Articles Posted in OUI Offenses

The recent revelation that many of the breathalyzer machines used by many Massachusetts police departments, has resurrected a debate between law enforcement and prosecutors on the one side, and criminal defense attorneys on the other, over whether and how accurate these machines really are.

The controversy began in mid-March, when a fairly high number of breathalyzer results were found to be unreliable due to failures that were not fully explained at that time. The issue reached a fever pitch last week, when District Attorneys in eight Massachusetts counties – Suffolk, Middlesex, Essex, Cape & Islands, Worcester, Norfolk, Plymouth, and Northwestern counties – disclosed that their prosecutors were temporarily suspending the introduction of breathalyzer results into evidence in drunken-driving cases that were pending in their offices. Last week, The Boston Globe ran a lead editorial, calling for the temporary ban to be adopted statewide by all Massachusetts District Attorney’s Offices.

The Globe is wise to make such a call. The premise that breathalyzer machines can detect alcohol in a person’s breath, has never really been disputed. The problem has always been with the accuracy of the machines: If the machines are not regularly serviced, maintained, and calibrated accurately by specially trained police department users, the blood alcohol readings these machines produce can be highly doubtful. As a Dedham, Massachusetts OUI lawyer, I can’t tell you how many Massachusetts OUI charges I’ve had dismissed due to faulty breathalyzer readings. An example? I ‘ve had more than one OUI client, who was arrested on Massachusetts drunk driving charges, who had ingested nothing more than breath mints or mouthwash – which breathalyzer machines can mistakenly detect as alcohol. More commonly, the machines are not calibrated accurately, and thus the results they produce are flawed.

OK, now that St. Patrick’s Day is over, I’m sure we all know a few people who had a “few too many” celebrating the Irish holiday. As long as those people weren’t operating a motor vehicle and could only hurt themselves with a bad hangover, that’s one thing. But to those who imbibed too much and then got behind the wheel, they need to get their sanity back on.

If you took a poll and asked people what day of the year involved the highest number of drunken driving accidents, I’ll bet most people would say New Year’s Eve. Close, but not exactly. It seems that distinction goes to the venerable St. Patrick’s Day, at least according the National Highway Traffic Safety Administration (NHTSA.) According their statistics, St. Paddy’s Day is one of the deadliest highway deaths days of the year, with a reported 276 drunk-driving fatalities occurring March 17 between 2009-2013. NHTSA claims that three-quarters of those deaths involved operators who were driving at or over twice the legal limit (.08, in Massachusetts.) Remember: That fatality figure of 276 represents deaths only, not major injuries such as brain injuries, burn injuries, paralysis and amputations. Ad those facts in, and the picture is pretty gruesome.

St. Patrick’s Day has become so known for drunk driving accidents that car-ride services have stepped in to address the problem: Uber offered $5 for every ride taken between March 17 and March 22 to some chapters of Mothers Against Drunk Driving (MADD,) and the rise service Lyft offered free ride credits to any customer who was riding with a driver named Patrick, Pat, Patty or Patricia on St. Patrick’s Day. A great combination of civic responsibility and smart marketing.

In case you haven’t heard, the National Transportation Safety Board (NTSB,) recently issued a recommendation that all 50 states, including Massachusetts, adopt a uniform, lowered blood alcohol content (BAC) standard to determine when someone is legally impaired (drunk/intoxicated) while driving.

Currently, the Massachusetts BAC standard that is used to determine whether or not a driver is legally drunk, is .08. This is also the standard used in most other states. This is called a “per se” standard, or per se law, because it means that anyone registering this amount of alcohol in their blood is legally presumed to be intoxicated. In other words, police and District Attorneys’ offices don’t have to legally argue, or prove, that key issue. If you take either a breathalyzer test or blood test and register a BAC of .08 or higher, Massachusetts law considers you drunk. Period.

The NTSB wants states to lower the legal intoxication limit from .08 to .05. Drunk driving laws in the U.S. are a matter of state law, not federal, so the NTSB has no power to force any state to enact its recommendations. Reducing the current.08 standard to .05 is almost cutting the current standard in half, so it’s aggressive, but its advocates say it is needed.

This post is written to remind everyone that we are all vulnerable to someday getting into trouble with the law – even some of us that you would be least likely to suspect.

As a Dedham, Mass., DUI lawyer, let me share with you an interesting development. Right now there is a story making headlines in the Boston newspapers about the Commissioner of the Boston Police Department, Ed Davis, which illustrates my point in the above paragraph. Last week, Commissioner Davis’ 22-year-old son Phillip was arrested in Plymouth, New Hampshire, on charges of drunk driving.

At a recent event at Emmanuel College, Davis made a statement, in which he said that his son is doing well, and he thanked everyone for their concern. Among other things, he said the following: “Like many families that struggle with substance abuse, we are reaching out to experts to get Phillip the help he needs. Jane and I love our son very much and are relieved that he has decided to seek treatment.”

Getting arrested on a Massachusetts DUI charge is costly on many levels: Legal, financial, social, professional, and personal. No one wants to go through this. Trust me.

To avoid a situation where you might get behind the wheel after having a drink, innocently thinking that you are nowhere near the “.08 limit” that applies here in Massachusetts, here’s an interesting piece of medical news that anyone who drinks mixed cocktails should know about. Before discussing this news, the “.08 limit” refers to the concentration of a person’s Blood Alcohol Content (BAC.) Blood Alcohol Content is measured by either a Breathalyzer, or a serum blood test. When a person’s Massachusetts Blood Alcohol Content (BAC)reaches .08, he or she is legally presumed to be impaired, and thus illegally driving under the influence of alcohol.

A recent study has suggested, though, that using diet mixers in cocktails – such as diet (sugar-free) sodas or diet cranberry juice – may cause a person to unknowingly become intoxicated faster than if the mixer was a full-calorie (sugar-sweetened) brand. Why? The medical theory is that drinks (cocktails) that contain sugar in them stimulate the stomach to delay emptying in much the same way that a meal does. Having some food in your stomach delays stomach emptying, and as a result, the absorption of alcohol into the bloodstream is also delayed. That is why someone who eats when drinking alcohol doesn’t appear as intoxicated as might someone who drinks on an empty stomach.

Here’s a question. What happens if you’re found intoxicated in your car – but while the car is parked, with the engine still running? Can you be arrested and convicted for drunk driving?

Here’s an answer you might not expect. Yes, you can be arrested and charged with Operating Under The Influence (OUI) in Massachusetts, or as it’s more commonly known, drunk driving. What most people don’t know is that you don’t necessarily have to be driving a car to be charged and convicted of “Operating” under the influence in Massachusetts. As long as you are seated in the driver’s seat, the keys are in ignition and – and this is central – you fail a sobriety test or blow greater than .08 on a Breathalyzer test — that’s enough to legally constitute “operation” of a motro vehicle in Massachsetts. And then you’re in big legal trouble.

This is exactly what happened to a Mr. Rick Vanzura this past Wednesday, in Hull. Mr. Vanzura is the CEO of Wahlburgers, the Hingham restaurant serving burgers and fries that is owned by Hollywood actors — and Boston celebrities — Mark and Donnie Wahlberg. Mr. Vanzura was reportedly found slumped over in his driver’s seat, with the seat belt on, in his parked vehicle on Nantasket Avenue in Hull. Police knocked on the window and questioned him, and reportedly detected a strong odor of alcohol coming from Mr. Vanzura’s vehicle. Anzura supposedly admitted to police that he had consumed two glasses of wine earlier in the day, but according to police he could not allegedly remember the name of the restaurant where he had been drinking.

As a Norfolk County drunk driving attorney, I’ve said it before and I’ll say it again. It’s really quite simple. Do not drink and drive. The laws regarding Massachusetts drunk driving are harsh and severe, and you should think twice before you ever get behind the wheel, if you have consumed even the slightest amount of alcohol.

Too many people drive after consuming alcohol, and this past weekend, there was a Salem fatal car crash in which the driver was alleged to have been operating under the influence of alcohol, commonly called OUI.

According to police reports, Angelique Griffin, 25, had allegedly been drinking before her car hit a parked tow truck early Saturday morning around 3:40 AM, on Boston Street in Salem. Police said that the man sitting in her passenger seat was killed instantly. Ms. Griffin was treated for bruises at a nearby hospital, and she was arrested afterward. The charges she is facing are Salem motor vehicle homicide, Salem negligent operation, and Salem operating under the influence. She is being held on $50,000 cash bail and is scheduled to be arraigned in Salem District Court this coming week.

A Walpole man is facing five charges following an early morning, one-car crash that occurred this past Monday on Main Street in Medfield. One of the charges is a Medfield OUI otherwise known as Medfield DUI or Drunk Driving in Medfield.

The 23-year-old Walpole resident was returning home from UMass Amherst when he apparently lost control of his car. The car traveled across the road, driveway, down an embankment and wound up on its side in the brush. He and his vehicle wound up about 75 feet from the road. Medfield Police received a call reporting a “bad motor vehicle crash” in front of 671 Main Street at 3:38 AM Monday. Medfield Police and Fire units responded to the scene and reported the operator was injured in the accident.

The name of the operator has not been released. He has been charged with leaving the scene of property damage, Massachusetts OUI, reckless operation of a motor vehicle, marked lanes violation and speeding. The operator was not arrested because he was injured in the crash. He was transported to Norwood Hospital at 4 AM.

Readers of my blog will recall that I recently ran a Masssachusetts OUI/DUI post about Melanie’s Law, which was a new drunk driving law that the Massachusetts Legislature enacted in 2005. It was named after Melanie Powell of Marshfield. She was a 13-year-old who was killed by a repeat drunk driver offender when she crossed a street in 2003. The point of the law was to establish increasing penalties for persons convicted of repeat drunk driving offenses in Massachusetts.

Right now, the Massachusetts Attorney General and members of the Massachusetts Legislature are trying to close a loophole in that drunken-driving law, which allows some drivers convicted of Massachusetts OUI/DUI to avoid some of the increasing penalties that the law was written to impose.

Last Thursday this loophole was brought to the public’s attention, when the Massachusetts Supreme Judicial Court (SJC) ruled that drivers accused of drunk driving who previously entered pleas in their cases known as an “Admission To Sufficient Facts,” or “Continued Without A Finding” – are not subject to the stiffer penalties imposed by Melanie’s Law. To learn what the a plea of an “Admission To Sufficient Facts,” or “Continued Without A Finding” mean legally, read my previous post of a few days ago by clicking here.

As anyone who has visited the Massachusetts OUI/DUI charge pages of my website knows, Melanie’s Law was a new drunk driving law that the Massachusetts Legislature enacted in 2005. The law was named after Melanie Powell of Marshfield, a 13 year-old who was killed as she crossed a street in 2003 by a repeat drunken driver.

The law contained several changes to the Massachusetts drunk driving statute, but its primary purpose and goal was to stiffen the penalties for repeat drunk drivers. The law did this by graduating the punishment meted out for successive convictions of drunk driving. Relatively few people could argue with that goal, but as often happens when legislation is drafted in response to a tragedy, sometimes attention to the details goes missing. Such appears to be the case with a key section of Melanie’s Law, according to the Massachusetts Supreme Judicial Court (SJC.) Just yesterday, the court substantially narrowed the legal definition of a “conviction,” ruling that judicial dispositions (findings) that do not reflect a verdict of guilty, a plea of guilty, or a plea of “no contest,” do not constitute a “conviction” for purposes of penalties and punishment for multiple drunk driving offenses.

A little legal backgrounder: In Massachusetts, there is a type of plea that a first-time defendant can enter with the court, which is not exactly a “guilty” finding, nor is it a plea of “no contest” (which also constitutes a guilty finding.) This pleas is known as an “Admission To Sufficient Facts,” sometimes referred to as “Continued Without A Finding”, or CWOF. Primarily reserved for first time offenders in Massachusetts on a wide variety of offenses (not just a Massachusetts OUI/DWI charge,) a plea of Admission To Sufficient Facts, or a CWOF, essentially recognizes that if the Commonwealth were to prosecute the case, sufficient facts exist to secure a conviction, yet the Commonwealth and the defendant are spared a trial. The defendant is almost always placed on probation for a period of time, and if no further offenses are brought forward within that probationary period, the charges are dismissed.

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