Massachusetts DUI Lawyer Blog

As a Massachusetts OUI criminal defense attorney, my attention was caught by a story about a Peabody woman charged with second offense-drunk driving and two counts of child endangerment. According to The Salem News, bystanders saw the woman order her 11-year-old son out of her car and drive away, leaving him behind. She later returned to find police waiting for her, along with her son. According to a police report, bystanders saw Cheri Cordero, 40, tell her 11-year-old son to get out of her 2008 Cadillac Escalade near an intersection in Salem, and then drive away. He told the bystanders that his mother had been drinking, and that his 9-year-old brother was still in the car.

The bystanders called the police, and when they arrived, the boy told them that his mother had been drinking at a party on a friend's boat. As they left the party, her boyfriend called and they got into an argument over the phone. Agitated, she began yelling at her sons, the boy said, and that was when she told the older boy to get out of the car and drove away. Some time later, just before 9 p.m., Cordero returned to where she had dropped him off. Police officers arrived at about the same time and noted that Cordero's eyes were bloodshot and glassy and that she was slurring her words and smelled of alcohol. She said she had not been drinking, and that her kids were upset because they didn't want to leave the party. She failed two unspecified field sobriety tests. She refused a breathalyzer test at the police station, so police seized her driver's license and contacted the Department of Children and Families.

Read article: Peabody woman faces charges for drunk driving, child endangerment

Leaving an 11-year-old child to fend for himself on a street corner is clearly not the best choice for a parent to make, even when that parent intends to come right back. But Cordero's behavior as a parent should not predetermine the outcome of her drunk driving charge. I hope that she will protect her own and her children's future by contacting an experienced Massachusetts intoxicated driving defense attorney to ensure that she is treated fairly as her case goes through the legal system.

It's important to note that since there is no breath test, the evidence against Cordero is all based on subjective observations made by police officers, such as field sobriety tests. Last week, I discussed the problems with field sobriety tests, and how easy it is to wrongly label someone as intoxicated based only on those tests. Cordero was most likely very upset at the time that she performed the field sobriety tests, so her performance on them could have been impaired by her emotional state even if she had not been drinking. It could also be that the police officers' judgments about her mothering affected how they saw the field sobriety tests, too. Cordero never took a Breathalyzer, so there is no objective evidence of her blood-alcohol content -- only observations of notoriously unreliable field sobriety tests and personal observations of her appearance and behavior.

Refusing a breathalyzer test comes with its own penalty: loss of driver's license for 180 days for a first OUI, or three years for a second-offense OUI. Those who lose their license for refusal of the test can appeal the suspension with the RMV within 15 days. If their drunk driving case is resolved in their favor, they are entitled to a court hearing to get their license back as well. But this hearing is not automatic, which is why Cordero or anyone else facing OUI charges involving field sobriety tests should contact a Massachusetts drunk driving criminal defense lawyer who can challenge unreliable field sobriety tests.

Continue reading "Emotions Could Affect Test Results in Peabody Second OUI Case" »

Police officers rely heavily on field sobriety tests when they suspect a driver of being intoxicated. Unfortunately, as a Massachusetts drunk driving defense attorney, I know that there are serious problems with these tests, and I use those problems as an element of my clients' defense whenever appropriate. The appeal of field sobriety tests is clear: Drunk driving is dangerous and law enforcement agencies need easy-to-use, scientifically and legally valid ways of identifying drunkenness. Unfortunately, the field sobriety tests that are most commonly used in Massachusetts aren't as reliable as they should be, and may not be administered properly. This means that completely innocent drivers who haven't even had one drink can sometimes be arrested for driving under the influence of alcohol.

The National Highway Traffic Safety Administration (NHTSA) recommends three specific field sobriety tests -- the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand -- as the most reliable ones for police officers to use. The NHTSA says that police officers who use all three tests on a suspected drunk driver have a 91% chance of making the right call as to whether or not the driver is actually drunk. In what the NHTSA views as the most accurate one, the horizontal gaze nystagmus test (or "jerking eyeball test"), a police officer asks a driver to follow a small flashlight side to side with his or her eyes. If the driver is drunk, his or her eyeballs shake as they look to the side. The walk-and-turn test is similar to walking a balance beam back and forth on a straight line. And the one-leg stand involves perhaps the greatest physical challenge of the three: drivers are asked to stand still with their arms at their sides, raise one leg six inches off the ground while keeping it straight and pointing at their toes, looking at their raised toes, and count forward from 1,001. Swaying, raising arms for balance, hopping, putting the foot down, or starting to count before the police officer tells them to can all be viewed as signs of drunkenness.

Several years ago, the Washington Post ran an article about the faulty science behind these tests that I found fascinating, as a Massachusetts OUI defense lawyer. The scientific basis of field sobriety tests lies in a 33-year-old study of how well field sobriety tests could identify blood alcohol content. That study was conducted with 238 subjects, mostly men 22-29 years old, and no control group. As the article sums up, "So hundreds of thousands of drivers have been arrested -- no doubt many deservedly so -- on the basis of a 30-year-old study that, critics argue, has never been published in a peer-reviewed, scientific journal, never tested on a large scale with a control group and, perhaps more astonishing, has nothing to do with actual impairment from alcohol."

Besides the tests' scientific faultiness, they can also falsely identify as drunk people who just have medical issues. Balance disorders affect 40% of Americans at some point in their lives, and dizziness and vertigo are the third leading cause for visits to doctors. The older you get, and the heavier you get, the worse your balance. For an aging population with a growing number of overweight and obese people, the one-leg stand test sounds like a pretty ineffective gauge of whether someone is drunk.

This is why it's important for anyone facing OUI charges to contact a Massachusetts intoxicated driving criminal defense lawyer immediately. Experienced OUI defense attorneys know how to legally challenge unreliable field sobriety tests and get that evidence thrown out, which can get the charges dismissed or help win a not-guilty verdict. Anyone accused of a crime with serious penalties like OUI should avail themselves of the expertise of a criminal defense lawyer like Stephen Neyman.

Continue reading "Never Plead Guilty Based on Field Sobriety Tests That Use Faulty Science" »

In April, I wrote about the case of a Marblehead grandmother arrested for drunk driving while taking her nine-year-old grandson to school. An update on the outcome of her case caught my attention because it reminded me, as a Massachusetts drunk driving defense attorney, of how people convicted of OUI can face vastly different penalties for the same crime.

Sharon Faulkner, 63, of Marblehead, was found guilty at a bench trial in Lynn District court of second-offense OUI and leaving the scene of an accident. She pleaded guilty to child endangerment while operating under the influence and negligent operation of a motor vehicle. For these charges, Faulkner will spend a full year in a state house of correction. She will serve half of that time toward the OUI charge's sentence of two and a half years. The remaining two years are suspended with supervised probation, and during that time, she will not be permitted to drive. The other half of the sentence represents her sentence for child endangerment while operating under the influence. Faulkner is also required to undergo a 14-day inpatient drug and alcohol treatment program, along with random tests to ensure that she remains drug- and alcohol-free, as ordered by the judge. Her home will be equipped with a Sobrietor, a machine that allows probation officers to test by phone whether she is sober.

Read article: Marblehead grandmother faces a year behind bars

Compare Faulkner's sentence to that of Carrie Featherstone, about whom I wrote last year. Featherstone, like Faulkner, pleaded guilty in Gloucester District Court to second-offense DUI, reckless operation of a motor vehicle and child endangerment. But Featherstone emerged with a much lighter sentence: a two-year loss of license, a 90-day suspended sentence, two years of probation, court costs and completion of the alcohol education program. Featherstone was able to avoid jail time, even though state law requires at least thirty days to be served in jail for a second-offense OUI. Most likely, this was because if the first offense OUI conviction is at least ten years old, the judge can opt for the "24D" alternative disposition, or in Featherstone's case, a combination of 24D penalties and regular penalties.

Faulkner's earlier OUI offense was more than ten years old too. She may have been sentenced more harshly because her probation had already been revoked for failure to stay sober, but it's striking that where one person can receive no jail time at all, another can be sentenced to serve a full year for similar charges. This case shows that Massachusetts OUI defense lawyer's results can differ dramatically from case to case. Many things factor into the ultimate result that are not disclosed in newspaper articles. When looking to hire a Massachusetts drunk driving defense lawyer, make sure that if you are comparing results you do so with full knowledge of the facts and circumstances of each case. The published result does not necessarily show the quality of lawyering that a defendant received.

Massachusetts law sets out serious penalties for those convicted of a second DUI. In addition to those mentioned above, there are fines and fees ranging from more than $600 to more than $10,000; loss of driver's license for two years, including at least one year without eligibility for a hardship license; and negative consequences for work, family and auto insurance rates. With so much to lose, drivers facing a second drunk driving charge should not delay in contacting a Massachusetts intoxicated driving defense attorney to help them.

Continue reading "Marblehead Grandmother Faces Stiff Sentence After Second OUI Conviction" »