Massachusetts DUI Lawyer Blog

Owen Schmitt is slated to be the Seattle Seahawks starting fullback this season. He is a fifth round draft pick from West Virginia going into his second season in the National Football League. Last weekend Schmitt was arrested and charged with drunk driving or OUI as it is called in Massachusetts. Officers observed Schmitt's vehicle weaving and following other cars too closely. He was pulled over at which time the police noted the smell of alcohol. Schmitt submitted to performing field sobriety tests. He failed those tests and took the breathalyzer test. The results exceeded a .08.

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NFL Player Arrested And Charged With OUI

The consequences of a first offense OUI in Washington are much more severe than in Massachusetts. There is a mandatory sentence of at least one day for a conviction of this crime. There is no mandatory minimum period of incarceration in Massachusetts for the same offense. Washington has a mandatory ninety day loss of license. Massachusetts' is half that long. You must install an ignition interlock device after a first offense conviction in Washington. This is not the case in Massachusetts. One aspect of Washington law that is more favorable than in Massachusetts is the look back provision for prior offenses. Washington has a seven year look back whereas Massachusetts considers any prior conviction in calculating what offense is being charged.

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Just before 8:00 a.m. last Monday a cell phone caller reported seeing a woman was operating erratically. A Medfield, Massachusetts police officer spotted the car and attempted to pull it over. The officer succeeded in stopping the vehicle. He smelled alcohol on the driver and asked her to perform field sobriety tests. The woman became upset and started yelling and swearing at the officer. An eyewitness saw the officer open the suspect's car door and attempt to get her out of the car. The woman pushed the officer's hand away, slammed her car door and sped away quickly. The driver, a fifty one year old Brookline, Massachusetts woman then ran a couple of red lights and weaved in and out of cars before crashing into a utility pole. The driver was airlifted to a Boston hospital. As of the date of this article no charges had been filed against the woman. Possible charges could be failing to stop for a police officer, driving to endanger and DUI.

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No DUI Charges For Massachusetts Woman Who Crashes After High Speed Chase

Whenever someone is taken to the hospital as a result of a motor vehicle accident there stands a good chance the medical personnel will take blood from the patient. A toxicology screen will likely follow and the blood sample will be tested for alcohol. I would guess that the district attorney and police are waiting for these results before finalizing the criminal charges they intend to file against this woman. If the results are negative or substantially below a .08 then no OUI charge will issue. The toxicology screen will also look into the presence of drugs, prescription or otherwise. If the test is positive for certain drugs then charges of OUI drugs might issue. Unlike alcohol however, the presence of drugs in blood samples as not as determinative a factor for establishing impairment. Many drugs remain in the system long after their effects have worn off. When we represent clients for OUI drug cases we usually engage a toxicologist to educate a judge or jury on the effects of the drug, whether it impairs motor vehicle operation and whether or not the effects of the drug might have worn off prior to our client's operation of the motor vehicle.

Continue reading "Brookline Massachusetts Woman Who Leads Cops On High Speed Chase Not Charged With Oui Despite Smelling Of Alcohol" »

Cleveland Brown wide receiver Donte Stallworth just hit the mother load of of plea deals by getting a thirty day jail sentence after being charged with DUI Manslaughter. It was alleged that on March 14, 2009 Mario Reyes was running across the street to catch a bus when he was struck and killed by a car being driven by Stallworth. According to reports the sentence was nine years and eleven months shorter than the average sentence in Florida for the same crime. Apparently Stallworth's cooperation with authorities after the accident and an undisclosed settlement agreement with the victim's family factored heavily into this decision. Stallworth apologized to the victim's family at his sentencing at which he also received a lifetime loss of license. After his release from custody Stallworth will be on house arrest for two years and he will be on probation for eight years. He was ordered to pay fines of ten thousand dollars and he will have to perform one thousand hours of community service.

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Donte Stallworth Gets Short Sentence In Plea Deal For OUI Manslaughter Charges

There are very few circumstances in which you would see a deal like this in Massachusetts. OUI Manslaughter is a relatively new crime in Massachusetts enacted a few years ago under Melanie's Law. OUI Manslaughter in Massachusetts carries a minimum mandatory five year state prison sentence. Massachusetts Laws do provide for work release programs for people convicted under this statute however this cannot happen without the recommendation of the prison superintendent and under the supervision of an officer of the prison in which the defendant is incarcerated. See Massachusetts General Laws Chapter 265 Section 13 1/2. Motor Vehicle Homicide OUI violations can in some circumstances provide for a lighter sentence however rarely if ever will the sentence of incarceration be thirty days. The only time when this might happen is when the district attorney's case in tenuous. For example, in this case if it could reasonably be argued that Reyes actions were the actual cause of the accident and the prosecution's case was weakened due to that fact you might see a sentence imposed that undercuts the average for these cases. Again, thirty days is not likely. There is no doubt that Stallworth's lawyer did a great job for him.

Continue reading "Donte Stallworth's 30 Day Sentence For DUI Manslaughter Would Be An Unlikely Result In Massachusetts" »

Last week police in West Tisbury, Massachusetts responded to a motor vehicle crash scene after receiving information that there was an accident with serious injuries. They arrived to find Jena Pothier pinned to the front passenger seat wearing a seatbelt. The suspected driver, Kelly McCarron was found lying in the road having been ejected from the car. Police stated that speed and alcohol were factors in the crash. Witnesses to the crash said that McCarron was operating at a high rate of speed and attempting to pass a car in front of her despite a car in the oncoming lane. Pothier had just completed her first year of college. McCarron had just graduated from Martha's Vineyard High School. McCarron has been charged with several motor vehicle infractions and crimes, the most serious being DUI, Negligent Operation of a Motor Vehicle, Motor Vehicle Homicide OUI and OUI with Serious Bodily Injury. Police have not ruled other charges out of the realm of possibility.

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Motor Vehicle Homicide, OUI Charges For Cape Cod Woman Who Killed Friend In Accident

Anytime there is a motor vehicle accident involving alcohol in Massachusetts and someone is killed you can bet that serious criminal charges will issue. In cases such as this one there are two important aspects to the district attorney's investigation that will dictate how this case is prosecuted. The first is the manner of operation of the vehicle being driven by the defendant. The more egregious this activity the more severe the charges. Police in this case have left open the possibility of additional charges against McCarron. One of these could be OUI Manslaughter. That crime would require a minimum mandatory five year state prison sentence. The statute authorizes a twenty year state prison sentence. The second component guiding how this case will be charged is the defendant's blood alcohol level at the time of operation. Whenever someone suspected of drunk driving is hospitalized as a result of injuries medical personnel will take a blood test. A toxicology screen will be performed determining the level of alcohol in the person's system at the time of the test. This case be challenged depending on the time and manner of testing. This is discussed some of my in other blog posts dealing with the proper method of blood testing for the presence of alcohol and extrapolation of the reading. If the alcohol level was high and the manner of operation was extreme you might see additional charges issue.

Continue reading "Cape Cod Massachusetts Woman To Be Charged With Motor Vehicle Homicide OUI After Injuring Herself And Killing Friend In Drunk Driving Accident" »

Massachusetts State Representative Peter J. Koutoujian has publicly stated that texting while driving has taken on the form of OUI. Perhaps this is why there now stand over a dozen bills in the Massachusetts legislature limiting the use of cell phones while driving. State Senator Steven Baddour, the Senate chairman of the Transportation Committee stated that members of his committee have agreed that text messaging while driving should be banned in Massachusetts. Many of these bills have come at the heels of recent incidents involving accidents and even death. Take for example the story of Amanda Martin, a seventeen year old high school student who was killed in the fall of 2007 when her car went off the road as she was driving to school. Police believed that text messaging might have been the cause of that accident. Consider also the case of Aiden Quinn, the MBTA driver who was texting his girlfriend, missed a light and ended up hitting another trolley in the Government Center Station.

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Is Texting And Driving A New Form Of OUI

OUI in Massachusetts mandates certain penalties that punish people for taking the risk of operating a motor vehicle while impaired. What would the punishment be for improper use of a cell phone while driving? Would a license suspension be in order? Possible jail time? An immediate loss of use and taking of the cell phone? Would the penalties be enhanced if someone were hurt or killed as the result of cell phone use while driving? Finally, how would law enforcement prove this crime? Accidents take a split second and the accuracy of cell phone records and logs is an issue that can easily be contested. It might be even more difficult to prove this crime in cases where there is no accident since most people would agree that in most cases no one outside of a vehicle can say for certain whether or not someone was texting.

Continue reading "Massachusetts Legislator Advocating Against Texting And Driving Says Texting Is New Form Of DUI" »

UPI reported that Courtney Frances Stewart, the twenty year old who was driving Los Angeles Angels pitcher Nick Adenhart had a blood alcohol level of .06 the night she, Adenhart and another individual were killed in a DUI related accident. These results were determined by the coroner who examined the bodies of the decedents and conducted toxicology tests. While some might think the reading is low, California Vehicle Code § 23136 makes it a crime for anyone who is under the age of twenty one to operate a motor vehicle with a blood alcohol level of .01 or more. Andrew Thomas Gallo, who had a 2006 DUI conviction has been charged with murder for the deaths of the three back on April 9th of this year.

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Woman Driving Angels Pitcher May Have Been DUI Herself

There is no doubt that if this case goes to trial Gallo's defense attorney will try to use the issue of Stewart's intoxication as part of his defense. The focus of the trial would then be not whether Gallo was impaired at the time of the accident. Rather, the defense will try to show that Stewart's actions were the cause of the accident and the her alcohol ingestion impaired her ability to operate in a safe manner. All of this of course assumes that the physical evidence at the scene and any eyewitness observations supports this defense. It is important to keep in mind that someone's blood alcohol level at the time of death does not necessarily reflect accurately that person's blood alcohol at the time of operation. Factors that defense lawyers always like to know is how many drinks the person had, over what time period were the drinks ingested, how much food did the person eat that day, the person's height and weight and whether proper procedures were followed when taking the blood sample. Expect to see the defense engage a toxicologist and an accident reconstructionist to assist in trial preparations.

Continue reading "Nick Adenhart's Driver's .06 Blood Alcohol Will Likely Factor Into DUI, Motor Vehicle Homicide Defense" »

For Easton, Massachusetts Police Sergeant James McAvoy last Saturday morning was a first. He observed two motor vehicles both operating at a high rate of speed around 2:00 a.m. He stopped both vehicles. One was driven by Silvano Dossantos of Quincy, Massachusetts and the other by Christina Conway of Easton, Massachusetts. According to McAvoy, both were operating under the influence of alcohol (OUI), driving recklessly and speeding. It was reported that McEvoy was on patrol when he noticed the cars speeding and driving close to one another. He estimated the speed to be around seventy miles per hour. Charges are now pending in the Taunton District Court.

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Massachusetts Woman And Friend Following Each Other Home Both Arrested For DUI

Aside from the speeding this article offers nothing relative to evidence of impairment due to the effects of alcohol. There is no mention of either of these women taking a breathalyzer test or field sobriety tests. Reading this report would be interesting. Most DUI defense lawyers in Massachusetts and other states will tell you the same thing. DUI police reports appear to be boilerplate. You can often tell which officer wrote the report just by reading the first paragraph in the narrative. I have said on numerous occasions that keeping a record of police officer DUI reports would be the best cross-examination tool for defense lawyers. The reports typically contain the following information: 1) that the operator was either operating at a high rate of speed or weaving over the marked lanes, 2) that after the stop the officer approached the vehicle and immediately detected a strong odor of an alcoholic beverage, 3) that the suspect had difficulty producing his license and registration, 4) that he asked the operator to get out of the vehicle and when doing so the operator was unsteady on his feet and 5) that the individual had bloodshot and glassy eyes. Police officers also have another group of facts in their reports that pertain to the defendant's performance taking the field sobriety tests. These too are seemingly boilerplate. I will share these in another blog post. I expect and hope that there will be a day in the not too distant future when Massachusetts DUI Defense Lawyers will collect and share these police reports and expose the routine and often questionable nature of police officer testimony in OUI cases.

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Former Buffalo Bills defensive lineman Bruce Smith had a charmed NFL career. He played in four Super Bowls, was selected to the Pro Bowl eleven times, was a first team All Pro nine times, owned the NFL career sack title for a while and will be enshrined in the National Football League Hall of Fame this summer. Smith has also been charmed when it comes to DUI cases. He had one dismissed in 1997 and beat another in 2003. Now however Smith has been charged again. According to reports several weeks ago Smith was stopped for speeding at 1:42 a.m. He refused to take a breathalyzer test but nevertheless was charged with DUI. Smith has also been charged with refusing the breathalyzer.

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Former NFL Great Charged With DUI Again

In Virginia the law is clear that a refusal to take a breathalyzer test is admissible as evidence at trial. If the defendant has prior convictions then a refusal to take the test can result in a misdemeanor charge. Neither is the case in Massachusetts. If you refuse to take the breathalyzer test in Massachusetts there can be no mention of the refusal by the district attorney to the jury. As a matter of fact, Massachusetts has a jury instruction that covers the issue of refusals. In essence, if the defendant chooses, the judge will instruct a jury that it cannot consider the absence of a breathalyzer in its deliberation process. The instruction goes on to say that there are many reasons why breathalyzer tests may not have been employed, including the unavailability of a properly functioning breathalyzer machine. Additionally, no matter what offense OUI you are charged with in Massachusetts the refusal to take the breathalyzer test cannot result in a separate criminal charge issuing against you.

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Peter Madge must have breathed a huge sigh of relief last week when a judge in Plymouth County Massachusetts dismissed a fifth offense DUI case against him on constitutional grounds. Last July a 911 caller reported seeing a car being operated erratically. When officers located the vehicle they found Madge sitting in a car that was partially in a driveway. There was an open can of beer in the console and the engine was running. Madge denied the erratic operation of the vehicle. Police reported that Madge smelled of alcohol, was unsteady on his feet and had red glassy eyes. Madge also failed the field sobriety tests. Once Madge was arrested a quantity of marijuana was found in his possession as well. Following a motion to suppress, a judge ruled that the police had no reason to stop Madge since they never witnessed his erratic operation of the vehicle. The case now stands dismissed.

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5th Offense DUI Charges Dismissed Against Marshfield Massachusetts Man

One of the best ways to get a case dismissed is by filing a motion to suppress an unlawful stop, search and seizure. Police are obligated to honor a suspect's constitutional rights at all times. When they do not lawyers usually file motions to suppress. These motions challenge the legality of the police actions. When these motions are successful the evidence that the police have obtained through the unlawful search and seizure is suppressed, meaning that the district attorney cannot use it in court. Many times, without this evidence the prosecution cannot go forward with the prosecution of the case and the charges get dismissed. That is in fact what happened in this case. Madge was smart enough to hire a good lawyer who filed a motion to suppress. An intelligent judge who understands and readily applied the law allowed that motion. The prosecution now cannot proceed with its case.

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Last week Robert Meserve was held without bail after being charged with his fourth OUI offense and leaving the scene of an accident. The case is being prosecuted in the Taunton District Court. According to reports, last Tuesday around 11:00 p.m. police responded to a report of a car chase near the Taunton Green rotary. A 911 caller reported being in his car when it was struck by another car that took off. The caller followed the subject and updated police with his location. The suspect, Meserve was stopped. Officers detected an odor of alcohol on his breath, glassy and bloodshot eyes and unsteadiness on his feet. Meserve was given field sobriety tests which he failed. He refused the breathalyzer test.

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Massachusetts Man Picks Up 4th Offense DUI

Fourth offense OUI cases in Massachusetts have severe consequences. In addition to steep court costs, fines and fees there is a mandatory one year jail sentence that you must serve. Fourth offense DUI cases are felonies in Massachusetts. There is a potential five year state prison sentence associated with this charge. Meserve's biggest problem stems from leaving the scene. This is one of those exacerbating factors that can lead to a judge imposing a sentence higher than the minimum mandatory. This action might also result in the district attorney prosecuting this case in the Superior Court. Had Meserve stayed and exchanged insurance information with the person he hit the police might not have been called and these charges might not have issued.

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Sometimes the best way to get a perspective on Massachusetts laws is to take a look outside the state to see how other jurisdictions handle certain DUI issues. Take for example the breathalyzer test laws in Illinois. If a person with no prior DUI convictions refuses to take the breathalyzer test there will be a one year loss of license. In Illinois, unlike Massachusetts, a hardship license can be granted to anyone who refuses the breathalyzer after thirty days. Massachusetts makes no such provision. Rather, unless the case is resolved favorably prior to the expiration of the 180 day suspension the restriction remains in place.

In Illinois, 2007 statistics show that over fifty eight of people stopped for DUI take the breathalyzer test. In Massachusetts, 2004 figures stated that only forty percent of the people stopped for OUI would take the breathalyzer test. That changed after the Massachusetts legislature passed Melanie's Law, a modification of OUI laws that provides rewards in the form of shorter suspensions or earlier hardship license eligibility for people who take the test, and fail. In Illinois the percentage of people who now refuse the test has increased whereas in Massachusetts more people are inclined to take the test. In Illinois there is also a suggestion that refusing these tests results in more acquittals.

A prominent Illinois drunk driving lawyer makes a great point when he says "No one should participate in an investigation of themselves for a crime. Why risk your freedom and innocence by submitting to a test done by a machine that is controlled by the police? That's what a Breathalyzer is." Some lawyers in Massachusetts might make the same statement. Keep in mind that your refusal to take the breathalyzer test in Massachusetts cannot be used as evidence against you at trial. However, any properly administered breathalyzer test can be used as evidence and a result of a .08 or higher in Massachusetts creates a presumption of impairment. This is far more difficult to overcome before a jury than are cases where the breathalyzer was not taken.

Also in Illinois there are times when drivers cannot refuse chemical tests. If you are involved in a serious crash where people are hurt or killed you must submit to a chemical test. There is the suggestion in Illinois that you can be forced to take a blood test in certain situations. Not so in Massachusetts. Illinois also recently established a law that punishes people who refuse to take breath tests at sobriety checkpoints. Here is how that works. Police set up sobriety checkpoints. A judge will be present at the checkpoints. If someone stopped refuses to take the breathalyzer test the judge on hand can issue a search warrant permitting the police to take blood from the suspect. Fortunately, Massachusetts has no such law.

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Refusing The Breathalyzer In Massachusetts Not A Bad Alternative

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Last Saturday night Beverly, Massachusetts police pulled over twenty seven cars through the authority of a sobriety checkpoint. Ultimately twelve people were arrested and charged with OUI. The roadblock operated from eleven Saturday night to three in the morning. All have been charged with OUI. Their cases are pending in the Salem District Court.

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Twelve Charged After Massachusetts Sobriety Checkpoint Stops

So what exactly is a sobriety checkpoint? Sobriety checkpoints are temporary roadblocks designed and used by law enforcement to catch people who are operating under the influence of alcohol. Officers stop a specific number of vehicles at these checkpoints to see if drivers are impaired. There are certain constitutional restrictions on the use and implementation of sobriety checkpoints. If these regulations are violated or altered the result could be a dismissal of your OUI case. The United States Supreme Court has held that sobriety checkpoints do not violate the Fourth Amendment because of the public interest in keeping drunk drivers off the roads. Massachusetts Courts agree with this general proposition. In Massachusetts the Secretary of Public Safety promulgates guidelines that dictate how the checkpoints must be conducted. Assuming these meet with constitutional muster the police must adhere to the guidelines when engaging in a sobriety checkpoint operation. Many OUI cases in Massachusetts are won by the defense when it is shown that these procedures were not properly applied.

Continue reading "Sobriety Checkpoint "Roadblock" Results In Dozen Arrests In Essex County Massachusetts Town" »

Last week Stacie Desper, an Attleboro, Massachusetts resident supposedly drove her car into another lane of travel and struck a tree head on. This happened at 11:45 in the morning. Along for the ride were her children, ages three and ten months. Luckily, everyone was okay. Police responded to the scene. Desper assented to taking a breathalyzer test. She blew a .26, over three times the legal limit in Massachusetts. She has been charged with OUI and OUI Child Endangerment in the Attleboro District Court. Bail was set at two thousand five hundred dollars.

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Child Endangerment, DUI Charges For Massachusetts Mother

Apparently this is a first offense DUI for Desper. As such, even though the Child Endangerment OUI statute is implicated it is unlikely that Desper will have to serve a jail sentence. Massachusetts General Laws Chapter 90 Section 24V makes operating with a blood alcohol level of .08 or higher with a child ages fourteen or younger in the car a misdemeanor punishable by up to two and one half years jail for first time offenders. If convicted of a second offense the punishment is a minimum mandatory six months in the house of correction. Second offenses are also felonies.

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