Articles Posted in DUI/OUI

A Framingham woman was arrested on Thursday, January 10th, according to an article in the MetroWest Daily News. The woman was reportedly arrested at approximately 11:00 a.m. after police reportedly found her sitting in a running car on West Union Street drinking rum from a plastic cup.

Police reportedly checked on the woman because she was sitting in her car for a long time. Police reportedly found her drinking from a cup. The woman was allegedly startled by police; the officers also allegedly smelled alcohol on her breath.

The woman allegedly denied drinking alcohol; however, she reportedly subsequently admitted that she had a drink and that she “likes to drink rum.” Police reportedly administered several field sobriety tests, which she allegedly failed. Police also reportedly tested the liquid in her cup; the liquid allegedly tested positive for alcohol. Finally, police reportedly administered a Breathalyzer test, and the woman reportedly blew a .20. The legal limit for blood alcohol while driving is .08, meaning that the woman reportedly tested two and a half times over the legal limit.

The woman is charged with driving under the influence of liquor, driving to endanger, and possession of an open container of liquor in a vehicle. The woman has reportedly been convicted of driving under the influence of alcohol once already, making this a subsequent offense for her. If she is convicted again of this charge, she is facing more severe penalties under Massachusetts law. However, the woman’s first OUI offense reportedly occurred in 1978. Therefore, the court may look more favorably on her than if she had been convicted of this offense more recently. Because this second offense is alleged to have occurred more than 10 years after the 1st offense, the woman is eligible for a disposition that would help her avoid some of the more serious penalties often associated with second offense OUI.

The woman pleaded not guilty at her Framingham District Court arraignment on Friday. She was released without bail. She is due back in court on February 11th for a pretrial conference.

To successfully obtain a conviction for the OUI charge, prosecutors will need to prove that the woman was operating a motor vehicle under the influence of an intoxicating liquor. Because the woman took a Breathalyzer test, the prosecutors can use the evidence from that test as evidence that she was under the influence of an intoxicating liquor. The woman may claim that the Breathalyzer test was not properly calibrated as a defense. For the driving to endanger charge, prosecutors will need to prove beyond a reasonable doubt that the woman was operating a motor vehicle on a public road so as to endanger any person, including her. Because the woman was sitting in a running car, but was not actually driving, she could have a defense against this charge.

If convicted of the OUI charge, the woman will be facing serious penalties, including fines and a suspension of her license. A driving to endanger conviction can lead to penalties, such as jail time.

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There was an interesting story posted early this morning at the MetroWest Daily News site. According to the article, a man from Ashland got into a minor accident in Framingham. When the police arrived, the man was sitting in his car. He told police he was trying to get to a bar in Ashland. It is not clear from the article what happened before he was arrested, but it appears that after his arrest, the man was not able to stand up without assistance. The man also allegedly told police that he had been drinking at his home and had consumed eight vodka drinks. (Again it is not clear from the article whether this statement was made before or after his arrest.)

After he was arrested, the man took a breathalyzer test and allegedly blew a 0.41, which the article described as being five times greater than the “legal limit” of .08. This article caught my eye because, in my experience both as a prosecutor and as a DUI defense lawyer, this is a very high breath test reading.

In Massachusetts, the common DUI (or OUI as it is called here) can be proven one of two ways. The prosecution can try to prove that a driver was “operating under the influence of intoxicating liquor.” In cases where there is no breath test, this is the only way for the prosecution to proceed. They must prove that the defendant was “under the influence”, which is at best a nebulous standard. In contrast, in cases where there is a breath test, the prosecution need only prove that the blood alcohol content of the accused was equal to .08 or above. (It is common to refer to .08 as the “legal limit” when in reality, the Massachusetts drunk-driving statutes prohibit driving with a blood alcohol level of .08.) So in a case with a breath test, the prosecution does not have to prove that the driver reeked of alcohol, or was swerving all over the road, they only need to prove that number to the jury to gain a conviction.

There was an interesting story in the MetroWest Daily News on Friday, written by Norman Miller. Apparently, an Ashland woman drove her car into a parked car, then left the scene, but later came back. According to the article, a resident on Old Worcester Road heard a noise at approximately 1:20 in the morning. The resident looked outside and saw a woman looking at a parked car. By the time the resident went outside to investigate, the woman had left the area. The resident then returned inside and called the police, and then noticed that the woman had returned. According to the article, the woman appeared to be examining the car again. The article indicates that she then drove away.

When they arrived on the scene, the police discovered a Toyota Corolla with serious damage. It appears that police were able to locate and speak with the woman, who told them that she did not know how the damage occurred to the Corolla. The article indicated that the woman appeared to be intoxicated, but refused to take any field sobriety tests. According to the article, the woman was charged with driving to endanger, leaving the scene of property damage and operating under the influence – second offense.

This article caught my eye because it contains some interesting facts. First off, the woman was charged with leaving the scene of property damage. In my experience as a criminal defense attorney, and in my time as a prosecutor in Middlesex County, I have seen this charge many times. Most of us have had the unpleasant experience of a minor fender-bender, and maybe a few us have dinged a parked car and thought “well it’s not a big deal, I’ll just drive away.” But it is a big deal, as the woman has already discovered, because it can lead to a criminal charge.

In order to prove a charge of leaving the scene of property damage, the prosecution must generally prove that the defendant drove a car on a public way, hit some property, eg.g another car, that the defendant knew she hit the property, and that after hitting it, the defendant left the scene. Judging from the facts as sketched out in the article, it is not clear how the prosecution will prove that the woman caused the accident, unless the resident actually saw her striking the parked car.

There is an additional problem with the more serious charge the woman faces: operating under the influence of intoxicating liquor (called an OUI in Massachusetts, but commonly referred to as a DUI). As a former prosecutor and a current DUI defense attorney, I have extensive experience trying these types of cases from both sides. To prove its case, the government must prove that the defendant drove the car, on a public way, and did so under the influence of intoxicating liquor.

In a case like this one, it may be hard for the government to prove that the woman was under the influence of alcohol. According to the article, the woman denied drinking and refused to take any field sobriety tests. The article does not mention a breathalyzer test either, suggesting that the woman did not take one. In such a trial, the only evidence of whether the woman was intoxicated may be the observations of the police officers who spoke with her, and in my experience, the absence of more concrete evidence such as field sobriety tests or a breathalyzer test, makes it hard for the government to reach a conviction.

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Via The Daily Item of Lynn, MA I read about a Medford resident who is currently facing serious charges for third offense DUI (in Massachusetts DUI or driving under the influence cases are typically referred to as OUI or operating under the influence) in Peabody District Court.

Operating under the influence third offense is so serious because it is a charge that carries a mandatory minimum jail sentence if the defendant is convicted. Typically, first offense dui cases end in probation, even if there is a conviction after trial. Second offense dui charges are significantly more serious, and the statute for second offense dui does have mandatory jail time in its language. However, most second offenders are eligible for an alternative disposition whereby they avoid jail time in exchange for inpatient alcohol addiction treatment. On a third offense dui charge in Massachusetts there is no possibility to avoid jail time if prosecutors obtain a conviction.

The minimum sentence for a third offense dui is 180 days in the house of corrections. 150 of those 180 days is considered a mandatory minimum, meaning every day of the first 150 days of the sentence must be served in jail. There is no possibility of parole until 150 days of the sentence has been served. The judge hearing the case cannot continue the matter without a finding, and has no discretion to give a suspended sentence. Rather, the law takes the power to spare a defendant jail time out of the judge’s hands, and requires the sentence be imposed.

In the Medford man’s case it is not at all clear from the article whether the Commonwealth’s case against him is strong or not. Because of the allegation that the man caused an accident with a state trooper in Lynnfield, it might appear at first glance the case against him is strong. However, in many cases where an accident is alleged, defendants are able to obtain not guilty verdicts if they have an experienced dui defense attorney on their side. After an accident if the police do not follow proper procedure, a jury may be convinced the field sobriety tests were given in an unfair manner.

If the case against the man does end up appearing strong, he may still have an opportunity to avoid the mandatory minimum jail sentence. If his prior convictions are older, and not well documented by the courts they occurred in, his attorney may be able to convince a judge or jury that this is not his third offense, and spare him the mandatory sentence.

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In today’s Metrowest Daily News online edition I read a story about a Medfield man.  The man apparently had three passengers in his car in the early morning hours of March 10th. While driving on South Street in Holliston police allege that the man lost control of his motor vehicle and crashed into a utility pole. According to the article crews worked throughout the day yesterday to replace the damaged pole and wires.

The article offers few details on what actually happened when the police arrived on the scene, but the officer quoted in the article made it clear that they believe the man was speeding at the time of the accident. He also indicated to the reporter that the man will be charged with DUI (or Operating Under the Influence as it is called in Massachusetts) and Negligent Operation of a Motor Vehicle. Because the charge is being filed out of Holliston, the man will be prosecuted in Framingham District Court.

Because the article offers almost no details on what police observed when they approached the man at the scene of the accident, it is difficult to guess how his case might proceed. However, there are some details in the article that could foreshadow more serious consequences for the man than the average first offense DUI.

First offense DUIs are serious enough on their own. If a person is found guilty at trial or enters into a plea deal there can be lengthy loss of license as well as a period of probation, and the possibility of jail time. In addition a first offense DUI can raise your insurance rates, and result in the creation of a criminal record.

From the article it appears possible that police may try to enhance the man’s charge to an OUI causing serious bodily injury. Although the article indicates that at the moment the man is only charged with first offense DUI, prosecutors will typically wait until the case progresses to enhance the charge to OUI causing serious bodily injury. The article makes it clear that none of the passengers are suffering from life threatening injuries, however if prosecutors learn that any of the passengers suffered a broken bone, or some other serious injury, they will likely take a out a new complaint for OUI serious bodily injury. One unpublished decision by a Massachusetts Appeals Court even suggested that a mere broken pinky finger is enough to constitute a serious bodily injury under Massachusetts law.

OUI with serious bodily injury is a more serious charge because if prosecutors can prove the case beyond a reasonable doubt there is a mandatory minimum jail sentence of 6 months. This sentence cannot be suspended and no parole is possible. If convicted, a defendant must spend every day of the 6 months in jail. The maximum penalty if the case were to be indicted and prosecuted in the Superior Court would be 10 years in state prison.

The article mentions that the State Police Collision Analysis and Reconstruction Unit (C.A.R.S. Unit) is involved in the investigation. This detail does not bode well for the man, as the C.A.R.S. Unit does not usually get called to the scene by local law enforcement unless they believe there is a seriously injured party in the crash.

Although this article paints a bleak picture for the man, it is far from certain what will happen with his criminal case. He may very well be exonerated of any wrong doing. The article indicates that all four people in the car were able to exit on their own by the time police arrived. This may indicate they did not have serious injuries, but the article doesn’t go into detail on that point. Additionally, if all four were out of the car when the police arrived no police officer observed who was in the drivers seat immediately after the accident. As part of their case prosecutors will have to prove that was driving during the accident, and that may be difficult to do depending on the details of the police investigation. Also, from the report it appears that the man went directly to Leonard Morse Hospital in Natick from the scene of the accident. Often when immediate medical treatment is necessary police do not have the opportunity to perform field sobriety tests, or a breathalyzer. Without either of these kinds of evidence it can be difficult for police to build a case against a defendant that will stand up to the scrutiny of the trial process.

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In Massachusetts the penalties for DUI offenses (or OUI offenses as they are more commonly referred to in Massachusetts) have become increasingly severe over the years. That is especially true in cases illhere the defendant is alleged to be a repeat offender.

Unfortunately for one man, he is finding out just how severe those penalties can be right now. The Worcester Telegram reports that the man was arrested this week on charges of OUI after a car he was in struck a tree in an accident in Northboro, MA.

The police allege that the man was driving the car when the accident occurred. What makes this case more interesting than the average OUI is that it appears at the time the police responded to the accident both the man and the other person in the vehicle were no longer inside.

The police report that when they spoke to the man he smelled of alcohol, had trouble balancing, slurred his speech and glassy eyes. They also had a conversation with him where he supposedly admitted he had been driving the car. However, according to police they also spoke to his wife who was at the scene and she also told police that she had been driving. This fact could make this case difficult for prosecutors to prove at trial.

In any case the prosecution brings against a defendant each charge is broken down into elements. Each element must be proven to a jury or a judge beyond a reasonable doubt in order for the jury to reach a verdict of guilty.

In a DUI or OUI cases the elements that must be proven are that the defendant “operated” a motor vehicle, that he did so on a public way, and that at the time he operated the vehicle he was under the influence of alcohol. In this case there is clearly some doubt as to who was driving the car because when police responded both parties indicated they had been driving. His defense may rely heavily on the fact that there is not enough evidence for a jury to conclude that the man was the driver of the car during the accident. If a jury or judge is not convinced he was driving that night beyond a reasonable doubt he will have to be found not guilty of the offense.

Either way the stakes are certainly high for the man. A conviction for operating a motor vehicle under the influence 5th offense carries a mandatory minimum penalty of two years in jail. There is no possibility of the sentence being suspended and there is no parole or earned good time prior to serving every day of two years in jail. On top of that if convicted he will face a lifetime suspension of his license in Massachusetts.

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By way of the Salem News I recently read about a man who was arrested on a fourth offense operating under the influence (DUI/OUI) charges as a result of a sobriety check point in Peabody, MA.

Sobriety checkpoints are a controversial form of OUI/DUI investigation that the police have been using for over 20 years. A sobriety checkpoint is usually done on a secondary highway and involves teams of officers from different departments. Local departments often partner with the state police and police from neighboring jurisdictions to launch these checkpoints.

Although the Supreme Judicial Court (Massachusetts’ highest court) has found that it is constitutionally permissible for the police to run these checkpoints they do require that the check point be conducted in a certain way in order for it to be legal. The checkpoints must be conducted to a preset plan, and the vehicles must be stopped in a random predetermined pattern. Officers can only have a short interaction with each driver to be stopped, and can only detain a driver for further screening if they first make observations that lead them to believe the operator is under the influence of alcohol. (for a more detailed discussion of how and why these stops are allowed by the court read Commonwealth v. Anderson.)

Although these stops are allowed under Massachusetts law they can result in the arrest and subsequent charging of an innocent person. Because the vehicles in question that are stopped are stopped randomly there is often no indication that any improper or erratic operation occurred at the time the vehicle is stopped.

This is in contrast with most stops for OUI where the initial reason for the car being pulled over is a traffic violation committed by an operator. Because operators in these kinds of cases have frequently committed no traffic violation that can be compelling evidence to a jury that the operator was not impaired by alcohol at the time of the stop.

Also an officer on duty at a sobriety checkpoint is looking to make drunk driving arrests as part of his assignment for the night. This part of the officers assignment can be used to demonstrate to the jury that the officer may be more motivated to make an arrest, even if the evidence against a particular operator is thin.

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As a Massachusetts OUI/DUI attorney I frequently read about cases in local papers regarding the crime of Operating Under The Influence. The Lowell Sun recently reported on the arrest of a local school official for operating under the influence of alcohol third offense. Any drunk driving charge in Massachusetts has serious consequences, and a third offense can be especially troublesome.

According to the Sun, the man encountered Merrimac Police on September 9th, 2011. Apparently bystanders told the police after a man was seen exiting a vehicle at the same time that a bottle of whiskey fell out of the car. They said he had gone into a variety store on East Main Street. Police retrieved the whiskey bottle waited for the gentleman to leave the store. After leaving the store police approached him as he put groceries in his trunk.

The police questioned him and he allegedly admitted the car was his. During their questioning of the man, the police claimed that his eyes were bloodshot and glassy and there was an odor of alcohol on his breath. Police also claim that he admitted to drinking one beer that day.

Police claimed that when the man went into his car to retrieve his license they found a red solo cup with whiskey inside of it in his vehicle. The man was arrested and charged with operating under the influence of alcohol third offense because he allegedly has had two prior offenses for OUI.

The man is facing serious potential penalties as a result of his arrest. If convicted of a third offense OUI there is a mandatory minimum penalty of 6 months in jail. The charge cannot be continued without a finding and the sentence cannot be suspended. If convicted, the man will go to jail and will not be eligible for release until he has served at least 150 days of the 180 day minimum sentence.

In addition to the threat of mandatory minimum jail time there is also a lengthy loss of license that will be imposed if the government obtains a conviction.

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