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Articles Posted in First Offense OUI

A Jury in a Massachusetts OUI charge normally is before a jury of Six.  Recently I had a trial in Quincy District Court where we proceeded with a jury of five people.  As is typical in the District Court, the court did not have enough jurors.  Rather than picking another date, I told the judge my client would be willing to waive his right to a six person jury and have the case heard by Five instead.  With the consent of the district attorney and the defendant, the court can allow a trial to proceed with five jurors.  If this situation arises, because it is unusual, you may have to inform the judge that the law allows for a five person jury under these circumstances.  As a defense attorney, the calculation is whether you like the five potentially sitting in the box versus coming back on another date.  I felt as though the five individuals selected could be fair and it did not make a difference to me that there was one less juror.  In fact, had the last juror not been excluded for cause by the judge; I would have asked the judge before striking the juror if he would allow me to strike that juror and go with five instead.

The Sixth Amendment to the United States Constitution and Article 12 of the Declaration of Rights normally require a six person jury, but the law allow the number to be reduced to five upon agreement of all parties.  The law does not permit a defendant to have a jury less than five even with the agreement of the parties.  Some judges will not allow a trial to proceed with five.

If you have questions about the court process when charged with OUI, feel free to contact Attorney DelSignore.  We have encountered almost every issue that comes up in court and with the RMV.  Feel free to reach out on Facebook if you have questions as well where we posted updates to the law.

 

 

You win your OUI case; you have the judge allow a motion to reinstate their license.  The client is relieved; they are back on the road.  But not so fast, the hearing officer says that they will consider the reinstatement and get back to the person in ten days.

Why won’t the RMV reinstate the license?  

The RMV will only honor a motion to reinstate if all of the charges under 90 Section 24 are dismissed, meaning if you had the client accept a plea of a CWOF on the negligent operation, the RMV will deny the request for reinstatement, despite the judge’s order.  You can appeal this decision to the Board of Appeals.  We have an appeal pending on this issue.

The Massachusetts Legislature is considering requiring first time offenders to have the ignition interlock imposed if convicted of a first time OUI offense.  All states, except Massachusetts, have laws that may require first-time drunk driving offenders to install “ignition interlock devices” in their vehicles. This device is like a mini-breathalyzer that the driver must blow into before driving the vehicle. If there are measurable amounts of alcohol in the driver’s breath, the vehicle will not start. Not all states mandate the devices in all circumstances, for example the devices are mandatory in some states if a first-time offender registers an extremely high blood alcohol content.  It is already mandatory for Massachusetts repeat drunk driving offenders with hardship licenses to have the device installed in any vehicle the offender drives, but Massachusetts is the only state where this remedy cannot be ordered for first-time offenders, regardless of the blood alcohol level associated with the offense.

There are currently several different pieces of proposed legislation that, if passed, would mandate ignition interlock devices for certain first-time drunk driving offenders. Gov. Baker’s proposed bill (S.7) would require ignition interlock devices as a condition of receiving a hardship license, for the duration of the hardship license. Anyone, including first-time offenders, that does not receive a hardship license would still be required to use an interlock ignition device for the first six months after their license is reinstated. It also establishes clear penalties for anyone who has an interlock ignition device that tries to drive intoxicated or tampers with the device. Similar bills sponsored by Sen. Tarr (S. 2137) and Rep. Whelan (H. 1580) would mandate interlock ignition devices for all first-time offenders once their licenses are reinstated. The Whelan bill would reduce the term of license suspension for first-time offenders if the offender installs the ignition interlock device. The bills have all been referred to the Joint Committee for Transportation.

Reforms to the ignition interlock laws were previously proposed in the Massachusetts legislature at least three times, but failed to pass. Now that Massachusetts is the only state that does not allow for any first-time offender to be ordered to use ignition interlock devices, there is increased pressure on lawmakers to pass this legislation.  The National Transportation and Safety Board (NTSB), Mothers Against Drunk Driving (MADD), and AAA all support these bills, citing a Centers for Disease Control report that the use of ignition interlock devices reduces repeat offenses by 67 percent, therefore reducing the number of drunk driving deaths. MADD claims that ignition interlock devices have prevented three million drunk drivers from driving since 2006. Proponents also believe that these reforms offer a fair balance between the offenders need to drive and the public safety risks from drunk drivers.

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

The Massachusetts SJC decided an important case for Massachusetts OUI Lawyers today.  The SJC held in Commonwealth v. Morgan that the Valor Act permits a judge to dismiss a first or second offense OUI over the Commonwealth’s objection.  The SJC held that the wording of the statute did not exclude dismissal as a remedy and that the legislature is presumed to know how a statute will impact existing laws.

The Valor Act was passed in 2012 in recognition of the service of military personnel in Afghanistan and Iraq. The Act permits someone who has been honorable discharged and has been in active duty to have a criminal charge of a misdemeanor, if the individual has no other record, dismissed under a diversionary program.

Once probation determines that an individual qualifies, the Court continues the arraignment for 14 days to allow the individual to receive a recommendation from the Veteran’s Administration that they meet the eligibility requirements for the pretrial diversion program.  The case is then stayed for 90 days until the program is completed; after the completion of the program, the judge is authorized to dismiss the charge under the recent decision of the SJC today in Commonwealth v. Morgan.

As a Massachusetts OUI lawyer who has represented numerous clients dealing with an OUI charge, I understand it can be extremely difficult. In this blog I want to offer some guidance on how to get through the charge. For many people it is their first time ever being arrested or facing any type of criminal charge. So the stress and anxiety of being charged with a crime is high. Here are a few things that I believe will help you to deal with the situation.

First offense OUI is easy to be charged with. Essentially, it’s a crime of opinion. The officer’s opinion could simply be wrong. However, once you are charged, you have to go through the process and be found not guilty in court to avoid a conviction.  There are very few counties in Massachusetts that will negotiate an OUI, meaning reduce it to negligent operation.  As a generally rule, in 99% of the cases, you will have to go to trial to avoid an OUI conviction.

There is a good chance of winning such cases. Keep in mind, regardless of how the case turns out, whether it is guilty or not guilty, it is a misdemeanor offense, and an offense that many people have gotten through. You are highly unlikely to go to jail for a first offense OUI. I typically tell my clients, whether it be continuing to go to school or work, try to stay on the same course as before you had the charge.

There are often times when police officers have to rely on anonymous callers who dial 911 to tip police off on a crime they had observed. Whenever a defendant is arrested as a result of such a tip, the trial court must determine the caller’s reliability before allowing the case to proceed to trial. In the case of Com. v. Depiero, the Appeals Court determined that it was lawful for police to arrest a driver with a history of drunk driving after receiving an anonymous 911 call reporting erratic driving.

The 911 Call

Police dispatch received a call stating that a “drunk driver” operating on Memorial Drive was “swerving all over the road.” The caller did not identify him/herself, but did provide the dispatcher with a license plate number, make, and model of the car. A state trooper was then dispatched to the driver’s address, where he observed the driver pull into his driveway. After the driver parked, the officer turned on his emergency lights and conducted a traffic stop. The driver admitted to having drunk alcohol, and subsequently failed the field sobriety tests.

Drivers who were stopped and charged with an OUI out of Westborough can expect to appear before the Westborough District Court for pretrial matters. As the case progresses towards trial, the case will be transferred to the Worcester Trial Court, where it will be scheduled for a jury session.

When you face an OUI charge out of Westborough, your case will first be heard at the courthouse at 186 Oak Street – right off of Route 9. There you will be arraigned by the court, and will be asked whether you will be representing yourself or if you have retained a lawyer. If you cannot afford a lawyer, you should speak with the probation office to determine whether you are eligible for a court-appointed lawyer.

Following the arraignment, you will be given later court dates on which you will appear with your lawyer. The court will also schedule later dates to hear motions by either party. During these later court dates, you will have an opportunity to discuss additional evidence that the district attorney has not provided at the first court date as well as discuss a resolution of the case. For someone charged with a First OUI with no record, the standard plea offer is a CWOF or continuance without a finding on the OUI charge. I have discussed this type of resolution on my website.

New Year’s Eve is a time for increased DUI patrol. Police are always looking to crack down on drunk driving, but New Year’s Eve sees a greater police presence. It is important to be careful and consider public transportation or taking a taxi when driving in Massachusetts tonight.

Getting arrested for DUI even if you are found not guilty is an enormous stress for all of my clients. It impacts their work, health and family situation. As a Massachusetts OUI Lawyer, I frequently have to discuss difficult choices with people in proceeding through the legal system after an OUI arrest.

If it is not possible to avoid driving or consuming alcohol, there is always a chance that you will be subject to an arrest for OUI because the crime is based on opinion. Before driving after consuming alcohol, make sure you understand how much you drank and its impact on your ability to drive. Also, make sure you correctly calculate how much you consumed. One of the more frequent mistakes that can lead to an arrest is assuming that one glass of wine is really just one glass of wine. At nicer restaurants the size of the glass makes one glass closer to two glasses.

Many arrested for OUI assume that a police officer must give field sobriety tests prior to an arrest. Under Massachusetts OUI Law, there is no requirement as to which field sobriety tests and officer must give or whether an officer give any tests at all. Most police officers will give the standard field sobriety tests, which consist of the HGN test, one leg stand and walk and turn. Other common tests include an alphabet test, number counting backwards and nose touching test called the finger to nose test.

In this Blog, I would like to discuss the common practice of a few State Troopers in the area of Wareham, Falmouth and New Bedford who commonly omit field tests or only give one admissible field sobriety test. In Massachusetts, the HGN tests is generally inadmissible as evidence in Massachusetts Courts under the Sands case. Every police officer is trained to administer field sobriety tests according to the methods of the National Highway Traffic Safety Administration.

Accordingly, in a stop for a routine traffic violation, an officer should at least give two field sobriety tests prior to forming an opinion to be fair to the motorist. However, I have increasingly seen officers administer the HGN test, a one leg stand and quickly request the motorist submit to the portable breath test and make an arrest.

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