Contrary To Recent Suggestions People Accused Of Drunk Driving In Massachusetts Should Avail Themselves Of Their Constitutional Rights And Privileges
The most recent article in the Boston Globe's OUI series is entitled "Court mismatch makes OUI justice elusive: Lawyers who specialize in defending drunk drivers enjoy huge legal advantages built into state law, and have the ear of some judges prone to favor their arguments, no matter how far- fetched." The front-page article is essentially a lengthy criticism of defense attorneys who utilize these "huge legal advantages," which are, literally, the constitutional protections of the criminally accused.
The article first references the "special legal advantage" of "the prohibition on putting a driver's refusal to take a breath-test into evidence." While the phrase "special legal advantage" implies some sort of legal windfall, the highest court in Massachusetts has concluded that refusal evidence violates the privilege against self incrimination guaranteed by article 12 of the Massachusetts Declaration of Rights, our state constitution. The Globe article calls this constitutional safeguard a "devastating advantage for the defense."
The article next states that "Massachusetts, like other states, also enforces intricate procedures police must follow in making OUI stops, procedures that some officers complete imperfectly, sometimes carelessly, opening easy lines of attack for aggressive counsel...It is, in short, a lopsided competition... " Firstly, such "lines of attack" are seldom "easy" in drunk-driving cases, even for the most experienced and skilled OUI attorneys. Secondly, those "intricate procedures" that police are required to follow before seizing a person are dictated by the Fourth Amendment to the United States Constitution as well as Article 14 of the Massachusetts Declaration of Rights. It is unclear to this reader whether the author of this piece would encourage flouting those constitutional requirements in OUI cases to even the so-called "lopsided competition."
Perhaps the most troubling portion of the article states, "Call it OUI, Inc., the cottage industry of lawyers and expert witnesses whose livelihoods are built on getting drivers charged with operating under the influence of alcohol off the hook---and back on the road." It should first be noted that, contrary to the implication here, not all those "drivers charged" with operating under the influence are guilty of operating under the influence and getting "off the hook." As is well known, defendants enjoy, at least nominally, the presumption of innocence (though the above-referenced statement is a testament to the unfortunate and common presumption of guilt). Secondly, it is a defense attorney's duty to zealously work to get their client "off the hook," regardless of whether they are guilty or not guilty. This type of thinly-veiled, if not blatant, disapproval of OUI defense lawyers is seemingly inappropriate.