Articles Posted in DUI/OUI

The Appeals Court affirmed the dismissal of the complaint charging the defendant with operating a motor vehicle while under the influence of intoxicating liquor (OUI-liquor) in Commonwealth v. Werra.  The Court’s decision rested on the fact that the police citation for that offense “was not issued contemporaneously with the incident from which it arose” and did not “fall[] into the third exception of the so-called ‘no-fix’ statute, G.L. c.90C, §2.”

The background was as follows. On July 22, 2015, state trooper Donahue responded to a dispatch indicating that a green Ford Explorer travelling southbound on Route 3 “was being driven erratically…. [Donohue] saw the Explorer traveling in the breakdown lane. He pulled behind the vehicle and activated his cruiser’s emergency lights, but the driver, subsequently identified as the defendant, did not stop” until Donahue “drove in front of the Explorer” and blocked it. The defendant “seemed disoriented.” “When the trooper … asked her to identify herself, her speech was slurred” and she was unable to spell her name or state her date of birth. “Eventually the defendant clarified that she had taken methadone earlier that morning. Emergency medical services arrived and took the defendant to a hospital. An inventory search of the Explorer subsequently revealed a cup in the center console containing a clear liquid with a strong odor of an alcoholic beverage. That same day, … Donahue wrote a citation for operating a motor vehicle under the influence of drugs (OUI-drugs) … and other infractions.” “On August 5, 2015, a complaint issued charging the defendant with the offenses listed on the citation…. Only on March 16, 2016, over eight months after the incident, did the Commonwealth file a motion pursuant to Mass. R. Crim. P. 17 … for a summons of the defendant’s hospital records, which was allowed. The … records … indicated that on the afternoon of the alleged incident the defendant’s blood alcohol content was .25 percent, over three times the legal limit…. The case was scheduled for trial on October 13, 2016.” The day before that date, “five months after the medical records were received by the clerk’s office, and almost sixteen months after the incident, the State Police applied for a complaint against the defendant for OUI-liquor. The application included the same police report completed by … Donahue on July 29, 2015, along with … the defendant’s medical records. The application also included a new citation for OUI-liquor dated October 12, 2016. This citation issued more than one year and three months after the traffic incident occurred.” The next day, “the OUI-drugs charge was dismissed at the request of the Commonwealth. A new complaint alleging OUI-liquor, was issued on January 25, 2017. On July 14, 2017, … the motion judge heard the defendant’s motion to dismiss the complaint pursuant to the no-fix statute, G.L. c.90C, §2. That motion was allowed” and the Commonwealth appealed. Continue reading →

In Commonwealth v. Zagwyn, the Supreme Judicial Court reversed the defendant’s conviction of negligent operation of a motor vehicle under G.L. c.90, §24(2)(a), on the grounds that the evidence was insufficient to support the conviction.

The background was as follows. A police “officer stopped the defendant’s motor vehicle after observing that one of the vehicle’s headlights and a rear license plate light were not working. He followed the vehicle for approximately one to one and one-half miles before stopping the vehicle, and during that time he did not observe the vehicle speeding, swerving, or making any sudden stops. When the officer initiated the stop, the defendant moved the vehicle to a safe location. The stop itself revealed evidence that the defendant was operating the vehicle while under the influence of alcohol.” The defendant was convicted of negligent operation of a motor vehicle and a related offense. Continue reading →

In Commonwealth v. Cueva, the Appeals Court (1) reversed the defendant’s conviction of operating a motor vehicle while under the influence of alcohol, third offense, because the judge erroneously admitted unredacted Registry of Motor Vehicles (RMV) records “contain[ing] multiple references to [the defendant’s] refusal to submit to a chemical test,” and (2) reversed the defendant’s conviction of operating a motor vehicle after license suspension as a result of a prior OUI conviction, because the evidence was insufficient to prove that he had notice that his license had been suspended.

The background was as follows. On August 28, 2015, Officer Launie was stopped in traffic behind the defendant’s vehicle in Revere. “After a few minutes, the defendant pulled out of the lane of traffic onto the sidewalk and drove” 200 feet. “Launie activated his emergency lights and followed the defendant,” who then pulled over in a parking lot. Launie approached the defendant’s vehicle and requested his license and registration. The officer “smelled the odor of alcohol and noticed that the defendant’s movements were slow” and “that his eyes appeared glassy and bloodshot. Suspecting that the defendant had been driving while under the influence of alcohol,” Launie “asked him to step out of the vehicle and perform certain tasks.” As a result of the defendant’s inability to perform the tasks, “Launie formed the opinion that [he] was under the influence of alcohol and placed him under arrest” for operating under the influence. At trial, the prosecutor introduced a certified copy of a District Court criminal docket sheet showing that in January, 2015, seven months before the incident in this case, the defendant had pleaded guilty to OUI, as a result of which his license was suspended for two years. The prosecutor also introduced a copy of the defendant’s RMV records, which included copies of six letters to the defendant…. One of the letters, dated August 31, 2015 — three days after the defendant’s arrest in this case — stated, ‘You are hereby notified that effective 08/28/15, your license/right to operate a motor vehicle is suspended for [three] years for CHEM TEST REFUSAL, pursuant to [G.L. c.90, §24(l)(f)(l)].’ The letter specified that the ‘CHEM TEST REFUSAL,’ described as an ‘offense,’ occurred on August 28, 2015, in Revere (the date and location of the OUI offense at issue here)…. Of the remaining five letters, three concerned the revocation or suspension of the defendant’s license on prior occasions for a ‘CHEM TEST REFUSAL.’” On appeal from his convictions, “[t]he defendant argue[d] that evidence of his refusal to submit to a ‘CHEM TEST’ violated his right against self-incrimination.” In addition, he contended that the Commonwealth failed to prove that on August 28, 2015, he was aware that his license had been suspended. Continue reading →

In Commonwealth v. O’Leary, the Supreme Judicial Court affirmed the dismissal of the indictments charging the defendant with various motor vehicle offenses because the police did not comply with the requirements for issuance of citations set forth in the so-called “no-fix” statute (G.L. c.90C, §2).

The background was as follows. The “no-fix” statute provides that a police officer responding to an automobile law violation should prepare a citation and give it to the violator as promptly as possible. Under the statute, “[a] failure to give a copy of the citation to the violator at the time and place of the violation shall constitute a defense in any court proceeding for such violation, except where the violator could not have been stopped or where additional time was reasonably necessary to determine the nature of the violation or the identity of the violator, or where the court finds that a circumstance, not inconsistent with the purpose of this section to create a uniform, simplified and non-criminal method for disposing of automobile law violations, justifies the failure. In such case the violation shall be recorded upon a citation as soon as possible after such violation.” In this case, state trooper Gray “responded to an accident on a highway off-ramp. Gray arrived to find that a single vehicle had rolled over.” The driver of the vehicle (the defendant) and a passenger (Murphy) had been injured in the accident. The defendant and Murphy were transported to a hospital. “Gray followed the ambulances to the hospital to interview the defendant and Murphy…. [T]he defendant admitted [to Gray] … that he had had ‘a couple of beers.’ The defendant’s ‘eyes were glassy’ and ‘his speech was slurred.’ At the time of the accident, the defendant was on probation for operating a motor vehicle while under the influence of alcohol (OUI), subsequent offense. His license had been suspended, and he was not legally permitted to drive. Gray informed the defendant that he would be receiving a summons in the mail for OUI, a marked lanes violation, and operating with a suspended or revoked license. Gray did not issue a citation at that time. [He] later submitted his investigation report to his supervisor, who approved the report nine days later…. On that day, Gray issued citations” and mailed them to the defendant. “A Superior Court judge granted the defendant’s motion to dismiss on the ground that Gray had failed to issue a citation ‘at the time and place of the violation,’ as required under §2, and because the Commonwealth did not meet its burden of demonstrating that an exception in §2 applied.” The Commonwealth appealed.

Continue reading →

In Commonwealth v. Nascimento, the Supreme Judicial Court affirmed the dismissal of a complaint charging the defendant with operating a motor vehicle after his license had been administratively suspended for OUI on the ground that the statute under which the defendant was charged (G.L. c.90, §23, third par.) did not apply to the circumstances of his case.

The background was as follows. “On January 24, 2016, a State police trooper stopped the defendant’s vehicle after observing him commit several marked lane violations…. During the stop, the defendant was exhibiting signs of possible intoxication, including glassy or bloodshot eyes and slurred speech. A number of field sobriety tests were conducted, which indicated that the defendant was intoxicated. A breathalyzer test also was administered, which measured the defendant’s alcohol level at 0.132 per cent. The defendant was arrested and transported to the State police barracks, where he submitted to a blood alcohol test that registered his alcohol level to be 0.13 per cent. The defendant was given a citation and … his right to operate a motor vehicle was administratively suspended for thirty days” pursuant to G.L. c.90, §24(1)(f)(2), which “allows police to confiscate immediately the license of an individual who has failed a breathalyzer test.” “The defendant was then arraigned for, among other things, OUI, in violation of G.L. c.90, §24(1)(a). While the defendant’s charges were pending, on February 17, 2016,” the defendant’s vehicle was again stopped by a State trooper and when “the defendant admitted that his license had been suspended,” he “was arrested and charged with operating a motor vehicle after license suspension for OUI, in violation of [G.L. c.90,] §23, third par. The defendant moved to dismiss the charge of operating after a suspension for OUI. Concluding that §23, third par., did not apply to the defendant, the judge granted the motion in part and dismissed the OUI portion of the charge, leaving the defendant charged with operating after a suspension.” The Commonwealth appealed.  Continue reading →

In a disappointing decision – Commonwealth v. Faherty – the Appeals Court affirmed the defendant’s conviction of operating a motor vehicle while under the influence of alcohol (OUI), fourth offense.  In the decision, the Appeals Court specifically ruled that a defendant’s conviction as “a subsequent offen[der] may be based on a prior conviction for which the defendant was not entitled to (and presumably did not receive) appointed counsel because the prior offense carried no risk of incarceration.”

The background was as follows. “[T]he defendant was injured while riding his motorcycle…. A … State trooper at the scene of the accident noticed a strong odor of alcohol and later discovered four unopened nip bottles of … bourbon in the defendant’s saddle bag. The defendant was transported to a hospital. Hospital records recorded that the defendant’s serum alcohol level was 359 milligrams per deciliter. An expert from the … State Police Crime Laboratory testified that this was the equivalent of a blood alcohol level of between .30 percent and .32 percent. The defendant testified that the accident was caused by his hitting something in the road while momentarily distracted. He testified that he did not drink any alcohol prior to the accident but decided to drink six nip bottles of bourbon to dull the pain while waiting for medical assistance. The jury convicted the defendant on both available theories under the statute: a theory of impairment and a theory of having a blood alcohol level of .08 percent or higher. At the jury-waived trial on the subsequent offense portion of the complaint, the Commonwealth presented evidence that the defendant had received a continuance without a finding for OUI in District Court in 1989. The Commonwealth then introduced, over objection, evidence of two convictions for OUI in New Hampshire, from 1992 and 2005. The New Hampshire cases were prosecuted as first offenses, and the defendant received no incarceration but instead was fined and had his license revoked. The judge [here] found the defendant guilty as a fourth [OUI] offender.” Continue reading →

In Commonwealth v. Camblin, the SJC affirmed the denial of the defendant’s “motion to exclude [breathalyzer] evidence as scientifically unreliable” in the defendant’s trial for operating under the influence of alcohol.

The background was as follows. The defendant was charged “with operating a motor vehicle while under the influence of alcohol…. Before trial, the defendant moved to exclude admission of breath test evidence generated by the” breathalyzer utilized by the police, the Alcotest 7110 MK III-C (Alcotest). The judge denied the motion without conducting a Daubert–Lanigan hearing as to the scientific reliability of the Alcotest. The case proceeded to a jury trial at which the defendant was found “guilty of operating a motor vehicle while under the influence of alcohol and operating a motor vehicle with a blood alcohol level of or exceeding 0.08 per cent.” In response to the defendant’s direct appeal, in which he challenged the scientific reliability of the Alcotest, the SJC remanded the case to the trial court. On remand, the judge conducted a Daubert–Lanigan hearing, after which he “found that the Alcotest was capable of producing scientifically reliable breath test results, and denied the defendant’s motion to exclude this evidence at his trial.” In the present appeal, “[t]he defendant … contend[ed] that the judge abused his discretion in finding that the Alcotest satisfies the Daubert–Lanigan standard for the admissibility of scientific evidence.” The “focus of the defendant’s challenge … [was] that,” contrary to the judge’s finding, the Alcotest “cannot distinguish ethanol from other ‘interfering’ substances that might be present in a breath sample.” Continue reading →

In a recent Appeals Court decision, Commonwealth v. Ross, the Appeals Court ruled that the evidence was sufficient to support the defendant’s conviction of negligent operation of a motor vehicle.

The background was as follows. At 9:50 p.m., a police officer observed the defendant driving his vehicle at a high rate of speed on “a public two-lane road with narrow, unpaved shoulders and no breakdown lane. The road is lined by trees, telephone poles, and residential fences along where the incident occurred. The officer testified that the speed limit was thirty-five miles per hour. Using radar, [he] determined that the defendant was travelling at fifty miles per hour. The officer activated his police cruiser’s lights, and the defendant promptly pulled over to the side of the road. The officer observed that the defendant was the driver and noticed two … passengers in the [vehicle]. When the defendant lowered the driver’s side window, the officer ‘immediately detected … a strong odor of an alcoholic beverage’ and observed that the defendant’s eyes appeared ‘very glossy.’ The officer asked the defendant to get out of the vehicle and then performed three field sobriety tests on him.” “The officer testified that, in his opinion, the defendant failed to perform two [of the] tests satisfactorily, and failed to perform [the] third test ‘[a]s instructed.’” Also, “[w]hile conducting the sobriety tests, the officer observed that the defendant … spoke in ‘thick,’ slurred language; and … emitted the smell of alcohol as he spoke.” “The defendant ultimately was tried by a jury on a complaint charging him with (1) operating a vehicle while under the influence of intoxicating liquor (OUI) … and (2) negligent operation of a motor vehicle. The jury acquitted the defendant of OUI and convicted him of negligent operation.” Continue reading →

In Commonwealth v. O’Leary, a divided panel of the Appeals Court reversed the trial court judge’s order “dismissing a multiple-count indictment [which charged the defendant with various motor vehicle offenses] on the ground that the police failed to make a timely delivery of the citation pursuant to G.L. c.90C, §2.”

The background was as follows. The defendant was involved in a motor vehicle accident when the vehicle “he was driving left the highway, hit an exit sign, and rolled over five times.” The defendant and his passenger were seriously injured and were transported by ambulance to a hospital. A state trooper (Gray) “followed the ambulances to the hospital. When he arrived at the emergency room, he left his citation book in his patrol vehicle…. Gray … spoke with the defendant. Gray noticed that [the defendant’s] eyes were glassy and his speech was slurred. [Gray] also noticed the odor of alcohol coming from the defendant. The defendant told Gray he had had ‘a couple of beers.’…. At the time of the accident, the defendant was on probation for operating under the influence of alcohol, subsequent offense. His license was suspended and he was not legally permitted to drive…. Gray told the defendant he would be receiving ‘a criminal summons in the mail.’ Gray’s intent was to complete his investigation, file his report with his supervisor, and then send a citation to the defendant. After filing his report with his supervisor, Gray waited nine days for the report to be approved. Once it was approved …, it was mailed to an address on file with the State police. Due to an incorrect zip code, however, it was another five or six weeks before the defendant received the citation in the mail.” After the return of indictments charging the defendant with operating while under the influence of alcohol, negligent operation, and operating with a suspended or revoked license, the defendant filed a motion to dismiss, which was allowed. Continue reading →