Articles Posted in OUI Offenses

Governor Charlie Baker filed a bill this past Wednesday adopting a state panel’s recommendations to deal with police stops of drivers suspected of being impaired due to cannabis use. Even though I’m a very serious safety advocate, as a Massachusetts OUI/DWI attorney, I have one major objection to this bill, as presently written.

The Special Commission on Impaired Driving, which is part of the Massachusetts Cannabis Control Commission was created within the law that legalized recreational marijuana use. It made 19 recommendations that were almost passed unanimously, with the one dissenter on the commission being the American Civil Liberties Union (ACLU). I don’t normally agree with the ACLU on a variety of legal issues, but as a Massachusetts drugged driving lawyer I believe the ACLU’s objection here is sound. Essentially, that objection is based in scientific research that has fairly convincingly established three important points: 1) While marijuana does impair operating a motor vehicle, the level of impairment is closer to distracted driving – far less than the impairment posed by drunk driving; 2) Currently, no medical or scientific tests exist which can accurately measure a driver’s level of impairment while using marijuana, in the manner that a breathalyzer can measure with alcohol. That’s because there is no clinical correlation between the level of THC in a person’s bloodstream (cannabis’ main psychoactive compound) and a level of impairment. Most experts say that such tests are most likely three to five years away from commercial use. 3) Presently, any blood tests for cannabis can only reveal past marijuana use, not present impairment. THC remains in the bloodstream for days after use – thus, you could be blood-tested for pot use today, not have used it for several previous days, and yet it would appear “present” in your blood test. This could lead to innocent people who were not impaired at all by pot while driving, being convicted and punished.

This is extremely important because, under the bill’s proposals, if drivers who are stopped by police and suspected of being stoned, refuse police demands for a biological (blood) test, they would lose their driver’s licenses for at least six months – the same penalty for suspected drunk drivers that refuse to take a breathalyzer test. On this point, the Massachusetts ACLU chapter has commented that “Motorists shouldn’t be faced with losing their license for refusal to submit to a test that does not measure impairment,” That point, I agree with. However, as the ACLU is want to do, they also stated, “In addition, this [penalty of six month loss of drivers license if a driver refused a chemical test for pot] could exacerbate the problem of racial disparities in enforcement.” That point, I disagree with (one more example of the ACLU never seeing a public safety law that it didn’t oppose.)

In my immediately preceding post on this subject, I discussed the background of how it was discovered that a high number number of breathalyzer test results in Massachusetts OUI/DUI cases across the state, were tainted by failures by the Massachusetts Office of Alcohol Testing (OAT) to either make sure that their testing equipment was calibrated properly, as well as that office intentionally withholding exculpatory evidence in a variety of OUI prosecutions. All this litigation began back in 2015, and a decision was ordered in February 2017, which mandated that breath test results prior to September 2014 be presumptively excluded at OUI prosecutions in cases within the affected date range, since OAT had not established written protocols for the annual certification of the Drager Alcotest 9510 units, which are the most common breathalyzer machines used by police departments across Massachusetts. When the attorneys who brought the suit discovered that the court did not have the exculpatory documents from the OAT when the February 2017 ruling was made, the defendants’ attorneys filed a motion to re-open the case, and consider what sanctions against the Commonwealth were appropriate. Judge Brennan then asked the parties to meet and try to negotiate a resolution to the motion, and a settlement was negotiated, signed by all prosecutors offices, and accepted by the court in May of 2017. Continue reading

As I’ve reported on previously in this blog, the office within the Massachusetts Department of Public Safety & Security that is responsible for the maintenance and annual certification of Breathalyzer machines used by police departments in Massachusetts – the Office of Alcohol Testing (OAT) – has for over two years been embroiled in a scandal over its inability to properly conduct alcohol breath tests in OUI/DUI cases. In fact, certain attorneys who regularly defend Massachusetts OUI/DUI cases discovered that patterns were emerging over two years ago with these breath test results, after they studied a variety of the alcohol testing worksheets that were provided to the court by OAT, Based on those suspicious test results, Springfield Atty. Joe Bernard filed a motion for sanctions (penalties) against the Commonwealth, citing the Commonwealth’s intentional withholding of exculpatory (i.e., potentially exonerating) evidence, on behalf of selected Massachusetts OUI/DUI defendants. The suit against the Commonwealth that these attorneys brought, alleged that OAT had intentionally withheld virtually all of the annual Draeger Alcotest 9510 certifications – some 432 of them – that had failed to produce passing results.

Stunningly, it was discovered that OAT was doing this all over the state. It’s important to clarify a key point here: None of the 13 separate county District Attorneys’ offices across Massachusetts appeared to be aware of what was being done by OAT, nor is there any evidence that any prosecutors cooperated with OAT to produce these false test results. Procedurally, it’s important to understand how breathalyzer tests are used in a Massachusetts DUI/OUI case: Once a police officer administers a breathalyzer test to a driver, if that breath test result indicates that the operator registered a .08 or higher Blood Alcohol Content (BAC), and the operator is then arrested and prosecuted for drunk driving, the breath test result becomes the key evidence in plea negotiations or trial. The annual certification is employed to make sure that the machine results are correct. What was discovered in the litigation surrounding the Draeger Alcotest 9510, was that OAT, for 20% of those certifications, had intentionally and widely withheld problem certification results, to heighten the likelihood of convictions. A central focus of this litigation were these withheld alcohol testing worksheets, which are supposed to provide a foundation for each breathalyzer test result produced by OAT. The litigation surrounding this issue was consolidated before a single judge of the District Court Department, Judge Robert Brennan, for ultimate resolution.

Let me make an important point here, as a Massachusetts OUI/DUI defense attorney: While I fight tooth and nail for all my criminal defense clients – in all kinds of criminal defense cases – I also believe that law enforcement has a right and a responsibility to keep us all safe when driving on the roads in Massachusetts. Every state has that right and responsibility. It’s very possible that you are alive and well and reading this post, because a drunk driver was pulled off the road at some point in your past, who might have otherwise hit you or a loved one. So I do not oppose reasonable laws that are enforced responsibly and legally, as they are intended to. But when government agencies intentionally break the law and falsify documents in order to convict people that might otherwise be proven innocent of a criminal charge, that is entirely unacceptable, and those responsible must be made accountable, and the entire system re-vamped to assure that future such actions do not occur.

Here we are:  The end of another year.  Or, as John Lennon once wrote, “Another year over, a new one just begun” (at least, a few hours from now.)  I thought of what to say to my readers as a Boston criminal defense lawyer on this final day of the year?   There a lot of things I could talk about, each at some length:  Massachusetts domestic violence charges; Massachusetts drug charges; Massachusetts sex offense charges; Massachusetts larceny charges; Massachusetts show-cause hearings, on and on.   But there’ll be plenty of time to talk about those important topics, and of how everyday people can become charged with these crimes, a few days from now, in the new year.

Right now, I want to talk about how readers can start the new year positively and intelligently – today.  Whatever you do today or tonight at New Year’s Eve festivities – whether in public facilities, restaurants, nightclubs or private homes – do not drive after drinking alcohol.  One drink within 90 minutes can leave some people legally impaired – i.e., registering a blood alcohol level (BAC) of .08 or higher.  Of course, police checkpoints – visible and hidden – will be everywhere in Massachusetts tonight – and this exponentially increases drivers’ chances of being arrested for operating while under the influence.  These seen and unseen police patrols are necessary and appropriate to assure everyone’s safety.  But even if an intoxicated driver weren’t caught by police, no such driver should consider that a “win”:  It’s still quite bad.  It’s downright foolish conduct to drive any motor vehicle after having had more than one drink over a 75-90 minute period – a single beer, glass of wine, or cocktail.  All of these contain the same amount of alcohol, and all can impair a driver’s perception, reaction and response time.   And that impairment can mean the difference between life and death – potentially your own,or worse, an innocent person. Courting this kind of terrible risk is simply not worth a “buzz.”

As a Boston OUI defense lawyer, I fight tooth and nail for my clients – guarding their every legal right at every stage of the prosecution.  But that’s after an arrest has been made:  After you’ve been charged and your life has been turned upside- down.   No one really wants to have to go through that kind of stress and financial expense.  So start the year off smart:  If you’re going to drink tonight — or take part in any marijuana (that’s another legal topic that I’ll be discussing soon, with the expanded roll-out of Massachusetts recreational pot shops), get a designated driver first:  Someone who swears off on having a single drink or toke.  If you can’t find a designated driver, call Lyft or Uber.  Both ride-sharing services have special programs for New Year’s Eve, that provide discounted rides for New Year’s Eve and New Year’s Day.  Click here to learn more.

My post today requires an important caveat at the start. It concerns Massachusetts drunk driving charges – and I want to be very judicious and careful in writing this material. I don’t want my readers to take away the wrong message from it. So I will reiterate what I have said many times before, in writing and in comments to the media: Drunk driving, driving while intoxicated, driving while impaired, or any of several other terms of art commonly utilized to describe driving drunk or drugged, is NOT “okay.” It is NOT acceptable. And in my view as a Massachusetts OUI defense lawyer,aside from important legal issues, it is not morally acceptable to knowingly drive while drunk or chemically impaired. To do so while knowingly impaired, can be the moral equivalent of saying, “Yes, I could kill someone with this one-ton construction of steel and glass, but I don’t care – I’ve got someplace to go.”

Thus, I want to be very judicious here, and not send the wrong message about drinking and driving being in any way “okay.”  However, it is also a very important fact that many, many people are stopped and arrested by Massachusetts police departments every month and year, and charged with drunk driving when they were not legally drunk at the time they were arrested.  Every defendant accused of a crime deserves a vigorous and zealous defense, and that includes such drunk defendants, as well.

At this time last year, I wrote of how a dedicated group of Massachusetts criminal defense attorneys had exposed a cover-up involving defects surrounding the most common breathalyzer machine used by the majority of Massachusetts Police Departments. The cover-up wasn’t initiated or participated in by any of the state’s 11 District Attorneys’ offices across Massachusetts. Ultimately, it turned out that the Massachusetts Office of Alcohol Testing (OAT) was responsible for attempting to cover-up widespread failures of the Drager 9510 Breathalyzer, which has been the most commonly used breathalyzer in Massachusetts for several years. The story broke in 2015, when the Massachusetts Executive Office of Public Safety office first acknowledged that “some” breathalyzers were flawed.

As I’ve said many times, people often ask me how I can defend certain types of clients accused of crimes such as, for example, drunk driving or sex offenses.  And I give them the same answer, every time:  “Because my client might be innocent.”

Just yesterday, (August 23 2017,) the Massachusetts District Attorneys Association, the statewide association representing the 14 county-based District Attorneys Offices across Massachusetts, announced that until further notice, their prosecutors would no longer use alcohol breathalyzer tests (“breath tests”) in current or future Massachusetts OUI/DUI cases.  Why?  That’s where, as a Boston and Wrentham Massachusetts OUI defense attorney, my constant answer above, becomes “Exhibit ‘A’”. Continue reading

Amid all the Super Bowl hype, try to remember something:  Aside from New Year’s Eve, St. Patrick’s Day and Cinco de Mayo, Super Bowl Sunday is one the drunkest days of the year.  Worse still, the number of inebriated people who get behind the wheel after drinking at a Super Bowl party or similar event, is extremely high.  Doing so is just plain foolish, but a lot of people do it , thinking that they’re not “really drunk”, or that the odds of them being stopped by police is low.

As a Wrentham Massachusetts OUI attorney I can assure you, that is not so:  The number of police patrols on the road this day have been increased dramatically – both in Massachusetts and across the country.  There are DUI checkpoints set up at strategic locations, and police will be watching.

Here are a few interesting facts about DUI and Super Bowl Sunday: Continue reading

The Boston Globe recently asked itself an interesting question:  Is there an identifiable collection, or concentration, of bars or restaurants in Massachusetts that have a statistically verifiable reputation of being the last place that convicted drunk drivers were served alcohol prior to being arrested for drunk driving  Or, rephrased, “Can we assemble a list of bars that are more likely to “last serve” a person who is soon thereafter arrested for drunk driving? ” 

As I said, this is, both in terms of statistics and public safety, an interesting question.  The Globe published the results of their investigation earlier today, which lists 50 such bars, restaurants, or any business licensed to serve alcohol in Massachusetts, and the story can be found here.  The story creates the new acronym of “PLD,” for “place of last drink”, which the Globe claims represents an instance where the listed establishment allegedly served the last drink to a patron who was intoxicated,  arrested on Massachusetts OUI/DUI charges soon after leaving he bar, and afterward convicted of DUI or operating under the influence. The Globe claims the ratings are based on data it collected and studied from the period of Jan. 2012 through Sept. 2016. Continue reading

In my previous post on this subject, I discussed how the Massachusetts Legislature is debating on whether to change the current OUI/DUI law in Massachusetts – known As “Melanie’s Law” for the young girl who was killed by a repeat drunk driver.  The change now being vigorously argued over would require Ignition Interlock Devices (IID’s) to be mandatory for anyone convicted or pleading guilty to a first offense OUI. Currently, Massachusetts law requires IID’s to be installed for persons convicted of Operating Under the Influence for a second offense and higher.

As a Massachusetts DUI attorney, even though on a professional level I fight zealously in representing my clients as their legal counsel, on personal level I abhor the idea of driving while intoxicated.  Who doesn’t?  I don’t want myself or the people I love injured or killed by a drunk driver.  But I’m a criminal defense attorney, and I know the dangers of trying to solve a public policy problem by wiping out important legal rights that our Constitution guarantees us all. Continue reading

A battle over how to reduce drunk driving even further has been brewing for some time now at the Massachusetts State House.  Leading this effort is the Massachusetts chapter of Mothers Against Drunk Driving (MADD.)  MADD is a laudable organization, with an admirable goal:  The elimination of drunk and drugged driving.  I say this even though I am a Wrentham Massachusetts OUI defense lawyer, and even though I think drunk and drugged driving will never, unfortunately, be completely “eliminated.” Continue reading

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