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Articles Posted in DUI news

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? 

Recent studies have started to surface in regards to the number of OUI’s now that Uber has become a popular ride-sharing service. Uber operates in many cities across the country and has become increasingly more popular over the last couple of years. Young people and adults alike look to Uber to provide transportation after a night out; Uber is generally considered a safer option and is accessible to those who live outside the city.

What does this mean for OUI rates across the country? As Uber is still relatively new in the transportation world, there have been mixed finding’s depending on what study you look at. A study on drunk driving in the city of New York supported the idea that, boroughs that had wide-spread usage of Uber, had a 25%-35% decrease in the number of accidents where alcohol was a leading factor; these numbers can be compared to areas which do not offer Uber as a ride service to it’s residents.

The study, summarized by the New York Times here, illustrates that this results in about 40 fewer alcohol-related accidents per month. California, another state that conducted a similar study back in 2015, also found that there was a decrease in Drunk driving fatal crashes; more recently, West California conducted a study which produced shockingly similar results. However, some would argue that while New York and other popular cities have seen a decrease in OUI’s and alcohol related collisions, Uber is still a new company and these findings can not be applied country-wide.

The Kansas Supreme Court held in State v. David Lee Ryceheld that DUI tests are a search, and therefore a police officer is required to have a warrant if the driver does not consent to a test. Kansans can no longer be criminally prosecuted for refusal to take a breathalyzer or blood test without a warrant. The ruling also held that implied consent is not irrevocable and that withdrawal of consent cannot be criminally punished. Under Kansas law, anyone who operates a motor vehicle is considered to have given implied consent to DUI testing. The statute is facially unconstitutional, the court said, because it punishes the defendant for exercising his or her constitutional right to refuse the test.

The 4th Amendment of the Constitution of the United States starts with “the right of the people to be secure in their persons…” and cannot be searched without a warrant. Breathalyzers and blood tests are a search that invades a person’s privacy in the way that they are intrusive to what is actually going on within a person. Drivers who refuse a DUI test may still be required to submit to one of a warrant is obtained, but their Constitutional right to be secure in their persons will now be upheld.

However, even though drivers who refuse to take a DUI test may not be criminally charged, there are still civil punishments in place for refusal. Drivers are still in danger of fines or losing their licenses. While a few extra steps may be involved, following constitutional requirements still leaves the state with significant weapons to deal with those who refuse DUI tests.“While not all drivers without licenses will refrain from driving, the state may theoretically seek a warrant for an alcohol test and enact criminal penalties, including jail time, for refusing to submit to a valid Fourth Amendment search,” the court writes.

As a Massachusetts OUI attorney, there will be rare cases where a driver had no intention of driving, but because of some sort of disorder or episode, got behind the wheel without any intention of driving. A question in these cases arises when the person driving is drunk and whether they can be held criminally liable for drunk driving with the lack of intent to drive. The Oregon Supreme Court recently addressed this question State v. Newman and determined a driver must commit some voluntary act in order to be held criminally liable.

In State v. Newman, the defendant was pulled over in a clearly intoxicated state, blew a .15 on the breathalyzer and performed very poorly on the field sobriety tests. In what would seem to be an open and shut case, the defendant offered evidence that he never knew he was driving drunk because of a sleep walking disorder. The defendant claimed he walked home after having drinks with friends and went to sleep. He claims it was an episode of “sleep driving” that caused him to drive drunk. The question then becomes, can evidence that the defendant did not voluntarily drive be a defense to a drunk driving charge.

What the prosecution centered their argument on and what the trial court based the original decision on was that drunk driving is a strict liability crime. Being a strict liability crime would make whether the driving was voluntary or not irrelevant and the sleep driving defense worthless. If drunk driving was a strict liability crime, it would not matter what the circumstances led to the driver driving in his condition; if he drove over the limit, it would be a crime every time.

As a Massachusetts OUI defense lawyer, often an argument made at trial is that a motorist drank responsibly and only had one or two drinks with dinner. The proposed reduction of the presumptive legal limit would have potentially impose criminal penalties on those who drink responsibly. Fortunately, the proposal is not likely to be adopted.

The National Transportation Safety Board, or NTSB has recently recommended that states modify the legal limit of alcohol allowed while driving. This modification would mean that a driver would be considered to be driving under the influence of alcohol at a .05 blood alcohol content opposed to the current legal limit of .08. As a Massachusetts OUI attorney, it seems like this change would create a disadvantage to drivers and punish drivers who were once considered responsible.

The NTSB argues that this change is necessary to ensure the safety of the citizens. NTSB argues that alcohol related deaths are on the rise and this is the best way to stop it. Deborah Hersman, the chair of the NTSB states that a .05 blood alcohol content has been implemented as the legal limit in many nations which have safer roads and it is time for this change in America. One example of where NTSB believes the .08 legal limit seems unjust is the death of Sergeant Douglas Weddelton, a Massachusetts state trooper. While pulling someone over, Sergeant Weddelton was slammed into by a pickup truck and killed. The driver who hit him however only had a blood alcohol content of .07 and was not legally drunk.

Are women targeted when officers make DUI arrests? The answers may be yes, at least in Florida. A Florida State Trooper, Melvin Arthur, is under investigating for targeting women in making DUI arrests, according to the Herald Tribune.

Trooper Arthur is believed to have arrested an unusually high number of women. Statistics of his arrests compared to other officers support this conclusion. His recent arrest of Sally Adams is noteworthy because it is on video. It is hard to understand why Adams was arrested from looking at the video or why she was even asked to perform field sobriety tests and not simply given a citation for the alleged equipment violation.

Adams blew significantly below the legal limit, but even if she had refused the breath test, this would have made a strong case for the defense at trial. The article was reported in the Herald Tribute and can be found by clicking the attached link.

Julie Campanini recently published an excellent article in Lawyers USA offering a number of suggestions for improving trial skills. From her experiences during trials combined with years of speaking with jurors, she noticed that many lawyers tend to unknowingly act in ways which place them in a negative light for the jury. Below is a list describing some of the issues she noticed. As a Massachusetts OUI lawyer, I found these suggestions extremely helpful and encourage trials lawyers to read the recent article.

• Act genuinely- It is important for defense lawyers to be themselves in the courtroom and allow elements of their personality to show. Jurors are intimidated by overly formal lawyers, so it is good to relax and show the jury that they can relate to you on a personal level rather than just a “business” level. Jurors, like everyone else, are more likely to believe you if they can empathize and trust what you are saying.

• Act respectively- It is common for opposing counsel to subconsciously intimidate one another with statements and mannerisms which may come across as rude or disrespectful. Campanini mentions how the most successful lawyers are those who treat everyone in the courtroom with respect, so that their statements are taken more seriously and with higher levels of consideration. Over-zealous or short tempered lawyers are least likely to create a positive impression on the jury, as they simply appear arrogant or insecure.

The Massachusetts Supreme Judicial Court released today the Special Report it had a major Boston law firm prepare on OUI convictions rates following a three part series published by the Boston Globe. The special report makes numerous recommendations geared toward increasing the conviction rate for OUI offenses.

As a Massachusetts OUI lawyer, the most remarkable part of the report is that the highest Court in Massachusetts is seeking recommendations geared toward increasing a result in a particular type of case. The report undermines the idea that the Court should be neutral and about protecting Constitutional rights. While a report like this would be appropriate for a district attorney or journalist, it is disturbing that the Court would sanction a report to investigate the outcomes in a particular charge.

The Supreme Court hired a major Boston law firm to conduct this research addressing the issues raised by the Boston Globe. Apparently, the attorneys at the firm reviewed OUI cases looked at police reports, and in the report state that they agreed with some not guilty verdicts, thought other cases could have gone either way and disagreed with other verdicts. There is a clear difference between reading a police report and even listening to testimony on a CD as compared to seeing it live at trial. Communication experts teach that over 70% of communication is nonverbal so the way it is communicated in court and its value and impact on a judge listening to the testimony cannot be measured by reading the report or listening to a transcript.

Hall of Fame catcher Carlton Fisk was arrested and charged with DUI in Illinois this week.

ESPN Chicago reported police found Fisk passed out behind the wheel of his vehicle in the middle of a cornfield. New Lenox Deputy Chief Bob Pawlisk said Fisk was charged with a lane violation, driving under the influence and illegal transportation of alcohol. 300130_catchers_gear.jpg

Police say an open vodka bottle was found in his vehicle. As a Massachusetts DUI defense lawyer more information is needed to determine the best course of action. Did Fisk submit to a breathalyzer or was he given a blood test? Did he perform field sobriety tests? Is there a medical condition involved that could help explain how he ended up in the middle of the field? The fact that he was found on private property could also complicate things for prosecutors.

“They contacted local paramedics in New Lenox, had him examined, and the officers had reason to believe he was under the influence,” Pawlisk said. Fisk was transported to the local hospital.

The 64-year-old Fisk posted bond and was released. He is due back in court on Nov. 29.

Fisk played for the Red Sox upon entering the major league in 1969 and was a member of the 1975 World Series team. His last game was in 1980. Ironically, his arrest came just one day after the 37th anniversary of his game-clinching home run in Game 6 against the Cincinnati Reds. The Reds went on to win Game 7. Fisk signed with the Chicago White Sox in 1981 and retired from baseball in 1993.

Thus, Pudge was a Sox of one sort or another for his entire career. He was the first player to be unanimously voted American League Rookie of the Year when he took the award in 1972. At the time of his retirement, he held the record for most home runs all-time by a catcher (351). Until July 2009, he held the record for most consecutive games as a catcher (2,226).

He is still the American League record holder for most years behind the plate (24). Also known as a fierce competitor and a superb handler of pitchers, Fisk was an 11 time All-Star.

He was inducted into the Hall of Fame in 2000.

In Illinois, a first-offense DUI is punishable by a one-year suspension of your driver’s license. Massachusetts DUI Law (MGL c.90, s.24) also outlines possible penalties that include license suspension, as well as fines and jail time. A typical disposition for a first-time offender is a 45-day license suspension, completion of an alcohol-education class, fines and court costs.

Fisk now lives in New Lenox, Illinois. However, many times an out-of-state charge can pose additional hassle for the defendant. And Boston is a frequent tourist destination. Fighting an out-of-state DUI charge is just as important. With increasing frequency, such cases are being used to enhance future charges in a driver’s home state should a subsequent arrest occur. An experienced defense attorney can work to reach a favorable resolution in your case without you ever returning to appear in court. Even in the worst case scenario, these cases can be properly defended with a single court appearance arranged to meet a defendant’s schedule.
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A series of serious and fatal crashes on Route 24 and I-195 have prompted state troopers to boost their patrol efforts on both highways, hoping to nab speeders, drunk drivers and careless motorists. emptybeercan.jpg

Massachusetts DUI lawyers know that more patrols are likely to equal more arrests. It’s important to understand the background of why law enforcement is targeting this area, as well as what you should do if you’re stopped.

A recent two-part series by The Enterprise newspaper detailed what has been a treacherous year, particularly on Route 24. Drivers spoke of how they drive defensively because they felt it often a matter of life or death on that stretch of highway.

In fact, the newspaper staff, after combing through four years worth of crash data, determined that it’s one of the most dangerous roads in the state. In the last year, there have been 630 crashes on Route 24, resulting in 11 deaths and many more injuries. That averages out to about two crashes a day.

Law enforcement say the reasons behind these crashes vary, but mostly put blame on certain dangerous driving habits, including speeding, impaired driving and wrong-way driving.

Certainly, reckless drivers are out there. However, Massachusetts DUI attorneys know that a lot of it also has to do with poor road design. Even the newspaper reported that when the road first opened back in 1952 as the Fall River Expressway, there were approximately 30 exits over a span of just 43 miles. Most of those ramps are abrupt, allowing motorists just a few car lengths to either speed up and merge or slow down and avoid a collision. Sure, some people go too fast, but poor road design can be a factor in a crash – and in some cases, a possible defense. Drivers could be doing everything right, but accidents will still happen.

Some motorists interviewed by the paper indicated that scofflaws were to blame, as was the lack of police enforcement. So now, law enforcement is answering that claim by tripling their patrols on both Rt. 24 and I-195, particularly on weekend nights through September. When increased enforcement is announced, it also means there is an increased probability of being stopped. When law enforcement is predisposed the make traffic stops and take enforcement action, motorists are also at increased risk of questionable or unfair arrest.

Of course, the best way to avoid a DUI is not to drink before you get behind the wheel. The legal limit in Massachusetts for blood alcohol content is 0.08 percent, but the problem is, many people have a hard time telling once they’ve reached that limit.

Because the chances of your getting pulled over and arrested on Rt. 24 and I-195 are increased, here are some things to keep in mind if you get stopped:

1. Reduce your chances of being pulled over by keeping your vehicle in good working condition. This means making sure your rear and headlights are working, you don’t have illegal window tint and your vehicle is generally well-maintained. Also, make sure that your license plate is properly renewed and your license, registration and insurance is current.

2. Remain calm and be polite. Almost everyone is nervous when getting pulled over, but try to maintain your composure. Remember too that being rude will probably get you nowhere.

3. Don’t be combative, but know that you have the right to decline to take a field sobriety test, take a breath test and to tell the officer whether you’ve been drinking. Understand that under the Massachusetts implied consent law, if you refuse a breath test, you will likely be arrested and lose your license for at least 180 days. This statute is found under Massachusetts General Laws 90-24(f). On the flip side, there will be less evidence to prosecute you for a DUI or OUI.

4. If you are arrested, do not make any statement to police or investigators without an experienced DUI attorney present. Contact an attorney as soon as possible.
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