Articles Posted in Refusing the Breathalyzer

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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.

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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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Many of the cases of intoxicated driving that I’ve written about include good examples of what not to do and what not to say if you’re pulled over for drunk driving. For example, telling the officer you’ve been drinking and popping pills all day is not the best idea. As a Massachusetts intoxicated driving defense attorney, I encourage people who are pulled over for drunk driving to not only keep in mind their rights, but to think strategically about what to say and do in order to ensure that the police report contains as little incriminating evidence against them as possible.

A police officer who pulls someone over probably already thinks that person is guilty — but they still have to collect enough evidence to legally show guilt. This is why police officers ask drivers questions about whether they have been drinking and how much, and request that they perform field sobriety tests and breathalyzer tests. Officers then record the details that they observe, the answers that drivers supply, and the results of field sobriety tests and breathalyzers in the police report, so that it can serve as evidence and they can refer to it when they testify in court against the drivers.

Many drivers don’t realize that even though police routinely ask them to take tests and answer questions, they cannot be forced to comply. You are not legally required to take a breathalyzer test, but there are consequences for refusing. If you’re over 21, you can lose your license for 180 days refusing to take a breathalyzer test. If you are later found not guilty or your case is dismissed, you can apply to the RMV for early reinstatement before the 180 days are up.

The same is not true for field sobriety tests, which you are free to refuse with no legal consequences in Massachusetts. Police officers’ interpretation of field sobriety tests is subjective, and the tests are difficult for sober people to perform correctly in relaxed settings, never mind for people who are nervous and standing on the side of the road, as I have written recently. Similarly, breathalyzers can also yield highly inaccurate results. Thus, it may better to deprive the police report of the police officer’s subjective evaluation of your performance of these faulty tests.

One of the biggest reasons to consider refusing to answer questions and taking the tests is that officers will record evidence that can be held against you, but are unlikely to record any evidence that exonerates you. Let’s say you had one drink but you’re not drunk. If your breath smells of alcohol, the officer will notice it, put it in the police report, and interpret everything else you do and say through that lens. You may not be able to stop them from noticing the smell of alcohol on your breath, but you can politely decline to answer questions about how many drinks you have had and where you have been, perhaps adding that you cannot answer any questions until you’ve spoken to a Massachusetts OUI defense attorney. Then, the officer may write in the police report that you refused to answer questions, but he or she will not be able to write that you admitted to drinking before driving.

If you do refuse to answer questions or take the tests, it’s extremely important to be polite and respectful about it. Do not challenge police officers’ authority or give them a bad “attitude.” Your goal is to avoid being charged with drunk driving, and making the officer angry does not help. It could also make the officer portray you more negatively in the police report and subsequent court testimony.

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As a Massachusetts intoxicated driving defense attorney, I was concerned about a recent Boston Globe article’s discussion of blood alcohol measurement devices to be built in as standard features in new cars. I have written about this in the past, but this article provides new and alarming details.

The device would replace existing ignition interlock devices that are installed in the vehicles of people convicted of certain drunk driving charges. The existing devices require drivers to blow into a tube to have their blood-alcohol content (BAC) analyzed. If their BAC is too high, the car won’t start. The new device wouldn’t require the driver to do anything — it would automatically analyze ethanol in the moisture of the driver’s breath. Like the existing devices, the new one would prevent the car from starting if it detected a BAC above the legal limit.

QinetiQ North America, a Waltham defense contractor, is developing the device with $10 million in funding from the National Highway Traffic Safety Administration, the Automotive Coalition for Traffic Safety (an auto manufacturers group), and the Alliance of Automobile Manufacturers. Congress is considering kicking in another $10 million to help defray the cost of installing the device in new cars.

Obviously, drunk driving is dangerous, and encouraging drivers to take responsibility for their actions and avoid driving when they’re impaired is entirely desirable. But while it may be well-intentioned, this project raises several different kinds of red flags for me as a Massachusetts OUI defense attorney. First, as I wrote last month, breathalyzers can register false positives because they detect ethanol that comes from sources other than alcohol. Is it fair to have a device like this prevent a driver with a completely clean driving record from starting his or her car after painting the house or eating bread — both of which can set off false positives on a breathalyzer? How would the device know whether ethanol came from the breath of a sober driver or a drunk passenger — would this device have the unintended consequence of discouraging designated drivers? How would drivers of disabled cars get home from wherever the car stranded them, especially in the many areas of Massachusetts and the country where public transportation is not widely available?

In addition, it often takes a while for new technologies to be completely vetted so that they work properly. Innocent drivers affected by a malfunctioning or oversensitive automatic breathalyzer could actually be harmed if, for example, the car is prevented from starting when they have an emergency and need to get to a hospital, or if they need to get to work. Would people avoid buying new cars once these devices became standard equipment, so that they could avoid these devices?

Perhaps fewer OUI charges would be made once these devices were in circulation. But no matter the circumstances, anyone charged with drunk driving should retain a Massachusetts drunk driving criminal defense lawyer to help ensure the best possible outcome for their case. Fines costing thousands of dollars, jail time, loss of license, skyrocketing insurance costs and possible loss of a job could all be consequences of a drunk driving conviction in Massachusetts.

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Recent articles from across the nation show a disturbing trend of allowing police to forcefully draw blood from drivers suspected of being drunk. In April, the Missouri House passed a bill allowing police in that state to draw blood without a warrant, and the Illinois legislature was considering a bill to streamline the process for obtaining warrants for forced blood draws. As a Massachusetts drunk driving defense lawyer, I think it’s important to fully think through the consequences of laws like this before enacting them.

Legislators and law enforcement personnel feel that the prospect of a forced blood draw will deter drunk drivers. “People will not drink and drive if they think they’ll have a needle stuck in their arm,” said Kane County (Ill.) State’s Attorney John Barsanti. The Illinois Secretary of State’s Office reports that about 40% of the 50,000 people charged with drunk driving in that state each year won’t submit to a Breathalyzer test, and many drivers also refuse officers’ requests for blood and urine samples. State laws often repay drivers who refuse to take a breathalyzer test by suspending their driver’s licenses, as Massachusetts does. But the lack of evidence in cases where drivers refuse to provide chemical samples makes it harder for the state to convict drivers of drunk driving. So it’s understandable that the state would see forcibly taking such evidence as a good solution to increasing their drunk driving conviction rate.

However, in my view as a Massachusetts OUI defense attorney, forcibly taking blood from drivers by the side of the road presents several legal and medical problems. The Supreme Court ruled in Schmerber v. California in 1966 that forcibly taking blood does not violate someone’s right against unreasonable searches and seizures or forced self-incrimination, even without a warrant. Even though the Schmerber court never truly addressed the case’s Fourth Amendment issues, this ruling remains the law of the land. But importantly, a physician was the one drawing the suspected drunk driver’s blood in that situation. Medical professionals spend many hours learning how to draw blood correctly. Police officers do not get that training, because it’s not part of their job — and occasionally, that lack of training causes medical problems. There has already been at least one claim that a suspect suffered persistent infection at the site of a blood draw performed by a police officer. There could also be harm to suspects who, for example, have severe hemophilia and cannot stop bleeding once their vein is punctured. A medical professional would know how to handle a situation involving this kind of special medical need, but a police officer with minimal training might not. So the practice of forcible blood draws could put suspects at unreasonable risk of harm.

Forcible blood draws also don’t even necessarily solve the state’s evidence problems. The blood test may be a more reliable indicator of blood-alcohol content than breathalyzer test results, but that’s only if the blood test procedure is followed exactly. Blood testing kits may not work correctly if they aren’t stored at the right temperature, so they can yield inaccurate results. Plus, the skin needs to be cleaned before a needle can be used to draw blood, but both alcohol and iodine, which are commonly used for this purpose, can interfere with the BAC results. And the more people who handle the blood sample, the more opportunities there are for the chain of custody to be disrupted, and the more opportunities there are for someone to do something that interferes with the accuracy of the results. These are more reasons why it seems better to leave blood draws to trained professionals, rather than requiring police to take on a job they haven’t trained for and may not want.

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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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The holidays are upon us — and with them come a lot of parties and family gatherings that offer opportunities to drink. Police agencies are very aware of drunk driving during the holidays, and they tend to step up their enforcement efforts on the days they believe people are most likely to drive drunk. In fact, according to a Nov. 6 article in the Woburn Advocate, the Massachusetts state police have already started. In that article, they announced a sobriety roadblock in Middlesex County on Friday, Nov. 13 and Saturday, Nov. 14.

In my experience as a Massachusetts OUI defense attorney, drivers can expect to see more of these roadblocks, particularly on the nights before and after major holidays. That’s why I would like to take a moment to explain the rights of Massachusetts motorists caught in a sobriety checkpoint. A sobriety checkpoint is essentially a roadblock in which law enforcement stops motorists to check them for signs of impairment by alcohol or drugs. It is completely legal for law enforcement to stop every driver, regardless of whether there’s evidence of intoxication, and detain them briefly. However, roadblocks in Massachusetts must be conducted according to guidelines created by the Massachusetts Secretary of Public Safety and in accordance with Massachusetts case law and state and federal constitutional guidelines. If the police fail to adhere to those guidelines, the entire stop and all of the evidence it produced may be thrown out of court, ending any drunk driving prosecution.

It’s also important for drivers to realize that all of their civil rights still apply at a sobriety checkpoint. Drivers must provide license and registration, but they are under no obligation to answer extra questions about where they’ve been, where they’re going or whether they were drinking. They also have the right to decline to allow a search of the vehicle. Police cannot search a vehicle without your permission unless they have probable cause. Drivers can legally decline to perform field sobriety tests and may also decline a breath test, although they will face an automatic license suspension if they do so. However, it’s important to decline all of these things as politely as possible, because bad blood with law enforcement officers can result in being unreasonably verbally abused, detained or arrested. An experienced Massachusetts drunk driving defense lawyer can help clients have unreasonable, illegal charges dismissed — but not before an arrest, night in jail and other unpleasant personal and financial consequences.

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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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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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