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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.

 The Massachusetts Supreme Judicial Court affirmed the dismissal of an OUI charge by a Superior Court judge after the officer did not issue a citation until 9 days after and the defendant did not receive notice until five or six months later.  

     The defendant in Commonwealth v. O’Leary was indicted on an OUI subsequent offense, meaning that it was greater than a Fourth offense.  His case involved a common situation that Massachusetts OUI Lawyers encounter.  He got into a one car accident and was taken to the hospital.  When the officer got to the hospital it appeared as though O’leary was intoxicated.  He admitted to a couple of beers, had bloodshot and glassy eyes as well as slurred speech.  

The officer informed the defendant that he would receive a summons in the mails for OUI.  The officer had to seek approval of the report and did not issue the summons until nine days later.  This was an important fact that came out at the motion hearing as the motion judge found no good reason for the nine day delay.  

When a driver is arrested for OUI, Massachusetts OUI law requires the officers to deliver a citation to the suspect immediately.  If there is a delay in issuing the citation, dismissal may be the appropriate remedy.  In the case of Commonwealth v. Richard O’Leary, the SJC reversed a lower court’s judge’s decision dismissing an OUI complaint alleging serious bodily injury.  The Court discussed the three circumstances where the Court would excuse a delay in issuing a citation.

  1. When the violator could not have been stopped;
  2. When additional time was reasonably necessary to determine the nature of the violation.

When a person is pulled over and ultimately arrested for a drunk driving called OUI in Massachusetts and DUI in most parts of the country, most people would inherently draw a link between drinking and driving. Teenagers, especially, are quick to be stereotyped and labeled for this “behavior”.  What if they were exhibiting symptoms of being drunk, while actually suffering from anxiety or depression? While anxiety and depression symptoms range from person to person, often times the many symptoms are nearly identical to the symptoms that someone under the influence could exhibit.

Anxiety disorders, time and time again, have proven to be the most common mental illness among Americans; many Americans fail to seek treatment for their illness and end up suffering from a host of devastating symptoms. The ADAA, or The Anxiety and Depression Association of America reported that if a person suffers from anxiety, it is definitely not uncommon for them to simultaneously suffer from depression. For this reason, it makes sense that the symptoms a person exhibits could be significant enough for a law enforcement officer to mistake a person as being drunk.

Mayoclinic.org has a list of the numerous symptoms that are typically seen in patients suffering from such mental illness; nervousness or being tense, trouble concentrating, feelings of weakness or just simply being tired are a few of the many. These are not dissimilar to the symptoms an individual enduring field sobriety tests may exhibit. For example, when a person is first pulled over, they may act exceptionally nervous or tense. Additionally, when the officer orders a person to do a field sobriety test such as the 9 step walk and turn they may have extreme difficulties concentrating.   Nervousness can impact a person performance on the nine step walk and turn; you can read about the clues that officers look for when administering a nine step walk and turn on my website.

DUI arrests on New Year’s Eve are often the result of polcie officers looking to make arrests; often police departments will receive extra grant money for New Year’s Eve.   Some of those arrest will be drinking socially and not under the influence, but arrested anyway and will have to go through the process of fighting the charge in court.  As a Massachusetts OUI Lawyer who handles these cases everyday, I will be available on the New Years Day and the 2nd to help answer your questions.  Many of these cases can be defended in court, you just need to understand the process.

With New Years Eve quickly approaching, many people are scrambling to find celebratory plans for the upcoming weekend. With New Year’s Eve  falling on a Saturday this year, local bars and restaurants are likely to be jam-packed for the night, and many people will fail to take into account their means of getting to and from these establishments.

The NIAAA (The National Institute on Alcohol Abuse and Alcoholism) has recognized that 40% of traffic-related deaths occur between Christmas and New Years by drunk drivers, and New Years Eve itself has been cited as being the day with the most arrests made by law enforcement agencies across the country. Additionally, Triple AAA has reported that nearly 90 million Americans will hit the roads between Christmas and New Years, further exemplifying the fact that the roads are a dangerous place to be this time of year. For a better understanding of Massachusetts statistic’s regarding DUI arrests, view the Mass DUI Statistics webpage here.

Under Massachusetts OUI Law, a motorist must receive a citation immediately when being charged with OUI.  In a case where a motorist is not placed under arrest, the citation provides notice to the motorist of the OUI charge.  By not providing the citation immediately, A Massachusetts OUI lawyer can seek dismissal of the charge under the no fix statute.  This is what occurred in a recent case.

A Massachusetts Superior Court has dismissed an OUI charge after the 4 ½ month delay in the OUI citation was found to have not been in compliance with OUI Law and procedure. In Commonwealth v. Burnham, the defendant was the driver in a car accident but was never charged with OUI by the police officers that found him. It wasn’t until the defendant was later arrested on an OUI charge in an unrelated incident, that the prosecutor obtained medical records from the initial accident and cited him with OUI despite the time lapsed.

About the Case

What happens if the Commonwealth loses evidence in a case, like your booking video in an OUI arrest?  A recent case provides new answers to this question.  Although this is not a drunk driving case, attorneys can use the reasoning in this case to advocate in upcoming cases.

In Commonwealth v. Carroll Heath, No. 15-P-227, the Massachusetts Appeals Court held that the Commonwealth’s failure to preserve booking video was negligent, that it prejudiced the defendant’s case and warranted a new trial. This case is a victory for defendants who have suffered the loss of a booking video. Booking videos are often strong pieces of evidence for the defense because they objectively show the defendant on the date of their arrest. While this case is not a drunk driving case, this case may help OUI Lawyers argue for some type of remedy when the police department loses or destroys a booking video in an OUI case.  Video evidence increases the chance of having breath test evidence excluded from trial as it shows whether the officer followed the proper procedure in administering the breath test; you can learn about these issues on my website.

The defendant in the Heath case was charged with assault and battery of a police officer. The assault and battery allegedly occurred during booking at the Haverhill police station. Prior to trial a motion to preserve video evidence was allowed. At trial it became clear that the booking video had not been preserved. The arresting officer in the case testified that he was aware that booking video did exist which would have captured the defendant on the night of his arrest, but that the video had been erased.

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