With the decriminalization of under an ounce of marijuana one would expect to see an increase in the number of OUI drugs cases charged in Massachusetts. Right? After all, now everybody in Massachusetts thinks smoking marijuana is legal. The restrictions on person use are scant at best. You can smell burnt marijuana on most city streets during the daytime daily. You now see people smoking weed in public everywhere. Do you ever wonder how these folks are getting around? I suspect many of them are driving but you know what? I am not seeing an increase in the number of OUI drug-marijuana cases coming into my office. I think I know the reason why.
Imagine this. You get pulled over for drunk driving or OUI in Massachusetts. You have been drinking. You want to know what to do. So you pull out your smartphone and pull up your favorite operating while impaired app. You go through the checklist. Should I take the breathalyzer test? Should I take the field sobriety tests? Should I talk to the police at all? Then you access that portion of the app that calculates blood alcohol. Finally, you get a list of lawyers’ telephone numbers on the app and shoot them a text or have your passenger make the call. Is this a fantasy or is there actually a real app out there that does these things? Just yesterday I read an article on cnn.com that talked about such an app that was developed by lawyers in Iowa. My thought is that a similar product for Massachusetts or perhaps all fifty states is just around the corner. This post discusses the pros and cons of such an app and how it might be best used. Continue reading →
Just the other day I got a call from someone looking for an OUI lawyer. The man was extremely upset. He told me that the night before he was arrested for a second offense drunk driving. I asked him what happened and he proceeded to recite a sequence of events that was shocking yet not entirely out of the ordinary. It involved a police officer who has a blatant disregard for justice and for the truth. This post discusses his story, why this happened and ways that this case can be defended. Continue reading →
Time and time again I have commented that at least in Massachusetts the OUI police reports that I read are essentially boilerplate. From officer to officer, report to report, I can recite by memory, almost verbatim the content of those documents. I have always maintained that if criminal defense lawyers collaborate a database can be established where lawyers can access the reports of individual officers to show a pattern of repetition that demonstrates a lack of sincerity on their part. Police officers tend to be lazy in their report writing. The reports are prepared at the end of their shift. The officers don’t like doing this. They are tired and they want to go home. So what do they do? They take shortcuts. They cut and paste or reiterate the substance of other reports. They do not take the time to carefully draft reports relating to your case. This post shows what I mean by boilerplate police reports. Let me know if this sounds familiar to you? If you were arrested for OUI there is a good chance this is what your report looked like.
Many people don’t realize that breathalyzer test readings are not necessarily accurate. A breathalyzer is a machine. Machines have flaws. But before those flaws can be shared with a judge or a jury the OUI defense lawyer you hire needs to know how these machines work. If he or she does not know then how can the flaws in the process be explained to a jury. Think about it. Jurors are just normal people. Some work. Some do not. They come from all different backgrounds. Some are educated while others are not. If the primary issue in the DUI trial is to challenge the accuracy of the breathalyzer reading then your lawyer better be able to do this in a way that gives the jury pause before accepting the police officer’s recitation of his reading of the machine. It is also important to keep in mind that there are several types of breathalyzer machines in use. Your lawyer must know how each one works if you are going to be properly defended. This post briefly examines one of these machines, the Intoxilyzer, how it works and facts about false readings.
Any lawyer will tell you that having good witnesses on your side can make the difference between winning and losing a trial. This is particularly true in the case of the OUI trial in Massachusetts. If the case is triable, and I have good witnesses I often get a pretty good sense that I am going to win the case. The reason for that is simple. Cops are usually not good witnesses in OUI cases. They are stiff and unlikable. They are usually relatively young as the more experienced police officers are more likely going to be in a more specialized unit and not on routine patrol. On the other hand, a good witness for the defense will simply answer the questions. No agenda here. Just good, honest testimony that will often result in an acquittal for the defendant.
True field sobriety tests are commonly referred to as divided attention tests. Their purpose is to see whether or not you can pay attention to some very basic rules while performing a simple physical task. If you have no physical limitations the tests assume that you can follow the directions and complete the test. If you are impaired the test will not be so easy to complete satisfactorily. True field sobriety tests are standardized and explained later in this post. However over the last twenty or so years Massachusetts police officer have become somewhat tricky in terms of how they administer field sobriety tests. They administer tests that are unreasonable and not approved by professional authorities. These tests are often developed by creative police officers who have no regard for proper “objective” procedures. In Massachusetts an experienced OUI defense lawyer will exploit the officer’s unfair actions. He will show the jury that the police officer’s conduct is unjust. The result is often an acquittal.
I get this question several times each week. Someone gets arrested for drunk driving in Massachusetts. This is their first OUI and usually their first time having to go to court. After the initial shock and embarrassment wears off they start thinking about defending the case and ultimately how much the case is going to cost them. In order for me to properly answer that question I have to go through several scenarios with them to make sure they understand how the process works and what they are facing. There are however some short answers I can give them right away. Here they are along with the questions.
OUI drugs in Massachusetts is a crime not often prosecuted. Police officers will make a stop of a vehicle based on their observations of operation or a report or erratic driving. Just after making the stop the officer will contact the operator. They usually ask for a license and registration and make some comment about the reason for the stop. During this initial encounter the officer makes observations about the driver. He looks for signs of intoxication. Alcohol intoxication. The typical patrol officer is trained to look for objective manifestations of impairment, unsteadiness of one’s feet, slurred speech, the inability to respond to simple commands and of course the odor of alcohol. Few are trained to look for indicia of drug impairment. This is why you rarely see OUI drug cases being charged in Massachusetts. When you do they usually cannot be proved.
Just prior to the New Years weekend I saw a rash of articles talking about how DUI checkpoints in southern California were being set up not only with breathalyzer test machines but also cheek swab tests. Much of this is law enforcement’s response to the decriminalization and legalization of marijuana throughout the country. So I imagine that it is only a matter of time before the Massachusetts legislature approves similar tests. So what exactly are cheek swab tests and how do they work? These are portable machines that through your saliva can determine whether or not you have ingested alcohol or other drugs at some “recent” time. The inside of your cheek is swabbed. Then the swab is checked for the presence of listed substances including alcohol, marijuana, cocaine, ecstasy and certain prescription drugs. A positive test will likely result in an arrest and charge for OUI liquor or drugs depending on the test result.