Articles Posted in 5th or Subsequent OUI

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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.

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As a Massachusetts OUI defense attorney, a recent news story caught my eye. The Salem News reported that a 57-year-old Danvers man was arrested for drunk driving for the eighth time and was held without bail after a dangerousness hearing. If convicted, this would represent a seventh DUI conviction for him, which would have serious, life-changing penalties like mandatory prison time and the lifetime loss of his driver’s license. Fortunately, he has a Massachusetts drunk driving attorney, who should look carefully at the evidence that police and the district attorney are presenting.

According to the police, on August 29, an anonymous caller told them that the driver of a Chevy Silverado truck was drunk and was headed to Merchant Liquors on High Street for more alcohol. Police set out to look for the truck and were unable to find it. Then Patrolman Scott Frost encountered Joel Grissom, 57, of Danvers, driving his Silverado at about 5 mph near his home around 1:30 in the afternoon. Frost said he observed Grissom stop his truck in the middle of the road and then take about two minutes to pull into the parking lot of his condominium complex. Frost said that Grissom smelled strongly of alcohol. There was an open, cold container of Budweiser in the truck, and Grissom was unable to stand without holding onto the truck’s door. Grissom allegedly said that he had been drinking. He failed a field sobriety test in which Frost told him to recite the alphabet. A breathalyzer test showed his blood alcohol content to be .33, well over the legal limit of .08. Grissom was arrested and charged with a fifth or subsequent OUI offense and with having an open container of alcohol.

After describing Grissom as “a high-functioning drunk,” Salem District Court Judge Richard Mori ordered him held without bail because Mori considered Grissom a danger to himself and others.

Read article: No bail for convict in many DUIs

As a Massachusetts drunk driving defense attorney, I am glad that this defendant has legal counsel to defend him from the very serious charges he faces. A fifth or subsequent OUI carries mandatory prison time, among other penalties. Grissom’s last two OUI convictions, in 2001 and 2002, were made before the “lifetime look back” law took effect, so he still had a valid license at the time of his August 29 arrest. But if convicted on the current charge, he would lose his license for the rest of his life. He would also pay fines up to $50,000, and face a mandatory two-year minimum jail sentence.

Even if Grissom is not convicted, the outcome of his dangerousness hearing already presents a hardship. Under Massachusetts law, judges can deny bail and keep drivers in jail until trial if they are charged with an OUI after having been convicted for drunk driving in the past three or more times. Such suspects may be kept in jail for up to 90 days before a trial must be held. Three months in jail awaiting trial is a long time, especially when it comes before any conviction. Even if the suspect is found innocent or the charges are dismissed, being kept in jail for 90 days could cause suspects to lose their jobs and other time-dependent commitments. If the suspect can’t work and earn money, he or she may not be able to keep up with rent or mortgage payments, and have nowhere to live by the time the 90 days are up. And what if there’s no one else to take care of their children or pets? If a suspect in this case is found not guilty or their charges are dismissed, being locked up for dangerousness still extracts a steep price.

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A man from Charlton was sent to prison Feb. 24 after receiving his seventh conviction for operating under the influence. Jason Wetteland, 40, was arrested most recently on Aug. 1, 2009, after an Amesbury police officer witnessed him nearly causing a crash on Route 110. The officer immediately pulled him over, and Wetteland allegedly admitted he was drunk. He was holding a bottle of blackberry brandy between his legs and had at least eight cans out of a 12-pack of beer in the vehicle. Nonetheless, Wetteland refused to take a blood-alcohol concentration test. He pleaded guilty to a fifth or subsequent OUI; driving after license suspension, subsequent offense; and negligent driving.

For the OUI conviction, Wetteland was sentenced to up to five years in prison and eight years of probation, plus fines. He also lost his license to drive and was sentenced to time served for driving with a suspended license. As conditions of his probation, he will be required to attend alcohol classes; stay away from drugs and alcohol; submit to random tests; and will not be allowed to drive. His prior convictions for operating under the influence took place in 1988, 1990, 1991, 1991 again, 1999 and 2001, in Dudley, Worcester and East Brookfield courts.

Read article: Chronic DUI offender heads to state prison

Drivers like this do not represent the bulk of my clients as a Massachusetts OUI criminal defense attorney. Studies show that the majority of first-time drunk driving defendants do not commit another drunk driving offense — they learn from their mistake and move on. However, a minority are chronic drunk drivers, who may have a problem with alcohol that can’t be solved by a 12-month license suspension. The harsh penalties they face are not aimed at first-time drunk drivers, but a look at those penalties shows how important it is to defend yourself from a first OUI, so that subsequent-offense penalties are not available to prosecutors.

A first offender in Massachusetts is likely to get probation rather than jail time (although jail time is an option), fines and fees and a license suspension of one year, with a hardship license available after three months. Alternative disposition (the 24D program) is also available for first offenders, which allows them lower fines, a shorter license suspension and no possibility of jail. These penalties get harsher with each subsequent offense. A fifth or subsequent offense like Wetteland’s carries mandatory prison time of at least two years, and up to five; steep fees; and the lifetime loss of a driver’s license. This is why people charged with a first OUI should, whenever possible, get help from an experienced Massachusetts drunk driving defense lawyer — so they can keep that first OUI off their records. In the best cases, this allows them to learn from their mistakes without the need for life-altering penalties.

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A Marblehead man was charged with his fifth OUI, among other things, and held without bail in Salem. The Daily Item of Lynn reported Nov. 5 that Melvin McKenzie, 50, was arraigned Nov. 4 for charges stemming from a traffic stop in July. Police said McKenzie was stopped in Marblehead for speeding and leaving a marked lane. After the stop, an officer noticed a smell of alcohol and found a pint of vodka in his lunch box. The officer also found that McKenzie was driving with a suspended license, and was on probation for a previous drunk driving conviction. He was charged with a fifth OUI, OUI after license suspension, negligent driving and reckless driving and pleaded not guilty to all charges. After a dangerousness hearing, the judge in the case found that McKenzie couldn’t safely be released and ordered him held 90 days without bail. His trial is set for Dec. 14.

Read article: Marblehead driver held on 5th DUI

As a Massachusetts OUI defense attorney, I am glad that this defendant has retained legal counsel to defend him from the very serious charges he faces. A fifth OUI carries mandatory prison time and the lifetime loss of the driver’s license, as well as very steep fines. That’s true even in cases like this one, where there was no accident and nobody was harmed by the alleged drunk driving. When the stakes are this high, defendants should take advantage of every defense they have — which is significantly easier with an attorney by their sides.

I would also like to take the opportunity to highlight the use of a dangerousness hearing in this case. A dangerousness hearing is essentially a hearing on whether the defendant should be granted any bail at all, or simply kept in jail. It can be used in any type of Massachusetts criminal case. Relative to OUI cases, this statute is used primarily for cases where the defendant has four or more previous convictions or where a subsequent offender has caused serious injury. As it relates to dangerousness hearings, in drunk driving cases, the prosecution’s goal is to prove that the defendant is likely to drive drunk again. If you’re facing a dangerousness hearing, you’re facing the loss of your freedom before any trial or conviction can take place. The importance of retaining an experienced Massachusetts drunk driving defense lawyer in this situation cannot be overstated.

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A Marshfield man faces his fifth drunk driving charge as well as a felony kidnapping charge after a woman accused him of holding her in his van against her will. According to an Oct. 13 article in the Marshfield Mariner, Tilden Davis, 66, is accused of those crimes in addition to driving with an open container of alcohol and illegal possession of prescription drugs. The arrest came after an unnamed woman fled the van Davis was driving, which was flooded when it drove into a rising tide near Trouants Island at around 4:15 in the morning. The unnamed woman, described as middle-aged, said she had been “partying all night” with a man calling himself “Butch,” but that he wouldn’t let her get out of the van. When the van became stuck, she jumped out and called 911.

When police arrived, they observed signs of intoxication in Davis, including slurred speech and trouble standing. In the van, they found an open can of beer as well as a bottle of blackberry brandy and miscellaneous prescription drugs. The drugs included medications for high blood pressure and high cholesterol as well as Cilostazol, which relieves muscle pain. The arrest was the fifth OUI charge for Davis, although a police spokesman said his last OUI conviction was 20 years ago. He was held overnight in jail and released on personal recognizance.

As a Massachusetts DUI defense attorney, I believe this case calls attention to the important but overlooked fact that prior OUI convictions never come off your record in Massachusetts. In other states, a previous drunk driving charge may “expire” five or ten years later, but here, it doesn’t matter whether the last conviction was this year or 30 years ago. This situation could, in many instances be considered unfair to defendants whose last conviction was so long ago that many children born afterward are now college students. If convicted of this newest OUI, Davis faces a mandatory two-year prison sentence, the lifetime loss of his driver’s license and thousands of dollars in fines. This doesn’t count the penalties he may face from the other charges. An experienced Massachusetts drunk driving defense lawyer can sometimes successfully challenge prior convictions. That, and mounting a strong defense, might be the best option for Davis .

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