Massachusetts DUI Lawyer Blog

As a Massachusetts OUI criminal defense attorney, I wrote in April about the death of a young woman from Salem, 19-year-old Julia Gauthier, in a drunk driving accident. Gauthier was riding home from a party in a car driven by her boyfriend, Christopher Maxson, when he ran two stop signs, was clipped by another driver and flipped his SUV. The resulting accident threw Gauthier from the vehicle's sunroof, killing her at the scene. Maxson and two other passengers suffered only minor injuries. Maxson pleaded not guilty at the time to motor vehicle homicide while driving under the influence. But on Dec. 17, Maxson changed his plea to guilty and was sentenced to three to four years in state prison. The sentence was less than some of Gauthier's family wanted, but more than the defense had hoped for.

The hearing was marked by statements from both families. Gauthier's family read statements about her achievements and her promise in life; she was a college student when she died. Gauthier's mother, Marie Gauthier, said she knew Maxson didn't intend to kill her daughter and described the situation as a tragedy for both families. She said she hoped the experience would rehabilitate him. Maxson's probation officer from a previous marijuana possession offense said he believed Maxson was open to rehabilitation and suffering from bipolar disorder. Maxson himself cried in court as his father read a letter he had written, saying he misses Gauthier and begs for forgiveness.

Read articles: Man given 3 to 4 years for fatal accident; Man gets prison for fatal crash

As a Massachusetts OUI criminal defense lawyer, I hope the probation officer is right. Maxson wrote in his letter that his feelings -- missing Gauthier and knowing he's responsible -- are already "the ultimate punishment." That doesn't mean it's inappropriate for the commonwealth of Massachusetts to also penalize him, but I suspect the judge took Maxson's remorse into account when sentencing him. The maximum sentence for felony motor vehicle homicide is 15 years in prison, and Maxson's sentence is significantly lower. However, he will likely also face a license suspension and other penalties for any OUI, not to mention the post-release consequences of a felony conviction. In fact, his accident has already been used by Salem-area high schools as an example of the terrible consequences of drinking and driving. These are very serious penalties for a young man just launching into adulthood -- but I hope they help him and others avoid more fatal accidents caused by irresponsibility and mistakes.

Continue reading "Young Marblehead Man Pleads Guilty and Goes to Prison for OUI Death of Girlfriend" »

As a Massachusetts intoxicated driving criminal defense attorney, I am against invasive police searches of people who are merely suspected of crimes. That's why I was disturbed by a Dec. 13 CNN article saying the federal government would like states to make blood tests mandatory for suspected DUI drivers who refuse breath tests. This "no refusal" policy was part of a U.S. Department of Transportation media blitz tied to the holiday season, when drunk driving arrests typically rise. The DoT believes refusing the breathalyzer helps some drivers escape prosecution for DUI, so it is asking states to make resources available to take blood from drivers instead. That effort would require judges on call to provide search warrants as well as personnel or training for officers in collecting blood.

Under a no refusal policy drivers are simply not allowed to decline a chemical test when intoxicated driving is suspected. When someone refuses to take a breathalyzer test, police officers would be able to call a judge who would be specially on call for this purpose. That judge would issue a search warrant, which is legally necessary to draw blood from Americans against their will. The officers would then have to bring the patient to someone trained in drawing blood, or draw the blood themselves if they have the training. In many states, state law specifies that doctors, nurses, paramedics or other medical professionals must actually draw the blood. "No refusal" strategies are currently being used in nine states, though not necessarily in every part of those nine states, and Transportation Secretary Ray LaHood says 30 states have state laws that make the policy possible.

As a Massachusetts OUI criminal defense lawyer, I would like to remind LaHood and CNN's readers that Americans have a Fourth Amendment right to be free of unreasonable searches. The U.S. Supreme Court ruled in 1966 that forcible blood draws are legal, but it did not address the Fourth Amendment issue -- leaving it open to a potential challenge. That decision also set standards for how police should conduct these forcible blood draws, which means drivers have the ability to challenge blood draws that don't meet standards. In the 1966 ruling, the court said blood should be drawn in "humane and medically acceptable circumstances," which may be why so many state laws list which medical personnel are qualified to draw blood. Police also must have probable cause to believe the driver is intoxicated. Failure to meet those standards can and does allow drivers to challenge the evidence against them, potentially undermining the entire case.

There are also practical objections to a no refusal rule. Many of them stem from the cost of meeting the legal requirements above -- making qualified medical professionals and judges available whenever the police need them to handle a drunk driver. Police officers aren't trained phlebotomists and may not be able to do the blood draw correctly -- nor should they be required to learn a new job. But police agencies may not have the money to keep a nurse on call at all times, and judges may be less than pleased to be woken at 4 a.m. for a warrant.

All of this gives officers an incentive to skip steps, which raises the risk of an unnecessary injury or violation of civil rights. There is at least one report of a man left with an infection by a botched police blood draw. Drivers in other cases have complained that officers refused to listen when they warned that they had deep veins, collapsed veins or health problems making a blood draw a bad idea. And of course, blood samples have all the same chain of custody problems as breath samples, any of which could get the evidence thrown out of court. As a Massachusetts drunk driving criminal defense attorney, I think these are all important arguments against a "no refusal" law. At the very least, Beacon Hill should think carefully about whether it wants citizens literally strapped to a bed and their blood forcibly taken on the mere suspicion of an OUI.

Continue reading "Feds Urge States to Get Warrants for Blood Tests of Drivers Who Refuse Breathalyzers" »

A recent drunk driving arrest caught my eye as a Massachusetts OUI criminal defense attorney because of the length of the driver's previous record. As the Boston Globe reported Dec. 7, 52-year-old Vernon Perry of East Providence, RI, is facing his ninth charge of operating a vehicle under the influence of alcohol. Perry was arrested in Seekonk in the early hours of Dec. 4 after police spotted him speeding and driving erratically. He failed field sobriety tests but refused to take a breath test, triggering an automatic suspension of his driver's license. After he appeared in court and pleaded not guilty Dec. 6, the judge ordered him held for a dangerousness hearing, which means he can be held for up to 90 days. If convicted, he faces 2.5 to 5 years in prison, plus lifetime revocation of his driver's license.

Despite his long record of driving drunk, Perry had a valid driver's license when he was pulled over by Seekonk police. His eight previous OUI convictions date from 1983 to 2001. That means all of the convictions took place before Melanie's Law, which tightened penalties for drunk driving, passed in 2005. Before Melanie's Law, courts could not consider drunk driving convictions more than 10 years old, and drivers lose their licenses for life on a fifth OUI offense. However, that wasn't the case in 2001, when Parry reportedly received two OUI convictions. As a result, his license was suspended for just four years.

However, a spokesperson for the RMV noted that Melanie's Law has helped to keep Parry off the road since 2005. Because he was not eligible for license reinstatement until 2006, the spokesperson noted, the requirements of Melanie's Law applied when he did get his license back. That law required him to drive with an ignition interlock device, at his own expense, for two years. That ended in 2008, and the RMV reportedly took the step of notifying the police in his former town, Winthrop, about his record. In the current case, Melanie's Law will certainly apply, which means Parry is facing a mandatory two to five years in prison, plus lifetime loss of his driver's license. He also faces a dangerousness hearing, which means he could be held without bail until trial if the court decides he is a danger to the public.

As a Massachusetts drunk driving criminal defense lawyer, I appreciate that the Globe showed that current Massachusetts OUI law does not need to be strengthened. In fact, many criminal defense attorneys felt that Melanie's Law was too harsh in some ways. Clearly, a "lifetime lookback" for past convictions is appropriate for someone like Perry. But for people who made one isolated mistake as young adults, the "lifetime lookback" means that mistake could haunt them forever. For a second conviction, even decades later, that person could face a mandatory 30 days in jail, a two-year license suspension and a mandatory ignition interlock device after the license is reinstated. That's a lot of penalties for two offenses at opposite ends of a person's adult life. And as I wrote recently, the Massachusetts legislature is considering requiring the devices after one OUI, making it clear that authorities are not eager to let drunk drivers off the hook.

Most drivers I represent don't have anything like the lengthy record Parry has. But as a Massachusetts OUI criminal defense attorney, I recommend that drivers do everything they can to keep a first OUI off their records -- so they don't end up with a string of convictions with ever-increasing consequences.

Continue reading "Melanie's Law Requires Harsh Penalties for Rhode Island Man Accused of Ninth OUI" »

Back in August, I wrote about the arrest of former Big Dig chief Matthew Amorello for operating under the influence of alcohol. Amorello is a former chief of the Massachusetts Turnpike Authority, but best known for resigning his post after part of the Ted Williams Tunnel collapsed during the Big Dig, killing a woman. He reentered the news this summer when he was arrested for operating under the influence and leaving the scene of an accident. According to reports, Amorello crashed his SUV into two parked cars in Haverhill, then drove away even though he'd lost one wheel. Authorities found his Ford Explorer parked at a Mercedes dealership with him unconscious inside. Reports in following days noted that he missed a court date because he was hospitalized.

The Boston Globe reported Nov. 30 that Amorello has arranged a kind of plea deal with the Haverhill District Court. Amorello admitted to sufficient facts to prove the OUI and leaving the scene charges, which is not quite the same as a guilty plea. Rather, it means he admits that a jury would have the facts necessary to convict him if his case went to trial. The judge in the case continued his case without a finding for a year. If Amorello can stay out of trouble for that year, the case will be dismissed.

Read article: Ex-Mass. Pike chief admits drunken driving

I'd like to discuss Amorello's sufficient facts plea, because it's part of my set of tools as a Massachusetts drunk driving criminal defense lawyer. Admitting sufficient facts is a lot like a guilty plea, but it could be slightly better for someone in a public service position like Amorello used to hold. A plea of sufficient facts shows up on your Massachusetts driving record just like a conviction would. However, it does not show up on a background check by any agency other than a law enforcement agency. This would allow Amorello to plead guilty and serve the sorts of penalties that a guilty plea creates, but maintain his ability to truthfully answer "no" when asked if he was ever convicted of a crime. The incident will not show up when potential employers, landlords and other non-police organizations check for a criminal background.

Often, people who admit to sufficient facts are first OUI offenders who end up sentenced to alternative disposition. As a Massachusetts OUI criminal defense attorney, I prefer this for all of my clients who are not fighting the charges, because the penalties are better for the client. Alternative disposition calls for up to two years of probation, not jail; loss of your driver's license for 45 days, not 90 days to a year; and lower fines. That isn't to say that alternative disposition is a light penalty or fun for the driver. For one thing, any mistake that violates probation could cancel the deal and force a guilty plea. But for drivers whose best strategy is a guilty plea, admitting sufficient facts and serving probation successfully can help them admit their mistakes and pay the penalties without allowing those mistakes to haunt them for the rest of their lives.

Continue reading "Former Big Dig Chief Admits Sufficient Facts to Prove Drunk Driving in August Case" »

A recent article in the Boston Globe got my attention as a Massachusetts OUI criminal defense attorney. Massachusetts legislators are reportedly considering several changes to Melanie's Law, the 2005 law that was intended to toughen penalties for drunk drivers. Legislators have proposed several ways to toughen those penalties even further, including a proposal to add ignition interlock devices to the vehicles of people convicted of one intoxicated driving offense. Ignition interlock devices are essentially breathalyzer tests attached to the vehicle's ignition, which require drivers to pass a breath test before the car will start. Currently they are required by Melanie's Law when drivers have their licenses reinstated after two or more OUI convictions. The bill was introduced by state Sen. Robert Hedlund, R-Weymouth, who also suggested eliminating concurrent sentences and "bundling" of charges for repeat offenders.

Read article: Bill targets Melanie's Law loophole

It's not at all clear whether the bill will eventually pass; the Globe noted elsewhere that it won't pass during this session. But as a Massachusetts drunk driving criminal defense lawyer, I hope lawmakers who do eventually consider it will think carefully about whether it's a good idea to require breath tests for anyone convicted of drunk driving. Even drivers with clean records may feel uncomfortable about how invasive the devices are. But even if that's not an issue for most people, there are also serious concerns about their safety and effectiveness. Conventional breathalyzers require drivers to retest every 20 minutes, which means retesting while driving. That requires drivers to either pull over or take the breath test while their eyes are supposed to be on the road. If the device decides the driver is drunk while the car is already moving, the car could come to a halt with little warning. If drivers don't take the test quickly enough, the car will also stop in the middle of the road.

Perhaps more importantly, there is also controversy over whether ignition interlock devices do the job they're intended to do: keep drunk drivers off the road. It's illegal to take the breath test in someone else's vehicle, but the technology can't actually stop this. Nor can it stop people without the devices from simply lending the driver their vehicles (also a crime). And ignition interlock devices have many of the same problems facing police breathalyzers and alcohol-detecting ankle bracelets such as the one famously worn by Lindsay Lohan. These devices detect alcohol in the mouth rather than the bloodstream, including alcohol-containing products like mouthwash. In some cases, they have even been triggered by yeast-raised bread! There may also be problems with how sensitive they are. For example, would a legal and, for many people, harmless 0.02 BAC shut the car down, or would the device consistently detect BACs over the legal limit? As a Massachusetts intoxicated driving criminal defense attorney, I would prefer that lawmakers address these issues before mandating the devices.

Continue reading "Beacon Hill Considering Mandating Breathalyzers for Ignitions After First OUI" »