Massachusetts DUI Lawyer Blog

In modern society, where travel is easy, the interstate differences in drunk-driving laws may create sticky situations. Melanie's Law, our Massachusetts OUI statute, provides for enhanced penalties as well as other "remedial" measures, such as mandatory installation of ignition interlock devices, for repeat offenders. In our increasingly interstate system, application of certain repeat offender provisions of Melanie's Law becomes problematic because different states take different approaches to offender status. For example, some states have a policy of expunging or sealing first offense drunk- driving convictions after the accused successfully completes any probationary term and alcohol awareness program. If an individual with an expunged or sealed OUI conviction is later charged with drunk driving again, the charge in some states would be for an OUI first offense. Massachusetts, on the other hand, would treat that person as a second-time offender.

A major problem created by this interstate inconsistency relates to finality of pleas. All states are interested in the finality of pleas and other dispositions. When Massachusetts converts out-of-state first offenses into Massachusetts second or subsequent offenses, the out-of-state pleas may be challenged for lack of voluntariness or intelligence. Before any accused can enter a guilty plea, he or she must have notice of the nature of the charge. When an OUI is charged as a first offense in another state and the accused pleads, the plea may not be made intelligently when he or she has no notice that it will be a Massachusetts second offense. Massachusetts should apply its laws in a way that is mindful of other states' interests in finality of pleas instead of creating potential grounds for vacating foreign pleas.

The question becomes, "Why should Massachusetts defer to another state in terms of an OUI offender's status and the nature of an OUI charge?" One answer involves comity, respect for the sovereignty of other states. Another involves certainty, predictability, and uniformity. It is more than important for people to have some degree of certainty as to their offender status. Treating out-of-state first-time offenders as Massachusetts second-time offenders undermines that certainty. One's offender status becomes fluid, changing as state lines are crossed. While Massachusetts has valid public policy interests, the intended deterrent effect of enhanced penalties (and so-called "remedial" measures) for repeat offenders is substantially undercut when a person does not even know that he is or could be charged as a repeat offender.

It is true that under traditional approaches to conflict of laws, it is essentially the rule that State A will not enforce the penal laws of State B. This is a fairly- accepted proposition because the wrong is to the particular state. However, not all provisions of Melanie's Law affecting repeat offenders are considered "penal." As noted above, the requirement that second and subsequent offenders install an interlock ignition device on cars they own or operate has been deemed "remedial" as opposed to punitive. Also, under more modern approaches in conflict of laws, courts engage in "interest analysis" or "comparative impairment" analysis instead of having clear-cut choice of law rules. "Interest analysis" involves considering which state is more interested in seeing its rule applied. "Comparative impairment" is essentially the flip side to that coin, where courts consider which state would be more aggrieved if its rule were not applied. In light of the conflicting interests noted above, and from the perspective of a Massachusetts OUI/DUI/DWI lawyer, it would be interesting to see how a Massachusetts court would conduct an analysis on this issue.

Continue reading "Massachusetts OUI Laws Are Often Unfair When Measured On A National Scale" »

The most recent article in the Boston Globe's OUI series is entitled "Court mismatch makes OUI justice elusive: Lawyers who specialize in defending drunk drivers enjoy huge legal advantages built into state law, and have the ear of some judges prone to favor their arguments, no matter how far- fetched." The front-page article is essentially a lengthy criticism of defense attorneys who utilize these "huge legal advantages," which are, literally, the constitutional protections of the criminally accused.

The article first references the "special legal advantage" of "the prohibition on putting a driver's refusal to take a breath-test into evidence." While the phrase "special legal advantage" implies some sort of legal windfall, the highest court in Massachusetts has concluded that refusal evidence violates the privilege against self incrimination guaranteed by article 12 of the Massachusetts Declaration of Rights, our state constitution. The Globe article calls this constitutional safeguard a "devastating advantage for the defense."

The article next states that "Massachusetts, like other states, also enforces intricate procedures police must follow in making OUI stops, procedures that some officers complete imperfectly, sometimes carelessly, opening easy lines of attack for aggressive counsel...It is, in short, a lopsided competition... " Firstly, such "lines of attack" are seldom "easy" in drunk-driving cases, even for the most experienced and skilled OUI attorneys. Secondly, those "intricate procedures" that police are required to follow before seizing a person are dictated by the Fourth Amendment to the United States Constitution as well as Article 14 of the Massachusetts Declaration of Rights. It is unclear to this reader whether the author of this piece would encourage flouting those constitutional requirements in OUI cases to even the so-called "lopsided competition."
Perhaps the most troubling portion of the article states, "Call it OUI, Inc., the cottage industry of lawyers and expert witnesses whose livelihoods are built on getting drivers charged with operating under the influence of alcohol off the hook---and back on the road." It should first be noted that, contrary to the implication here, not all those "drivers charged" with operating under the influence are guilty of operating under the influence and getting "off the hook." As is well known, defendants enjoy, at least nominally, the presumption of innocence (though the above-referenced statement is a testament to the unfortunate and common presumption of guilt). Secondly, it is a defense attorney's duty to zealously work to get their client "off the hook," regardless of whether they are guilty or not guilty. This type of thinly-veiled, if not blatant, disapproval of OUI defense lawyers is seemingly inappropriate.

Continue reading "Contrary To Recent Suggestions People Accused Of Drunk Driving In Massachusetts Should Avail Themselves Of Their Constitutional Rights And Privileges" »

For almost 30 years, happy hours have been banned in Massachusetts, but the casino bill may signal their return. The Senate recently passed an amendment, called the "Restaurant Equality Amendment," that would even the playing field between Massachusetts bars and restaurants and casinos that come to Massachusetts. The casino measures would allow casinos to serve free drinks, raising concerns among some legislators that smaller businesses would suffer. This has sparked a debate centering on the potential drunk-driving implications, particularly because the purpose of the 1984 ban on drink specials was to reduce drinking and driving.

Senator Robert Hedlund, a Weymouth Republican, has said that the amendment would simply allow restaurants and bars to compete with the casinos, according to CBS Boston. Senator Susan Fargo, a Lincoln Democrat who opposes the amendment, thinks that there would be a sharp increase in drunk-driving injuries and fatalities if the existing happy hour restrictions are lifted, according to that source. Massachusetts Mothers Against Drunk Driving spokesman David P. DeIuliis told the Worcester Telegram and Gazette that MADD has not yet taken a formal position but that the organization is continuing to monitor the casino legislation.

In 2005, the U.S. Department of Transportation's National Highway Traffic Safety Administration published a research report analyzing happy hour/drink special laws. According to that report, research has indicated that drunk- driving rates are sensitive to drink prices, particularly among underage people. However, from that research it would seem that if the problem group is underage drinkers, then the problem could possibly be attributed to lack of enforcement of laws limiting underage access to alcohol. The report also addresses enforcement of "sales to intoxicated" and "happy hour" statutes, referencing the strategy used in Massachusetts involving identification of the place of last drink in OUI cases.

Regardless of the conflicting positions in this happy hour debate, it draws renewed attention to drinking and driving in Massachusetts, which may prompt more zealous enforcement of OUI laws. Certain police departments have already voiced their opposition to lifting the ban. For example, a representative of the Lowell Police Department told the Lowell Sun, "We're trying to control increases in alcohol consumption, not promote the consumption of alcohol...That's exactly what these happy hours do." While that police officer's concern was with consumption of alcohol, as opposed to driving under the influence of alcohol, MADD has distinguished those two behaviors. "We're concerned, but we're not an anti-alcohol organization," a MADD spokesman told the Worcester Telegram and Gazette.

Read related articles:

Massachusetts OUI Defense Lawyer

Suburban Massachusetts Criminal Attorney

Massachusetts DUI Defense Law Firm

Continue reading "Will Enforcement Of OUI Laws Be Impacted If Massachusetts Signs Off On Proposed "Happy Hour" Bill" »

August 8, 2011, when the stocks plunged dramatically, marked the most severe decline since the fall of 2008. Economists discussed the possibility of yet another recession, which would hurt even worse because of the nation's weak starting point, CNNMoney reported on August 10, 2011. Readers may be asking what relevance this has to Massachusetts OUI/DUI/drunk driving cases, and the answer is in the following: While drunk drivers come from every walk of life, studies also show that, in addition to various other factors, drunk drivers are more likely to be unemployed (or working class). This post will touch upon the relationship between unemployment and problem drinking and the ramifications for Massachusetts operating under the influence cases.

Certain theories of alcoholism and problem drinking focus on stress levels and socio-environmental factors. Under such theories, drinking problems develop as mechanisms for coping with stressful circumstances, such as unemployment and financial strain. Researchers have had difficulty, however, in determining the causal relationship between unemployment and alcohol abuse. In other words, it seems to be unclear whether unemployment leads to alcohol abuse or whether alcohol abuse leads to unemployment. If the former is more accurate and unemployment creates an increase in problem drinking, then we would expect to see more Massachusetts OUI arrests and prosecutions if we are to be thrown into another financial crisis.

Massachusetts drunk-driving arrests have decreased in the past five years, the Boston Herald reported on July 20, 2011. However, that article indicated that last year there were 14,834 OUI arrests, down from 17,804 OUI arrests in 2008 and 15,850 in 2006. This is worth noting because 2008 was the height of the economic recession, and according to these statistics, it was also a high point in OUI arrests. Obviously, on the other hand, that there were more arrests does not necessarily mean that there was more drunk driving in 2008. For instance, it could mean that there were simply more police patrols for drunk driving.

As mentioned above, it is possible that unemployment may be a cause of "problem drinking." This raises another important OUI issue. It is known that a large majority of repeat OUI offenders are "problem drinkers." Here in Massachusetts, repeat OUI/DUI/DWI/drunk driving offenders are subject to mandatory minimum sentences, and judges are forced to take a broad-brush approach without consideration of the defendant's situation or individual traits. Anyone facing a mandatory minimum sentence should be aware that the quality of one's defense attorney will be critical.

While the link between financial crises and OUI arrests and prosecutions may be tenuous, it is always important to consider the effects of the current economic, social and political backdrop. This is largely because developments in all areas of the law, including OUI/DUI/DWI law, do not happen in a vacuum and because courts, police, prosecutors, and lawmakers all tend to take the temperature of the day.

Continue reading "There Is A Nexus Between OUI Charges In Massachusetts And A Down Economy" »

Just over a month after the high profile acquittal of Casey Anthony, Caylee Anthony's grandparents and crowds of others memorialized what would have been the toddler's birthday, CBS reported on August 10, 2011. The tribute to the child's short life seems to have spurred renewed interest in "Caylee's Law," a proposed bill that would make a parents' failure to report a child missing or dead within 24 hours or 1 hour, respectively, a felony. The widespread support for "Caylee's Law" should prompt consideration of reactive legislation named after children who have suffered tragic deaths, such as Massachusetts' own "Melanie's Law," which was passed in 2005 to enhance punishments for Massachusetts OUI/DUI/drunk driving offenders.

"Melanie's Law" was named after Melanie Powell, a 13-year-old who, while walking to a beach in Marshfield, was killed by a drunk driver. The driver, who had a prior OUI conviction, was convicted of motor vehicle homicide and drunk driving. She was sentenced to 2 ½ years in state prison and two years of post-release probation. Melanie's parents and grandfather then started a push for tougher drunk driving legislation. "Melanie's Law," which came in the wake of public anger , was the result.

Laws fueled by public outcry and named after deceased children tend to be counterproductive and poorly-reasoned. Too often, consideration of the policy behind such laws is lacking at best. These kinds of laws are frequently designed to appease an outraged public , and bad knee-jerk laws are passed in an emotional haze. Still, some legislators use these "tough" laws as a tool to garner support and win votes. Attaching the name of a child victim to proposed legislation is another powerful tool for legislators championing such laws. This tactic creates the perception that a vote against the law is a vote against the child, curbing opposition.

There are several examples of laws named after young victims, particularly in the area of sex crimes. The Jacob Wetterling Act, the Adam Walsh Act, and Dru's Law are just a few of the many. While most would agree that prevention of sex crimes is an important goal, many have criticized these laws because they do not do much in terms of achieving that purpose. Perhaps the most common criticism is that blanket sex offender registries make it difficult to differentiate between dangerous convicted criminals and those convicted of sex crimes in relatively inoffensive circumstances, such as a teenager who had consensual sex with his barely underage teenager girlfriend. One can draw parallels between this type of indiscriminate grouping and the way in which Melanie's Law strips the courts of discretion in certain cases and closes out consideration of the unique qualities of OUI defendants.

Continue reading "Another Look At The Motivation For Massachusetts' "Melanie's Law"" »

In recent years, punishments for drunk-driving offenses have become ever more severe in Massachusetts and throughout the country. Laws that provide for tough drunk driving penalties, such as Melanie's Law in Massachusetts, are very popular politically, perhaps because many unthinkingly take the view that severe sentences will reduce the number of deaths and injuries that are caused by drinking and driving. However, a much more thoughtful consideration of penal theory is necessary to answer the question, "How much punishment is appropriate?"

There are three main theories of criminal punishment: deterrence, retribution, and rehabilitation. This blog post addresses deterrence and retribution in terms of increasingly severe drunk driving penalties. While rehabilitation would perhaps be the most effective approach to drunk driving, particularly when offenders have problems with alcohol, current laws leave little opportunity for rehabilitation analysis, especially with respect to penalties for second and subsequent offenses.

Deterrence theory can be broken down into two parts: general deterrence and individual deterrence. The reasoning behind general deterrence is as follows: if people know that punishment will follow the commission of a given crime, then people will be less likely to commit that crime. In other words, general deterrence serves to provide self-interested persons with reasons to not commit crimes. Individual deterrence is the idea that once a person is punished for a crime, he or she will be less likely to offend again for fear of being punished again. With regard to general deterrence, increasing drunk driving penalties , standing alone, is of little value because it is known that the perceived risk of detection and arrest is of much more consequence than severity of punishment. Considering individual deterrence, the problem with simply imposing harsher penalties is that the majority of OUI/DUI-related fatalities and injuries are caused by problem drinkers struggling with alcohol addiction, and it is more than difficult to deter those with such problems. Moreover, this theory hinges on the concept of the rational thinker, but those who are truly drunk are presumably not thinking entirely rationally. Statistics do show that no matter how severe the potential punishments, drunk driving continues.

Retribution is currently the leading justification for criminal punishment, and it has been on the rise since the 1970s. The idea behind retributivism is essentially "an eye for an eye." While there are different camps within retributivism (negative, positive, assaultive), this is a somewhat simple approach to punishment, with the basic premise being that society is justified in punishing criminal offenders because the offenders have earned it. In the context of strict drunk driving statutes, this theory does not work because there is no black and white. Anyone with a blood alcohol concentration of .08% or higher is treated as a drunk driver, and while that is convenient, not every person is the "average person" in terms of physiology. Drunk -driving laws leave room for punishing those who were not drunk, and sometimes, for punishing those who were not even really driving. Thus, a theory based entirely on moral culpability falls apart.

Continue reading "Are Massachusetts Drunk Driving Penalties Overly Punitive And Poorly Conceived?" »

Shayna Fernandez admitted to drinking her last beer as late as 4:30 in the morning this past Saturday. Just over two hours later she was involved in an accident on Route 93 in Andover. As a result of that accident two people died and one was injured. According to reports Fernandez had recently dropped a friend off in Lowell. She ended up on Route 93 northbound. Witnesses have indicated that she might have been driving as fast as ninety miles per hour in the far left lane when she hit a car being driven by a sixty two year old Saugus man. The victim's car rolled over. The driver and one of his passengers were killed and a third man survived with injuries. Fernandez failed Field Sobriety Tests at the scene. She took a Breathalyzer Test and blew a .145, nearly two times the legal limit. Bail was set at fifty thousand dollars cash. The case will likely be prosecuted in the Salem Superior Court even though the district courts have jurisdiction over the charges. Fernandez is being charged with two counts of Motor Vehicle Homicide, Negligent Operation, OUI and assorted Criminal Motor Vehicle Offenses. A conviction for these crimes will likely result in a state prison sentence for Fernandez.

Read Articles:

http://www.boston.com/news/local/massachusetts/articles/2011/06/14/woman_pleads_not_guilty_in_fatal_andover_crash/

http://www.eagletribune.com/local/x1814654783/Lawrence-woman-held-on-50K-after-double-fatal-crash

Massachusetts Motor Vehicle Homicide Defense Lawyer

Any Massachusetts Criminal Defense Lawyer will tell you there is no up side to taking a Breathalyzer Test, and in most instances the same sentiment applies to Field Sobriety Tests. Fernandez's problems defending this case will no doubt be compounded by the negative results generated by these tests. Jurors rarely acquit where high readings are involved. Eyewitness testimony about the rate of speed at which she was traveling was sufficiently damaging to her defense particularly in a case where death resulted. An accident reconstruction will likely be performed by the state police, possibly supporting the eyewitness' observations. Driving ninety miles per hour with the death of innocent people resulting, will, in and of itself trigger a criminal prosecution. A suspicion of alcohol ingestion or intoxication magnifies the problem. However, failed tests validate the subjective findings of the police and make defending this case extremely difficult. It is important to remember that in Massachusetts the prosecutor cannot mention to a jury that a defendant refused to take a breathalyzer test. Nor can the district attorney comment on a failure to attempt to perform field sobriety tests. What they can do is take the results of these tests, if taken, and use them to support their prosecution. It is much easier to defend someone who has not taken these tests.

Continue reading "Lawrence Massachusetts Woman Held On High Bail After Being Charged With Two Counts Of Motor Vehicle Homicide, OUI" »

On May 24, 2011, the Court of Appeals decided Commonwealth v. Virgilio, holding that a paved driveway between two houses that neither contained nor led to businesses or public accommodations was, as a matter of law, not a way or place to which the public had access as invitees or licensees within the meaning of Massachusetts OUI statutory language.

In order to be convicted of operating under the influence, the government is required to prove that a defendant was operating on a public way, in a place where the public has a right of access, or in a place where members of the public have access as licensees or invitees. In Virgilio, the Appeals Court explained that in determining whether a private way is covered by the statute, the way's physical characteristics and circumstances are to be assessed. The court is to determine whether members of the public would reasonably think that the way is open to invitees or licensees. The objective appearance of the way, and not the intent of the owner of the property, is controlling. Things like curbs and street lights are some characteristics that may indicate that a way is accessible to the public. However, the court acknowledged that these characteristics are not dispositive because public roads in rural areas often lack them.

The court decided that the private driveway in Virgilio was not a way or a place to which the public had access as licensees or invitees, even though it was not gated, because it only served two residential buildings and did not lead to any public businesses. To conclude otherwise, the court noted, would be to render the word "public" superfluous and depart from the legislative intent of the statute.

The dissent was of the opinion that the driveway did fall within the meaning of the statute, focusing the analysis on the probable and foreseeable "aggregation of persons." The dissenting judge noted that a drunk driver could be expected to encounter both residents and visitors in the driveway, given its common character.

Read Full Text Of Opinion:

Commonwealth v. Virgilio

Continue reading "Massachusetts Appeals Court Reverses OUI Conviction Holding That Common Driveway Is Not A Public Way" »

On May 10, 2011, United States Senator Charles E. Schumer, a New York Democrat, pressed Google, Inc. and Apple, Inc. to remove smartphone applications that warn users of DUI checkpoints. Using GPS capabilities, these applications also alert users to red light cameras and speed traps.

Schumer questioned the companies' executives at the inaugural hearing of the Privacy and Technology Subcommittee of the Senate Judiciary as to whether the apps facilitate illegal activity, thereby violating terms of service. The apps "endanger public safety by allowing drunk drivers to avoid police checkpoints," Schumer said, according to PCWorld blog. "Apple and Google shouldn't be in the business of selling apps that help drunk drivers evade the police, and they shouldn't be selling apps that they themselves admit are 'terrible,'" he said, according to a press release from schumer.senate.gov. Schumer used "Buzzed" and "Fuzz Alert" as examples of apps that should be removed from application stores. Executives from the companies will report to Congress within a month as to whether the apps violate the terms of service.

Research In Motion (RIM), Blackberry's application maker, has removed the apps in response to a March letter from Schumer and Senators Harry Reid (D-NV), Frank Lautenberg (D-NJ), and Tom Udall (D-NM).

"If people are going to use those (apps), what other purpose are they going to use them for except to drink and drive?" one police officer said, according to a press release from schumer.senate.gov. In fact, however, these apps offer various services that may prevent drunk driving. For example, "Buzzed" offers a feature that allows users to call cabs based on users' GPS locations. Another such app, Trapster, provides drunk driving "Frequently Asked Questions" that warn users against driving under the influence.

The wisdom of the policy behind this movement is questionable at best. Many, including many of those in law enforcement, believe that awareness of police presence deters drunk driving. Without that awareness, some may actually be more inclined to drink and drive. In line with this reasoning, many police departments across the country announce the locations of DUI checkpoints or announce checkpoint plans without disclosing the location. Additionally, it is doubtful that removing these apps will prevent information regarding DUI checkpoints from getting out to the public, given the fact that concerned persons can always check the Internet.

Continue reading "Senator Asks Smartphone Companies To Remove Apps That Warn Of OUI Checkpoints" »

It's no secret that police often write OUI police reports generically, using a laundry list of common OUI symptoms relating to physical appearance, driving, and field sobriety testing. Sometimes these reports are essentially templates in which a select few facts are unique to the defendant. The fictional on-size-fits-all OUI suspect almost always has the same characteristics: "a strong odor of alcohol," "red watery eyes," "slurred speech," an "unsteady gait," etc.

Obviously then, it is not unusual for these reports to contain false information and exaggerations. Because of this, booking videos and in-car cruiser camera videos can be an invaluable source of exculpatory evidence.

Booking and cruiser videos can be extremely useful for a variety of reasons. They can reveal that you were not as drunk as the police said you were or otherwise undercut the officer's version of the facts. They can expose flaws in your arrest experience and the administration of field sobriety tests and breathalyzers.

During the booking process, the booking officer asks a series of background questions. The suspect will be fingerprinted, and a photograph will be taken. As such, booking videos often reveal a respectful and perhaps frightened and confused person with whom a jury could readily sympathize.

As many Massachusetts police departments are now using video cameras and taping these events, it is critical for an attorney to determine whether video evidence is available and carefully review all video evidence. Under the Massachusetts Rules of Criminal Procedure, exculpatory videos must be automatically produced. Some prosecutors, however, may not realize their duty to produce booking tapes, so it is important to have an attorney who will ensure that these videos are preserved and produced.

Continue reading "Drunk Driving Booking And Cruiser Videos Can Be Useful In Defending OUI Cases" »

State Senator Robert Hedlund, a Weymouth Republican, has filed a bill designed to strengthen Melanie's Law by requiring ignition interlock devices for six months after a first drunk driving offense. In an effort to close "loopholes," his bill would also prohibit bundling (punishing two or more concurrent drunk driving offenses as one).

The National Transportation Safety Board (NTSB) has rated Massachusetts, which has adopted 4 of its 11 federal drunk driving recommendations, as being among the worst in the country when it comes to tough drunk driving policy. Some of the NTSB's recommendations include a zero BAC limit for repeat offenders, impromptu alcohol screening for offenders, and a prohibition on plea bargaining. Even Senator Hedlund admitted to the Boston Herald that "some of the criteria that the NTSB looked at, might venture into areas related to civil liberties."

It is well known that, time and again, lawmakers are influenced by the emotional pull surrounding strict OUI/DUI/drunk driving laws, and as a result, our constitutional protections are watered down. As Representative Eugene O'Flaherty, a Chelsea Democrat and House chairman on the judiciary committee, said to the Boston Globe, "The challenge is always how do you make sure that public safety is being enhanced while at the same time making sure that case law and constitutional safeguards are also protected.''

Of course, experienced Massachusetts OUI/DUI/drunk driving attorneys are always quickly alerted to any possible intrusions into these constitutional safeguards. Perhaps that is why Senator Hedlund blames the group of legislators who also work as criminal defense lawyers for rejecting measures to expand Melanie's Law, which is already one of the most restrictive drunk driving laws in the country, in previous sessions.

To read more, see:

http://www.bostonherald.com/news/regional/view.bg?articleid=1315715&srvc=rss
http://www.boston.com/news/local/massachusetts/articles/2010/11/17/us_says_mass_lags_on_measures_to_deter_repeat_drunken_driving/?page=2

Continue reading "Massachusetts Senator Files Bill Seeking To Expand Strength Of Melanie's Law" »

In Massachusetts and many other states, individuals can be punished when, after realizing their inability to drive safely, they voluntarily pull over to sleep it off. Whether this is in the interest of public policy is highly debatable. The reasoning is that drivers who are questioning their own sobriety should not be encouraged to test their uncertainties on the roads. One the other hand, this rule is problematic and may actually encourage drunk driving.

Drivers who become aware that they are impaired might be more likely to keep driving, rather than pull over, in order to avoid potential legal consequences. They may prefer the risks of driving while impaired to the risk of law enforcement discovering them parked on the side of the road drunk or asleep.

The counter-argument is that people who have been drinking shouldn't get behind the wheel in the first place, and that is what drunk-driving/OUI/DUI laws are designed to discourage. This is basically an all or nothing approach, and in that way it is overly idealistic. No matter what the drunk-driving laws may be, the reality is that some people will probably still continue to drive after drinking when they feel that they are sober enough to do so. It seems that if one determines at some point that he/she is not able to drive safely, there should be no question that pulling over is the best course of action, but this rule can cloud that in the minds of some individuals.

Under Massachusetts law, "operating" under the influence basically means setting the power of the vehicle in motion. You can be convicted even if you simply put the key in the ignition. In addition, when police approach a car that is pulled over on the side of the road or in a breakdown lane, the encounter may not even be considered a seizure for Fourth Amendment purposes as long as the "well-being check" is reasonable and there is an objective basis for the officer to believe that a person might be in trouble. As a Massachusetts drunk-driving attorney, I can protect your rights and combat these difficult charges.

Continue reading "The Law Of Operation In Massachusetts Can Spell Trouble Even If You Are Not "Driving" Under The Influence" »

Back in August, I wrote about the arrest of former Big Dig chief Matthew Amorello for operating under the influence of alcohol. Amorello is a former chief of the Massachusetts Turnpike Authority, but best known for resigning his post after part of the Ted Williams Tunnel collapsed during the Big Dig, killing a woman. He reentered the news this summer when he was arrested for operating under the influence and leaving the scene of an accident. According to reports, Amorello crashed his SUV into two parked cars in Haverhill, then drove away even though he'd lost one wheel. Authorities found his Ford Explorer parked at a Mercedes dealership with him unconscious inside. Reports in following days noted that he missed a court date because he was hospitalized.

The Boston Globe reported Nov. 30 that Amorello has arranged a kind of plea deal with the Haverhill District Court. Amorello admitted to sufficient facts to prove the OUI and leaving the scene charges, which is not quite the same as a guilty plea. Rather, it means he admits that a jury would have the facts necessary to convict him if his case went to trial. The judge in the case continued his case without a finding for a year. If Amorello can stay out of trouble for that year, the case will be dismissed.

Read article: Ex-Mass. Pike chief admits drunken driving

I'd like to discuss Amorello's sufficient facts plea, because it's part of my set of tools as a Massachusetts drunk driving criminal defense lawyer. Admitting sufficient facts is a lot like a guilty plea, but it could be slightly better for someone in a public service position like Amorello used to hold. A plea of sufficient facts shows up on your Massachusetts driving record just like a conviction would. However, it does not show up on a background check by any agency other than a law enforcement agency. This would allow Amorello to plead guilty and serve the sorts of penalties that a guilty plea creates, but maintain his ability to truthfully answer "no" when asked if he was ever convicted of a crime. The incident will not show up when potential employers, landlords and other non-police organizations check for a criminal background.

Often, people who admit to sufficient facts are first OUI offenders who end up sentenced to alternative disposition. As a Massachusetts OUI criminal defense attorney, I prefer this for all of my clients who are not fighting the charges, because the penalties are better for the client. Alternative disposition calls for up to two years of probation, not jail; loss of your driver's license for 45 days, not 90 days to a year; and lower fines. That isn't to say that alternative disposition is a light penalty or fun for the driver. For one thing, any mistake that violates probation could cancel the deal and force a guilty plea. But for drivers whose best strategy is a guilty plea, admitting sufficient facts and serving probation successfully can help them admit their mistakes and pay the penalties without allowing those mistakes to haunt them for the rest of their lives.

Continue reading "Former Big Dig Chief Admits Sufficient Facts to Prove Drunk Driving in August Case" »

A recent article in the Boston Globe got my attention as a Massachusetts OUI criminal defense attorney. Massachusetts legislators are reportedly considering several changes to Melanie's Law, the 2005 law that was intended to toughen penalties for drunk drivers. Legislators have proposed several ways to toughen those penalties even further, including a proposal to add ignition interlock devices to the vehicles of people convicted of one intoxicated driving offense. Ignition interlock devices are essentially breathalyzer tests attached to the vehicle's ignition, which require drivers to pass a breath test before the car will start. Currently they are required by Melanie's Law when drivers have their licenses reinstated after two or more OUI convictions. The bill was introduced by state Sen. Robert Hedlund, R-Weymouth, who also suggested eliminating concurrent sentences and "bundling" of charges for repeat offenders.

Read article: Bill targets Melanie's Law loophole

It's not at all clear whether the bill will eventually pass; the Globe noted elsewhere that it won't pass during this session. But as a Massachusetts drunk driving criminal defense lawyer, I hope lawmakers who do eventually consider it will think carefully about whether it's a good idea to require breath tests for anyone convicted of drunk driving. Even drivers with clean records may feel uncomfortable about how invasive the devices are. But even if that's not an issue for most people, there are also serious concerns about their safety and effectiveness. Conventional breathalyzers require drivers to retest every 20 minutes, which means retesting while driving. That requires drivers to either pull over or take the breath test while their eyes are supposed to be on the road. If the device decides the driver is drunk while the car is already moving, the car could come to a halt with little warning. If drivers don't take the test quickly enough, the car will also stop in the middle of the road.

Perhaps more importantly, there is also controversy over whether ignition interlock devices do the job they're intended to do: keep drunk drivers off the road. It's illegal to take the breath test in someone else's vehicle, but the technology can't actually stop this. Nor can it stop people without the devices from simply lending the driver their vehicles (also a crime). And ignition interlock devices have many of the same problems facing police breathalyzers and alcohol-detecting ankle bracelets such as the one famously worn by Lindsay Lohan. These devices detect alcohol in the mouth rather than the bloodstream, including alcohol-containing products like mouthwash. In some cases, they have even been triggered by yeast-raised bread! There may also be problems with how sensitive they are. For example, would a legal and, for many people, harmless 0.02 BAC shut the car down, or would the device consistently detect BACs over the legal limit? As a Massachusetts intoxicated driving criminal defense attorney, I would prefer that lawmakers address these issues before mandating the devices.

Continue reading "Beacon Hill Considering Mandating Breathalyzers for Ignitions After First OUI" »

Prospective employers, dates, coworkers and friends can find information about most of us online. Unfortunately, that can include news reports about our misdeeds and mistakes. A number of candidates who ran for office this year have learned this the hard way, from Delaware Senate candidate Christine O'Donnell's claims to have been involved with witchcraft to Massachusetts Republican Jon Golnik's OUI arrest in 2001. As a Massachusetts OUI defense lawyer, I think it's important for everyone to realize that any admissions they make if they ever face a drunk driving charge can follow them for a long time. That's why it's important to know your rights, including what you are and are not required to say or do when you interact with the police.

Jon Golnik was arrested for OUI drugs and alcohol in 2001, and he continued to have to answer questions about it nearly a decade later, since he ran for the Massachusetts Fifth Congressional District seat in the U.S. House of Representatives. Golnik, now 45, had attended an AC/DC concert at the FleetCenter in Boston, and police found him shirtless and slurring his speech. The police report from this incident says Golnik told the police he had four beers, and admitted that this impeded his ability to drive safely. He was also driving on a flat tire. He has denied smoking marijuana, which he was charged with, but he admitted to having drunk alcohol before driving. While the marijuana charge was dismissed, his license was suspended.

Read article: Step carefully, dirty laundry defining candidates

As I've written here before, if the police pull you over on suspicion of drunk driving, they already think you're guilty. During the traffic stop, they are looking for evidence to include in the police report, which can be used against you at trial. That's why it's important to politely refuse to answer police officers' questions about whether you have been drinking -- and never, ever volunteer that kind of information. Instead, consider saying that you need to speak to your attorney, and then actually speak to an attorney as soon as you can. If you can keep incriminating statements like the one Golnik made out of the police report and out of public record, your attorney stands a much better chance of helping you get the charges dismissed or a not-guilty verdict.

As a Massachusetts drunk driving defense attorney, I can tell you that avoiding an OUI conviction is important for a lot of reasons. Obviously, you don't have to worry about jail time or the steep fines and fees that go with a conviction, but you also don't have to worry about your auto insurance rates skyrocketing or having to disclose a conviction on job applications. Unfortunately, since most police reports are public records, information about an OUI arrest could still become public even if the charges are dismissed or if you're found not guilty. But if you have avoided incriminating yourself by admitting to drinking and driving, you can much more persuasively explain your drunk driving arrest to anyone who asks as a simple mistake by the police.

Continue reading "Statements to Police During an OUI Incident Can Follow You for Years" »