DUI/OUI

Published on: April 25, 2016

Walpole Man Arrested in Ashland for 5th OUI Offense

According to an article in the MetroWest Daily News, a Walpole man was recently charged with his fifth drunken driving offense. The article states that the defendant was riding in the passenger seat of his car, which his girlfriend was driving. According to the girlfriend, the defendant was intoxicated and threw a cellular telephone at her. The phone did not hit the girlfriend, but when she pulled over to pick it up, the defendant reportedly hit the her in the face with his hand. The girlfriend then drove to a nearby pizza shop in Ashland to try and get help. When she exited the vehicle, the defendant reportedly grabbed her and tried to pull her back into the car. He then got into the driver’s seat and drove away from her, but hit a parked car as he left. The police stopped the defendant a short distance away, still in the vehicle. The police asked the defendant if he had been drinking, and he stated that he had not. The police also asked if he would be willing to perform field sobriety tests, which he declined to do. According to the article, the police found empty beer cans and nips in the car. When the police ran the defendant’s record, they saw that he had four prior convictions for operating under the influence of liquor. He was subsequently charged with the following offenses: (1) driving under the influence of liquor (fifth offense)); (2) driving to endanger; (3) driving with a license suspended for drunken driving while intoxicated; (4) leaving the scene of an accident; and (5) domestic assault and battery.

Fortunately for the defendant, he appears to at least of have a strong defense as to the most serious charge: driving under the influence of liquor, 5^th offense. To obtain a conviction for this offense under G. L. c. 90, § 24, the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the defendant operated a motor vehicle; (2) that the defendant did so on a public way or in a place where the public has a right of access or in a place where members of the public have access as invitees or licensees; (3) that while operating the vehicle, the defendant was under the influence of intoxicating liquor; and (4) that the defendant was convicted of this offense on four prior occasions. Continue reading →

Published on: August 25, 2015

Concerning Delay in Reports of Tainted Breathalyzer Evidence

By Daniel Cappetta

According to a recent article in the MetroWest Daily News, the state’s Office of Alcohol Testing (OAT), which certifies breath testing machines used around Massachusetts, appears to have known about a software issue that complicated dozens of drunken driving cases months before anyone moved to fix the problem. The article states that OAT recognized breath testing machines were failing to properly detect errors during calibration tests as early as February 2014. Although some police departments were instructed to give calibration tests extra scrutiny, it was not until fourteen months later, in April 2015, that the secretary of public safety asked the manufacturer of the machines to come up with a solution to the defective equipment.

Massachusetts began rolling out new breath testing machines in 2011. To demonstrate they are working properly, the machines are designed to measure a small sample of gas with an alcohol concentration of .080 percent. Under state regulations, the machines must return a measurement between .074 and .086 percent in order to pass the calibration test. By default, however, the machines are programmed with a wider tolerance. The machines accept measurements between .070 and .090 unless they are reprogrammed by the manufacturer. The state failed to customize the instruments with the correct settings when it bought them four years ago. Some calibration tests that should have failed under the state’s tighter regulations were therefore allowed to pass.

Police departments are required to periodically check their breath testing equipment by running a series of calibration tests. If any one of the measurements is outside the allowable range, the so-called “periodic test” has failed. Every subsequent breath test conducted with the machine is then called into question until the device completes another successful periodic test. Given the fact that the police are required to conduct these periodic checks, public safety officials maintain that the police should have caught the errors and thereby prevented breath test evidence from becoming tainted. The more significant issue, however, is that the Executive Office of Public Safety and Security (EOPSS) failed to notify court officials and defendants about the issues for a significant period of time. The article states that court records and interviews with defendants show that in some cases, it was months before people who were on probation for drunken driving charges learned of problems with the evidence in their cases.

Continue reading →

Published on: June 21, 2015

SJC Issues Ruling on Admissibility of Certain Breathalyzer Test Results

By Daniel Cappetta

Last week, the Supreme Judicial Court issued a decision – Commonwealth v. Camblin – that calls the admissibility of breath test evidence into question in operating under the influence cases. The facts of the case are as follows: Camblin pulled over in the breakdown lane on Route 495 to urinate. A Massachusetts State Trooper saw Camblin standing outside his car, pulled over behind him, and spoke to him. During the course of their interaction, the trooper became suspicious that Camblin had been driving under the influence of alcohol and administered several field sobriety tests. Camblin performed poorly on the tests and the trooper transported him to the state police barracks where Camblin was asked if he would be willing to take a breathlyzer test. The trooper administered the test using an “Alcotest” device. The device indicated that the Camblin’s blood alcohol level was 0.16 – two times the legal limit of .08. Camblin was subsequently charged with OUI, second offense.

The case went to trial and Camblin’s attorney challenged the admissibility of the results of the breathalyzer. Specifically, Camblin’s attorney filed a motion in limine to exclude the Alcotest results on the ground that the test was scientifically unreliable under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) and Commonwealth v. Lanigan, 419 Mass. 15 (1994), both of which govern the admissibility of scientific test results at trial. For the results of a scientific test to be admissible under the Daubert-Lanigan standard, the party seeking to introduce the scientific evidence must lay an adequate foundation for its introduction, either by establishing general acceptance of the test in the scientific community, or by showing that the evidence is reliable or valid through an alternate means.

Camblin’s attorney specifically sought a hearing concerning the Alcotest’s reliability. The gist of the request was that errors in the Alcotest’s source code (the code written to control the functioning of computer software), as well as other deficiencies, rendered the breath test results produced by the Alcotest unreliable. The trial judge denied the motion to exclude the evidence and refused to hold a motion regarding the reliability and therefore admissibility of the evidence, reasoning primarily that a Daubert-Lanigan hearing is inapplicable to the admissibility of the Alcotest results because they are admissible by statute” – G. L. c. 90, §§24(1)(e), 24K. Continue reading →

Published on: April 26, 2015

Concerns About Accuracy of Breathalyzer Evidence in Massachusetts OUI Cases

By Daniel Cappetta

According to an article in the MetroWest Daily News, district attorneys in multiple counties in Massachusetts are suspending the use of breathalyzer tests in drunk driving cases because of suspected problems with the breathalyzer machines, which test blood alcohol content. The exact issue, which may involve software or calibration of the machines, has not been released.

The concerns first came to light in mid-March, when the Massachusetts State Police apparently notified multiple district attorneys’ offices that there were issues with some of the breathalyzer tests given to defendants in their respective counties. The district attorneys’ offices contacted the defense attorneys in those specific cases, but the state police have now indicated that the problem may go beyond those isolated matters. The Executive Office of Public Safety has been unable to confirm exactly how many cases might be affected.

Given the fact that breathalyzer tests can play an important role in prosecutions and often persuade defendants charged with operating under the influence to plead guilty, the Massachusetts Bar Association has called for an independent investigation into the reliability of breathalyzer tests used to prosecute people suspected of drunken driving and has urged a moratorium on introducing the tests as evidence until these concerns are resolved. The MBA’s chief legal counsel specifically stated that while “drunk driving is a very serious issue in Massachusetts…people’s constitutional rights are also important…[and the MBA does] not want to see people convicted and taking plea agreements based on faulty evidence.”

A state police spokesperson has issued a statement indicating that officers might have accepted test results from breathalyzer machines that were not properly calibrated. The spokesperson further stated that the state police have opened a review of the concerns regarding the questionable breathalyzer results, with findings expected next week.

In light of these issues, district attorneys in Middlesex, Essex, Suffolk, Worcester, Norfolk, Plymouth, and the Cape and Islands have decided to suspend use of the breathalyzer test results as evidence. The Berkshire district attorney is not suspending use of breathalyzer results – prosecutors there will apparently be reviewing the issue on a case-by-case basis. Continue reading →

Published on: January 7, 2015

Framingham Woman Charged with Driving to Endanger

By Daniel Cappetta

According to an article in the MetroWest Daily News, a Framingham woman was arrested after crashing her car into an apartment building this past week. The article states that the woman was driving her car in the area of Beaver Terrace Circle. She was reportedly circling through the area repeatedly and then parking and revving her car loudly. At one point, the woman apparently lost control of the car and crashed into a building at 107A Beaver Terrace Circle. She then reportedly reversed over the curb and hit a tree. The police were called to the scene and found the woman behind the wheel of the car with a bloody nose. She was reportedly speaking slowly and having trouble communicating, but she told police she had not been drinking and was not under the influence of drugs. Despite this statement, an officer overheard the woman tell a paramedic that she had taken Xanax. She was taken to Beth Israel Deaconess Medical Center in Boston to be treated, but police issued a summons for her to appear in court on a charge of driving to endanger. At the time that this alleged offense occurred, the woman was out on bail in a case out of the Marlborough District Court for charges of uttering and larceny. Because she was out on bail on the uttering and larceny case when she was charged with this new offense, the judge revoked her bail for ninety days at her arraignment on the new charge.

Under G. L. c. 276, § 58B, if a defendant is released on bail in a criminal matter and is subsequently charged with a new offense, a judge can revoke the defendant’s release on the open case and hold the defendant without bail for up to ninety days as long as three conditions are met. First, the court must find that there is probable cause to believe that the defendant committed a new offense while he or she was out on bail – generally a new arrest will satisfy this requirement. Second, the court must find that the defendant was given his or her “bail warning” at the arraignment on the pending case. In other words, the court must have warned the defendant that if s/he was arrested on a new case while s/he was out on bail then the bail in the pending matter could be revoked. The fact that such a warning was given should be marked on the court’s docket, and therefore a copy of the docket is generally sufficient to satisfy this requirement. Third, the court must find that there are no conditions of release that can satisfy the safety of the community, or a specific individual in the community. In other words, the court must find that there are not any conditions of release that could be imposed by the court that will ensure the community’s safety, or a particular person’s safety. Continue reading →

Published on: November 21, 2013

SJC Limits Opinion Testimony in OUI Trials

By Daniel Cappetta

The Supreme Judicial Court recently issued an important decision about the admissibility of opinion evidence in operating under the influence (OUI) trials. In Commonwealth v. Canty, issued on November 6, 2013, the SJC held that a police officer is not permitted to offer opinion testimony as to whether a defendant’s ability to drive was impaired by alcohol.

The facts of the case are as follows:
On March 8, 2009, a Leicester police officer saw a motor vehicle driving erratically on Main Street in Leicester. The officer proceeded to follow the car and ultimately stopped it. The officer spoke to the driver, who was identified as Joseph Canty. During their interaction, the officer noticed that Canty had trouble retrieving his license, and that his eyes were bloodshot. The officer asked Canty whether he had had any alcoholic beverages that evening and Canty reported that he had. The officer then ordered Canty out of the vehicle and had him perform two field sobriety tests, both of which Canty failed. The officer then arrested Canty. After the arrest, the police found a half-empty bottle of brandy on the floor of the front passenger side of Canty’s vehicle.

Canty was charged with, among other things, operating a motor vehicle under the influence of alcohol, in violation of G. L. c. 90, § 24(1)(a)(1). To prove that Canty committed this crime, the Commonwealth had to show that Canty (1) operated a motor vehicle; (2) on a public way; and (3) was under the influence of intoxicating liquor while operating the vehicle. As to the third element, a person is “under the influence” of alcohol if he has consumed enough alcohol to reduce his mental clarity, self-control, and reflexes, and thereby impaired his ability to drive safely.

Prior to the commencement of the trial, Canty moved to exclude any testimony from police officers as to whether he was intoxicated, impaired, or otherwise under the influence of alcohol. Canty argued that whether he was in fact intoxicated, impaired, or otherwise under the influence was the ultimate issue for the jury to decide. The judge denied the motion, stating that a lay witness – in other words someone with no special expertise – can give an opinion as to an individual’s sobriety. During the course of the trial, the officer that stopped Canty testified that, based on his observations, Canty’s ability to drive was diminished, and that in his opinion, this diminished ability was the result of alcohol consumption.

Continue reading →

Published on: May 14, 2013

Haverhill Woman Accused of Violating Court Order

By Daniel Cappetta

According to the MetroWest Daily News, a 23 year old Haverhill woman was reportedly seen drinking at a Framingham bar on Friday April 12th, which violates the terms of her personal recognizance release. The defendant is accused of crashing her car on December 3, 2011 and killing a fellow Framingham State University student while drunk. The defendant was released on personal recognizance, but given a condition of release that she consume no alcohol. The defendant is now being held without bail until her next court date.

The defendant is facing charges of vehicular homicide, as well as driving under the influence of liquor, causing serious bodily injury and driving to endanger. She was allegedly drunk when she crashed her Honda Civic carrying four other people into a telephone pole on Badger Road in Framingham around 2:20 a.m. on December 3, 2011. Her blood alcohol level was reportedly .10 at the time of the crash, over the legal limit of .08.

The defendant allegedly ordered the drinks that she consumed before the accident from the same TGI Fridays in Framingham at which she was seen drinking on Friday. An officer who patrols Route 9 allegedly recognized the defendant and noticed she was drinking. The defendant reportedly stated that she was drinking cranberry juice; however, the bartender and the defendant’s friend allegedly stated that she was drinking a cranberry and vodka drink. The bartender also allegedly stated that the defendant had ordered the same drink at the bar the week before that. The probation department reportedly issued an arrest warrant, and police arrested the defendant the next day in Haverhill.

The defendant’s lawyer has stated that the defendant was not purposefully drinking alcohol but had ordered a cranberry juice. However, he said that the bartender was mistaken because the bar was loud and may have served the defendant liquor in the drink accidentally. The lawyer also stated that the defendant did order a drink with alcohol the week before but that it was for a friend. The judge, however, was not persuaded. The defendant will be held for 60 days in MCI-Framingham until her trial in June. The judge made the order without prejudice, which means that the defendant can appeal the decision. She is also due in Middlesex Superior Court for a status hearing.

The defendant’s story is an important reminder of how seriously courts take the conditions placed upon defendants when they are released on probation, bail or personal recognizance. If your or a loved one is worried that you may have violated the terms of your probation or the conditions of your release between court dates, consulting your attorney is an important step to making sure that you remain in good standing with the court. Being arrested for violating the court’s orders can be a stressful situation, and can often result in your being looked upon unfavorably by the court at your next court date or in the future if you find yourself in court again. However, conditions that are placed upon defendants can often be confusing or difficult to follow. An experienced attorney may work with the judge or the probation department to make conditions more manageable. Being on top of the situation with your attorney is usually the best course of action.

Continue reading →

Published on: May 7, 2013

Northborough Man Charged with Fourth OUI Offense

By Daniel Cappetta

A 55 year old Northborough man was arrested on Wednesday night, April 17th after allegedly getting into a car accident on Route 9, according to an article in the MetroWest Daily News. The defendant has reportedly been charged with operating a motor vehicle under the influence of alcohol, making this his fourth time being charged with OUI.

An officer reportedly saw the defendant pulled over to the side of the road next to another car. The defendant and the other driver were standing outside of their cars, which prompted the officer to pull over and investigate the situation. The officer then allegedly smelled a strong odor of alcohol and noticed glassy, bloodshot eyes and slurred speech being exhibited by the defendant. A passenger in the other car was reportedly taken to a hospital with unspecified injuries.

The defendant reportedly told officers that he had drank some alcohol with dinner, but was inconsistent with his statements about how much alcohol and from where. The defendant also reportedly volunteered to do a field sobriety test. He allegedly did not successfully complete the commands during the sobriety test and was arrested. He was charged with operating under the influence of alcohol, driving to endanger, and driving without a license. His license reportedly expired on April 12th, 2013.

This arrest is the defendant’s fourth OUI arrest. His past drunk driving arrests all occurred nearly three decades ago. One arrest occurred in 1984, and two occurred in 1986.
At Framingham District Court on Thursday, the defendant was released without bail and ordered not to drive after drinking alcohol. He is due back in court on May 20.
The defendant is facing serious penalties if convicted of this charge because this is his fourth alleged OUI offense. Penalties for OUI offenses generally increase with each conviction. Mandatory sentences also make it difficult for judges to be lenient in many cases. Despite the almost thirty year time gap between his previous three offenses and the newest alleged offense, courts will still treat this at the defendant’s fourth offense, due in part to the changes brought into effect under Melanie’s law.

If convicted, the defendant is facing a mandatory two year jail sentence. A portion of that sentence could be suspended, but if convicted it is mandatory that he serve at least every day of 1 year in jail. When accused of OUI 4th offense it is essential to be represented by an experienced criminal defense litigator who may be able to win the case. Prosecutors are trained to prosecute multiple OUI offenses to the fullest extent of the law, so a plea bargain is rarely an option to avoid jail time. An experienced attorney can help the defendant determine if he has potential motions to suppress evidence or to dismiss the case. Also a skilled attorney can help him determine if taking the case to trial is the right decision.

Continue reading →

Published on: March 14, 2013

Southborough Man Faces Assault and Battery on a Police Officer and Other Charges

By Daniel Cappetta

A 32-year-old Southborough man, was charged with assault and battery on a police officer, operating under the influence (second offense), and malicious destruction of property over $250 in Framingham District Court on March 11, the MetroWest Daily News reported.

The man was arrested by Natick police officers over the weekend following an accident on Route 9. He allegedly rear-ended a car stopped at red light. Police claim that the man was uncooperative during the booking process. As a result, an officer attempted to escort him to a holding cell. At that point, police claim that the man became “combative” with the officer, swinging at him and knocking the officer’s eyeglasses onto the floor. Officers shocked the man with a Tazer.

In this particular article there is nothing suggesting there was any wrongdoing by the Natick Police Department. However, in general it is not unusual to sometimes see criminal defendants charged with assault and battery on a police officer after police use violence, unnecessary aggression, or unlawful force during an arrest. In order to protect themselves from allegations of unlawful use of police force, officers sometimes claim the defendant committed an assault and battery on an officer. The same is often true in resisting arrest scenarios. This is no secret to any experienced criminal attorney. It’s not unusual for defendants facing these charges to walk into lawyers’ offices having visible injuries. Luckily for defendants, in many departments the booking process is now videotaped, and some cruisers have video equipment. Particularly in commercial areas like Route 9, retail establishments might have video surveillance as well. Whenever possible it is always wise get a copy of the booking video or any other video evidence in order to look into what really happened during this encounter.

The malicious destruction of property over $250 charge relates to the officer’s eyeglasses. If the glasses were damaged during this alleged struggle, the man might argue that any damage was not “malicious.” Another possible defense would be that the value of or damage to the glasses was not really more than $250.

The article does not contain much information relative to the basis of the OUI 2nd charge, apart from the fact that there was an accident. Massachusetts law provides for increased penalties for second and subsequent drunk driving convictions. Prosecutors tend to be less sympathetic to OUI defendants when there has been an accident. The man might be facing some relatively serious penalties and should speak with an aggressive defense lawyer.

Continue reading →

Published on: February 22, 2013

Sudbury Man Facing Charges Following Car Crash in Pond

By Daniel Cappetta

A Sudbury man, who police have not yet identified, allegedly drove his car into Willis Pond on Thursday, January 24th, according to an article in the MetroWest Daily News. Police have alleged that the 27-year-old man was drunk when he drove out onto the ice. The front end of his car reportedly broke through the ice approximately 600 feet onto Willis Pond at about 12:45 a.m. Police are reportedly unsure what motivated the man to drive his car onto the ice.

The driver and a female passenger were reportedly pulled from the Toyota and taken to Emerson Hospital as a precautionary measure. Firefighters reportedly attempted to pull the car out of the pond but were unsuccessful. A towing company reportedly worked for nearly 17 hours before the car was successfully pulled out of the water. The Toyota reportedly was back on solid ground around 4:30 p.m.

The driver is facing charges of driving a recreational vehicle under the influence of alcohol and wanton destruction of property. Because the driver was not operating the vehicle on a street at the time police arrived, the police are charging him with driving a recreational vehicle, rather than operating a vehicle under the influence of alcohol. Police are reportedly charging him with wanton destruction of property based on the destruction of the car. Police reportedly said that the driver’s name would be available after the arraignment.

The driver is facing serious charges that could lead to fines and jail time. Because his car was not found on a street, the driver avoided a charge of operating a vehicle under the influence of alcohol. The charges he is facing are still quite serious, nonetheless. The driver needs a skilled Massachusetts criminal defense attorney to help him fight the charges he is facing.

In order to prove the charge of driving a recreational vehicle under the influence of alcohol, the prosecutors will have to prove that the driver operated the vehicle while having an intoxicating substance in his body beyond a reasonable doubt. The Commonwealth can establish that he was under the influence of an intoxicating substance by means of a blood test, Breathalyzer, or other test. The Commonwealth does not have to prove that he operated the vehicle on a public roadway. To prove the charge of wanton destruction of property, prosecutors will have to establish that the driver damaged or destroyed the personal property of another, that he did so wantonly, and that the amount of damage inflicted is more than $250. “Wanton” acts are acts committed recklessly or indifferently to the fact that the conduct will probably cause substantial damage to property.

If you or a loved one is facing a charge of destruction of property or an OUI or similar charge, you need an experienced and capable Massachusetts criminal defense attorney on your side. An attorney can help you fight for your freedom or negotiate a favorable plea deal with the prosecution.

Continue reading →