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Articles Posted in DUI defenses

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.

The right of against unreasonable seizures in the Fourth Amendment to the U.S. Constitution is invoked frequently in the context of traffic stops, where officers temporarily “seize” a driver and his vehicle for questioning. It is established law, however, that an officer is only authorized to stop a vehicle where there the officer makes specific and articulable observations of the driver that lead him to reasonably suspect that the driver is operating unlawfully – such as while under the influence of alcohol. Where the officer arrests a driver under the pretense that the driver was operating under the influence without the officer being able to refer to specific articulable observations leading to his suspicion, the courts have ruled that the seizure or subsequent arrest is completely unlawful – regardless of whether the driver was in fact intoxicated.

The Court of Criminal Appeals of Tennessee’s recent decision in State v. Wild, is one such example. The court overturned a trial judge’s finding that an officer lawfully stopped a driver suspected of drunk driving because the State prosecutor was unable to establish that the officer truly had reasonable suspicion to seize the defendant.

The only evidence of suspicious activity that was offered by the prosecutor was the testimony of the police officer involved, along with one-minute’s worth of video footage from the officer’s cruiser camera. The officer explicitly testified that he did not remember any observations of the driver on the day of the incident, and deferred the trial court’s attention to the unclear camera footage and the officer’s statement that the defendant had crossed the lane multiple times, as the officer’s voice was recorded in the video. On this evidence alone, the trial court accepted the state’s argument that the defendant was in fact swerving or “straddling” across her lane after the court itself supplied more information as to the road design on its own accord, since the video footage was too unclear. Based on the video testimony and the trial judge’s own recollection of that road, the trial court found there to have been reasonable suspicion that the defendant was operating while under the influence. The Court of Appeals, however, completely disagreed.

The Oregon Court of Appeals issued a decision prohibiting police officers from forcefully entering the home of an individual whom they believed operated a vehicle while intoxicated. Finding no emergency where the suspect was under the influence and had locked himself and his seven-year old child into their home, the Court ruled that the officers were required by the Fourth Amendment to obtain a warrant.

In the matter of State v. Sullivan, the defendant was observed by a clerk to be under the influence of alcohol while checking out of a grocery store with his seven-year-old son. The clerk followed the defendant out of the store and recorded the license plate number of the defendant’s vehicle. The clerk forwarded that information to police, which located the defendant’s home address and immediately responded.

An officer arrived at the defendant’s home address and observed the defendant’s car and a man yelling to a young boy in slurred speech. After the officer ordered the defendant to stop, the defendant pushed his son up the stairs of the apartment building, slammed the door shut, and closed the blinds in the apartment unit. The officer, joined by two other officers, immediately approached began to pound on the door to the apartment, but there was no response. After speaking with dispatch and his sergeant, the officer discovered that the defendant had a concealed weapons permit. He then received permission to forcefully enter the premises under the premise that the child’s safety was at risk. The officers then kicked the door down and drew their guns to enter the apartment .The defendant approached and was arrested, and subsequently refused to submit to a blood-alcohol test.

You were stopped for speeding after having consumed alcohol? Can a police officer order you to take field sobriety tests in Massachusetts. This Blog will explain under what circumstances field sobriety tests can be ordered and the type of legal motion a DUI Defense Lawyer can make to challenge the officer’s conduct.

Can Police Officer Request Field Tests Merely Because I consumed Alcohol?  

Police officers have the authority to conduct field sobriety tests if they reasonably suspect that the driver was operating his or her vehicle while under the influence of alcohol. This standard, known as the “reasonable suspicion” standard, is the lowest criminal standard used by courts, and its application to roadside sobriety tests makes drivers much more vulnerable to arrest.

What happens if you are stopped for OUI in Foxboro after a Patriot’s game or concert and the police find alcohol in the car. How will finding alcohol in the car impact the defense of a drunk driving charge.

When the police find evidence in a car it is not automatically admissible at trial, it can be challenged on the basis that the evidence was illegally obtained and suppressed at a motion hearing. An example of a challenge to a car search is a recent case decided by the Massachusetts Appeals Court.

A similar set of events occurred in the case of Commonwealth v. Juan Torres, which began as a simple traffic stop but ended with a conviction for unlawful possession of a firearm.

If you were arrested for OUI in East Bridgewater, there should be video of your OUI arrest. the video that the police have will be referred to as a booking video. The East Bridgewater police department does not have a police cruiser camera video. There are a few departments that have cruiser camera, but the majority do not. As an East Bridgewater OUI Lawyer, there was a recent case of interest if a video is lost by the Government.

Police cruisers tare equipped with video recording devices to capture police stops and patrols. When the driver of a vehicle is facing OUI charges, a recording of the stop and arrest may be presented in court by the defendant to challenge the arrest. In such circumstances, the video is considered exculpatory evidence since it may clear the defendant of guilt.

Dismissal Upheld in Recent case where video is lost:

The Fourth Amendment of the United States Constitution protects citizens from unreasonable search and seizure. Part of this requires a police officer to have a reasonable suspicion of criminal activity in order to conduct a vehicle stop or any other search of a suspect. As a Massachusetts OUI attorney, this often becomes an important issue because if a police officer does not have this reasonable suspicion and conducts a vehicle stop or search, all evidence collected from this illegal search will have to be thrown out and will usually end in a dismissal of the case. Without a reasonable suspicion, a stop of a vehicle or search of a person will be considered illegal and unconstitutional.

Determining whether an officer’s stop was conducted under reasonable suspicion is often a topic that is difficult to determine. The Iowa Supreme Court recently took on the issue of whether an anonymous tip about a potential drunk driver can create this reasonable suspicion in Iowa v. Kooima. This case involved the defendant who was at a steakhouse for over an hour with several other gentlemen after a day of golf. Another patron recognized the men as prominent businessmen from the area. He proceeded to call 9-1-1 and describe the car and reported the license plate number. The anonymous caller told the operator that all the men were drunk and were going to leave but never gave any information about what they drank or how he knew the men were intoxicated. Despite the lack of details and not seeing the men drive, the dispatcher told officers in the area to be on the lookout for the car.

The officers followed the defendant and he never made any traffic violations or mechanical violations. Based solely on the tip, the police conducted a stop, gave the defendant a breathalyzer and field sobriety test and arrested the defendant on drunk driving. The defendant claimed the stop was not authorized but was convicted of drunk driving. The Supreme Court disagreed and ruled the stop was not authorized.

One question that comes up for a Massachusetts OUI Lawyer is “when can a police officer make an arrest outside of his or her jurisdiction?” Whether a police officer had a basis to stop you under the Fourth Amendment is one of the first lines of defenses that is pursued in defending an OUI charge.

The Supreme Judicial Court of Massachusetts answered the question of when a local police officer can pull and charge a driver over with an OUI outside his or her jurisdiction in Commonwealth v. Bartlett.

The defendant in Commonwealth v. Bartlett was facing his fifth OUI offense and was trying to suppress evidence citing that the officer pulled him over outside of his jurisdiction. The officer, in this case, was on patrol as a Merrimac police officer and crossed into the neighboring town of Amesbury during his shift. While returning to Merrimac, he witnesses defendant weaving and swerving. After defendant turned into a parking lot, the officer blocked the defendant and informed Amesbury police and then initiated a traffic stop. Unable to remove his license, bloodshot eyes and a failing of the sobriety test led the defendant to receive an OUI. The Merrimac officer made the original stop while Amesbury police administered the field sobriety test.

Recently, the New York Times Opinion Pages posted an article titled, “Why Police Lie Under Oath”. Police lying under oath is both surprising and dangerous.

While the New York Times Article discusses the issue regarding drug cases, which is particularly current in light of the Massachusetts drug lab scandal, police deception also can occur in other types of cases, such as drunk driving arrests. In a Massachusetts OUI arrest, a police officer lying could take one of two forms; a complete fabrication of what occurred or an embellishment, adding a few details in the report that cannot be verified, that someone appeared unsteady or had trouble with balance getting out of the car. Both types of fabrication undermine the integrity of police officers and it is the job of the defense attorney to point out these fabrications to the jury.

Typically, many people often equate the word “defendant” with “guilty” by the mere notion that a defendant is charged with allegedly violating the law, something for which they need to defend. Likewise, we view and trust our law enforcement officers to serve and protect-to uphold their oaths of fairness and justice. In a court setting, it is not unreasonable to suspect that a jury and a judge will take the side of the uniformed officer under oath vs. the defendant allegedly accused of a violation of law. This is what makes police lying so dangerous. One lie can ruin a life. So, why would a law enforcement officer lie?

A man arrested for a Framingham DUI was reportedly five times over the legal limit, according to The Boston Herald. tunnel.jpg

Framingham DUI attorneys question why authorities had this individual in jail taking mugshots, when he probably should have been taken to a hospital. Alternatively, one would wonder if there may be something wrong with the breathalyzer test.

News reports indicate that the man, from Ashland, blew a blood alcohol level 0.41. That is more than quintuple the legal limit of 0.08 percent.

The 62-year-old was booked on charges of negligent operations, drunk driving and failure to stay in marked lanes. As it was his first arrest – ever – he was released on his own recognizance, without prosecutors requesting any bail.

Officers reportedly responded to a single car crash mid-day on a Monday. They reportedly came across the driver, who at first denied that he had been drinking. He was reportedly slurring his words and couldn’t walk in a straight line.

He then later admitted he had been drinking vodka at his home earlier in the day. He was reportedly on his way to a pub, according to police.

There are no details immediately available regarding the accident.

However, given the high level of alcohol that this man reportedly blew, it’s a wonder he could even put his key in the ignition. The toxicity levels are in fact near fatal.

And yet, according to police, he was still walking and talking and forming semi-coherent sentences.

In fact, that may be a key to this man’s defense.

According to the Ohio State University, someone with a blood alcohol content of 0.11 to 0.15 is considered drunk. They would be impaired, have trouble with motor skills and may have memory lapses.

Someone with a blood alcohol level of 0.15 percent to 0.19 percent would be considered “very drunk.” They may have difficulty walking or talking and may also have symptoms such as nausea, dizziness and blurred vision.

Someone with a blood alcohol level of 0.20 would be disoriented or confused. He or she may not be able to walk or stand. Vomiting is common.

At a blood alcohol level of 0.30 percent, a person is considered to be in a “stupor,” meaning they are likely to pass out.

Someone with a blood alcohol level of 0.35 percent is reportedly the equivalent of someone being under general anesthesia, which means his or her breathing could stop.

So then we get to the 0.40 blood alcohol level. Researchers at Ohio State University indicate that at this level, the individual is in a state similar to a coma. There is a slow down of nerve activity, the heart slows and there is a possibility of death.

And yet, this man blew over that – a 0.41 – and was operating a vehicle, walking and talking.

What all this says is that there could be some fault with the breathalyzer machine being used in Framingham DUI cases.

And if the machines returned faulty readings in one case, there could be many more that have not yet come to light.
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