Massachusetts DUI Lawyer Blog

The New York Police Department is going to start using the word "collision" instead of the word "accident" to describe drunk-driving crashes, a move which the New York Times described as a "symbolic semantic change" that has long been requested by OUI victims. A police commissioner explained that the term "accident" inaccurately suggests that there is no fault associated with the event. The department has changed the name of its "Accident Investigation Squad" to the "Collision Investigation Squad." An anti-DUI group tweeted on March 12, "NYPD agrees that drunk driving crashes aren't accidents."

I'm not sure that the difference between "collision" and "accident" is as significant as the Times and the NYPD seem to think, though it does raise an interesting issue of police use of language, including euphemisms and reverse euphemisms, in the context of operating under the influence and other Massachusetts criminal offenses. Euphemisms are a form of "doublespeak." "Doublespeak" is language that doesn't really communicate anything, even though it pretends to. Euphemisms, nice words used to hide an unpleasant reality, are "doublespeak" when used to deceive.

In the context of law enforcement, one common example would be use of the word "pacify." An officer might report that he "pacified" an unruly drunk driver. What that officer might really mean is that he used force, possibly excessive force, against the suspect. The phrase "gained access" is also an example. Police might say that they "gained access" to a residence or a vehicle. One is left to wonder the manner in which they "gained" such "access." Did they jimmy a lock? Did the police break down the door to "gain access"? Another example is the word "removed." "Removing" a defendant from a car might be a nice way of saying "pulled him out of the car and threw him on the ground." It is no secret that police sometimes use this kind of language to obscure arguably unlawful tactics.

While police tend to use nice words to describe or disguise their own conduct in reports, the opposite is true in their description of OUI defendants. When police report that a defendant "stumbled," it might really mean that the defendant tripped over a crack in the pavement while it was dark outside. When police say that a defendant was "lethargic," that might mean that it took the defendant a minute or two to locate his registration. When police report that a defendant "failed to follow directions," it might mean that the defendant simply asked the officer a legitimate question. Police generally use these and other terms, including "unsteadiness on feet," "slurred speech," and "watery or bloodshot eyes" in providing canned descriptions of those accused of driving under the influence in Massachusetts and elsewhere.

Continue reading "How a Police Officer's Words in His Report Are Interpreted by a Massachusetts Criminal Lawyer Defending an OUI Case" »

An Irish council passed a motion in January to permit rural drinkers to drive home on certain isolated backroads and at a restricted speed. The County Kerry Council voted 5-3, with seven members abstaining and 12 absent, to issue permits allowing those who have "two or three" drinks at pubs to drive home. This is a proposal, not a law, and the council will have to petition Justice Minister Alan Shatter before issuing the permits.

While many have criticized the motion, one councilor explained that it is designed to curb depression and suicide, particularly among the elderly, resulting from deprivation of the sense of community enjoyed in the local pubs. "A lot of these people are living in isolated rural areas where there's no public transport of any kind, and they end up at home looking at the four walls, night in and night out, because they don't want to take the risk of losing their license...The only outlet they have then is to take home a bottle of whiskey, and they're falling into depression, and suicide for some of them is the sad way out," the councilor said.

Those who have been quick to judge and those who have resorted to "Irish-as-drunks" stereotyping fail to take this into proper perspective. The legal BAC in Ireland is 0.05, according to drinkdriving.org, as compared to the 0.08 limit in Massachusetts and every other state. Obviously, the number of drinks it takes to exceed the legal limit is variable, depending on many factors including body weight, the type of drink consumed, timing, diet, and more. Still, many here in Massachusetts and elsewhere in the United States readily get behind the wheel, whether in poor judgment or not, after having "two or three drinks," thinking that they are not legally drunk by our 0.08 standard. This rural Irish county's move to make driving after "two or three drinks" permissible is essentially just an attempt to codify what many or most in our country assume, mistakenly or not, to be okay.

This story also raises the issue of public transportation as it relates to operating under the influence. Efforts against drunk driving have focused almost entirely on increasing drunk-driving penalties, and this approach has not been effective. Legislators and organizations that lobby against drunk driving have failed to consider that increased access to public transportation and cab services in suburban and rural communities would likely decrease drunk driving, perhaps significantly. These groups have also failed to consider that less restrictive zoning might decrease Massachusetts OUI. It seems that there would probably be less drunk driving if residents of suburban and rural communities could walk to a neighborhood bar. Maybe it's time to think outside the box and evolve from the tired and unsuccessful focus on harsher penalties.

Continue reading "A Different View of Drinking and Driving and Providing Viable Alternatives Might be More Effective Than Making Stricter Laws" »

Our Supreme Judicial Court has recognized that the legislature could not have intended to make it a crime to drive after unknowingly being "slipped" drugs or alcohol. Where intoxication is an element of a crime, as it is in operating under the influence (OUI / DUI) cases, the government has the burden of proving voluntary intoxication, even where the degree of the intoxication isn't enough to create a basis for inferring lack of criminal responsibility. As such, Massachusetts defendants in operating under the influence cases can, but rarely do, raise "involuntary intoxication" as a defense. One example of involuntary intoxication would be a situation in which a defendant was compelled against his or her will to ingest alcohol or drugs. Another example would be a situation in which a defendant took prescription medication as instructed but, nevertheless, ended up suffering intoxicating effects.

As a Massachusetts OUI defense attorney, I find the concept of involuntary intoxication interesting in the context of those who suffer from alcoholism. In other words, should alcoholism be a defense or an affirmative defense to drunk-driving charges because the disease renders alcohol consumption involuntary?

Steven S. Nemerson's Cardozo Law Review article Alcoholism, Intoxication, and the Criminal Law raises several points worth considering. Nemerson asserts, and few would dispute, that alcoholism is a disease. The disease causes those afflicted to lose control when it comes to alcohol consumption. Because alcoholics suffer from an inability to abstain from drinking, drinking is not a voluntary action for those affected by the disease. Still, Nemerson concludes that protecting the safety of innocent persons, even from the morally blameless, is more important and desirable than protecting the rights of those who involuntarily commit crimes. He does, however, think that alcoholism should be an available affirmative defense.

Here in Massachusetts, the standard for lack of criminal responsibility due to a mental disease or defect is set forth in a case named Commonwealth v. McHoul. Our courts hold that neither alcoholism nor drug addiction count as a "disease of defect" which, alone, could trigger McHoul. However, the SJC has said that the government, in the context of OUI cases, has to prove both intoxication and that the intoxication was voluntary, regardless of whether there is a triggering basis for McHoul. This is because proof of intoxication is an express element in drunk-driving cases. Thus, even if alcoholism is not a "disease" for McHoul purposes, it could, presumably, still be something for a jury to consider in assessing whether the government has met its burden of proving that intoxication was voluntary. Such a defense strategy would, still, be very risky, since many might not consider an alcoholic's consumption of alcohol "involuntary" within the usual sense of the word.

Continue reading "Can an Alcoholic's Consumption of Intoxicating Liquor be Considered Involuntary Under Massachusetts Law?" »

Today, in the case of Commonwealth v. Gibson, 11-P-1107, the Massachusetts Appeals Court reversed an OUI conviction. The Court in Gibson reported the following facts:

In February of 2010, the defendant went to a couple of Super Bowl parties to watch the New Orleans play the Colts. In total Gibson drank four beers. Around 10:00 p.m. he started to drive home. He approached a red light. He waited for several seconds, became impatient, looked both ways and drove through the red light. He was pulled over. The investigating officer testified that he exhibited symptoms of alcohol impairment. Field Sobriety Tests were administered. Gibson failed each one of these tests. Consequently he was arrested. He never took the Breathalyzer Test. He was charged with OUI. During the deliberation process the jurors had a question about the absence of Breathalyzer Test evidence. Among other things, the judge told the jury that "a person does not have to take [the breathalyzer test]". Gibson was convicted of OUI and appealed. In reversing the jury's verdict, the Massachusetts Appeals Court ruled that those words in response to the jury's question constitute improper on a defendant's right against self-incrimination. The error being one of constitutional magnitude required reversal of the OUI conviction.

Read Case:

Commonwealth v. Gibson, 11-P-1107

Massachusetts OUI Defense Law Firm

Drunk Driving Defense Attorney in Massachusetts

In Massachusetts the law is well settled that a person's refusal to take a Breathalyzer Test and/or Field Sobriety Tests cannot be used against him at trial. Such evidence is inadmissible in that it violates a person's right against self-incrimination. However, Massachusetts Courts have reasoned that since the general public is well aware of the existence of Breathalyzer Tests in OUI Cases there should be a limiting instruction addressing the issue, provided the defendant requests the instruction. That instruction prohibits reference to a defendant's legal right to refuse the Breathalyzer Test. Here, the instruction given by the judge violated that prohibition.

Now usually a case will not be reversed where the defense attorney did not object to the error. The Massachusetts Appellate Courts often deem the attorney's silence as strategic. Deference is given to a lawyers' trial tactics unless his performance is deemed ineffective. The Court in Gibson did not find the lawyer's actions to meet that standard. Rather, the Court found that the failure to object coupled with the improper instruction created a substantial risk of a miscarriage of justice warranting a reversal of the conviction. In more simplistic terms, the Court believed there is "a serious doubt whether the result of the trial might have been different had the error not been made". Gibson's Massachusetts Criminal Appeals Lawyer recognized this and by doing so was able to get his conviction reversed and to secure him a new trial.

Continue reading "Massachusetts OUI Conviction Reversed Due to Improper Instruction on Refusal to Take Breathalyzer Test" »

"Controversial New Group: Drunk Drivers Against Mothers," an article by Tom McCaffrey published in the Huffington Post comedy section, is about a fictional group of 6th-year college fraternity brothers establishing DDAM while playing beer pong and watching Cinemax pornography. The group, enraged by their mothers' concerns with their drunk-driving habits, holds nightly meetings to drink and complain about their mothers and mothers in general.

"Moms are total buzz kills these days. All they do is bitch and whine about dudes who like to party. It's always, 'Don't drive drunk or you shouldn't fight the police or you got my daughter pregnant!' It's like chill out," one of McCaffrey's fictional DDAM leaders said. "My mom is always like 'I can't believe you got drunk and then drove our new car into a lake again!' I'm like f*** you! I like to party! You're just mad because you can't party as hard as me!,"

While the DDAM story is satire, it's interesting that real life anti-drunk driving campaign advertisements, designed to be serious, regularly feature these same stereotypes of a stupid, immature male drunk driver and a "buzz kill," motherly female. Some examples these public service announcements can be viewed here:

http://www.youtube.com/watch?v=P-b7rYgzzpM&feature=player_embedded

http://www.youtube.com/watch?v=qpYq9CBZoKQ

One might wonder about the extent to which these stereotypes shape the views of the public, and therefore the views of jurors, judges and prosecutors in OUI cases. For instance, which way could the fact that males are generally portrayed as infantile in PSAs cut? On one hand, it might make male, particularly young male, defendants more sympathetic to some based on the idea that they "just don't know any better." The reverse could be true where an accused is female, the sex commonly depicted in PSAs as being more responsible and "knowing better" than to drive drunk or to let others do so. On the other hand, the portrayal of males in PSAs as reckless might cause some to think them more culpable.

It could be that these campaigns are using the female mother figure as the voice of reason discouraging OUI because people tend to respect their mothers and listen to their advice. According to the Oct. 10 CNN article "What sways teens not to drink, drive?," parents are (not surprisingly) among the most powerful influences affecting teenage drunk-driving and drinking .

While not reflected in most anti-drunk driving PSAs, persons from all walks of life, from soccer moms to frat guys and everyone outside and in between, find themselves charged with OUI/DUI/DWI. While very few drunk-driving PSAs feature a female drunk-driver, the number of female OUI arrests has increased dramatically since the 1980s. In the past decade, female drunk-driving arrests have increased by almost 30 percent. Male drunk-driving arrests have decreased in recent years.

Continue reading "Do Public Service Announcements Impact Jurors Sitting on OUI Cases in Massachusetts?" »

Orange County, California police made 843 drunk-driving arrests between August 17 and September 3, according to the Orange County Register. Police used checkpoints and heavy patrols over the period and expect that this year's DUI arrest numbers will be higher than last year's numbers. The police plan to use similar measures around both Halloween and Thanksgiving. Funding is provided by the California Office of Traffic Safety.

Here in Massachusetts, drunk-driving / OUI / DUI / DWI checkpoints or roadblocks constitute warrantless seizures. Thus, they must be reasonable, and the prosecution has the burden of proving that the roadblock in question was reasonable. In order to meet that burden, the prosecution must at least prove that police followed certain guidelines. The purpose of requiring that police stay in line with guidelines is to ensure that there are "neutral limitations" on the officers. The idea is that "neutral limitations" serve to limit officer discretion as it relates to individuals' expectation of privacy and to minimize individuals' fear and inconvenience. The prosecution is not required to prove that the checkpoint or roadblock was the least intrusive measure available.

One problem with these "neutral limitations" is that they do not do much in the way of curbing police discretion. The Supreme Judicial Court has held that the screening officer, the officer who first comes into contact with the drivers, is not required to send the drivers along to the second point. This is so even if the officer has reasonable suspicion that the driver may be drunk. The SJC reasoned that even though this might open the possibility of abuse of police discretion (i.e. singling out certain motorists based on race, sex, ethnicity, economic status, etc.), the risk is no different in roadblock cases than in normal street encounters.

The constitutionality of the roadblock seizures is measured by compliance with these "neutral" guidelines, and there does not need to be any individualized suspicion. According to Massachusetts courts, compliance with the guidelines must be "strict." It is not enough that police "substantially" complied.

Massachusetts OUI checkpoints must be in "problem areas." The area must be one in which police have previously made drunk-driving arrests. Courts consider the age of the previous OUI arrests in determining whether the site- selection requirement has been met. In one case, the Appeals Court decided that reliance on a 2-year-old report indicating that OUI arrests and accidents had occurred at the roadblock site was too old.

There were three Massachusetts roadblocks in August, according to DUIblock.com. The three took place in West Springfield, Hingham and Stoughton. There has been one roadblock in September so far, which took place on Thorndike Street in Lowell, according to that website. Statistics indicate that drunk-driving / DUI / OUI / DWI roadblocks and checkpoints are not uncommon in Massachusetts.

Continue reading "Another Look at the Standards for DUI, OUI Roadblocks and Checkpoints in Massachusetts" »

A man was arrested in Alaska for operating under the influence Aug. 3, 2012 as he floated down a river on an inflatable raft. In Alaska, as in Massachusetts, the legal limit is 0.08. A wildlife trooper arrested William Modene, 32, after authorities received reports of a "heavily intoxicated" man floating along the Chena River. Modene's alleged BAC was 0.313. "Modene had been floating on the river for the day and consuming alcoholic beverages the entire time," according to the troopers' website.

Alaska's drunk-driving laws apply not only to vehicles but also to "water craft," which is defined as "a vessel used or capable of being used as a means of transportation on water for recreational or commercial purposes..." In interpreting a law, such as the Alaska OUI law at issue here, courts do not consider the wording of the statute alone, but also try to determine the intent of the legislature in enacting the law. Courts generally consider the words used in connection with the causes of the law's enactment and the goal to be accomplished.

Here, it would seem that by including the "water craft" language, the Alaska legislature likely intended to cover boats, jet skis, and other such motorized watercraft. Operating boats and jet skis while drunk has become a rising concern, and boating accidents have been the cause of thousands of injuries and deaths in recent years, according to Global Legal Resources. Typically, the primary goal of OUI laws like this Alaska law is to protect the lives and safety of the public. While it appears that a float would be included under the wording of this law, the legislature likely did not intend to criminalize drinking while on a float or inner tube, as such activities generally do not endanger the lives or safety of the public.

The reader "Comments" section on the Fairbanks Daily News website indicates that a majority of readers thinks that arresting this man for OUI was unreasonable. One reader wrote, "How can a guy in a non-motorized plastic blow up boat do any harm to anyone but himself?" Another reader wrote, "I don't need someone to run my life and tell me what is safe or not safe as long as I'm not endangering others...Can I drink beer and go swimming in the ocean?" Yet another reader wrote, "I disagree with all of this. If he causes no harm to others, leave him be. If he dies, see you soon." One reader who supported the arrest wrote of Modene's "self endangerment" and the duty of the police protect "people who...are incapacitated to the point of self endangerment. " This sampling of reader comments illustrates the topic of our last blog post, which involved the idea of potential harm to others v. potential harm to oneself.

To read the article upon which this post was based and the accompanying reader comments, see:

Massachusetts Drunk Driving Defense Law Firm

Operating under the influence laws throughout the country, including Massachusetts OUI / DUI / drunk-driving laws, are increasingly being applied to cover a broader range of conduct. This arrest for operating an inflatable float while drunk is just one example.

Continue reading "Would Massachusetts Law Enforcement Officials Consider Charges For DUI Boating On An Inflatable Raft?" »

Certain well-known anti-drunk driving organizations are widely accused of having neo-Prohibitionist agendas and fueling anti-alcohol hysteria. Regardless of whether such criticism is warranted, this blog post explores the concept of moral policing as it relates to operating under the influence (OUI), as well as other demonized social behaviors, such as smoking and consumption of fatty foods.

The "war on drunk driving" seems to appeal to the "harm principle." Under the "harm principle," no exercise of power over an individual is legitimate unless the purpose is to prevent harm to other people. A person should not be forced to act in a certain way simply because it's for his own moral, physical or intellectual good.

Anti-drunk driving campaigns try to stay in line with that principle, with the basic message being: Drunk driving is bad because it can, and often does, hurt other people. Few would find that message to be offensive. These organizations draw criticism, however, when they appear to be against drinking generally, as opposed to drunk driving. For example, certain organizations have announced that fewer liquor stores will reduce crime, opposed sale of alcohol at fairs and cultural events, and argued that children should be raised in alcohol- free environments. Why the criticism? Likely, it is because they are now getting into an area of self-regarding conduct and imposing moral or personal preferences on other people. When the public becomes uneasy about the possibility of a modern- day temperance movement, such organizations tend to fly under the banner, "We are not an anti-alcohol organization."

Anti-smoking campaigns follow the same blueprint, rallying around the dangers of second-hand smoke--harm to other people. Smoking bans were supposedly designed to protect non-smokers, particularly employees of bars or restaurants, from the harms associated with second-hand smoke. Anti-smoking campaigns refused to admit that the true purpose of smoking bans was to protect smokers from themselves--to marginalize or further de-normalize an otherwise legal activity.

The new battle is on obesity and trans-fat, but can it be justified under the same "harm principle" used in, what some would call, the anti-alcohol campaigns? Or, is it pure moral or health policing, an attempt to protect people from themselves? According to the New York Times and other sources, there are now studies that indicate a purported trend of "second-hand obesity." Specifically, some doctors who have studied the issue say that exposure to obese people can make one become obese because one's idea of acceptable body type comes from looking at others.

This Massachusetts OUI lawyer sincerely acknowledges that drunk- driving creates real dangers to other people. The point is that anti-drunk driving movements need to be careful to distinguish between two very distinct behaviors: being drunk, which, with some exceptions, only hurts oneself, and driving while drunk, which can and does hurt other people. As the "second-hand obesity" movement perhaps best illustrates, when society fails to make meaningful distinctions between conduct that only affects oneself and conduct that affects others, a very slippery slope is created.

Continue reading "Anti-Drunk Driving Organizations Must be Reasonable to be Effective" »

Recently, in Souza v. Registry of Motor Vehicles, the highest court in Massachusetts held that as used in the Massachusetts operating under the influence (OUI/DUI/DWI) statute, the word "convicted" refers only to guilty findings and that a "continuance without a finding" (CWOF) is no longer considered a first offense for RMV license suspension purposes.

In Souza, the plaintiff appealed an RMV decision suspending his license for a period of three years. He had previously admitted to sufficient facts in an OUI case, and his case was continued without a finding and later dismissed upon successful completion of his probation. Thereafter, he was arrested again for OUI and refused a breath test. The plaintiff argued that his license should only have been suspended for 180 days because there was never a guilty finding and he was therefore never previously "convicted" of OUI within the meaning of the statute. The RMV argued that, in light of the remedial purpose of Melanie's Law, "to increase penalties for drunk drivers in the Commonwealth," a CWOF is the equivalent of a guilty plea. The Supreme Judicial Court rejected the RMV's purpose-based argument and interpreted the law based on its plain language. It reasoned that if the legislature had wanted to include an admission to sufficient facts in the definition of "conviction," then it would have done so expressly. The court reasoned that the plain meaning of "convicted" or "convicted of" is confined to a guilty plea, a finding of guilty, a judgment of guilty, or a plea of nolo contendere. The SJC went on to state that even if it were to accept that the RMV's interpretation would be more consistent with the purpose of Melanie's Law, the court could not read the statute in a way to advance the purpose where such a reading would disregard the language that the legislature chose to use.

Since the SJC's ruling in Souza, Attorney General Martha Coakley, state Senator Katherine Clark, a Melrose Democrat, and House Judiciary Chair Eugene O'Flaherty, a Chelsea Democrat, have come together to close the perceived "loophole" created by the decision. The three politicians are working towards amending the definition of "conviction" at issue in Souza to include CWOFs. "We must respond quickly to close this loophole and ensure that repeat drunk drivers are taken off the roads for significant periods of time," Coakley said in a statement, according to the Boston Herald.

Continue reading "Massachusetts Supreme Judicial Court Holds That Continuance Without a Finding (CWOF) For OUI Different Than Conviction, Operating Privileges Positively Effected" »

The Boston City Council proposed an ordinance on March 15, 2012 that would require valets to deny keys to those suspected of being drunk. In response, insurance company representatives have expressed concern that such an ordinance would raise costs and place an unreasonable amount of responsibility on valet attendants, according to the Boston Globe. One valet company owner told the Globe that valet attendants do not interact with patrons for a long enough period of time, often only seconds, to determine whether the operator is too drunk to drive. Like these others who are concerned, this Massachusetts OUI / DUI / DWI attorney has questions about this proposal.

This proposed ordinance seems to be a hot potato game of pass the liability. Thus, valet attendants, who interact with patrons for a matter of seconds and who are untrained in detecting drunkenness, might be more inclined to notify police of "suspected" drunk-drivers. Could information relative to what is typically a 3-5 second interaction (according to a Globe source) be enough to provide a reasonable suspicion for police to stop a driver?

The next issue involves the distinction between drinking and operating under the influence. It is not a crime to have a drink and drive. It is presumptively a crime to drive while having a BAC of .08 or more. It is a crime to operate a motor vehicle under the influence of alcohol. The proposed ordinance blurs that distinction and would effectively deprive anyone who has had a drink, regardless of BAC, of having the keys to their own car.

All of this may lead to the issue of paternalism v. personal autonomy in the context of drinking and driving. Certainly, drunk-driving is a problem in society. However, can one not make an un-coerced decision not to drive after having a drink? Does one need a valet attendant, an acquaintance of 3-5 seconds, to tell one that driving isn't an option? To what extent is it proper to use the instruments of law to force one into doing that which is "right" or "wise"?

In response to the last question above, our criminal law in Massachusetts is already designed to deter drinking and driving by imposing very severe, broad-brush penalties. If we need valet attendants to help enforce it, then perhaps those strict "deterrent" aspects are not working.

Continue reading "Massachusetts Insurance Companies Resist Law Requiring Valets to Deny Keys to Suspected Drunk Drivers" »

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

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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"" »