Massachusetts Criminal Defense Lawyer Blog

Articles Posted in First Offense OUI

Drunk Driving charges in 79 cases could be dismissed as a result of allegations that California police officer falsified police reports to justify DUI arrests

September 27, 2010 | by Michael DelSignore

A Sacramento police officer, Brandon Mullock, is accused of falsifying information on 79 DUI police reports. In some of these cases, the State has already obtained a conviction. The fabrication of the officer was discovered when a prosecutor noticed that the police dashcam differed substantially from the written police report of the officer.

DUI charges in Massachusetts, and throughout the country, are based primarily on the opinion of the arresting officer. In many Massachusetts DUI arrests, the police officer testifies to subjective factors that the officer claims shows an individual is under the influence. These factors include that the officer claims that the motorist was unsteady getting out of the car, spoke with slurred speech or had difficulty retrieving his or her license. Additionally, when an officer administers a field sobriety test, like the nine step walk and turn, the difference between an officer claiming that the defendant passed or failed is based on small details. Many officers will testify that they are unaware that missing heel to toe is a clue on the test only if there is more than a two inch gap. It is easy for an officer to claim on the report that the defendant failed to touch heel to toe either through not knowing how the test is scored or through embellishing to justify an arrest.

At an OUI trial in Massachusetts, cross examination can demonstrate that an officer overstated, embellished or exaggerated in the police report. The fact that so much of the evidence is opinion based evidence, which can be distorted, fabricated and misinterpreted by the officer demonstrates the importance of hiring an experienced Massachusetts OUI lawyer.

In Massachusetts, a defendant can challenge the basis for the stop at a motion to suppress which would require the officer to testify in court and can challenge the officer’s opinion at trial. These opportunities to confront witnesses granted by the Sixth Amendment to the United States Constitution are the only way that a motorist can challenge the opinion of the arresting officer.

In California, the corrupt police officer was discovered as a result of a prosecutor comparing the dashcam to the written police report. In Massachusetts, police departments vary as to whether they have any dashcam or even booking video. As a Massachusetts criminal defense lawyer, I have argued that a lack of video taped evidence should be held against the Commonwealth at trial and support reasonable doubt. Yet in many cases, there will be no video evidence to contradict the officer; the only way to challenge the officer’s opinion will be through cross examination at trial by a skilled Massachusetts DUI trial attorney.
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Lindsay Lohan case illustrates risks of probation violations after a First Offense Massachusetts OUI plea resulting in a CWOF

September 26, 2010 | by Michael DelSignore

Anyone facing Massachusetts OUI charges or probation for a similar offense can learn something from the case of Lindsay Lohan.

What is often lost in the ongoing saga of Lohan and her trips through jail and alcohol and drug rehabilitation centers is a simple, startling fact: All of her legal problems — which have included four bench warrants and several stints in jails and rehabilitation centers — stem from a conviction for DUI.

Clients are often surprised to learn that probationary conditions can be difficult to comply with and result in jail time if there is a violation. A Massachusetts criminal defense lawyer can assist a client in understanding the requirements of probation and may be able to argue against terms that are likely to trigger probation violations.

Massachusetts probation surrender hearings, unlike in California, do not allow for bail; Even if you receive a CWOF, or continuance without a finding, on a First Offense Massachusetts OUI, a violation of the terms of the probation can result in you being held in jail without bail as a result of a probation violation. Once you receive notice of a violation hearing, a preliminary surrender hearing is held where the judge determines whether there is a basis for the violation and if so whether the judge will exercise his or her discretion and detain the probation violator. On a first violation it would be unusual for a judge to detain an individual; however, it is within the judge’s discretion and will depend on a number of factors, including the severity of the violation, whether the violation is a result of new criminal charges or so called technical violation, like failing to comply with treatment, report to probation or pay money, whether the individual has a record of not appearing for court and the nature and seriousness of the underlying offense in which probation was ordered.

Ordered to jail on Friday for a failed drug test, the Hollywood Actress was set to sit behind bars until Oct. 22, when a hearing is set to determine whether she faces additional jail time for a probation violation. The judge has promised she would spend 30 days in jail for each violation. She was sentenced to 90-days in jail earlier this summer but spent just 14 days because of overcrowding. This time a new judge presiding over her case seemed determined to get the full 30 days by sending her to jail until the hearing.

Lohan managed to get that ruling overturned but was forced to post $300,000 bail. And many court watchers think her freedom is likely to come at the high cost of angering the judge who must rule and issue sentence next month on the probation violation. At that time, the judge will be within his rights to return her to jail.

The appeal of the no-bail decision was granted after a judge said Lohan’s underlying misdemeanor offense entitles her to bail. As the conditions of her release, she was ordered to wear an alcohol monitoring bracelet and stay out of bars.
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Lindsay Lohan makes bail on warrant for alleged violation of DUI probation

May 22, 2010 | by Michael DelSignore

A California judge issued an arrest warrant for Lindsay Lohan as she failed to appear in court for mandatory court hearing according to news accounts. The court date was to determine whether Lohan was complying with the conditions of her DUI probation. According to the news reports, it is alleged that Lohan missed alcohol counseling meetings.

As a Massachusetts DUI lawyer, Lohan’s situation is commonly faced among many charged with DUI in Massachusetts. If a person accepts a guilty plea or is found guilty after trial on a first offense OUI, as a condition of probation, the individual will have to complete the 24D alcohol education program. Attendance at the 24D alcohol education classes is a requirement to successful completion of probation. Similarly, if a motorist is found guilty of a second offense OUI in Massachusetts, the motorist will have to attend a 14 day in-patient program and complete the aftercare component. Completion of these courses is a requirement to avoiding jail time on a probation violation hearing.

Lohan faces in California what appears to be similar to a probation violation or probation surrender hearing in Massachusetts. If a motorist accepts a plea of a Continuance Without a Finding, also known as a CWOF in the court, the motorist will have to complete the 24D alcohol education program, pay fines and fees and avoid committing any new offenses. If there are any violation of probation, either the individual fails to pay the money or complete the 24D program or commits new criminal offenses, the case is brought back to court for a probation violation hearing, which proceeds in a two step process in Massachusetts.

On the initial court date, the probation department will inform the judge whether the probation department is seeking a detention pending the final surrender hearing. If the probation department seeks a detention, the probation officer must convince the judge that there is probable cause to find the defendant in violation and that the judge should detain the defendant pending the final surrender hearing. In a typical Violation on a First Offense OUI, the probation department will not ask for a detention but set the matter down for a final surrender date. Typically, the surrender is resolved if the defendant attends the alcohol education program and gets in compliance with probation. In Massachusetts, there is no right to bail on a probation warrant or probation detention. If a judge holds a defendant prior to a probation violation hearing, there is no possibility of bail.

At a probation violation hearing, a judge can revoke the CWOF given at the initial plea, and revoke the probation and impose a sentence upon to the 2.5 year maximum penalty for the OUI offense.
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Boston drunk driving attorney available for those facing DUI charges over the New Year’s holiday

January 1, 2010 | by Michael DelSignore

The Law Offices of Boston defense attorney Michael DelSignore wishes everyone a safe and Happy New Year. Authorities will be blanketing the area with roadblocks and increased enforcement meant to combat drunk drivers and motorists should behave responsibly and know their rights.

We urge you to celebrate responsibly. But Boston Defense Lawyer Michael DelSignore believes those arrested for drunk driving in Boston over the New Year’s holiday deserve an experienced and available Massachusetts drunk driving attorney to fight for their rights.

The firm will be available for a free consultation to anyone facing drunk driving or other serious traffic or criminal charges in Taunton District Court, Quincy District Court,Dedham District Court and Westborough District Court through the New Year’s Holiday.

Don’t make a bad situation worse by failing to protect yourself in the unfortunate event that you or a loved one is arrested or involved in an accident.

Massachusetts authorities will be out in force with sobriety checkpoints and other enforcement as part of the National Highway Traffic Safety Administration’s “Over the Limit Under Arrest” campaign, which will work with local law enforcement to establish sobriety checkpoints, increased patrols and other measures aimed to increase Massachusetts drunk driving arrests through the New Year’s holiday.

“Many states continue to step up their efforts to get drunk drivers off our roads, but the numbers tell us we have to do more,” Secretary LaHood said. “Drinking and driving is dangerous and unacceptable, and I’m asking law enforcement to stay vigilant during this busy holiday season.”

The “Drunk Driving. Over the Limit. Under Arrest” campaign is scheduled to last through Sunday, Jan. 3.

The Providence Journal and other local media are reporting about increased enforcement throughout the upcoming New Year’s holiday weekend.

Extra police are patrolling roads throughout Massachusetts. “Our officers will be out cracking down on drunk drivers around the clock,” North Attleboro Police Chief Michael P. Gould Sr. recently told the Sun Chronicle. “We want people to enjoy themselves, but we want them to be smart, safe, and if they are driving, absolutely sober.”

In Massachusetts, a first offense for operating under the influence is punishable with a one-year license suspension, fine of up to $5,000 or by imprisonment for up to 2 1/2 years. Anyone charged with drunk driving in Taunton, Quincy, Dedham, Westborough or the surrounding area should contact a qualified drunk driving defense attorney to discuss their rights.

Anyone stopped at a sobriety checkpoint or roadblock in Massachusetts and charged with DUI/OUI should contact a defense lawyer right away. While such roadblocks are constitutionally permissible in Massachusetts, such cases are often defensible as typically police observe no erratic driving and are relying solely on the results of the field sobriety tests.

A Boston drunk driving defense lawyer may also be able to challenge the results of you Massachusetts field sobriety tests.

Those who refuses a breathalyzer in Massachusetts faces a 15-day time limit to requst a hearing with the Registry of Motor Vehicles. Anyone who refuses a breathalyzer and faces a Boston drunk driving charge over the New Year’s holiday should contact a qualified Boston drunk driving defense lawyer right away to help preserve your right to drive.
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Massachusetts OUI arrest based on 911 call and Chief Justice Roberts speaks out on DUI cases

October 21, 2009 | by Michael DelSignore

A Massachusetts DUI stop must be based on the officer having reasonable suspicion that a motorist is committing a traffic violation or some violation of the criminal laws. In a DUI case, if there is not a lawful basis for the stop, a DUI lawyer may be able to have the entire case dismissed as a result of the unconstitutional stop.

Chief Justice Roberts of the United States Supreme Court in a dissenting opinion from the denial of certiorari in a case from Virginia, suggested that he would support a lowering of the standard of reasonable suspicion and allow motor vehicle stops based on anonymous tips even if the police do not witness any traffic violation. The Chief Justice stated that the impact of requiring a tipster to be known to the police or the officer to witness a traffic violation is that a drunk driver gets one free swerve before they can be legally pulled over.

The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizure and an anonymous tip has no indication of reliability, that the tip is accurate, that is not made to harass the motorist, for revenge, or that the tipster is being truthful with the police. A truly anonymous tip cannot be lawfully used to stop a motorist for an alleged drunk driving just as an anonymous tipster cannot tell the police that an individual has a weapon on them and justify the police to search the individual. The United States Supreme Court in Florida v. J.L., 529 U.S. 266 (2000) made this holding clear. The Chief Justice is essential trying to create a DUI exception to the Fourth Amendment prohibition against unreasonable search and seizures and established case law.

If a caller does not wish to leave contact information or to identify themselves to a police dispatch, the reliability of the caller is clearly called into question. In fact, few tips are truly anonymous. Courts use the fact that cell phones can be traced to hold that the tip was not anonymous. Many courts will find that a tip is not anonymous if the police could have discovered the identity of the caller or if the caller put their anonymity at risk in any way. Accordingly, in Massachusetts the issue in a DUI tip case will be whether the tip is anonymous; if the tip is truly anonymous, a Massachusetts DUI lawyer should be successful in having the case dismissed based on a violation of the motorist’s Fourth Amendment and Article 14 rights under the Massachusetts Constitution.
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Massachusetts OUI roadblock upheld by Supreme Judicial Court

July 24, 2009 | by Michael DelSignore

A Massachusetts OUI roadblock conducted in Quincy was upheld as Constitutional by the Massachusetts Supreme Judicial Court in the case of Commonwealth v. Murphy. The DUI lawyer in Murphy argued that the roadblock was unconstitutional under Article 14 of the Massachusetts Declaration of Rights because it gave the officer unchecked discretion to order a driver from the follow of traffic and into the sobriety checkpoint where further inquiry into the drivers ability to operate a motor vehicle will be conducted.

In the case of Commonwealth v. McGeoghegan, 389 Mass. 137 (1983), the Massachusetts Supreme Judicial Court held that sobriety checkpoints are reasonable under the Fourth Amendment and Article 14, as long as the selection of motor vehicles to be stopped is not arbitrary, safety is assured, motorists’ inconvenience minimized, and assurance must be given that the procedure is being conducted pursuant to a plan devised by law enforcement supervisory personnel. The United States Supreme Court held that DUI roadblocks are permissible under the federal constitution in Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990).

In Murphy, the trial judge found that the State police protocol and guidelines along with the instructions from the Major did not provide neutral criteria by which to direct cars from the follow of traffic. Accordingly, the judge found that the Quincy roadblock was contrary to the Massachusetts DUI roadblock case law and therefore a violation of Article 14 of the State Constitution.

The Massachusetts Supreme Judicial Court, reversed the trial judge, holding that although there is some potential for abuse by officers, the requirement that an officer have reasonable suspicion to direct a driver from the flow of traffic is sufficient to provide object criteria to satisfy Article 14 of the State Constitution.

The court suggested that it would require the officers to greet each vehicle the same as set forth in the roadblock plan. In the Murphy case, the officer was instructed to make a brief and courteous statement to the operator of the motor vehicle, such as Good Evening, this is a State Police Sobriety checkpoint, we are checking all operators for sobriety. If the officer observes any articulable sign of possible intoxication, impairment or contraband, then further inquiry should be made at the designated screening area. The Court held that the guidelines used by the State police in the Quincy area where less intrusive than the guidelines upheld in prior cases that allowed inquiry into alcohol consumption if signs of impairments, glassy eyes, odor of alcohol and slurred speech were present.

The Murphy case supports DUI lawyers raising motions to suppress challenging the reasonable suspicion of ordering the driver from the flow of traffic and the propriety of questioning regarding alcohol consumption, depending on the language of the roadblock plan. The SJC should have followed the lead of the trial judge in Quincy and required supervisory officers to provide more detailed and objective criteria that must be followed before directing someone from the flow of traffic. Because a Massachusetts OUI charge is a crime of opinion that someone is impaired, the Constitutional protections of being free from unreasonable searches and seizures should require the State police to set forth specific criteria to guide an officers discretion. One officer may feel that a mere odor of alcohol is enough; another may feel odor should be combined with other signs of impairment. The trial justice was clearly correct in recognizing the potential for officers to make arbitrary decisions as to who to direct from the flow of traffic. Issues regarding roadblocks will continue to confront trial judges trying to balance current case law against constitutional requirements.
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Defense to the breathalyzer in Massachusetts and the partition ratio

July 11, 2009 | by Michael DelSignore

Massachusetts has two methods for a prosecutor to prove a DUI case in court. First, the prosecutor can proceed under the per se prong of the Massachusetts DUI statute, Chapter 90 Section 24 and submit evidence that the breathalyzer result was over the legal limit of .08. This is known as the per se law. A second method of proof is to present evidence that the defendant’s operation was impaired by the affects of alcohol to the extent that the defendant could not operate a motor vehicle safely. Under the impairment prong, the evidence consists of the officer’s observations of the motorist’s speech, appearance, balance and coordination as measured by the field sobriety tests and mental alertness as indicated by responses to the officers questions and ability to follow instructions.

The Massachusetts OUI law, Chapter 90 Section 24 provides that in any prosecution evidence of percentage of weight of alcohol in the defendant’s blood at the time of the alleged offense, as shown by chemical test or analysis of breath, shall be admissible and deemed relevant to the determination of the question of whether the defendant was operating under the influence of alcohol.

A major DUI decision was issued by the California Supreme Court in People v. McNeil on July 9, 2009. The California Supreme Court addressed whether a defendant could present evidence on the partition ratio in a case where the Government charged a defendant with both violating the per se prong and impairment prong of California’s DUI law.

The Court explained the science behind breathalyzer testing relying on a treatise from Attorneys Taylor and Taynac from California. The court explained that when a person blows into a breathalyzer machine, the breathalyzer is measuring deep lung air from the alveolar. From this measurement of breath alcohol, a blood alcohol percentage is obtained through a mathematical constant using a theory of chemistry known as “Henry’s Law”. The breathalyzer machines in Massachusetts and throughout the country use a conversion factor of 2100 to 1, which means that the amount of alcohol in 2100 milliliters of alveolar breath is equivalent to the amount of alcohol in one milliliter of blood.

One defense that DUI lawyers pursued in McNeil and that is also available in defending a Massachusetts OUI charge is whether that assumption regarding the conversion ratio of breath to blood alcohol percentage is accurate for the person being tested. The conversion ratio for individuals will vary depending on body temperature, medical condition and sex, as well as a number of other factors. The ratio used by the breathalyzer machine was considered a rough estimate.

DUI lawyers attacked the accuracy of the breathalyzer test that is was unfair to group everyone together on a machine that would make unfair assumptions regarding an individual’s partition ratio. Accordingly, the legislature amended the California DUI law to remove this defense by defining the DUI offense as failing the breathalyzer test despite the assumption of the machine. The law defined the DUI offense as being based on grams of alcohol per 210 liters of breath. Accordingly, the California courts precluded defendants from presenting evidence of the partition ratio on the grounds that the new law made the difference irrelevant.

The McNeil case hold that when the Government is pursuing a conviction both based on the per se portion of the law and the traditional impairment approach, relying on observations, field tests and opinion testimony, then the defense can introduce evidence challenging the assumptions behind the breathalyzer and evidence regarding the partition ratio. Significantly, the court indicated that it would allow evidence of the general impact of the partition ratio not related specifically to the defendant into evidence.

Partition ratio evidence has never been ruled inadmissible in Massachusetts and given the language of the Massachusetts OUI statute it would be difficult to foresee Massachusetts courts excluding the evidence from the jury. A partition ratio defense could be presented by retaining an expert to offer an opinion as to what a particular individuals breath to blood alcohol conversion ratio is or it can be used to attack generally the theoretical foundation behind breathalyzer testing and the fact that the machine is making generalized assumptions to obtain a specific reading. The theory behind a partition ratio defense is to convince the jury that the standard formula assumed by the breathalyzer machine overstates an individuals blood alcohol content. This will occur when an individual has a lower partition ratio than assumed by the breathalyzer machine.
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