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Articles Posted in DUI defenses

Breath test evidence is heavily contested in Massachusetts OUI trials.  When someone takes a breath test, as a Massachusetts OUUI Lawyer, we attempt to exclude the results from evidence as being unreliable.  But what happens if the machine does not register, is the failed attempt to take a breath test admissible and under what circumstances.  That was the issue in the case of Commonwealth v. Daigle, the Massachusetts Appellate Court answered this question.

A failed breath test is admissible in certain circumstances. It is well settled that a defendant refusing to take a breath test is not admission against them during an OUI trial. However, if a defendant signs a consent form to take a breath test, a machine malfunction or other errors may be admissible, In the case of Commonwealth v. Curley, police officers alleged that the defendant was purposely blowing into a breathalyzer machine incorrectly as to inhibit the machine from producing a reading. Because the defendant in that case signed a consent form, the jury could infer from his actions that he waa trying to avoid giving a sample while appearing to try and take the test.

What happened in the Daigle case? 

The Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Charles Bohigian today holding that a blood draw without the consent of the defendant is inadmissible into evidence.  This case arose out of the Westborough District Court and was transferred to Worcester District Court for trial.

The defendant was charged with OUI causing Serious Bodily Injury.

The Massachusetts Supreme Judicial Court stated that it is Constitutional to draw blood without consent as long as an officer has a warrant or exigency circumstances make getting a warrant impractical.  However, the legislature created a statutory framework for getting Blood in the context of an OUI.

The Massachusetts Supreme Judicial Court heard oral arguments in the case of Commonwealth v. Bohigian on February 10, 2020, dealing with the issue of the admissibility of a blood test in a OUI case involving Serious Bodily injury.  The case arose out of the Westboro District Court.

What is Serious Bodily Injury?  

Serious Bodily injury is defined as creating a substantial risk of death, involves total disability, the loss of any bodily function for a substantial period of time or involves substantial impairment of any bodily function for a substantial period of time.

Recently, the Supreme Court of the United States decided three cases that require a new look at determining the standard for consent under the Fourth Amendment to the Constitution. In Missouri v. McNeely, the Court held that the taking and testing of a person’s blood could not be done without probable cause and a warrant unless there is some exception.  The Court further held that a search incident to an arrest cannot justify a warrantless blood draw in the case of  Birchfield v. North Dakota.  Finally, in Mitchell v. Wisconsin, a majority of the Court held that implied consent statutes do not give unfettered consent to a search to draw blood under the Constitution.

Given these decisions, the Appeals Court of Massachusetts reexamined how these cases impacted the decision in Commonwealth v. Dennis.  In this case, officers arrive at the scene of an accident and find the defendant behind the wheel.  At the scene, the defendant admitted that he had been drinking, there were empty alcohol containers in the car, and the officer observed the smell of alcohol on the defendant.  Because of his condition, officers transported him to a medical center.  After that, they placed him under arrest.  The officer attempted to get the defendant’s consent for a blood draw, but he was not medically cleared to give his consent.  Two and one-half hours later, the officer read the defendant the rights and consent form. Of significance, the request is only for a “chemical test.” It does not “specify that the “chemical test” will be on blood, as opposed to breath, urine, or anything else…”

The first step in evaluating whether a defendant has consented to a blood draw when there is probable cause for his or her arrest is to determine if the blood draw requires a warrant or are there exigent circumstances that excuse the police from obtaining a warrant.  Just because alcohol will dissipate from the blood the moment a person stops consuming alcohol does not automatically mean that there are exigent circumstances.  This was the ruling on Missouri v. McNeely.

     In many cases, when you are involved in an accident, the Commonwealth will make a motion to summons your hospital records to determine your blood alcohol content.  While this motion is often allowed, it should be objected to as the Commonwealth does not have an unlimited right to summons medical records after any accident.  

Is the hospital blood test scientifically reliable?  

A hospital blood test is a quick screening test that the hospital used to determine if alcohol is at issue in your medical treatment; it is not a forensic scientific test.  There are a number of ways to challenge the reliability of a hospital test.  You will need to hire an expert to educate the judge on the scientific issues undermining the reliability of the tests as most judges assume the tests are reliable.  

The Commonwealth of Massachusetts Appeals Court is currently considering the case of  Commonwealth v. Brian Dennis 

raise the issue of how the Commonwealth proves consent to a blood test.  Dennis is being represented by a very talented DUI lawyer Joesph Bernard out of Springfield who I have known for many years.  Lawyers for Brian Dennis, a man who was arrested for suspected drunk driving, are arguing that the use of a blood sample taken from him after his arrest is a violation of his constitutional rights and should have been suppressed from evidence at his OUI trial in Palmer District Court.

What happened in the case? 

The SJC recently heard oral arguments in the case of Commonwealth v. Zagwyn, and is considering the two main issues of improper opinion testimony by the officer as well as a conviction on a negligent operation charge. For the guilty finding on the negligent operation, counsel highlighted that the defendant was not pulled over for any erratic driving or marked lanes violations, but that he was simply pulled over for having a headlight out. Another argument raised in the SJC hearing is that the improper testimony by the officer prejudiced the defendant and ultimately swayed the jury.  This is an interesting issue on the negligent operation charge.  I had a client in Fall River who was found not guilty of OUI but convicted of negligent operation because she did not turn her lights on.  As a practical matter, in some cases, it is thought to help the OUI to have the possibility of the jury splitting the decision, by finding the client not guilty on the OUI, the more serious offense and guilty on the negligent operation.

Originating out of the Barnstable District Court,  the defendant was found guilty of OUI, negligent operation, and was found responsible for an equipment violation. Zagwyn was stopped by police for a headlight that was out; there was no mention of any marked lanes violation or erratic driving in the police report. Defense attorneys for Zagwyn are asking the SJC to reverse the guilty finding on the negligent operation, arguing that simply having your headlights out does not constitute negligent operation of a motor vehicle.

SJC Justice Graziano commented during the oral argument, asking defense counsel whether or not a defect in a vehicle, such as a broken headlight, would constitute a charge of negligent operation even if the defendant was driving in an appropriate fashion. In the brief filed by Defense counsel Meghan Oreste, she highlighted that most, if not all of the state’s evidence went only to the impairment element of the OUI charge.

Video of an individual taking the field sobriety tests in a Massachusetts OUI arrests rarely exists as most Massachusetts police departments do not have cruiser video.  This is surprising to most people that meet with me to discuss an OUI charge believe that the entire encounter will be on video of their OUI arrest.  In fact this assumption is not true.  Most police departments do not have cruiser video.  The State police does not use cruiser camera and only a small fraction of local police departments have cruiser video.  You are more likely to find a cruiser video in Worcester county than most of the other counties.  While this is not an exhaustive list, the following police departments have cruiser video in at least some of their police cars.

Police Departments with Cruiser video

  • Webster

In this Blog, I address many of the common questions and concerns about Court someone would typically have when faced with a first offense OUI.  I help people everyday understand the court process and make the best decision for them as to how they should handle the case.  In many incidents, that involves taking the case to trial.  But here are some of the most common questions I have been asked over the years.  

Important note if you recently took a breath test: Breath test evidence is not currently being offered into evidence during Massachusetts OUI trials.  Accordingly, the breath test result will not be considered by a judge or jury.

  1. When can I get my license back and can I get a hardship license? 

The Massachusetts Supreme Judicial Court will review a motion to suppress that was allowed out of the Eastern Hampshire District Court where the judge found that a single crossing of the fog line for 2 to 3 seconds did not provide reasonable suspicion for a traffic stop and was not a violation of Massachusetts General Laws Chapter 89 Section 4A.  The case is Commonwealth v. Zachariah Larose.

The Massachusetts Lane Roadway statute provides as follows:

When any way has been divided into lanes, the driver of the vehicle shall so drive that the vehicle be entirely within a single lane, and shall not move from the lane which he is driving until he has first ascertained if such movement can be made with safety.

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