DEFENDING YOUR CASE IN COURT

In this Blog post, Massachusetts OUI Lawyer Michael DelSignore discusses how he defends OUI cases in Court.  Attorney DelSignore has been recognized for his work on OUI Defense by SuperLawyers Magazine 4 years in a row as a top OUI Lawyer.  This magazine ranks lawyers throughout Massachusetts.  In this post, you will learn how Attorney DelSignore defends and OUI case and what are some of the methods that have lead to his successful defenses over the past 20 years.

Preparing a winning defense to your case requires a full evaluation of the case to determine the key facts in dispute. It is generally a bad strategy to challenge everything that the officer wrote in the report; more successful defense strategies attack the credibility or conclusions of the officer at the key points in dispute. 

Preparing a winning defense involves addressing the following elements of the case: 

1. Observation of driving

• If the Police do not Claim any Erratic Driving this is a strong point in your defense.  

If there is no evidence of erratic driving, that is a strong point for your defense. In many cases, there will be allegations of crossing the double yellow line or fog line, or other evidence of erratic driving. While the jury is instructed by the judge that the Commonwealth does not need to prove any erratic driving to show a defendant is operating under the influence of alcohol, the lack of unsafe driving is a major point in establishing reasonable doubt.  The field sobriety tests are all designed to simulate driving, so when a motorist can drive safely down the road it is the best evidence that you were not impaired by alcohol.  

• Minimizing Claims of Erratic Driver by the Officer

In those cases where the officer alleges some traffic violation occurred, it will be important to minimize the significance of the officer’s testimony regarding unsafe driving. This can often be done, through testimony that any marked lanes violation was brief, that the road conditions may have caused the traffic infraction, other drivers on the road could have caused a particular traffic infraction.  Other causes of a traffic infraction unrelated to alcohol can be looking at a cell phone for the GPS or texting while driving.  

1. How did you pull over when the Officer put on the Blue Lights

One goal in any OUI trial is to minimize the officer’s testimony regarding any alleged unsafe driving.  Even if the officer claims to see a traffic infraction, the officer is taught that an impaired driver may have difficulty pulling over safely.  Once the lights go on the police are looking for the following clues:  

• Whether you recognize the flashing lights of the officer;
• Whether you pull over safely;
• Whether you pull over in the appropriate amount of time.   

Many people pull over safely and immediately once the officer’s lights go on.  This is a good opportunity to demonstrate the claim of erratic driving was a temporary lapse of attention when compared with the safe and normal driving when the blue lights went on. 

1. Interaction with the officer

When the officer comes to the window of the car, the officer is looking to see how the motorist responds——whether the motorist makes eye contact and can understand simple requests such as for the license and registration. An officer will look at how you obtained the license and registration and will note whether you fumbled for the license or registration in retrieving them. If there is no mention of any difficulty with this task, it can be used to show you were not under the influence of alcohol. Remember, only the negative details are in the report, so through cross-examination and understanding the officer’s training, your lawyer will bring out the positive facts that support a verdict of not guilty. 

1.   Did you get out of the Car without leaning on it or using it for Balance

Another clue in the officer’s training that can be a sign of impairment is how you get out of the car.  Often there is no mention of any trouble with balance getting out of the car. However, the officer is taught that an impaired driver may use the car for balance or lean on the car when getting out. If there is no mention of using the car for balance, this is another detail that contradicts the officer’s opinion that you were impaired by alcohol.  When you consider how you

• Pulled over; 
• Handed your license and registration; 
• Got out of the Car; 

 

These are all opportunities for the officer to see signs of impairment; if none are present, your lawyer can argue at trial that the officer did not see sign of impairment that he taught were common according to his police training.  

 

CHAPTER 7:  Methods of Attacking the Field Sobriety Tests

Most people arrested for OUI in Massachusetts were be asked to submit to field sobriety tests. 

These tests are used throughout the country when officers make drunk-driving arrests. The HGN test, nine-step walk and turn, and one-leg stand are considered standardized field sobriety tests. These tests were studied by the Federal government for reliability and have been deemed reliable when used as a battery of three tests to detect a drunk driver. Though Massachusetts courts do not allow the HGN test into evidence, it is common for this test to be used in other states throughout the country.  

The two main tests that are used in Massachusetts are the nine-step walk and turn and the one-leg stand. 

 

The Horizontal Gaze Test:  Follow the Officer’s Finger with your Eyes 

The Horizontal Gaze test almost never come into evidence at a trial in Massachusetts. The Massachusetts Supreme Judicial Court has determined, in a case called Commonwealth v. Sands, 424 Mass. 184 (1996) that police officers do not possess the expertise to correctly examine your eyes and come to any reliable conclusions. Accordingly, the Commonwealth is required to present expert testimony to admit this evidence.  It would be very unusual for the Commonwealth to attempt to admit this evidence at trial so you do not have to be concerned with the results of this test when you review your case or police report.  

 

The Nine-Step Walk and Turn

The nine-step walk and turn involves the officer looking for many different clues to determine whether you were under the influence of alcohol. In almost all cases, the officer will claim that you failed the field sobriety tests. However, when an experienced OUI attorney looks at how you performed on the nine-step walk and turn, often, your performance can be used to help you obtain a not guilty verdict at trial.

 

When an officer writes a police report, the officer will leave out what you did well on the nine-step walk and turn.  When the officer is cross-examined at trial, a skilled cross examination will show that you did many things correctly on the test, that your performance could have been influenced by factors other than alcohol.  

According to Government studies in detecting whether someone is under the influence of alcohol, the nine-step walk and turn test is only considered 68% reliable when used by itself.

 

The nine steps walk and turn can be challenged as unfair based on weather conditions, your medical condition, and the road condition where the test was administered. While these are common methods of challenging the nine-step walk and turn, your particular case may present a different challenge that can be presented in Court. 

 

The One-Leg Stand

The one-leg stand requires the motorist to balance on one leg for 30 seconds or until the officer says to stop.  This is a very difficult test to do when you liberty is on the line and you are on the side of the road.  You may wonder how can this test be used to prove you were drunk when most people cannot perform it when drinking no alcohol at all.  This argument can be made to a judge or jury that this test is not reliable test and should not be considered as a sign of impairment.  

 

By itself this test is only considered 65% reliable

The police training acknowledges some people cannot do the One Leg Stand test, including those who are more than 50 pounds overweight, those over 65 years of age, and individuals with back, leg, or middle-ear problems. The training also advises that individuals wearing high heels of more than two inches should be given an opportunity to remove their heels. The Training Manual does not indicate whether the test would still be reliable for someone who is taking the test without any shoes on.   Studies to determine reliability of field sobriety tests were all done under ideal conditions, making the low percentage of reliability all the more remarkable.  Many jurors understand that this is a physical fitness test and is easier for someone in better physical shape and has little ability to predict whether someone is under the influence of alcohol. 

 

There are many ways to challenge the reliability of these tests at trial. When you speak to a Massachusetts OUI Lawyer, you can learn which method of undermining the reliability of the field sobriety tests is best method in your case.  

 

BOOKING PROCESS IS OFTEN NOT MENTIONED IN THE POLICE REPORT AND CAN PROVIDE IMPORTANT EVIDENCE TO HELP YOU WIN YOUR CASE

In most OUI arrests, there will be little or no information in the police report about what happened in booking, despite the fact that the booking process generally takes longer than the entire interaction on the side of the road. Additionally, during the booking often an individual is moving around and asked to provide fingerprints and a booking photograph. These requests during booking provide an opportunity for an individual to demonstrate normal balance, coordination, and good mental ability. The fact that in many cases the officer did not see any signs of impairment during booking can be used to establish reasonable doubt and to suggest that if the sign of impairment at the side of the road were major, those signs would have continued during the booking process.  

This overview is meant to show you some of the key issues that can be raised in your defense; if you would like Attorney DelSignore to review your police report, you can reach out to him by phone or test at 781-686-5924.  You can also learn more by visiting DelSignoreDefense.com, his website on Massachusetts OUI defense that is common regarded as the most comprehensive on Massachusetts drunk driving laws.  You can also Follow Attorney DelSignore on Facebook.