessly so as to endanger, leaving the scene of property damage and leaving an accident scene after property damage. These charges reportedly stemmed from the woman’s driving, the significant damage to her car and the other cars involved, her slurred speech, her glassy eyes, and the slight odor of alcohol on her breath. The woman was reportedly also charged with possession of a class C substance, and possession of a class E substance.

In order to prove the OUI charge pertaining to drugs, prosecutors will have to prove that the woman consumed enough of a drug to reduce her ability to operate her vehicle safely. To prove that she operated a vehicle recklessly, the prosecutors must prove that she was operating her vehicle in a place where the public has a right of access and that she did so recklessly. Just because an accident occurred does not mean that she operated her vehicle recklessly. Prosecutors must prove that she was at fault and that her actions rose to the level of recklessness. To prove the possession charges, prosecutors must prove that the substances were controlled substances, that she possessed some perceptible amount of the substance, and that she did so knowingly.

Police allegedly found prescription drugs in the woman’s possession during the booking process and in her car during an inventory search. Some of the drugs were allegedly in prescription bottles, while others were not. Prosecutors reportedly stated in court that they believe the woman had been prescribing drugs to herself.

The woman was arraigned Tuesday, November at the Dedham District Court and pleaded not guilty to her charges. Prosecutors asked that the woman be held on $10,000 bail, but a judge released her on personal recognizance. She is due back in court on Jan. 7.

The woman is facing numerous serious charges. She is facing various fines and, potentially, imprisonment. However, the woman may be able to beat some of the charges she faces. If the police did not give her a breathalyzer test or a blood test, she may be able to overcome the OUI charges she faces. Additionally, if she is able to get the possession evidence suppressed from the searches, she may be able to overcome the possession charges, as well.

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