Massachusetts DUI Lawyer Blog

Last month, I wrote about the use of ignition interlock devices in Massachusetts drunk driving cases. Under Melanie's Law, courts may order repeat OUI offenders to install these mobile breathalyzers in their vehicles, at their own expense. The devices were originally hailed as an effective way to stop drunk driving, but as I wrote in January, citizens and Massachusetts OUI defense attorneys have raised significant questions about their effectiveness, reliability and safety.

Now, a report from the Record of Waterloo, Ontario, Canada suggests that ignition interlock devices may someday be outmoded by a new technology. The Feb. 12 article says Sober Steering Sensors Canada Inc. is developing a type of chemical sensor that can detect what it calls the gas byproducts of alcohol though a person's skin. The company is developing a steering wheel that incorporates the sensors. As with IIDs, the system would not allow the vehicle to start if it detects a high BAC. The Record said the company is already testing the technology in "fleet" vehicles, including buses and large trucks. Both MADD and the auto insurance industry have expressed interest, and the company's founder was slated to talk to Florida's state legislature about the technology Feb. 15.

The article said Sober Steering's product may improve on IIDs for several reasons. IIDs require a "clean" breath test before they allow the vehicle to start. Drivers can get around this by having another person take the test. For this reason, IIDs also require a "rolling retest," which means retaking the breath test while the vehicle is in motion. Critics believe this is not safe, especially since the car can shut down in traffic if the driver can't find a safe place to pull over and take the test. The Sober Steering technology can take rolling retests without the driver having to do anything but keep his or her hands on the wheel. Sober Steering claims its technology can tell the difference between alcohol consumption and alcohol from hand sanitizer, mouthwash or other products, a common criticism of breathalyzers. And the cost of installing it is a sixth to a tenth of the cost of an IID, the article said.

As a Massachusetts drunk driving criminal defense lawyer, I agree that this could solve some of the drawbacks of IIDs, though not all of them. (Drivers could still illegally borrow someone else's car, for example.) But I believe states and provinces should take a hard look at the technology before rushing to adopt it. For example, how finely tuned is the technology? Can it tell when a driver is wearing gloves? Can it consistently distinguish between a legal BAC of 0.07 and an illegal 0.08? Serious flaws, like the well-documented problems with breathalyzers, could allow defendants to fight their cases. Another concern has to do with the constitutional right of defendants to face their accusers. In cases of drunk driving, the test device is generally considered the "accuser," which has led to court cases, successful in some states, demanding that the source code behind breathalyzer machines be publicly released. If Sober Steering's technology will be used in the United States, the company should release its technology to allow defendants to build the best possible defenses.

The Law Offices of Stephen Neyman represents clients throughout eastern Massachusetts who are charged with operating under the influence and related crimes. If you're facing charges, don't hesitate to contact us for help. For a free phone consultation, please call (617) 263-6800 or send a message through the Web site.

A young man was arraigned for Feb. 8 driving drunk in an accident that killed another man, WCVB Boston reported. Prosecutors say David Diaz, 23, was drunk and asleep at the wheel when he hit Lay Bou, 56, on Route 110 in Methuen. Bou was jogging facing oncoming traffic, as was his habit, when Diaz hit him around 8:30 a.m. Bou was taken to the hospital, where he was pronounced dead. Diaz also suffered minor injuries and was taken to the hospital. There, a blood test showed he had a BAC of 0.16, twice the legal limit. Prosecutors say Diaz told police he doesn't remember the crash, and accuse him of falling asleep at the wheel. According to the article, Diaz said he had left work around 3 a.m. and drank several beers at a friend's house.

At the arraignment, Diaz was charged with operating under the influence, felony motor vehicle homicide and failure to stay in his lane. He pleaded not guilty to all of the charges. The judge in the case ordered $10,000 bail, but said that if Diaz posts bail, conditions of his release include submitting to breathalyzer tests and giving up his passport.

Read article: Prosecutor: Drunken Driver Asleep At Wheel

If he has not already done so Diaz must retain the services of a Massachusetts OUI defense attorney, because these are serious allegations. If convicted, he faces up to 15 years in prison on the felony motor vehicle homicide charge, plus potential jail time for the OUI charge as well. Importantly, however, the prosecution cannot convict on this charge simply by showing that the defendant was driving drunk when the fatal accident happened. In order to obtain a felony conviction, prosecutors must also show that the defendant was operating recklessly or negligently. This can be tough, because a lot depends on the circumstances of the crash and how well they are documented. If prosecutors can't prove recklessness or negligence, they would have to reduce the charge down to misdemeanor motor vehicle homicide, which doesn't require a recklessness showing. That charge carries up to two and a half years in prison, substantially less than the maximum of 15 for the felony charge. An experienced Massachusetts drunk driving criminal defense lawyer may also be able to challenge the blood test in court, if its validity, accuracy or chain of custody are suspect.

Continue reading "Lawrence Man Pleads Not Guilty to Motor Vehicle Homicide and OUI" »

Last fall, the Massachusetts Supreme Judicial Court made a ruling with important implications for Massachusetts drunk driving criminal defense attorneys and their clients. In the case of Commonwealth v. Dennis P. Steele, the court was asked to decide whether prosecutors may introduce both blood-alcohol content test readings at OUI trials, or only the lower of the two readings. This was a challenge to the existing rules, which explicitly say that prosecutors and police may use only the lower of the two readings. Fortunately for Massachusetts drivers, the court rejected the challenge and affirmed the rule as it currently exists.

State regulations say law enforcement must take two BAC tests when looking for evidence of drunk driving. The idea is to make sure the breath readings are accurate. If they're off by more than 0.02, they may not be admissible in court. Under rules written by the state Secretary of Public Safety, police and prosecutors may use only the lower of the two readings. Prosecutors challenged that rule in the case of driver Dennis Steele, a western Massachusetts man who was arrested in February of 2009 for operating under the influence and driving with a suspended license. As MassLive.com reported Oct. 17, Steele's two BAC readings measured 0.09 and 0.10, slightly above the legal limit of 0.08.

Steele decided to defend the OUI charge. At trial, prosecutors argued that they should be able to introduce the higher reading as evidence because the rule against this is not exactly state law -- the Secretary of Public Safety rather than the Legislature made the rule. They agreed that the lower reading was the official BAC, but said the higher one was still valuable evidence that should be admitted by courts. The trial court disagreed, but the prosecution appealed the issue to county court and got it reversed. Steele's appeal to the Massachusetts Supreme Judicial Court followed.

In its ruling, the SJC sided with Steele. Massachusetts law says regulations are valid as long as they relate to, and don't conflict with, the controlling statute. In this case, the court said, the Legislature explicitly gave the Secretary of Public Safety the authority to make this decision, and didn't make its own rule on how to handle different BAC rulings. Thus, the Secretary's decision was perfectly valid. Furthermore, the court wrote, the two-part BAC test was intended to validate the test itself, not provide further evidence. Indeed, introducing two different breath test samples could unnecessarily confuse the jury, it wrote. It also invites jurors who don't understand BAC tests well to incorrectly believe that the lower sample was inaccurate.

This decision upholds the status quo, but it's still an important victory for Massachusetts OUI defense lawyers like me. As the SJC pointed out, jurors don't always have a good understanding of BAC tests. These tests can be finicky and often result in slightly different readings, which can be caused by anything from the timing of the driver's last drink to his or her health. Furthermore, the public is generally biased against drunk drivers, which means jurors may assume a higher test result is the correct one. By allowing only one test result to be admitted, the court has ensured that OUI defendants get a fair change in court. And by throwing out results that differ by more than 0.02, the state ensures that defendants can't cherry-pick from wildly different results.

Continue reading "Higher of Two BAC Test Readings Not Admissible, Massachusetts High Court Rules" »