Massachusetts DUI Lawyer Blog

The next time you go out to dinner, be sure to drive carefully if you've eaten any bread products. You wouldn't want to be stopped by the police with bread on your breath, since studies have shown that breathalyzer tests can't tell the difference between the amount of alcohol in your blood and the ethyl alcohol that stays on your breath after you eat bread, yeast, or similar foods. Without drinking any alcoholic beverages at all, people who have eaten bread have gotten breathalyzer blood alcohol concentration readings as high as 0.05% -- more than halfway to the legal limit at which you're considered legally intoxicated. As a Massachusetts OUI defense lawyer, I think it's important for people to know that the tests used to determine whether a driver is intoxicated are not foolproof. You can often -- and should -- fight OUI charges based on these faulty tests.

Nobody wants to see more drunk drivers on the road. But evidence shows that the breathalyzer test, on which law enforcement relies heavily, is not a good basis for determining who is driving drunk. I've written lately about the problems with field sobriety tests -- basically, that they rely on faulty science that's decades old. Blood-alcohol concentration tests also have problems because when they look for ethyl alcohol, which is the kind of alcohol people drink, they also can find similar substances that are not intoxicating, but still cause a false positive.

According to sociology professor David Hanson, the test doesn't just pick up on food molecules, either -- people who have been painting a wall can test as intoxicated without ever drinking any alcohol. Breathalyzer results can also show false readings because of "alcohol, blood or vomit in the subject's mouth, electrical interference from cell phones and police radios, tobacco smoke, dirt, and moisture." Tests of the subject's actual blood, not their breath, produced accurate results in these investigations -- but the breathalyzer could be amazingly inaccurate.

Field sobriety tests and breathalyzers make up two out of three of the usual sources of evidence in drunk driving cases -- police officers' personal observations being the third. Scientific evidence and common sense makes it clear that none of these are foolproof or even necessarily accurate -- meaning that there's a real problem with the way police determine which drivers are drunk. This makes it easier for me, as a Massachusetts intoxicated driving defense attorney, to get evidence against my clients thrown out and to achieve dismissals or not-guilty verdicts. But it's unfair to my clients to be arrested and charged in the first place if it's done on the basis of faulty evidence and unscientific tests. Some states, like South Dakota, recognize that breathalyzer tests are inaccurate and don't allow them to be used as evidence; they allow only blood tests because they can rely on them to be accurate. But in Massachusetts and many other states, breath tests are used as evidence at trial, and there are even penalties for drivers who refuse to submit to them. Refusing the breathalyzer, even if you're not intoxicated, results in suspension of your driver's license for 180 days if you're over 21. You can appeal that suspension, but it is an extra burden that may be inappropriate, given that the test is far from reliable.

Continue reading "Home Improvement Projects and Bread Can Trigger False Positives on Breathalyzer" »

Recently, I wrote about a case in which parents were being charged under the social host law for their underage child's party, which involved underage guests drinking alcohol. A new case in Cohasset shows how much of an impact the social host laws can have on a parent's life. A woman whose underage son allegedly had a drinking party at her house has been subjected to the kinds of restrictions that we normally see for people who have been charged with a second or higher OUI offense. As a Massachusetts OUI criminal defense lawyer, I think it's important for anyone with teenage children to be aware of how the social host law could affect them.

On a Saturday night during the first weekend in August, Taylor McQuade, 18, allegedly had 23 teenage friends over at the Cohasset home of his mother, Elizabeth McQuade, 50. A neighbor made a noise complaint to the police. Police officer John St. Ives came out to the McQuade home and reportedly heard people loudly chanting, "take off your shirt" and "we got your shirt off." As St. Ives approached the back yard, he found people aged 17-19 sitting around a table drinking out of plastic cups, and beer cans all over the yard. Elizabeth McQuade came out onto the deck while St. Ives questioned the teenagers. She claimed to have been at a friend's house all night and to have been unaware that the kids were drinking alcohol, but was unable to supply the name of her friend. Two of her son's friends told St. Ives that she had been home for 45 minutes and did know that they were drinking. Both Elizabeth and Taylor McQuade were arrested for disturbing the peace. Elizabeth also faces charges of violating the social host law and keeping a disorderly house. Taylor and his 23 guests are charged with possessing alcohol as a minor.

Read article: Mother and son arrested because of underage drinking party

At their arraignment in Quincy District Court, both McQuades pleaded not guilty and were released on personal recognizance. The judge scolded Elizabeth McQuade for failing to supervise her son. They were ordered not to use alcohol or other drugs and to submit to random testing. Test results showing alcohol or drug use would be grounds to put them in jail for up to 60 days. The Probation Department will install a sobriety-testing device at Elizabeth McQuade's house as well. A probation surrender hearing will be held August 30 to determine whether this incident violates the terms of Elizabeth McQuade's probation from a May domestic violence case. In that incident, she was charged with two counts of assault and battery after going to her ex-husband's home when she was intoxicated and attacking him with her shoe and punching him. If she is determined to have violated probation, she could go to jail.

In my view as a Massachusetts drunk driving defense attorney, it's vitally important to recognize that Massachusetts' social host law forbids adults to knowingly or intentionally provide alcohol to minors or to allow them to drink in their homes. Elizabeth McQuade told police she didn't know that the kids at her house were drinking. As a parent of an 18-year-old, it's understandable that she may have thought she didn't have to supervise Taylor and his friends, since Taylor is a legal adult in all respects except for drinking alcohol. Even if she heard them chanting "we got your shirt off" in the back yard, she may have just assumed they were being obnoxious, rather than that they were playing a drinking game like the police said.

Not paying attention to what teenagers are doing at your house, while perhaps inadvisable, is a far cry from knowingly and intentionally providing them with alcohol. The social host law may make sense for parents of kids under 18, over whom parents legally do have authority, but most parents of 18-21 year olds are trying to give their children the space to become adults and to live their own lives. Watching over them while they spend time with their friends is no way to do that. Anyone convicted of violating this law can be punished by a $2,000 fine or up to a year in prison, though, so the law forces parents to walk a difficult line between protecting themselves legally and encouraging their kids to become responsible adults.

Continue reading "Social Host Law Puts Parents of Young Adults Under 21 in an Untenable Situation" »

Those of us who followed the progress of the Big Dig remember well the name Matthew Amorello, the former chair of the Massachusetts Turnpike Authority who oversaw the massive construction project for four years. Amorello resigned from that post after a woman was killed when part of the roof of the Ted Williams Tunnel collapsed on her car. Now, Amorello faces charges for OUI and leaving the scene of an accident with property damage. Many Massachusetts residents don't think fondly of Amorello, since he's been associated in the public mind with the sky-high cost overruns, scandal, and tragedy of the Big Dig. But as a Massachusetts drunk driving defense attorney, I think it's important to point out that like anyone else facing charges, Amorello is innocent until proven guilty, and he's entitled to defend himself against the charges just like anyone else.

Amorello, 52, of Wenham, was arrested after allegedly hitting a 1999 Saab and a 2005 Dodge Magnum with his 1999 Ford Explorer. Haverhill police found Amorello in his Explorer, minus one wheel, in the parking lot of a Mercedes dealership. A Haverhill police officer said, "He was really out of it, and he didn't know where he was." Additional details about the arrest, like how the police determined that Amorello was intoxicated, were not available. Leanor Santos saw Amorello's car hit hers. "All you could see was flames from the car as he was driving away," she said. Amorello posted $40 bail and was scheduled to be arraigned at Haverhill District Court on August 9. However, he missed the court date because he was hospitalized at UMass Memorial Medical Center, his attorney told the judge. The article did not say why Amorello was hospitalized, but the attorney noted that Amorello was apparently unconscious when arrested.

Read article: Amorello arrested for OUI, property damage

It's always a challenge for people charged with OUI to ensure that their rights are respected as they go through the legal process. It can be even more challenging for public figures who are associated with controversial issues unrelated to their OUI charges. As the Boston Herald reported, not only was Amorello in charge of the Mass Turnpike Authority during the fatal tunnel collapse, but prior to his resignation, he changed his department's policy on sick leave so that when he left, he could receive $75,000 as compensation for his accrued but unused sick time. For that, he was fined $2,000 by the state ethics department. There's no question that this raises serious ethical questions, but it's important for the law to deal with Amorello's alleged drunk driving and leaving the scene charges on their own, not in the context of unrelated accusations against him.

In my experience as a Massachusetts OUI criminal defense lawyer, people in Amorello's position fare best when they work with a well-trained attorney who can ensure that their public image is kept separate from the charges that they actually face. There has already been some particularly nasty commentary about Amorello in the press, and his family has said that public criticism stemming from the Big Dig controversies has led to his personal struggles. Under these circumstances, it would not be a surprise if Amorello is feeling even more upset and unsettled than another person charged with OUI would be. That's exactly why it's best to hire a Massachusetts intoxicated driving defense attorney who can handle the case carefully. This can mean making sure that the arresting officer followed the law to the letter, that all the defendant's rights are preserved, and that the outcome of the defense is as favorable as possible -- either a dismissal of charges or a not guilty verdict.

Continue reading "Mass Turnpike Authority Ex-Chair Amorello Charged With OUI and Leaving the Scene" »

As a Massachusetts intoxicated driving defense lawyer, I've noticed a worrisome trend in law enforcement and government more broadly toward charging people with driving under the influence of alcohol when they haven't even been driving. Here in Massachusetts, law enforcement considers it "operating the vehicle" when the keys are in the ignition, even if the "driver" hasn't turned on the car, put it in gear or released the parking brake. More extreme examples include a case in Wisconsin, in which a woman was arrested for DUI when she wasn't even driving, because a police officer who passed by her in a convenience store thought he noticed an "odor of intoxicants" coming from either her or her friend. In another example, Senator Chuck Schumer (D-NY) called for the widespread use of a technology that detects blood alcohol content and could alert law enforcement to arrest someone over the legal limit before they even drive.

Most people would agree that drunk driving is dangerous and prevention is a good idea. But from my perspective as a In the Wisconsin example, Brittany Meye, 22, pulled into a gas station, where she and her passenger went into the convenience store. An officer watched her pull in, and when she and her friend passed by him, he said that he smelled intoxicants. He went to talk to Meye after she and her friend returned to their car, and arrested her for operating while intoxicated, second offense. Meye wisely moved to suppress evidence from the stop, since the officer had no reasonable suspicion for stopping her, and the Wisconsin Court of Appeals agreed, saying that no prior case involving drunk driving "has held that reasonable suspicion to seize a person on suspicion of drunk driving arises simply from smelling alcohol on a person who has alighted from a vehicle after it has stopped -- and nothing else."

Meanwhile, Senator Schumer is promoting a bill to fund research on alcohol detection devices that would use sensors in a vehicle's steering wheel to measure blood alcohol content through a driver's skin. I wrote about similar technology back in February. If the sensors determine that the driver was over the limit, the device will prevent the car from starting. Schumer said that it would be up to each state to decide whether to require the device in all new cars. As I noted in February, there would be a number of problems with widespread use of this device. For example, what if you're the sober designated driver and your drunk passenger touches the steering wheel? Or, what if a driver is drunk but wears gloves when touching the steering wheel? Are all drivers going to be forbidden from wearing gloves so that their steering wheel sensors can be allowed to work? Would the sensors be set off if the driver had just used hand sanitizer or another grooming product made of alcohol? Worst, the sensors apparently could be used to inform law enforcement about the actions of people deemed over the limit if they touch the steering wheel but are prevented from driving.

As a Massachusetts drunk driving defense lawyer, I know all too well the terrible consequences that can ensue from accidents caused by drunk driving. I also know how disruptive it is to the life of an innocent person who has been charged unfairly with drunk driving. Being charged with a crime is embarrassing and stressful, but in addition, Massachusetts drivers can lose their driver's licenses right away. This can cause very real problems at work and for meeting other obligations. That's why, even though drunk driving is a serious problem, law enforcement owes drivers the courtesy of presuming they are innocent until proven guilty, just like any other criminal defendants.

Continue reading "'Guilty Until Proven Innocent' May Be a Growing Trend in OUI Law Enforcement" »

As a Massachusetts OUI defense attorney, I was interested in a recent article in the New York Times about the challenges of convicting persons charged with driving under the influence of prescription drugs. The article describes accidents that occurred in New York, Maine and Wisconsin, in which people under the influence of prescription drugs including opiate painkillers, Ambien and Xanax allegedly caused serious, fatal accidents. Under Massachusetts law, charges of driving under the influence of prescription drugs can complex to defend against, because while it is illegal to drive after taking some prescription drugs -- "narcotic drugs, depressants or stimulant substances" -- other commonly prescribed drugs are not in these categories. But the complexity of the law also offers great opportunities for a Massachusetts intoxicated driving defense lawyer to mount a strong defense against these charges.

Read article: Drivers on prescription drugs are hard to convict

When someone is charged with operating under the influence of alcohol, police often use their own observations and field sobriety tests, in addition to a blood-alcohol concentration obtained by a breathalyzer or blood test. When someone is charged with OUI drugs, however, these sources of evidence are not reliable in the same ways. Proving that someone driving under the influence of prescription drugs is impaired is different from showing that they were driving under the influence of alcohol. Field sobriety tests -- which are unreliable anyway, as I've discussed recently -- don't necessarily work for prescription drugs the way they do for alcohol. Police are looking for the same kinds of impairment in all drivers they suspect of being drunk, but different prescription medications can affect different drivers in different ways. Where anti-anxiety drugs can slow someone's reaction time, stimulants can encourage risk-taking and impair someone's ability to judge distances.

Of course, a breath test is unable to detect intoxication by prescription drugs. A blood test can show the presence of prescription drugs in someone's body, and if the drug is included on the state's list of drugs that it's illegal to take before driving, then any amount of it in your blood is enough for an OUI drugs charge, even if it was legally prescribed. However, if the prosecution cannot establish that it's illegal in our state to take the drug at issue and then drive, it has no case. Many prescription drugs fall outside the categories listed in Massachusetts law -- for example, sedatives and sleep aids such as Ambien, or other unclassified prescription drugs like the anti-anxiety medication Xanax, and the anti-seizure medications Neurontin, Lamictal and Topamax (which is also used to prevent migraines).

An experienced Massachusetts intoxicated driving defense attorney can find several ways to defend charges of driving under the influence of prescription drugs. First, if the client is accused of driving under the influence of a drug that's not on the list of illegal substances in Massachusetts state law, there is no illegal conduct. An experienced attorney will argue that the charges must be dropped in this situation. Second, an attorney can challenge any physical evidence that the police collected. Did a blood test show that the client actually had any drugs in his or her body? If there are results showing the presence of prohibited drugs, did they show enough of the substance to impair the person's driving? Could the person's body have metabolized the drugs more slowly than the medication's label indicated, so that the drugs remained in their system longer than expected? Also, the prosecutor in such a case must obtain expert testimony from a Drug Recognition Expert (DRE) to establish that the drug involved violated the law.

Continue reading "Complex OUI Prescription Drug Laws Can Make These Cases Easier to Defend" »