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Articles Posted in DUI defenses

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.

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.

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