Articles Posted in Refusing the Breathalyzer

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On June 27th of this year Roger Kerkmann was driving his 1999 car in Littleton, Massachusetts. At around 11:30 p.m. he went through a stop sign, right in front of a police officer. The officer pulled him over. The officer asked Kerkmann to role down his window or open his door. He did not claiming that he could not. The officer went to the passenger side, opened the door and immediately smelled a strong odor of alcohol. Kerkmann supposedly failed certain field sobriety tests, had glassy eyes and slurred speech. He was charged with OUI. When officers learned that Kerkmann had been convicted of OUI in 1986 and 1999 charges of OUI, 3rd offense issued. The case is now pending in the Ayer District Court.

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3rd Offense OUI Charges Brought Against Massachusetts Man In Ayer District Court

If you get convicted of a 3rd Offense OUI in Massachusetts you will be sentenced to a minimum one hundred fifty days in the house of correction. You are facing steep fines and an eight year loss of license. A hardship license can be granted after four years. The strengths of the prosecution’s case here are as follows: running the stop sign, the strong odor of alcohol, glassy eyes, the slurred speech and the failed field sobriety tests. The weaknesses are the absence of a breathalyzer test, arguably the only objective measuring device in OUI cases. Subjective findings such as those referenced in this article are easy to attack. For instance, how does the officer know what the defendant’s eyes are like normally or how he speaks, with or without alcohol. Field sobriety tests are not easy to take in pressured situations such as this, i.e. at night with the officer’s lights in your face, on the side of a road with passing traffic and after essentially being accused of operating while impaired. A good criminal defense laywer will be able to convince a jury of this fact and get it to understand that the officer’s observations might not be indicative in OUI. Trying OUI cases in Massachusetts are much easier in cases where there is no breathalyzer reading.

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Former NFL defensive lineman Bruce Smith was convicted of DUI and the charge of refusing to take a breathalyzer test by a Virginia Beach judge. As a result Smith was given a ninety day suspended sentence. He will also lose his license for twelve months. During the trial Smith claimed that he had difficulty taking and adequately performing the field sobriety tests due to a list of injuries he suffered during his NFL career. The judge believed that Smith’s level of intoxication prevented him from following the police officer’s instructions on how to take the field sobriety tests. The arresting officer testified that Smith was speeding and that when he pulled him over he smelled a strong odor of alcohol on his breath. Smith’s eyes were bloodshot and glassy.

There is an interesting twist to this case. The officer who arrested Smith was subsequently arrested and charged with DUI as well. The officer crashed his car and failed three out of four field sobriety tests that were administered. Evidence of the pending DUI charges was not admissible against the officer.

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Bruce Smith Convicted Of DUI On Testimony Of Officer Also Charged With DUI

Here is a question. Why was the fact that the arresting officer had a pending DUI charge inadmissible at Smith’s trial? The prosecutor claimed that the crime of DUI does not affect a witness’ credibility. While that might be true in most cases it should not be in this DUI case. We know that the arresting officer failed three out of four of his field sobriety tests on his case. That officer has pleaded not guilty, thus maintaining his innocence. Suppose the officer believes that he adequately performed his field sobriety tests notwithstanding a subjective opinion to the contrary. If that is the case then it seems to me that a judge should have allowed questioning of the officer on this issue. This would enable Smith to show that when this officer behaved in the same manner the officer believed that he was not impaired. Consequently, Smith could argue that similar behavior manifested on his part does not amount to a credible opinion that he was impaired. In other words, the arresting officer’s opinion that he passed the field sobriety tests and Smith failed is a matter of credibility that Smith should have been able to make known to a jury.

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Jeffrey Daluz is no stranger to operating vehicles under the influence of alcohol. Last Saturday he did it again, this time in his boat. The fifty three year old Cape Cod man has five OUI convictions in Massachusetts and seven arrests for alcohol related crimes. On the Fourth of July he drove his boat into a fireworks security zone in Yarmouth and was arrested and charged with DUI boating.

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Boating DUI Charges On The Rise As Summer Gets Going In Massachusetts

OUI boating in Massachusetts is governed by Massachusetts General Laws Chapter 90B Section 8. The law states that anyone who operates a boat under the influence of alcohol is guilty of a misdemeanor. The punishment for first time offenders is a fine of one hundred dollars and a possible two and one half year jail sentence. Second time offenders are subject to a minimum mandatory fourteen day jail sentence and third time offenders face a mandatory minimum six month jail sentence. Much like OUI refusal cases, a refusal to take a breathalyzer test subjects the defendant to a one hundred twenty day driver’s license suspension. It is important to understand that boating OUI cases impact a person’s right to drive a car in much the same way as OUI cases. Boaters are often given field sobriety tests when brought to shore. Daluz has already lost his driver’s license for life. If he gets convicted of this crime he will no doubt be serving a jail sentence.

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Former Buffalo Bills defensive lineman Bruce Smith had a charmed NFL career. He played in four Super Bowls, was selected to the Pro Bowl eleven times, was a first team All Pro nine times, owned the NFL career sack title for a while and will be enshrined in the National Football League Hall of Fame this summer. Smith has also been charmed when it comes to DUI cases. He had one dismissed in 1997 and beat another in 2003. Now however Smith has been charged again. According to reports several weeks ago Smith was stopped for speeding at 1:42 a.m. He refused to take a breathalyzer test but nevertheless was charged with DUI. Smith has also been charged with refusing the breathalyzer.

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Former NFL Great Charged With DUI Again

In Virginia the law is clear that a refusal to take a breathalyzer test is admissible as evidence at trial. If the defendant has prior convictions then a refusal to take the test can result in a misdemeanor charge. Neither is the case in Massachusetts. If you refuse to take the breathalyzer test in Massachusetts there can be no mention of the refusal by the district attorney to the jury. As a matter of fact, Massachusetts has a jury instruction that covers the issue of refusals. In essence, if the defendant chooses, the judge will instruct a jury that it cannot consider the absence of a breathalyzer in its deliberation process. The instruction goes on to say that there are many reasons why breathalyzer tests may not have been employed, including the unavailability of a properly functioning breathalyzer machine. Additionally, no matter what offense OUI you are charged with in Massachusetts the refusal to take the breathalyzer test cannot result in a separate criminal charge issuing against you.

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Last week Robert Meserve was held without bail after being charged with his fourth OUI offense and leaving the scene of an accident. The case is being prosecuted in the Taunton District Court. According to reports, last Tuesday around 11:00 p.m. police responded to a report of a car chase near the Taunton Green rotary. A 911 caller reported being in his car when it was struck by another car that took off. The caller followed the subject and updated police with his location. The suspect, Meserve was stopped. Officers detected an odor of alcohol on his breath, glassy and bloodshot eyes and unsteadiness on his feet. Meserve was given field sobriety tests which he failed. He refused the breathalyzer test.

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Massachusetts Man Picks Up 4th Offense DUI

Fourth offense OUI cases in Massachusetts have severe consequences. In addition to steep court costs, fines and fees there is a mandatory one year jail sentence that you must serve. Fourth offense DUI cases are felonies in Massachusetts. There is a potential five year state prison sentence associated with this charge. Meserve’s biggest problem stems from leaving the scene. This is one of those exacerbating factors that can lead to a judge imposing a sentence higher than the minimum mandatory. This action might also result in the district attorney prosecuting this case in the Superior Court. Had Meserve stayed and exchanged insurance information with the person he hit the police might not have been called and these charges might not have issued.

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Sometimes the best way to get a perspective on Massachusetts laws is to take a look outside the state to see how other jurisdictions handle certain DUI issues. Take for example the breathalyzer test laws in Illinois. If a person with no prior DUI convictions refuses to take the breathalyzer test there will be a one year loss of license. In Illinois, unlike Massachusetts, a hardship license can be granted to anyone who refuses the breathalyzer after thirty days. Massachusetts makes no such provision. Rather, unless the case is resolved favorably prior to the expiration of the 180 day suspension the restriction remains in place.

In Illinois, 2007 statistics show that over fifty eight of people stopped for DUI take the breathalyzer test. In Massachusetts, 2004 figures stated that only forty percent of the people stopped for OUI would take the breathalyzer test. That changed after the Massachusetts legislature passed Melanie’s Law, a modification of OUI laws that provides rewards in the form of shorter suspensions or earlier hardship license eligibility for people who take the test, and fail. In Illinois the percentage of people who now refuse the test has increased whereas in Massachusetts more people are inclined to take the test. In Illinois there is also a suggestion that refusing these tests results in more acquittals.

A prominent Illinois drunk driving lawyer makes a great point when he says “No one should participate in an investigation of themselves for a crime. Why risk your freedom and innocence by submitting to a test done by a machine that is controlled by the police? That’s what a Breathalyzer is.” Some lawyers in Massachusetts might make the same statement. Keep in mind that your refusal to take the breathalyzer test in Massachusetts cannot be used as evidence against you at trial. However, any properly administered breathalyzer test can be used as evidence and a result of a .08 or higher in Massachusetts creates a presumption of impairment. This is far more difficult to overcome before a jury than are cases where the breathalyzer was not taken.

Also in Illinois there are times when drivers cannot refuse chemical tests. If you are involved in a serious crash where people are hurt or killed you must submit to a chemical test. There is the suggestion in Illinois that you can be forced to take a blood test in certain situations. Not so in Massachusetts. Illinois also recently established a law that punishes people who refuse to take breath tests at sobriety checkpoints. Here is how that works. Police set up sobriety checkpoints. A judge will be present at the checkpoints. If someone stopped refuses to take the breathalyzer test the judge on hand can issue a search warrant permitting the police to take blood from the suspect. Fortunately, Massachusetts has no such law.

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Refusing The Breathalyzer In Massachusetts Not A Bad Alternative

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Jane Doe must have had a great lawyer. She is also very lucky. The forty two year old Massachusetts mother was given probation after pleading to a second offense DUI, reckless operation of a motor vehicle and child endangerment. The sentence was imposed in the Gloucester District Court. The punishment: a two year loss of license, a ninety day suspended sentence, two years probation, court costs and completion of the alcohol education program. The district attorney alleged that Featherstone was spotted driving with one blown tire that was down to its rim. When the officer stopped her she was given several field sobriety tests. She failed. Featherstone’s two sons were in the car at the time of the incident.

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Probation For Woman Convicted Of DUI Second

The law in Massachusetts regarding second offense OUI cases mandates that anyone convicted of the second offense be fined at least six hundred dollars and up to ten thousand dollars. There is also a mandatory house of correction sentence of sixty days, at least thirty of which must be served. There is an exception to this which most likely explains why Ms. Featherstone is not in a jail right now. Massachusetts General Laws Chapter 90 Section 24D states that if the first offense OUI conviction is ten years old or older the “24D” disposition can be imposed by a judge. It looks like the judge in this case availed himself of portions of this provision thereby allowing the defendant to avoid jail time. Other aspects of the sentence were more harsh than “24D” requires. Specifically, the two year loss of license. The ninety day suspended is required under the child endangerment law.

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Susan Belanger is really lucky and probably has a great lawyer. The 50 year old Pembroke, Massachusetts woman was arrested and charged with a Second Offense OUI. It was reported that cell phone callers observed Belanger driving erratically. The police were notified and observed some of Belanger’s driving pattern. She was followed to her home where she was confronted and ultimately arrested. She admitted to having only one glass of wine and was brought to the Pembroke Police Station where she requested a breathalyzer test. The machine was not working. Consequently she was taken to the Hanson Police Station but was not permitted to take a breathalyzer test there. A judge sitting in the Plymouth District Court ruled in her favor on a motion to suppress evidence obtained after her arrest. The motion was allowed. Now the district attorney will be limited to prosecute this case only with evidence that preceded the arrest.

Evidence In Second Offense DUI Suppressed In Massachusetts Court

Interestingly enough, Massachusetts Courts have ruled that G.L. c. 90 Section 24 by its terms does not confer the right to a breathalyzer test on someone arrested for driving under the influence. Rather, it provides protections if the police choose to administer a breathalyzer test. If one is not offered the prosecution loses its statutory presumptions of intoxication; the .08 or greater that can suggest impairment. Of course, if that is the case then there can be no license suspension for refusing or failing the breathalzyer test and a conviction will be more difficult to sustain. This would hold particularly true in this case where Belanger demanded a breathalyzer test.

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A Salem, Massachusetts man was driving the wrong way down a one way street. That in and of itself should be enough to get anyone’s attention. However, the defendant, Natalio Rodrigues drew a little more attention to himself by honking his horn at a car coming right at him. Unfortunately for Rodrigues, the car he was beeping at was occupied by two Salem police officers. Reports indicate that Rodrigues drove directly at the officers without endeavoring to stop or pull over. The officers eventually were able to stop the suspect. Upon doing so they smelled alcohol. Rodrigues failed the field sobriety tests and refused to take a breathalyzer test. He stands charged with fourth offense OUI, driving negligently to endanger and driving down a one-way posted street.

Fourth Offense DUI Charges For Massachusetts Man In Salem

Rodrigues is in trouble. Fourth offense OUI convictions in Massachusetts carry a minimum mandatory one year house of correction sentence. There is also a ten year loss of license. There is also a maximum five year state prison sentence that can be imposed meaning that this is a felony. Many district attorneys in Massachusetts indict fourth offense DUI cases particularly where the facts are disconcerting. I would not be surprised to see Rodrigues case get indicted and prosecuted in the Essex County Superior Court.

From the outside looking in this case looks difficult to defend. The events took place at 12:30 a.m. Driving the wrong way down a one way street with police officers as eyewitnesses suggests a problem from the outset. Failed field sobriety tests and the odor of alcohol complicate matters more. There is typically little sympathy felt by judges when sentencing fourth time offenders, particularly in circumstances such as these. Unless he goes to trial and wins, Rodrigues will be serving some jail time.

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Jason O’Reilly got into an accident just a few days ago. He rear ended an pickup truck with his vehicle in Framingham, Massachusetts and nearly forced it off the road. The police then arrived and spoke with Mr. O’Reilly. He was staggering and slurring his speech. Then he made perhaps his most critical mistake of the night. He talked to the police. In response to their questioning he said: “I had not drunk at all…I had two beers, what’s the big deal…Forget I said that. I had nothing to drink all night. To compound matters police located a partially consumed bottle of Smirnoff Ice in O’Reilly’s vehicle. Not surprisingly he was arrested. The charges: OUI, underage possession of alcohol and operating with an open container. Topping things off, O’Reilly is twenty years old. Charges are pending in the Framingham District Court.

20 Year Old Framingham Man Charged With DUI

This article suggests that the defendant refused the breathalyzer. In Massachusetts a breathalyzer refusal results in a 180 day loss of license. If you are acquitted or the case against you is dismissed you can apply for an immediate reinstatement of your operating privileges. If you are between the ages of 18 and 21 a refusal can result in a three and one half year loss of license. O’Reilly is only twenty years old. This can be a devastating consequence for anyone, particularly someone who needs a car to get to work or school.

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