Articles Posted in Field Sobriety Tests

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A woman from Watertown, Massachusetts was arrested for driving drunk last week, the Watertown Tab & Press reported Sept. 28. Jessie Witherspoon, 57, was arrested outside a 7-Eleven store at 12:46 a.m. The article says police responded after a caller reported an intoxicated person at the store. When officers arrived, they found Witherspoon trying to get into her car, which was parked across two spots. Under questioning, she admitted that she had driven to the 7-Eleven earlier. Law enforcement also gave her field sobriety tests, which she reportedly failed.

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Watertown woman allegedly admitted driving drunk to 7-Eleven

This article does not say whether officers gave Witherspoon a blood or breath test. If they did not, I believe an experienced Massachusetts drunk driving defense attorney could mount a strong defense in this case. In order to convict a driver without a blood-alcohol concentration reading, prosecutors must show that the driver had operated a vehicle under the influence of intoxicating liquor. As I have written here before, admitting to police that you had been drinking before you drove is not the same as admitting to operating under the influence. Prosecutors will have to use circumstantial evidence to make their case, and such evidence is far from foolproof.

The article also mentions that Witherspoon failed field sobriety tests. Law enforcement routinely uses these tests, but as I explain on my DUI defense Web page, they are often not admissible as evidence. For one thing, some of these tests are difficult for even sober people to perform, making them useless as evidence of intoxication. For another, thanks to a Massachusetts Supreme Court ruling, the horizontal gaze nystagmus (follow the finger) test is rarely admissible. And the National Highway Traffic Safety Administration, the federal agency that tracks traffic safety issues, has endorsed only two others: the walk-and-turn test and the one-legged stand. An experienced Massachusetts OUI defense lawyer should be able to exclude the inadmissible tests at trial and make a case to the jury that not every test is valid proof of intoxication.

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A Holbrook man was arrested last weekend on his second charge of driving under the influence of alcohol. Shortly after midnight on Aug. 29, another driver called the police in Braintree, Massachusetts to report that a Pontiac Grand Am was driving erratically. A police officer responded and pulled over a 25-year-old Holbook man after watching him drive. According to a police spokesman, the man showed signs of intoxication after he was stopped, and did poorly on sobriety tests at the scene. He was arrested for operating under the influence of liquor as well as unlicensed operation of a motor vehicle, because his license was valid only between the hours of 7 a.m. and 7 p.m.

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Man charged with drunk driving in Braintree

Even if the article had not said this was the defendant’s second OUI charge, my experience as a Massachusetts drunk driving defense lawyer would have made me suspect it. The man’s license restricted his driving privileges to just 12 hours a day, suggesting that he was driving with a “hardship license.” The RMV grants these licenses to people who have had their drivers’ licenses suspended because of an OUI. Unfortunately for this defendant, if he is found (or pleads) guilty of intoxicated driving in this new case, obtaining a new hardship license will not be easy. On a second offense, the RMV will not consider a granting hardship license until the license has been suspended for an entire year. When it does consider the driver’s case, the agency requires a $700 fee just for the hearing, along with proof that the driver has complied with the OUI penalties.

Depending on the circumstances, this man may be able to mount a strong defense to this new OUI charge. As a Boston OUI defense attorney, I know how important that is. A second drunk driving charge is still a misdemeanor in Massachusetts, but the penalties go up dramatically from a first offense. The law calls for at least thirty days and up to 2 1/2 years in jail for a second offense, plus fines of up to $10,000. Alternatively, second offenders may be given two years of probation and two weeks in an inpatient alcohol treatment program at their own expense. These are in addition to a two-year license suspension, steep court fees, an ignition interlock device and skyrocketing auto insurance rates. These penalties are so severe that if you face them, it’s always worth talking to a Boston DUI defense attorney about mounting a strong defense.

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Last week, a fifty year woman from Boxford, Massachusetts was arrested for Drunk Driving. Apparently police responded to several cell phone calls complaining of a driver operating erratically. The suspect drove down a driveway and was boxed in by a couple of cars the drivers of which witnessed her manner of operation. When the police arrived the woman supposedly drove her car at one of the officers. She was then given Field Sobriety Tests during which she kicked a police officer. Another officer was bitten by the woman during the booking process and a third was kicked. She now faces charges of OUI, Assault and Battery on a Police Officer, Resisting Arrest and Disorderly Person. The case is being prosecuted in the Haverhill District Court.

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Fifty Year Old Massachusetts Woman Charged With DUI Bites And Assaults Police Officers

Here are what I see as major problems with this case from the perspective of a Massachusetts OUI Defense Lawyer. First, there are several civilian witnesses who witnessed the defendant’s manner of operation. Second, two of these witnesses were concerned enough to make sure that the woman could not escape apprehension. Third, her demeanor towards the police suggests a state of mind consistent with intoxication. I would also imagine that the police reported that she had a strong odor of alcohol on her breath, was unsteady on her feet, had bloodshot and glassy eyes and slurred her speech. My bet is that this case does not go to trial and that the woman offers a change of plea and enters an alcohol education program. Without a strong objection from the police officers and in the absence of a criminal history perhaps a continuance without a finding will enter subject to the 24D Program.

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Around three o’clock yesterday afternoon Massachusetts State Police received several calls from drivers stating that a woman was driving erratically and had a child in her car. A state trooper heard the dispatch and observed a vehicle being operated by Cindy Abkarian weaving back and forth between lanes. The car was pulled over and the trooper observed the defendant’s daughter sitting in the passenger seat unbuckled. Abkarian admitted to having used methadone and Klonopin prior to operating her vehicle. Abkarian failed the Field Sobriety Tests and admitted to having a substance abuse problem. She was arrested and charged with OUI Drugs, Possession of Class C, Child Endangerment and related Motor Vehicle Crimes in the Salem District Court.

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Massachusetts Charges Woman WithTaking Pills And Driving With Her Two Year Old Child Unrestrained

My experience tells me that this case is not going to trial. Several factors suggest that the defendant in this case will plead guilty. Independent cell phone callers witnessing Abkarian’s erratic operation, the trooper making a similar observation, her admission to using drugs when driving, the presence of drugs in plain view when she was stopped, the failed field sobriety tests and the unbuckled toddler all suggest that Abkarian should plead guilty. With a good lawyer she will likely get probation and perhaps some enhanced drug abuse treatment.

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Last week Nancy Toledo of Braintree, Massachusetts was stopped for having a defective taillight. Once stopped the police officer observed signs consistent with alcohol and drug use. Toledo was asked to perform some Field Sobriety Tests. According to reports Toledo took the tests and failed. She was transported to the police station where she was given the Breathalyzer Test. She failed this too. She was charged with OUI Drugs and Alcohol. Toledo was also charged with Resisting Arrest. After the defendant’s car was searched more charges were added; Possession of Drugs and Drinking from an Open Container. The case will be prosecuted in the Quincy District Court.

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Massachusetts Woman Fails Breathalyzer Test, Field Sobriety Tests And Gets Charged With DUI Drugs, Alcohol

Assuming the taillight was in fact defective and stop was constitutionally permissible Toledo’s best option might be to admit to sufficient facts and enter the “24D” program. There she will be placed on probation for one year. She will have to enter and complete an alcohol awareness program, pay some fines and lose her license for forty five days. She will be eligible for a hardship license assuming she meets the criteria set out by the Registry of Motor Vehicles. She may also have to undergo some drug counseling if the judge believes she might have a substance abuse problem. Successfully trying this case will be a challenge due to the presence of drugs, the failed field sobriety tests and the failed breathalyzer test.

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Emilio Bicalho was arrested Saturday after hitting a pedestrian with his motor vehicle in a crosswalk. The forty six year old Framingham, Massachusetts man admitted to the police that he had consumed two beers earlier that day. Eyewitnesses stated that the impact of the collision caused the victim to fall on the hood of the van and then hit the ground. Police stated that Bicalho smelled like alcohol and had glassy and bloodshot eyes. He was charged with OUI and Driving Without a License. The case is pending in the Framingham District Court.

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Massachusetts Man Hits Pedestrian, Admits To Drinking Two Beers And Gets Charged With DUI

If this article is accurate and detailed the district attorney might have a hard time proving this case. Every police report generated after an OUI arrest states that the suspect smelled like alcohol and had glassy and bloodshot eyes. That this was reported in this case is no surprise. I would be surprised to see a police report pertaining to a DUI case that does not make that statement. Good defense lawyers in Massachusetts are quick to point this out to juries and make sure that the jurors do not use this contention as a determinative factor in their deliberations. The ingestion of two beers is never enough to prove impairment. Two beers consumed without being metabolized at all yield a blood alcohol content of .04 or one half the legal limit. There were no field sobriety tests given and there was no breathalyzer test taken. This does not add up to a conviction for OUI in Massachusetts.

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Last Friday Peter Koshivas of Holliston, Massachusetts crashed his Honda Civic into a tree just after 1:00 in the morning. His passenger, Benjamin Snow was injured in the crash and taken to the hospital by helicopter. Police stated that both Koshivas and Snow are luck to be alive. Koshivas will be charged with OUI Serious Bodily Injury, Reckless Driving and related Motor Vehicle Charges. The case will be prosecuted in the Framingham District Court. The article was not specific on the details of the crash.

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Holliston, Massachusetts Man Who Injured Friend In Crash To Be Prosecuted For DUI, Other Motor Vehicle Crimes

The article reported that Koshivas was also injured in the crash. Thus, it is reasonable to assume that he never took the field sobriety tests nor did he take a breathalyzer test. I would imagine that blood was taken from him at the hospital and that it has been tested for the presence of alcohol. As I have mentioned in prior posts the blood must be taken and tested in certain ways to avoid the possibility of a false positive result. Absent any eyewitness testimony the prosecution will probably base its case on Koshivas’ blood test results and an accident reconstruction. The accident reconstruction simply buttresses the district attorney’s case provided they have an alcohol sample that reads a .08 or higher. If not, the OUI aspect of this case is harder to prove.

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Today is probably not one of Tracey Francia’s better days. Just after midnight he was returning to his home in Chelmsford, Massachusetts when his car struck Methuen Police Officer John Earnshaw’s cruiser. Fortunately Earnshaw was not injured however it was reported that Francia was admitted to the Holy Family Hospital. The accident occurred in the area of routes 495 South and 213 in a construction zone. Reports indicate that Francia failed a field sobriety test. Francia has been charge with OUI Second Offense, Driving with a Suspended License and other crimes. The case will be prosecuted in the Lawrence District Court.

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Massachusetts Drunk Driver Hits Cop Car On Route 495 Southbound

One thing that strikes me as concerning about this article is how the police were able to properly administer field sobriety tests to someone who was injured to the point where hospitalization was necessary. What exactly were Francia’s injuries? If they involved his head or legs the results of the field sobriety tests were likely compromised. Typically field sobriety tests check physical or cognitive skills, or both. Certain injuries, particularly those that require a hospital visit might well effect one’s ability to adequately perform those tests. The admissibility of these tests will be an interesting issue in this case.

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The Gloucester Daily Times reported that two days ago Mark Hargrave, 55 of Hamilton, Massachusetts was arrested and charged with Second Offense OUI after being pulled over on Route 128 Southbound. Hargrave was also charged with failing to stay within marked lanes and Failure to Stop for a Police Officer. The case is now pending in the Salem District Court.

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Second Offense Operating Under The Influence Charged Against Hamilton, Massachusetts Man

While there is a tremendous amount of detail missing from this article there may be a silver lining for Hargrave’s case. If he refused to take the Field Sobriety Tests and if he refused to take the Breathalyzer Test then the only case against him is likely the police officer’s observations. Experienced Criminal Defense Lawyers are able to quickly educate jurors about the commonality of police officers’ testimonies in cases like this one. The officer will offer the following at trial: 1) that he observed the defendant operating his vehicle in an erratic manner; 2) that when he made the stop of the driver he smelled the odor of alcohol on his breath; 3) the he did not properly respond to the officer’s commands; 4) that he appeared unsteady on his feet; 5) that his speech was slurred and 6) that his eyes were red and bloodshot. The defense attorney will show the jury how these subjective observations are common to all officer stops. Almost every OUI police report that I have seen reports this same pattern of detail for the “run of the mill” drunk driving case. This testimony is impeachable and jurors immediately see the doubt in the prosecutor’s case. If Hargrave was not impaired he will produce witnesses with whom he was with prior to the arrest and whom he contacted after the arrest to vouch for his sobriety. Cases like this one are usually very triable.

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Last weekend just before 1:00 a.m. Jacqueline Boutin was driving her husband Michael and Peter Colangelo off of Route 140 when she noticed a car rapidly approaching her from behind. The trailing car that was being operated by Colleen Imgemanson ended up hitting Boutin’s car and knocking it on its side. Michael Boutin was temporarily trapped but was quickly extricated by the Taunton, Massachusetts Fire Department. It took longer to free Colangelo who was airlifted to the Boston Medical Center where he ultimately died. Boutin and her husband sustained injuries requiring a brief hospitalization at the Morton Hospital. A Taunton police officer responded to the scene after receiving reports that a woman had fled the crash on foot. He then observed Ingemanson walking unsteadily not far from the crash site. Ingemanson admitted to having driven the car. The officer reported that she smelled of alcohol and that she could not pass the field sobriety tests that were administered. Her eyes were bloodshot and her speech was slurred. She refused to take the breathalyzer test. Ingemanson has been charged with Motor Vehicle Homicide While OUI, OUI Second Offense. Leaving the Scene of an Accident with Death Resulting, Negligent Operation of a Motor Vehicle and Leaving the Scene with Personal Injury. Charges are now pending in the Taunton District Court.

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Massachusetts Woman Looking At Motor Vehicle Charges, OUI After Fatal Accident

Cases like this one are very difficult to defend. Even if the defendant has a valid defense to the OUI Charge the charge of Leaving the Scene of An Accident With Personal Injury or Death will result in a one year minimum mandatory jail sentence. It is probable that the district attorney in this case will be indicting this case and prosecuting it in the Superior Court. There, if convicted the judge can sentence the defendant to a state prison sentence. The district attorney’s office will undoubtedly be looking for a state prison sentence after a conviction. Even if the defendant wants to plead guilty a state prison sentence will be strongly considered by the judge.

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