Massachusetts DUI Lawyer Blog

This past Saturday Nicko Castaneda was driving a Saturn in Framingham, Massachusetts. Just after 3:00 p.m. Castaneda rear ended a man on a motorcycle on School Street. Apparently the man was attempting to take a turn into the Walgreen's parking lot on that street. The impact of the crash sent the victim about seventy two feet before it and the Saturn stopped. The motorcycle was found partially underneath Castaneda's car. When the police arrived at the accident scene they noticed that Castaneda had trouble standing. He admitted to drinking eight beers. A breathalyzer test was administered. The result showed that Castaneda had a blood alcohol content of .21, more than two and one half times the legal limit. The victim suffered serious injuries. Castaneda was charged with OUI Second Offense, OUI Serious Bodily Injury and Operating to Endanger. The case is pending in the Framingham District Court. Bail was set at one thousand dollars.

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Framingham Man Charged With Second Offense DUI

Castaneda is in a lot of trouble. Just this past February he was convicted of his First Offense OUI in the Dedham District Court. For that case the best scenario would have been a "24D" disposition wherein the case was continued without a finding for one year and certain statutorily mandated probationary conditions. Now however the probation department in Dedham will likely move to surrender Castaneda. A judge can convert the continuance without a finding to a guilty and impose a two and one half year jail sentence. On the new case the defendant is looking at a second offender disposition or a mandatory thirty day jail sentence and a potential two and one half year jail sentence.

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

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

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

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Did you know that actor Jeffrey Donovan is from Amesbury, Massachusetts? Well his is and just recently he was arrested and charged with OUI in Miami. Apparently Donovan almost hit a police car. To avoid doing so he swerved and screeched his tires. Donovan admitted to "not seeing the red light". Nor for that matter did he see the police car. Donovan failed the field sobriety tests but admitted to having only three glasses of wine, and of course some Benadryl. He admitted to being "borderline drunk".

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Massachusetts Man Charged With OUI In Miami

Here is the problem with admitting to being "borderline drunk" in Massachusetts. Drunk Driving Laws in Massachusetts do not require the suspect to be drunk to get convicted. The legal standard operates on the phrase "under the influence". The model jury instruction in Massachusetts states that you do not have to be drunk to be under the influence of alcohol. Rather, a person is under the influence of alcohol if he has consumed enough alcohol to reduce his ability to operate a motor vehicle safely. That determination is for the jury to make. So, three glasses of wine and erratic operation are not necessarily indicative of operating under the influence. The other factors such as failed field sobriety tests and smelling of alcohol help the prosecution. However, most damaging is Donovan's admission that he was borderline drunk.

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Recent studies have shown that driving while texting, DWT, makes the chance of getting into an accident fifty percent greater. By many this act is considered more dangerous than OUI. California has now passed a law that bans cell phone use by drivers. New York maintains that position as does Connecticut, New Jersey and Washington. Fourteen states have now banned texting while driving. Some states ban cell phone use for novice drivers or school bus drivers, For many of these states all the police need to do is see the driver on his phone while he is driving to issue the citation. Others need another reason to stop the driver such as speeding or other infractions. There is now a device available that jams cell phone signals in cars once the ignition is turned on. Many people who have been drinking are pulled over due to erratic motor vehicle operation that is caused by texting while driving. It is only a matter of time before Massachusetts will implement one of these laws.

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States Other Than Massachusetts Believe That Driving While Texting (DWT) Might Be More Dangerous Than DUI

Once Massachusetts passes a ban on DWT a violation of the law will probably be considered a civil infraction. This could result in fines, license suspensions or revocations and surcharges on your insurance. It will be interesting to see how this law comes into existence in this state.

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On June 27th of this year Roger Kerkmann was driving his 1999 car in Littleton, Massachusetts. At around 11:30 p.m. he went through a stop sign, right in front of a police officer. The officer pulled him over. The officer asked Kerkmann to role down his window or open his door. He did not claiming that he could not. The officer went to the passenger side, opened the door and immediately smelled a strong odor of alcohol. Kerkmann supposedly failed certain field sobriety tests, had glassy eyes and slurred speech. He was charged with OUI. When officers learned that Kerkmann had been convicted of OUI in 1986 and 1999 charges of OUI, 3rd offense issued. The case is now pending in the Ayer District Court.

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3rd Offense OUI Charges Brought Against Massachusetts Man In Ayer District Court

If you get convicted of a 3rd Offense OUI in Massachusetts you will be sentenced to a minimum one hundred fifty days in the house of correction. You are facing steep fines and an eight year loss of license. A hardship license can be granted after four years. The strengths of the prosecution's case here are as follows: running the stop sign, the strong odor of alcohol, glassy eyes, the slurred speech and the failed field sobriety tests. The weaknesses are the absence of a breathalyzer test, arguably the only objective measuring device in OUI cases. Subjective findings such as those referenced in this article are easy to attack. For instance, how does the officer know what the defendant's eyes are like normally or how he speaks, with or without alcohol. Field sobriety tests are not easy to take in pressured situations such as this, i.e. at night with the officer's lights in your face, on the side of a road with passing traffic and after essentially being accused of operating while impaired. A good criminal defense laywer will be able to convince a jury of this fact and get it to understand that the officer's observations might not be indicative in OUI. Trying OUI cases in Massachusetts are much easier in cases where there is no breathalyzer reading.

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On July 4, 2009 eighteen year old Dana Barczewski, a Newton, Massachusetts resident rear ended a woman while driving in Burlington. Apparently two witnesses reported that Barczewski cut them off and almost hit a utility pole. She continued driving, striking the victim's car. She was then seen searching her car and throwing an object into the bushes near the accident. The responding officer located a bottle of Patrone Tequilla. Barczewski was given four field sobriety tests which officers claim she failed. She was then arrested and at the Burlington Police station she blew a .10 and a .12 on the Breathalyzer Test. The case charging Barczewski with OUI is now pending in the Woburn District Court.

Newton, Massachusetts Woman Charged With OUI

This is one of those cases that is very difficult to successfully try. Anytime you have the combination of independent witnesses observing erratic driving, an accident, an attempt to conceal partially consumed alcohol, failed field sobriety tests and a breathalyzer reading of .08 or higher you are going to have problems convincing a judge or a jury to acquit your client. While these factors sitting alone are often subject to a successful challenge, collectively they create an enormous hurdle for the defense to jump. If this is the defendant's first offense she will likely receive the "24D" alternative disposition and her operating privileges might be restored shortly if a hardship license is granted.

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About a week ago police in Newton, Massachusetts flagged down a police cruiser. He was with a woman who he claims hit his car with hers and fled the scene shortly after midnight on July 3, 2009. The man told the police that he witnessed the woman's vehicle hit a mirror on his car after which the woman took off. The man followed her and managed to get her to stop. The two exchanged information about the accident. The woman claimed that she did not know that she struck his car. When the police arrived they detected signs of intoxication. The woman, Joanne Emerly admitted to drinking three glasses of wine. The police arrested her and charged her with OUI.

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DUI Charges For Newton, Massachusetts Woman Who Fled Accident Scene

If the defendant in this case truly did have only three glasses of wine then she may have a triable case. A "typical" glass of wine is four ounces. The "typical alcohol percentage" of wines is 8% to 10%. Calculating blood alcohol can be done using a tool known as the Widmark Formula. There are several webistes that use this formula and provide a blood alcohol calculator. Here is an example of how the formula works. You enter the weight of the subject into the calculator along with the amount of drinks consumed, the time period over which they were consumed, the size of the drink consumed and the percentage of alcohol in the drink. So, according to this formula, if the defendant in this case had three glasses of wine (four ounces each) over a two hour period and she weighed one hundred thirty pounds her blood alcohol level would be a .068. This is under the legal limit. This also assumes that the wine she drank had the maximum percentage of alcohol allowed by law which is fourteen percent. Knowing these factors is critical to preparing a strong defense to an OUI case.

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Jonathan Muir is just twenty one years old and he has a tremendous legal battle ahead of him. Just over a week ago Muir was driving a 1984 sports car at around 1:30 a.m. Muir apparently lost control of the car and struck a tree. One of his three passengers was killed while two others were injured. Muir now stands charged with Motor Vehicle Homicide while OUI. Muir has also been charged with two counts of causing serious bodily injury while under the influence of alcohol and operating negligently so as to endanger.

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21 Year Old Massachusetts Man Charged With Motor Vehicle Homicide While OUI

The article failed to report whether a blood alcohol reading was obtained from Muir. An article in Cape Cod Times reported that Muir too was injured and was taken to a hospital for treatment. It is probable that the hospital took a blood sample from Muir which is protocol for treating patients who are admitted. A toxicology work up would disclose Muir's blood alcohol level, if any. The blood tests are the most accurate however they are fallible. I have blogged on this in the past. In scrutinizing blood tests criminal defense lawyers look for possible blood sample contamination. If contamination is demonstrated then we try to get a judge to exclude evidence of the defendant's blood alcohol level. The issue of impairment can also be challenged if the blood readings are not consistent with the amount of alcohol consumed.

Continue reading "Cape Cod Massachusetts Man Charged With OUI Motor Vehicle Homicide After Crash Kills Passenger In Bourne" »

Former NFL defensive lineman Bruce Smith was convicted of DUI and the charge of refusing to take a breathalyzer test by a Virginia Beach judge. As a result Smith was given a ninety day suspended sentence. He will also lose his license for twelve months. During the trial Smith claimed that he had difficulty taking and adequately performing the field sobriety tests due to a list of injuries he suffered during his NFL career. The judge believed that Smith's level of intoxication prevented him from following the police officer's instructions on how to take the field sobriety tests. The arresting officer testified that Smith was speeding and that when he pulled him over he smelled a strong odor of alcohol on his breath. Smith's eyes were bloodshot and glassy.

There is an interesting twist to this case. The officer who arrested Smith was subsequently arrested and charged with DUI as well. The officer crashed his car and failed three out of four field sobriety tests that were administered. Evidence of the pending DUI charges was not admissible against the officer.

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Bruce Smith Convicted Of DUI On Testimony Of Officer Also Charged With DUI

Here is a question. Why was the fact that the arresting officer had a pending DUI charge inadmissible at Smith's trial? The prosecutor claimed that the crime of DUI does not affect a witness' credibility. While that might be true in most cases it should not be in this DUI case. We know that the arresting officer failed three out of four of his field sobriety tests on his case. That officer has pleaded not guilty, thus maintaining his innocence. Suppose the officer believes that he adequately performed his field sobriety tests notwithstanding a subjective opinion to the contrary. If that is the case then it seems to me that a judge should have allowed questioning of the officer on this issue. This would enable Smith to show that when this officer behaved in the same manner the officer believed that he was not impaired. Consequently, Smith could argue that similar behavior manifested on his part does not amount to a credible opinion that he was impaired. In other words, the arresting officer's opinion that he passed the field sobriety tests and Smith failed is a matter of credibility that Smith should have been able to make known to a jury.

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Jeffrey Daluz is no stranger to operating vehicles under the influence of alcohol. Last Saturday he did it again, this time in his boat. The fifty three year old Cape Cod man has five OUI convictions in Massachusetts and seven arrests for alcohol related crimes. On the Fourth of July he drove his boat into a fireworks security zone in Yarmouth and was arrested and charged with DUI boating.

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Boating DUI Charges On The Rise As Summer Gets Going In Massachusetts

OUI boating in Massachusetts is governed by Massachusetts General Laws Chapter 90B Section 8. The law states that anyone who operates a boat under the influence of alcohol is guilty of a misdemeanor. The punishment for first time offenders is a fine of one hundred dollars and a possible two and one half year jail sentence. Second time offenders are subject to a minimum mandatory fourteen day jail sentence and third time offenders face a mandatory minimum six month jail sentence. Much like OUI refusal cases, a refusal to take a breathalyzer test subjects the defendant to a one hundred twenty day driver's license suspension. It is important to understand that boating OUI cases impact a person's right to drive a car in much the same way as OUI cases. Boaters are often given field sobriety tests when brought to shore. Daluz has already lost his driver's license for life. If he gets convicted of this crime he will no doubt be serving a jail sentence.

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Over the holiday weekend Jason Spurlin was driving with his girlfriend, Amanda Murray and two others, Anna Dubois and Nick Kelly. According to the police he was drunk and speeding. He lost control of his car around 1:15 in the morning, left the road and struck a tree. Spurlin survived but all passengers were killed. Apparently Murray and Spurlin have a five week old child together. Spurlin will now likely have to face three counts of Motor Vehicle Homicide. At least for now the case will be prosecuted in the Wrentham District Court.

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Three Killed In Massachusetts Drunk Driving Accident, Driver To Face OUI Motor Vehicle Homicide Charges

The biggest question raised by this article is how did the police determine that Spurlin was drunk at the time of the accident. There is no mention of a breathalyzer test or field sobriety tests nor is there any indication that there exist any witnesses to the accident. It is likely that if Spurlin was injured during the crash he was taken to the hospital. There, his blood might have been taken as is often the case when people get admitted to the hospital. While these tests are the most reliable forms of evaluating a person's blood alcohol level they certainly are not infallible. Not all technicians are properly trained in taking the blood sample particularly in the case where they might be looking to test for alcohol. For instance, if yeast in introduced into the blood sample it might yield an inaccurate high false positive reading. Contaminated tubing can effect the reading. Improper labeling of the sample can be problematic. Swabbing with alcohol will often result in a high reading that lacks accuracy. If blood is the determining factor in Spurlin's case there is no doubt that his attorney will scrutinize the process by which the blood was taken and analyzed.

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Law enforcement authorities allege that David Dibenedetto of Carver, Massachusetts was involved in a car crash in Hanson yesterday. Apparently the police received a call about the crash and were able to locate Dibenedetto a short distance away in the town of Pembroke. Dibenedetto was arrested and charged with OUI, Second Offense, Leaving the Scene of an Accident, driving with a revoked license and negligent operation of a motor vehicle. He is being held at the Plymouth County Jail on a two thousand dollar cash bail.

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Second Offense DUI For Southeastern Massachusetts Man Involved In An Accident

A two thousand dollar cash bail is considered high for a second offense OUI in general. However, usually when an accident occurs bail will increase. If you leave the scene after an accident and are charged with DUI in Massachusetts then you can bet the bail will be even higher. Given the circumstances of this case this bail is quite reasonable. For the second offense Dibenedetto is looking at a thirty day minimum mandatory jail sentence. If he is convicted of the leaving the scene as well as the OUI it would not surprise me to see some additional time added to the sentence. Here are some factors that will no doubt come into play when deciding whether or not to take this case to trial. Was there a breathalyzer test taken and what was the result? Did Dibenedetto take any field sobriety tests? What did the civilian witnesses see? How did the accident occur?

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Pamela Balsamo was arraigned yesterday in the Berkshire Superior Court in Pittsfield, Massachusetts. She has been charged with Motor Vehicle Homicide. Police allege that Balsamo was driving south in the northbound lane of a rural road in Berkshire County when she struck a car being driven by Erin Dufour, another Massachusetts resident. Dufour died at the scene. The accident occurred on March 18, 2009 shortly after 8:00 in the evening. At that time Dufour was driving a Honda. Balsamo was driving a 2002 Mercedes. Balsamo was hospitalized as a result of this accident.

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Motor Vehicle Homicide Charges Filed In Massachusetts Against Connecticut Woman

Motor Vehicle Homicide in Massachusetts can be charged either as a felony or a misdemeanor. In this case it was charged as a felony. The defendant faces a maximum state prison sentence of fifteen years. She also faces a minimum mandatory one year sentence in this case. There are very few articles online that discuss this case. Nowhere is Balsamo's blood alcohol level disclosed. This is somewhat odd in that she was taken to the hospital where it is likely that blood was drawn and toxicological tests conducted. There are no articles or press releases that show the results of the accident reconstruction conducted by the police. Often times the strength of the district attorney's case in motor vehicle homicide prosecutions rests on the strength of the accident reconstruction. Naturally, eyewitness accounts will factor heavily into this equation. I would be interested in learning more about the facts that support the district attorney's theory of this case.

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Law enforcement in Florida uses a breath alcohol testing machine called the Intoxilyzer. The machine is developed by a company known as CMI Inc. Recently lawyers in Florida have asked judges to order the prosecution to disclose the software source code of the machines so that they can assess whether these machines are providing results that are accurate. While several judges in Florida and other states have ordered the disclosure of the proprietary coding CMI has refused to provide the requested information. The company has complained that such disclosure would give up "trade secrets". The judges ordering disclosure however have stated that a defendant has the right to examine evidence in order to properly prepare for trial. The result has been a backlog of OUI cases in those counties where there has not been compliance with the judicial orders.

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Breathalyzer Manufacturer's Refusal To Comply With Court Orders Likely To Compromise OUI Cases

Massachusetts uses the Alcotest 7110 Mark III-C breathalyzer test. The machine consists of a breath tube, a deep lung air monitor, a sample chamber and an infrared sensor. In 2007 the Alcotest 7110 was tested by Base One Technologies, Inc. after a court case involving the Alcotest manufacturer required it provide its code. The study revealed that the code contained several errors. Read about the study here. In Massachusetts however you rarely see challenges to breathalyzer machine results. The reason for this is simple. The cost of retaining an expert to examine and evaluate the machine and provide testimony to a jury is extreme. Very few people can afford this and they look to the alternative of pleading guilty or trying the case by relying on their lawyer's cross-examination skills to attack the accuracy of the test. It is far easier to succeed in persuading a jury that a test is inaccurate with an expert than without one. I would expect to see a scientific challenge in Massachusetts to the Alcotest at some point in the future.

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