As Massachusetts revelers prepare to ring in the New Year, law enforcement agencies are gearing up for the launch of an aggressive effort to arrest drunk drivers.

Massachusetts OUI lawyers are also prepared. We know that these blitzkrieg law enforcement attacks are often riddled with technical errors. Police tend to be so concerned with volume during these operations that they often compromise the quality of the arrest.

This is particularly true during the course of sobriety checkpoints, which must adhere to very strict legal protocol. While the U.S. Supreme Court has upheld the legality of checkpoints, so long as they adhere to these protocol, which includes stopping vehicles at random and having a supervising officer on scene at all times.

Meanwhile, there are 12 states where checkpoints have been barred. One of those, Texas, is the scene of ongoing debates regarding the merits and pitfalls of these operations. These discussions serve to shed light on how we currently operate.

In Texas, checkpoints have been outlawed for the last 20 years. Police in San Antonio are now urging the state Legislature to reconsider. Such proposals have been unsuccessfully proposed just about every year in the Lone Star state since 1994.

Still, others, such as the director of the Texas Civil Rights Project, suggests that the debate is mostly political posturing. The fact is, checkpoints aren’t necessary, they are ineffective, expensive and they expand police power. As the director put it, “Every time you do that, they have more discretion and they can use it in discriminatory ways.”

That is what often concerns Boston DUI lawyers. Discrimination can be easily alleged when officers at checkpoints fail to follow the proper numeric format of stopping every, say, fourth vehicle. This may seem fairly simple, but when you’re stopping hundreds of vehicles within an hour or so, there can be a certain level of confusion and details can be missed.

Another proposal Texas is considering is “No Refusal Weekends.” These are operations in which a judge is on site during checkpoints or traffic stops to sign off on warrants compelling suspected drunk drivers to submit to blood or breathalyzer tests, even when they have refused. Massachusetts has considered such operations as well, with our state being the second-highest state in the country where suspected drunk drivers refuse testing (41 percent, according to the National Highway Traffic Safety Administration). The problem with the No Refusal Weekend continues to be that if a judge is processing these warrant requests in assembly-line fashion, how much consideration is truly being given to each case? A strong argument could be made that it isn’t much of one.

Ultimately, what we want you to understand as you set out to celebrate this New Year’s Eve, is that no matter the circumstances surrounding your arrest, we are prepared with a defense.

There have been numerous successful challenges made with regard to the results of both breathalyzers and blood tests, as well as arrests made in traffic stops where probable cause was faulty or police reports were inaccurate.

We want you to have a safe and happy holiday celebration. If you are arrested, don’t let it ruin the new year. Call us to see how we can help.
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As a Massachusetts OUI lawyer, one of the first things I look into with any new case is whether there is a booking video. There are three types of video that may be available in a Massachusetts OUI arrest:

1. cruiser camera video;
2. a booking tape,
3. or police surveillance cameras.

Police cruiser camera video is not widely used in Massachusetts, though it is used in other states. Many arrested for OUI expect from watching television shows like Cops to see a video of the entire arrest; unfortunately, most departments do not have police cruiser cameras.

In Bristol County, only the Mansfield Police Department has cruiser camera video; in Worcester County, the cruiser camera video is used by the Northborough police department. The Northborough police department cruiser camera video is very clear, capturing sound.

I used cruiser camera video recently at trial to show that my client’s performance on the field sobriety test when viewed on the video did not show any difficulty with balance and coordination and contradicted the officer’s claim of slurred speech. The video contradicted the officer’s claims in the police report and was critical to obtaining a not guilty verdict at trial.

The next type of video is the station booking video. This type of video comes in two forms, with and without sound. There are many police departments that have booking videos so I will only list a few here: These departments include New Bedford, Easton, Fairhaven and Medfield to name a few. I have found that booking videos appear most common in Worcester County.

The final type of video is police security video. Typically, the police report makes no mention of this type of video, unlike booking video, where most department state in the report that there is a video, police security video is typically not mentioned in the police report and only obtained if requested.

Departments that have security video, although with no sound, include Wrentham, Foxboro, Attleboro and Seekonk to name a few in this category. It is important to know that Seekonk only preserves its video for 15 days.

I have not come across any video among the State police, although I have heard from other lawyers that at least two barracks have booking videos.

Since video clearly demonstrates what occurred during an OUI arrest, it raises the obvious question, why does the State police refuse to video the arrest and why is video not more frequently used by police departments. The answer is that many police departments believe that video decreases the conviction rate.

Massachusetts OUI attorneys can argue to the jury that lack of video tape evidence, when video is so prevalent, found on all cell phones, should be held against the Commonwealth and factor into whether the Government has satisfied the burden of proof beyond a reasonable doubt. Since the burden of proof is on the Commonwealth, a defense lawyer can also argue that a lack of evidence raises a reasonable doubt.
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The While House has declared December National Impaired Driving Prevention Month; there is some irony given the fact that the President’s uncle being arrested in Framingham this year and charged with first offense OUI in Massachusetts, as we previously reported on our blog.

As the Buffalo True Crime Examiner reports, there is a full-court press underway nationwide to try to cut down on drunken driving, despite statistics showing that numbers are significantly down from the past few decades.

Massachusetts OUI lawyers know such enforcement efforts increase the risk of marginal and unfair arrests. There will be an increased presence of law enforcement officers — both local and state — attempting to make as many OUI arrests in Massachusetts as possible in the coming weeks.

As we head into the holiday season, this is a busy time for police officers anyway. There will be nearly 92 million people traveling this holiday season, Providence Business News reports, based on AAA travel predictions. That equals about 30 percent of the U.S. population who will travel 50 miles or more from home this year, a 1.4 percent increase from last year’s estimation.

About 91 percent of those travelers will be moving by vehicle, so the number of people on the highways will be staggering.

The National Highway Traffic Safety Administration has also thrown in its two cents, saying that it is conduction a nationwide enforcement of OUI laws. The agency is spending $7 million of taxpayer dollars on a “Drive Sober or Get Pulled Over” advertisement campaign that is expected to run during the last two weeks of the year and into the New Year.

In 2010, overall rates of drunken driving declined, however. Statistics released this December show that nationwide, there were more than 500 fewer alcohol-related traffic deaths in 2010 compared to 2009, good for a 5 percent drop.

Despite this, authorities still try to dig up statistics to try to justify the emphasis on pulling people over and trying to charge them with OUI. Operating a vehicle under the influence in Massachusetts is a serious offense and while it is still the most commonly charged crime in the state, the penalties continue increasing.

A person who faces a first-time offense with no prior criminal history can be subjected to major sanctions, including jail time, a one year driver’s license suspension, fines and fees, possible alcohol education program and the possibility of probation in lieu of, or in addition to, jail time.

Those are major penalties for a one-time mistake. That’s why it is important to fight the charges and look at all possible avenues of defense. A skilled Massachusetts OUI lawyer will examine all aspects of the case, but pay particularly close attention to the breath testing equipment and procedures used by law enforcement and the field sobriety test results.

It is sometimes possible to show that either the equipment used by police was faulty or the officer’s observations during field sobriety testing — walking heel-to-toe, maintaining balance on one leg or following an object with one’s eyes — contradict with what actually happened.
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The Boston Globe published its second of three installments on drunk driving bench trials in Massachusetts. The Globe claimed to have researched the number of not guilty verdicts from selected judges that were targeted by prosecutors and published statistics of their rate of not guilty verdicts. Click here to read Part II of the Globe’s special report. This special report focused primarily on Plymouth County OUI cases but also targeted many of the same judges criticized in the first part of its report. To read my Blog regarding Part I of the special report, you can click here.

The Globe’s article is clearly motivated to further the political agenda of prosecutors. An example of this is that the Globe was critical of one Taunton District Court judge who finds that the lack of video tape evidence can be used against the Commonwealth when determining whether the standard of proof beyond a reasonable doubt is satisfied. Instead, the Globe purports to adopt the reasoning of the State police that video is not used because it does not show the subtle signs of someone under the influence of alcohol.

While the Globe compared Massachusetts to other States in its rate of bench trial not guilty verdicts, the Globe did not consider that other police departments around the country routinely record not only the booking but have police cruiser camera. The suggestion that video should not be used because it may not be incriminating as the State police would like is clearly an attempt to keep relevant evidence from a judge or jury and keep control of the evidence in the hands of police officers. With video in OUI cases, there would be objective evidence, precluding officers from overstating and exaggerating conclusions that a motorist is under the influence of alcohol. Instead, without video, the only method to challenge an officer’s opinion is through cross examination.

Massachusetts judges were unfairly attacked as being lenient on drunk driving charges in a recent Boston Globe report released today. The special report was the first of a three part series written by Marcella Bombardieri, Jonathan Saltzman and Thomas Farragher.

The Boston Globe claims that judges are lenient on Massachusetts OUI cases during bench trials. The article states that the Boston Globe looked through court records, listened to tapes of courtroom proceedings in order to make its assessment. While the Globe claims to have uncovered a widespread problem, as a Massachusetts OUI lawyer, I believe that the report presents an unfair attack on Massachusetts judges.

To obtain case names the Globe would have had to rely on prosecutors pointing out cases that they believe they should have never lost before a particular judge. Overlooked in this fact, is that often the police report does not tell the entire story of what happened during an arrest. Police officers do not always remember exactly what happened when writing the report and sometimes exaggerate, overstate and embellish in the police report. Further, judges are not reading the police report but are hearing the officer testify live and under oath.