Massachusetts DUI Lawyer Blog

A Boston College Eagles player was arrested in New York for drunk driving and driving without a license. The Staten Island Advance reported Jan. 13 that Dominick LeGrande, 20, was arrested early on the morning of Jan. 10. LeGrande, a sophomore linebacker with the Eagles, was spotted by police at a bar in Stapleton, NY that police suspect serves underage patrons. After he got into his mother's vehicle and drove away, police followed him and stopped him for a defective headlight. At the scene, officers noticed signs of intoxication from LeGrande. He admitted that he had been drinking, and a breath test showed a BAC of 0.164, just over twice the .08 legal limit. He was arraigned in the local criminal court for driving under the influence of alcohol and driving without a license, and released without bail until his April 1 court date. Neither BC nor LeGrande would comment.

Read article: Drunken, unlicensed driving rap for former star athlete at Island school

Because the incident took place in New York rather than Massachusetts, LeGrande will be tried under the laws of that state. But if a Massachusetts OUI criminal defense lawyer were handling a case like this, I believe he or she could mount a good defense. First, I would like to take a closer look at the legality of the original traffic stop. The article said police were staking out the bar where LeGrande was drinking because they suspect it serves minors. It also mentioned that LeGrande was driving his mother's 2002-model vehicle. This suggests that the defective headlight that formed the basis of the traffic stop may have been an excuse rather than a serious concern. If the court finds the stop illegal, all of the evidence generated by that stop, including the breath test and LeGrande's own statements, would have to be thrown out.

Even if this is not feasible, or the client prefers to plead guilty, that doesn't mean he'd be harshly punished. In fact, I believe an experienced Massachusetts drunk driving criminal defense attorney could make a good case for the 24D program, were this a Massachusetts DUI case. LeGrande has no reported previous offenses, and there was no accident or injury in the case -- not even property damage. Because of his status as a fairly high-profile athlete, he is likely to face a suspension for at least a game or two, regardless of what the courts do. He is also likely to be attacked in the press, making it tempting for authorities to "make an example" of him. However, too many criminal penalties could end his athletic career, even though a first drunk driving conviction is unfortunately a common mistake among college students. That makes it essential to avoid a first DUI conviction now, possibly by entering the 24D/alternative disposition program or pleading guilty to a lesser charge like reckless driving, if that state permits such a resolution.

Continue reading "Boston College Linebacker Arrested for DUI at Home on Staten Island" »

A member of the Milton School Committee was sentenced this week after an arrest for operating his truck under the influence of alcohol. The Taunton Daily Gazette reported Jan. 4 that Christopher Huban and his Massachusetts OUI defense lawyer struck a deal with prosecutors in connection with a drunk-driving arrest New Year's Day. A concerned driver called the police that day to report a possible intoxicated driver, and an off-duty police officer spotted Huban's truck weaving into oncoming traffic and toward pedestrians. After being pulled over by an on-duty officer, Huban blew a blood-alcohol reading of .25, more than three times the legal limit of 0.08. At the hearing, Huban admitted that the facts were sufficient to convict him of drunk driving. His driver's license was suspended for 45 days and he was placed on supervised probation, for which he will pay $65 a month. As part of the deal, the judge dismissed a negligent driving charge but let stand a citation for failure to stay within lanes.

Read article: Drunk-driving case against Milton official continued without a finding

The article mentions that this sentence is standard for first-offense OUIs. The article doesn't specify this, but as a Massachusetts drunk driving criminal defense attorney, I strongly suspect that Huban was sentenced under the 24D/alternative disposition program. This program is indeed available for first offenses, along with some second offenses, as long as they are not responsible for any serious injury or death. Defendants who enter the 24D program typically serve up to one year of probation, a license suspension of 45 days, alcohol classes and several fines. This is in contrast to a one-year suspension and possible jail time for a first OUI conviction. And while a 24D plea doesn't keep a prior offense off the driver's record, an experienced Massachusetts OUI defense lawyer can often win a continuance without a finding, as in this case, that allows drivers to truthfully say they have never been convicted of a crime.

Continue reading "Drunk Driving Case Continued Without Finding for Milton Schools Official" »

Two women from Beverly suffered minor injuries after a crash with a drunk driver, the Boston Globe's Metro Desk blog reported Dec. 15. The crash happened around 6:45 a.m. on that same day, on Route 128 near the Route 1A exit. According to the Globe, 19-year-old James Dexter of Danvers was driving under the influence in a stolen pickup truck when he slammed into an SUV driven by Kathleen Olivero, 57, of Beverly and occupied by passenger Tracy Olivero, 34 and also of Beverly. The women's vehicle was pushed into an exit sign and rolled over into the grass. They went to the hospital with minor injuries. The pickup also rolled over, but Dexter and his passenger, 19-year-old Eric Banks of Danvers, were not injured. Dexter was arrested at the scene and charged with OUI and unauthorized use of a motor vehicle.

Read article: Alleged drunk driver injures two women in Beverly accident

As a Massachusetts drunk driving criminal defense attorney, I would like to know more about what signs of intoxication led to Dexter's arrest. Massachusetts law sets a lower legal limit for drivers under the age of 21 -- just 0.02 instead of the ordinary 0.08 limit. That means it takes very little alcohol to put an underage driver over the legal limit -- sometimes so little that the driver shows no signs of intoxication. There are also many factors that provide false positive results to the breathalyzer test. Experienced Massachusetts OUI Defense Lawyers should be able to demonstrate this to a jury. Sometimes these machines register low readings even if no alcohol has been consumed. In that case, it might be a good to try your case. If his blood-alcohol reading was low, and this is Dexter's first OUI, he may be a good candidate for the 24D/alternative disposition program, which offers reduced penalties for first-time offenders. If he did not consume any alcohol, he should consider going to trial on this case.

In many cases, law enforcement does not or cannot perform breath tests before an arrest. This requires prosecutors to rely on observations and field sobriety tests alone to support the OUI charge, a risky move because police observations are highly subjective and field sobriety tests are notably unreliable. If these are the only foundations of the OUI part of the case, an experienced Massachusetts OUI defense lawyer should be able to challenge them in court, potentially defeating the charge outright.

Continue reading "Police Say Driver Who Caused Early Morning Injury Crash in Beverly Was Intoxicated" »

A young man from Weston was charged with operating under the influence with serious bodily injury, leaving the scene of an accident and reckless driving after hitting a Boston College senior and driving away. The Boston Globe reported Dec. 8 that Benjamin Knott, 18, is accused of striking 21-year-old Bethany Pfalzgraf of Londonderry, NH as she crossed a street on campus at around 12:30 a.m. Dec. 6. Pfalzgraf was initially hospitalized in serious condition, but had her condition upgraded to good Dec. 7. Knott reportedly drove away from the crash and stopped in a parking lot, where campus police found him examining the damage to his vehicle. He told the Massachusetts State Police that he had a few drinks while visiting a friend on campus, and provided two breath samples that measured his blood-alcohol concentration at 0.18 and 0.2, more than twice the legal limit of 0.08.

Read article: Teenager charged with DUI after BC student is hit

Knott faces unrelated negligent boating charges from New Hampshire, stemming from an August incident in which alcohol was reportedly not a factor. Nonetheless, media reports about this accident continue to mention those charges, which concerns me as a Massachusetts drunk driving criminal defense attorney. The two incidents together may show that Knott has made bad decisions while operating a vehicle, but they don't show a history of intoxicated driving and boating. To imply otherwise is irresponsible and against the spirit of our criminal justice system's presumption of innocence.

This is not to say that the charges against Knott aren't serious. Even a first OUI in Massachusetts with serious bodily injury means a minimum of six months in jail and up to 10 years in prison; $500 to $5,000 in fines; and several hundred more in fees. Because Knott is under the age of 21, he also faces a three-year driver's license suspension, instead of the two-year suspension for drivers over 21 accused of the same violation. And if he is convicted of this charge and then charged with OUI again later in life, his penalties will likely be more severe. Knott has pleaded not guilty and retained a Massachusetts OUI defense lawyer, so it seems that he intends to defend the charges. Under these circumstances, that seems like a wise decision.

Continue reading "Teenager Charged With OUI After Hitting BC Student and Leaving the Scene" »

A Centerville man was arrested for operating a vehicle under the influence of alcohol Nov. 7 after an accident that left his front bumper inside a package store. A witness called the police after seeing Bernard Kilroy, 27, drive his car through some bushes across a rotary and into the Hyannis Package Store on Main Street in Hyannis. According to the police report, Kilroy broke the front window of the building and stopped when the car was completely inside the store, but reversed and left the scene. However, he left an important piece of evidence: his front bumper, which included a license plate. The crash was also caught on a surveillance camera. The owner of the store, Cory Fitzgerald, said Kilroy broke or damaged about 2,000 bottles of wine and ruined a carpet, requiring help with the cleanup from "disaster specialists." Kilroy was arrested in Centerville shortly after the crash.

Read article: Driver hits liquor store, leaves license plate

This article doesn't specify exactly what Kilroy was charged with, but it's safe to assume that OUI is among the charges. As a Massachusetts OUI defense attorney, the defenses I might recommend depend a lot on what evidence law enforcement has for such a charge. It sounds from the article like the evidence shows that Kilroy was responsible for the crash. However, it doesn't necessarily follow that he was driving under the influence of alcohol during the crash. Without a breath or blood test, an experienced Massachusetts drunk driving defense lawyer might be able to show a jury that Kilroy's actions don't meet the legal definition of OUI in Massachusetts. If there is such a test and it implicates the defendant, a better bet might be to consider a guilty plea in exchange for participation in the 24D/alternative disposition program, which keeps defendants out of jail and substantially reduces their time without a driver's license.

Continue reading "Cape Cod Man Arrested for Drunk Driving After Leaving Bumper in Package Store" »

A road repaving project in Framingham was interrupted by an apparently drunk driver, the MetroWest Daily News reported Oct. 27. Police say Rodrigo Dos Santos, 31, drove through traffic cones and onto freshly poured asphalt around 2 a.m. on the night of Oct. 24. Workers were repaving a section of Union Avenue near Wood Terrace in Framingham at the time, and the cones were set up to redirect traffic away from the project. A police officer present waved his arms at Dos Santos to indicate that he should stop, but Dos Santos continued through the work area, forcing workers to jump into vehicles in order to avoid being hit.

Dos Santos then proceeded through the hot asphalt, stopped and tried to make a three-point turn. When he came to a stop, the officer said, he smelled of liquor, had trouble standing and collapsed on his way to the police cruiser, forcing the officer to support him. He insisted that the officer call his wife to pick him up and claimed that he only had three beers. Nonetheless, he was charged with OUI, driving without a license, speeding, driving to endanger and leaving a marked lane. He pleaded not guilty Oct. 26.

Read article: Framingham man charged with drunken driving

The facts in the article may seem grim for Dos Santos. But as a Massachusetts drunk driving defense attorney, I would like to remind readers that the only evidence of drunk driving reported here is circumstantial evidence. In fact, if the article is a complete record of the arrest, the only evidence of drunken driving may be subjective observations by the officer on the scene. In order to prove an OUI charge in Massachusetts, prosecutors must provide a chemical test showing the driver had a BAC of 0.08 or greater, or was driving under the influence of intoxicating liquor. If there is no BAC reading, prosecutors may have to show that intoxication was the best explanation for the incident. In a case like this, an experienced Massachusetts OUI defense lawyer may be able to raise reasonable doubts among jurors if the case goes to trial.

Continue reading "Police Charge Framingham Man With DUI After He Drove Into Road Workers" »

Police officers in Dedham, Massachusetts say they saw an unusually high number of arrests for operating a motor vehicle under the influence of alcohol, the Daily News Transcript reported Sept. 15. An officer said the police made three different OUI arrests in one night last weekend, including one involving a Stoughton, Massachusetts woman who was found sleeping in her vehicle. A motorist called the police around 6 a.m. to report seeing a beer bottle thrown from a Jeep parked in the road. The responding officer found the Jeep parked but running with its headlights on. A beer bottle was under the driver's side door.

The driver, Kelly St. Martin, and her passenger, a 25-year-old man from Dedham, appeared to be sleeping. St. Martin reacted to the officer's first two attempts to get her attention by lifting her head and then slumping over again. After the officer knocked on the door for about 30 seconds, she opened the door. She turned the vehicle off, handed the keys to the officer and said she was not driving. The officer put her through field sobriety tests, on which she did poorly, and observed a strong odor of alcohol on her breath. She was arrested and charged with OUI liquor, and pleaded not guilty at an arraignment Monday.

Read article: Cops cope with rash of OUIs

Many of my clients as a Massachusetts DUI defense attorney are surprised to find that they can be charged with drunk driving even if the vehicle was not actually moving, as in this case. In fact, law enforcement officers in Massachusetts do not need to show that the defendant was driving to make an arrest. State law prohibits "operat[ing] a motor vehicle... under the influence of intoxicating liquor..." or drugs -- and officers may decide that "operating" means having the keys in the ignition. However, if the case goes to trial, a jury will have the final say on whether the defendant truly was operating a motor vehicle under the influence of alcohol, as the law requires. Experienced Massachusetts OUI defense lawyers have been able to secure not guilty verdicts for people in this situation, allowing them to avoid the severe penalties of a Massachusetts drunk driving conviction.

Continue reading "Series of Drunk Driving Arrests in Dedham Includes Woman Charged After Sleeping in Car" »

Braintree police plan to charge a Holbrook, Massachusetts man with operating under the influence of alcohol and failure to stay in marked lanes, the Holbrook Sun reported Sept. 8. The charges stem from a crash in which the unnamed 36-year-old man hit another car Sept. 3. According to a spokesman for the Braintree police, the man allegedly drifted out of his lane and hit the driver's side of a car traveling in the opposite direction, before stopping on the sidewalk and a nearby lawn. The driver who was hit, a 48-year-old man from Fall River, and his three child passengers were not seriously hurt. However, the Holbrook man was taken to a hospital with non-life-threatening cuts to the head.

Read Article: Charges against Holbrook man sought in traffic crash

The Holbrook man is lucky that nobody was seriously hurt in this accident. As a Massachusetts DUI defense attorney, I believe the penalties for drunk driving in Massachusetts are severe, but they get much more severe when the charge is increased to OUI with serious bodily injury. (A serious bodily injury creates a substantial risk of death, leaves the victim permanent disabled or robs the victim of a bodily function for a substantial period of time.) On a first offense, people charged with intoxicated driving may be sentenced to imprisonment for up to 2 1/2 years, but with the help of an experienced Massachusetts OUI defense lawyer, most offenders have a good chance of getting probation instead through alternative disposition. By contrast, 2 1/2 years in prison, six months of which must be served, is the minimum penalty for a conviction for drunk driving with serious bodily injury. And in cases like this one, in which children are victims, juries are generally not kind to defendants.

However, because the injuries in this case were only minor, the Holbrook man may have strong defenses available. The article does not specify whether the man's blood-alcohol content was tested. If it was not tested, the charge may be based solely on the officer's statement that the man had alcohol on his breath. As I have written here in the past, that statement is in nearly every DUI-related police report in the state. A good Massachusetts drunk driving defense attorney should point that out to a jury and explain that a smell of alcohol does not, by itself, meet the standards for an operating under the influence charge in our state -- a blood-alcohol content of 0.08%.

Continue reading "Holbrook Massachusetts Man Faces Drunk Driving Charges in Braintree Injury Accident" »

Last week Kelly Petter of Boxford, Massachusetts was arrested for Drunk Driving. Apparently police responded to several cell phone calls complaining of a driver operating erratically. The suspect drove down a driveway and was boxed in by a couple of cars the drivers of which witnessed her manner of operation. When the police arrived Petter supposedly drove her car at one of the officers. She was then given Field Sobriety Tests during which she kicked a police officer. Another officer was bitten by Petter during the booking process and a third was kicked. She now faces charges of OUI, Assault and Battery on a Police Officer, Resisting Arrest and Disorderly Person. The case is being prosecuted in the Haverhill District Court.

Read Article:

Fifty Year Old Massachusetts Woman Charged With DUI Bites And Assaults Police Officers

Here are what I see as major problems with this case from the perspective of a Massachusetts OUI Defense Lawyer. First, there are several civilian witnesses who witnessed the defendant's manner of operation. Second, two of these witnesses were concerned enough to make sure that Petter could not escape apprehension. Third, her demeanor towards the police suggests a state of mind consistent with intoxication. I would also imagine that the police reported that she had a strong odor of alcohol on her breath, was unsteady on her feet, had bloodshot and glassy eyes and slurred her speech. My bet is that this case does not go to trial and that Petter offers a change of plea and enters an alcohol education program. Without a strong objection from the police officers and in the absence of a criminal history perhaps a continuance without a finding will enter subject to the 24D Program.

Continue reading "Boxford Massachusetts Woman, 50 Charged With OUI In Haverhill Court" »

Around three o'clock yesterday afternoon Massachusetts State Police received several calls from drivers stating that a woman was driving erratically and had a child in her car. A state trooper heard the dispatch and observed a vehicle being operated by Cindy Abkarian weaving back and forth between lanes. The car was pulled over and the trooper observed the defendant's daughter sitting in the passenger seat unbuckled. Abkarian admitted to having used methadone and Klonopin prior to operating her vehicle. Abkarian failed the Field Sobriety Tests and admitted to having a substance abuse problem. She was arrested and charged with OUI Drugs, Possession of Class C, Child Endangerment and related Motor Vehicle Crimes in the Salem District Court.

Read Article:

Massachusetts Charges Woman WithTaking Pills And Driving With Her Two Year Old Child Unrestrained

My experience tells me that this case is not going to trial. Several factors suggest that the defendant in this case will plead guilty. Independent cell phone callers witnessing Abkarian's erratic operation, the trooper making a similar observation, her admission to using drugs when driving, the presence of drugs in plain view when she was stopped, the failed field sobriety tests and the unbuckled toddler all suggest that Abkarian should plead guilty. With a good lawyer she will likely get probation and perhaps some enhanced drug abuse treatment.

Continue reading "Mother Facing Charges Of OUI Drugs In Salem Massachusetts" »

Last week Nancy Toledo of Braintree, Massachusetts was stopped for having a defective taillight. Once stopped the police officer observed signs consistent with alcohol and drug use. Toledo was asked to perform some Field Sobriety Tests. According to reports Toledo took the tests and failed. She was transported to the police station where she was given the Breathalyzer Test. She failed this too. She was charged with OUI Drugs and Alcohol. Toledo was also charged with Resisting Arrest. After the defendant's car was searched more charges were added; Possession of Drugs and Drinking from an Open Container. The case will be prosecuted in the Quincy District Court.

Read Article:

Massachusetts Woman Fails Breathalyzer Test, Field Sobriety Tests And Gets Charged With DUI Drugs, Alcohol

Assuming the taillight was in fact defective and stop was constitutionally permissible Toledo's best option might be to admit to sufficient facts and enter the "24D" program. There she will be placed on probation for one year. She will have to enter and complete an alcohol awareness program, pay some fines and lose her license for forty five days. She will be eligible for a hardship license assuming she meets the criteria set out by the Registry of Motor Vehicles. She may also have to undergo some drug counseling if the judge believes she might have a substance abuse problem. Successfully trying this case will be a challenge due to the presence of drugs, the failed field sobriety tests and the failed breathalyzer test.

Continue reading "Braintree Massachusetts Woman Arrested And Charged With OUI Drugs, Alcohol" »

Emilio Bicalho was arrested Saturday after hitting a pedestrian with his motor vehicle in a crosswalk. The forty six year old Framingham, Massachusetts man admitted to the police that he had consumed two beers earlier that day. Eyewitnesses stated that the impact of the collision caused the victim to fall on the hood of the van and then hit the ground. Police stated that Bicalho smelled like alcohol and had glassy and bloodshot eyes. He was charged with OUI and Driving Without a License. The case is pending in the Framingham District Court.

Read Article:

Massachusetts Man Hits Pedestrian, Admits To Drinking Two Beers And Gets Charged With DUI

If this article is accurate and detailed the district attorney might have a hard time proving this case. Every police report generated after an OUI arrest states that the suspect smelled like alcohol and had glassy and bloodshot eyes. That this was reported in this case is no surprise. I would be surprised to see a police report pertaining to a DUI case that does not make that statement. Good defense lawyers in Massachusetts are quick to point this out to juries and make sure that the jurors do not use this contention as a determinative factor in their deliberations. The ingestion of two beers is never enough to prove impairment. Two beers consumed without being metabolized at all yield a blood alcohol content of .04 or one half the legal limit. There were no field sobriety tests given and there was no breathalyzer test taken. This does not add up to a conviction for OUI in Massachusetts.

Continue reading "Framingham Massachusetts Man Charged With OUI After Hitting Pedestrian" »

Joyce Whitman of Whitman, Massachusetts was involved in a one car crash last Friday shortly after midnight. Police found her car on its roof where it had come to rest after hitting a dumpster and a telephone pole. When the police arrived the car was on fire and the defendant still inside. It took approximately twenty minutes to extricate her from the wreckage. The defendant is facing charges of Negligent Operation of a Motor Vehicle and OUI in the Brockton District Court. The defendant sustained injuries requiring hospitalization.

Read Article:

Massachusetts Woman Involved In Rollover Charged With DUI, Other Motor Vehicle Offenses

Cases like this one are usually proved by evidence that the defendant's blood alcohol level exceeded the legally permissible level. Without this evidence the case would be extremely difficult to prove. The article makes clear that there have been several accidents at this location over the years. This fact makes it difficult to prove impairment based on the crash alone. Rather, the blood sample taken and tested at the hospital will determine the viability of this prosecution. If the blood sample was properly taken and there is no issue of contamination this case might be difficult to defend. If on the other hand the blood was not processed properly defense lawyers will look to exclude the blood test results. If the defendant's criminal defense lawyer is successful getting the blood results excluded this case might be very difficult to prosecute.

Continue reading "Whitman Massachusetts Woman Charged With OUI, Related Motor Vehicle Crimes After Crashing Car" »

Last Friday Peter Koshivas of Holliston, Massachusetts crashed his Honda Civic into a tree just after 1:00 in the morning. His passenger, Benjamin Snow was injured in the crash and taken to the hospital by helicopter. Police stated that both Koshivas and Snow are luck to be alive. Koshivas will be charged with OUI Serious Bodily Injury, Reckless Driving and related Motor Vehicle Charges. The case will be prosecuted in the Framingham District Court. The article was not specific on the details of the crash.

Read Article:

Holliston, Massachusetts Man Who Injured Friend In Crash To Be Prosecuted For DUI, Other Motor Vehicle Crimes

The article reported that Koshivas was also injured in the crash. Thus, it is reasonable to assume that he never took the field sobriety tests nor did he take a breathalyzer test. I would imagine that blood was taken from him at the hospital and that it has been tested for the presence of alcohol. As I have mentioned in prior posts the blood must be taken and tested in certain ways to avoid the possibility of a false positive result. Absent any eyewitness testimony the prosecution will probably base its case on Koshivas' blood test results and an accident reconstruction. The accident reconstruction simply buttresses the district attorney's case provided they have an alcohol sample that reads a .08 or higher. If not, the OUI aspect of this case is harder to prove.

Continue reading "Holliston Massachusetts Man Involved In Crash Charged With OUI Serious Bodily Injury In Framingham Court" »

Last Wednesday night Carlos Catala struck a sheriff's vehicle with his car sometime around 10:00 p.m. in Dedham, Massachusetts. The car was parked at a construction site on Route 1. When police arrived Catala was sitting in the front seat of his car. It was reported that he smelled of alcohol. He was given field sobriety tests which officers claim he failed. Catala was charged with OUI. He pleaded not guilty in the Dedham District Court.

Read Article:

West Roxbury, Massachusetts Man Crashes Into Sheriff's Car And Gets Arrested For DUI

Absent a legitimate excuse for the accident, the odor of alcohol and the failed field sobriety tests Catala is going to have a hard time successfully defending against these charges. Traffic is typically lighter in the evening and the cause of accidents is more apt to be the fault of the defendant, not another person. Trying to explain otherwise to a jury or judge is difficult particularly where the smell of booze is present and the field sobriety results are unfavorable. These cases are usually resolved through plea bargaining. The result is usually a continuance without a finding with a "24D" disposition. Catala will have to enroll and complete the alcohol education program, pay fines, report to probation for a year and have his license suspended for forty five days. He will be eligible to apply for a hardship license. I would suspect restitution for the damage caused to the sheriff's vehicle will also be a condition of his probation.

Continue reading "Drunk Driver Crashes Into Sheriff's Vehicle In Dedham Massachusetts" »