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Articles Posted in DUI defenses

 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.

Vehicular crash data is helpful when trying to figure out how an accident happened, and who may be at fault. However, it may be hurtful to defendants in that it may reveal liability that may not be uncovered by other means. Vehicle crash data may include anything from testing brakes to insurance reports.

In Massachusetts, a warrant is not required to collect vehicular crash data. In Commonwealth v. Mamacos, the Supreme Judicial Court of Massachusetts determined that the defendant did not have a reasonable expectation of privacy when the police tested his truck’s breaks. The first question the Court asked is did the defendant have a subjective expectation of privacy in his truck’s brakes? The Court held that it was unclear if the defendant had a subjective expectation to privacy, and turned to the second question of inquiry: does society recognize the defendant’s expectation of privacy as reasonable under the circumstances?

In Massachusetts, the Registrar of Motor Vehicles has the statutory authority to “investigate the cause of any accident in which any motor vehicle is involved.” G. L. c. 90, § 29. Section 29 requires that local police departments “notify the registrar . . . of the particulars of every accident [in which any person is killed or injured] which happens within the limits of [its] city, town or jurisdiction.” Because of the regulations set forth in Section 29, the general population would not find the defendant’s expectation of privacy reasonable. The Court held “it would stretch the Fourth Amendment’s protections too far to say that society is prepared to recognize as objectively reasonable an expectation of privacy in the braking mechanism of a motor vehicle that has come into police possession following the death of a motorist on the highway.”

The model jury instructions govern how judges will instruct a jury when a motorist is charged with OUI. It is remarkable that absent from the model instruction is anything saying that is not illegal to consume alcohol and drive in the Commonwealth. When I have asked for that instruction to be added, many judges will comply while some will indicate that the jury is told that at the start of the trial that is not illegal to consume alcohol and drive.

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An OUI trial in Massachusetts is governed by rules and laws that allow and prohibit certain statements, reports, and objects from admission into evidence. Once a statement or item is admitted into evidence, it may be considered by the judge or jury for the purposes of reaching a verdict. In Com. v. Schutte, the MA Court of Appeals considered the admissibility of a doctor’s report which corroborated the defendant’s own testimony that he was suffering from an impairment that caused him to fail his sobriety tests.

The defendant in this case was pulled over after the officer observed him driving erratically on the road. The officer testified that he had smelt alcohol, and asked the defendant whether he had been drinking. The defendant replied that he a couple of bears. The officer then decided to conduct field sobriety tests.

The officer administered the alphabet test, and then asked the defendant to perform the one-legged stand and the walk-and-pivot test. The defendant passed the alphabet test, but before taking the remaining two tests, informed the officer that he had thirteen ear operations which effect his equilibrium. Despite this admission, the officer allowed the defendant to take the remaining two tests – and the defendant lost his balance in both.

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