Massachusetts DUI Lawyer Blog

On June 23, 2011, the United States Supreme Court decided Bullcoming v. New Mexico, a case which shores up our constitutional safeguards and which will have important implications in Massachusetts OUI/DUI/DWI/drunk driving cases.

The facts, which were summarized in a previous blog post, were as follows: In 2005, Donald Bullcoming rear-ended a truck in New Mexico. The driver of the truck noticed that Bullcoming's eyes were blood shot and smelled alcohol on him, and he told his wife to call the police. Bullcoming left before the police arrived but was apprehended shortly thereafter. He failed field sobriety tests and was arrested for a violation of the New Mexico drunk-driving statute. Bullcoming refused to take a breath test, but a sample of his blood was drawn at a hospital pursuant to a warrant obtained by police. The sample was sent to the New Mexico Department of Health for blood alcohol concentration analysis. Such analysis involved operation of gas chromatograph machines and various steps susceptible to human error. The scientist who performed the test and signed the certification reported that Bullcoming had a BAC of .21, and Bullcoming was prosecuted for the more serious crime of aggravated DWI. At a trial by jury, the State introduced the findings as a business record during the testimony of a scientist who did not observe or review the test. Bullcoming appealed to the New Mexico Supreme Court, which, considering Melendez-Diaz, acknowledged that the report was testimonial but concluded that admission of the report was constitutional because (1) the certifying scientist was a "mere scrivener" and (2) the testifying scientist was a qualified analyst capable of serving as a surrogate.

The question presented in Bullcoming, then, was whether the prosecution can constitutionally introduce a lab report, having a testimonial certification and made to prove a fact, through surrogate in-court testimony of a forensic scientist who neither signed the certification nor performed the test. In a 5-4 decision, the Supreme Court reversed the judgment of the New Mexico Supreme Court, holding that the Confrontation Clause does not permit such surrogate testimony. The accused has a right to be confronted with the certifying analyst, unless the analyst is unavailable and the accused has had an opportunity to cross examine that analyst before trial. Justice Ginsburg delivered the opinion of the Court. Justice Scalia joined the opinion in full. Justices Sotomayor and Kagan joined all but Part IV, and Justice Thomas joined all but Part IV and footnote 6.

Justice Kennedy, along with Justice Alito, Justice Breyer, and Chief Justice Roberts dissented. Much of the dissent expressed a continuing gripe concerning the Crawford line of decisions, of which Bullcoming is now a part.

Continue reading "United States Supreme Court Case Has Positive Implications For Massachusetts OUI Trials" »

Shayna Fernandez admitted to drinking her last beer as late as 4:30 in the morning this past Saturday. Just over two hours later she was involved in an accident on Route 93 in Andover. As a result of that accident two people died and one was injured. According to reports Fernandez had recently dropped a friend off in Lowell. She ended up on Route 93 northbound. Witnesses have indicated that she might have been driving as fast as ninety miles per hour in the far left lane when she hit a car being driven by a sixty two year old Saugus man. The victim's car rolled over. The driver and one of his passengers were killed and a third man survived with injuries. Fernandez failed Field Sobriety Tests at the scene. She took a Breathalyzer Test and blew a .145, nearly two times the legal limit. Bail was set at fifty thousand dollars cash. The case will likely be prosecuted in the Salem Superior Court even though the district courts have jurisdiction over the charges. Fernandez is being charged with two counts of Motor Vehicle Homicide, Negligent Operation, OUI and assorted Criminal Motor Vehicle Offenses. A conviction for these crimes will likely result in a state prison sentence for Fernandez.

Read Articles:

http://www.boston.com/news/local/massachusetts/articles/2011/06/14/woman_pleads_not_guilty_in_fatal_andover_crash/

http://www.eagletribune.com/local/x1814654783/Lawrence-woman-held-on-50K-after-double-fatal-crash

Massachusetts Motor Vehicle Homicide Defense Lawyer

Any Massachusetts Criminal Defense Lawyer will tell you there is no up side to taking a Breathalyzer Test, and in most instances the same sentiment applies to Field Sobriety Tests. Fernandez's problems defending this case will no doubt be compounded by the negative results generated by these tests. Jurors rarely acquit where high readings are involved. Eyewitness testimony about the rate of speed at which she was traveling was sufficiently damaging to her defense particularly in a case where death resulted. An accident reconstruction will likely be performed by the state police, possibly supporting the eyewitness' observations. Driving ninety miles per hour with the death of innocent people resulting, will, in and of itself trigger a criminal prosecution. A suspicion of alcohol ingestion or intoxication magnifies the problem. However, failed tests validate the subjective findings of the police and make defending this case extremely difficult. It is important to remember that in Massachusetts the prosecutor cannot mention to a jury that a defendant refused to take a breathalyzer test. Nor can the district attorney comment on a failure to attempt to perform field sobriety tests. What they can do is take the results of these tests, if taken, and use them to support their prosecution. It is much easier to defend someone who has not taken these tests.

Continue reading "Lawrence Massachusetts Woman Held On High Bail After Being Charged With Two Counts Of Motor Vehicle Homicide, OUI" »

It's no secret that police often write OUI police reports generically, using a laundry list of common OUI symptoms relating to physical appearance, driving, and field sobriety testing. Sometimes these reports are essentially templates in which a select few facts are unique to the defendant. The fictional on-size-fits-all OUI suspect almost always has the same characteristics: "a strong odor of alcohol," "red watery eyes," "slurred speech," an "unsteady gait," etc.

Obviously then, it is not unusual for these reports to contain false information and exaggerations. Because of this, booking videos and in-car cruiser camera videos can be an invaluable source of exculpatory evidence.

Booking and cruiser videos can be extremely useful for a variety of reasons. They can reveal that you were not as drunk as the police said you were or otherwise undercut the officer's version of the facts. They can expose flaws in your arrest experience and the administration of field sobriety tests and breathalyzers.

During the booking process, the booking officer asks a series of background questions. The suspect will be fingerprinted, and a photograph will be taken. As such, booking videos often reveal a respectful and perhaps frightened and confused person with whom a jury could readily sympathize.

As many Massachusetts police departments are now using video cameras and taping these events, it is critical for an attorney to determine whether video evidence is available and carefully review all video evidence. Under the Massachusetts Rules of Criminal Procedure, exculpatory videos must be automatically produced. Some prosecutors, however, may not realize their duty to produce booking tapes, so it is important to have an attorney who will ensure that these videos are preserved and produced.

Continue reading "Drunk Driving Booking And Cruiser Videos Can Be Useful In Defending OUI Cases" »

A recent article about a drunk driver found in Brookline caught my eye as a Massachusetts OUI criminal defense attorney. Wicked Local Brookline reported Nov. 15 about the arrest of Jason Andrew Jeffrey, 32, for drunk driving. Jeffrey was arrested after he narrowly avoided crashing into a Brookline police officer at 3:15 a.m. on the morning of Nov. 14. The officer was passing the Reservoir MTBA station, when he heard a woman screaming and saw another vehicle speeding directly toward his police cruiser at high speed. The officer said he feared for his life as he braked hard and steered to the right to avoid the car. The other driver swerved to the left, narrowly avoiding the police cruiser.

When the car pulled into the MTBA station's parking lot, the officer pulled in front of the driveway to prevent the driver from leaving. He discovered Jeffrey in the driver's seat and an unidentified woman in the passenger seat. The woman, who was the owner of the car, apologized profusely while Jeffrey said nothing. Before being asked, Jeffrey declined to take field sobriety tests. He later changed his mind and attempted to take the tests, but the officer said he could not complete them. He also did not have a driver's license. He was arrested on multiple counts including OUI, driving without a license, driving on the wrong side of the road and driving to endanger. He also had an outstanding warrant for an offense the article did not specify.

Read article: Alleged drunk driver causes Brookline officer 'to fear for my life'

This article describes behavior that is unlikely to go over well in public, and Jeffrey would be well advised to hire a Massachusetts drunk driving criminal defense lawyer. But as an OUI attorney myself, I'd like to point out that Jeffrey was actually within his rights to decline the field sobriety tests, and in fact may have benefited from not attempting them. As I've written here many times before, field sobriety tests are not reliable indicators of whether a driver is actually intoxicated. There are just too many ways for health problems, weather conditions, road maintenance and many other factors to interfere. In fact, the Massachusetts Supreme Court has ruled that one of the tests -- the horizontal gaze nystagmus, in which drivers follow a finger or pen with their eyes -- is not admissible as evidence unless it's administered by a qualified person. This more or less eliminates it as evidence for an OUI. The federal Department of Transportation has also handed down reliability guidelines for field sobriety tests, which can be used in court to discredit tests that don't meet standards.

Perhaps even more importantly for Massachusetts drivers, the state Supreme Court has also ruled that prosecutors can't use your refusal to perform field sobriety tests as evidence against you. This means there are no direct consequences for declining field sobriety tests, as Jeffrey originally did. Now, this is not to say that declining is always the right choice. For one thing, drivers who don't want to perform field sobriety tests should say so more politely than Jeffrey did, because making a police officer angry is unlikely to benefit them. And if you believe you can perform the tests without a problem, you should consider performing them. After all, performing the tests well may convince the officer that you're not drunk, allowing you to end the traffic stop and move on with your day. But if you don't feel that you're likely to pass them, for any reason, you should know that you have the option of declining without having it brought up in court later.

Continue reading "Chestnut Hill Man Arrested for OUI After Narrowly Avoiding Crash With Police Officer" »

Police officers rely heavily on field sobriety tests when they suspect a driver of being intoxicated. Unfortunately, as a Massachusetts drunk driving defense attorney, I know that there are serious problems with these tests, and I use those problems as an element of my clients' defense whenever appropriate. The appeal of field sobriety tests is clear: Drunk driving is dangerous and law enforcement agencies need easy-to-use, scientifically and legally valid ways of identifying drunkenness. Unfortunately, the field sobriety tests that are most commonly used in Massachusetts aren't as reliable as they should be, and may not be administered properly. This means that completely innocent drivers who haven't even had one drink can sometimes be arrested for driving under the influence of alcohol.

The National Highway Traffic Safety Administration (NHTSA) recommends three specific field sobriety tests -- the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand -- as the most reliable ones for police officers to use. The NHTSA says that police officers who use all three tests on a suspected drunk driver have a 91% chance of making the right call as to whether or not the driver is actually drunk. In what the NHTSA views as the most accurate one, the horizontal gaze nystagmus test (or "jerking eyeball test"), a police officer asks a driver to follow a small flashlight side to side with his or her eyes. If the driver is drunk, his or her eyeballs shake as they look to the side. The walk-and-turn test is similar to walking a balance beam back and forth on a straight line. And the one-leg stand involves perhaps the greatest physical challenge of the three: drivers are asked to stand still with their arms at their sides, raise one leg six inches off the ground while keeping it straight and pointing at their toes, looking at their raised toes, and count forward from 1,001. Swaying, raising arms for balance, hopping, putting the foot down, or starting to count before the police officer tells them to can all be viewed as signs of drunkenness.

Several years ago, the Washington Post ran an article about the faulty science behind these tests that I found fascinating, as a Massachusetts OUI defense lawyer. The scientific basis of field sobriety tests lies in a 33-year-old study of how well field sobriety tests could identify blood alcohol content. That study was conducted with 238 subjects, mostly men 22-29 years old, and no control group. As the article sums up, "So hundreds of thousands of drivers have been arrested -- no doubt many deservedly so -- on the basis of a 30-year-old study that, critics argue, has never been published in a peer-reviewed, scientific journal, never tested on a large scale with a control group and, perhaps more astonishing, has nothing to do with actual impairment from alcohol."

Besides the tests' scientific faultiness, they can also falsely identify as drunk people who just have medical issues. Balance disorders affect 40% of Americans at some point in their lives, and dizziness and vertigo are the third leading cause for visits to doctors. The older you get, and the heavier you get, the worse your balance. For an aging population with a growing number of overweight and obese people, the one-leg stand test sounds like a pretty ineffective gauge of whether someone is drunk.

This is why it's important for anyone facing OUI charges to contact a Massachusetts intoxicated driving criminal defense lawyer immediately. Experienced OUI defense attorneys know how to legally challenge unreliable field sobriety tests and get that evidence thrown out, which can get the charges dismissed or help win a not-guilty verdict. Anyone accused of a crime with serious penalties like OUI should avail themselves of the expertise of a criminal defense lawyer like Stephen Neyman.

Continue reading "Never Plead Guilty Based on Field Sobriety Tests That Use Faulty Science" »

In recent months, there have been a number of reports warning the public not to consume caffeinated energy drinks with alcohol, like Red Bull with vodka. For example, this study reported on a CNN blog June 8 showed that student athletes were more likely to binge-drink if they mixed the alcohol with caffeine. In fact, the Scottish arm of the UK's Labour Party is considering a ban on alcoholic drinks with a certain percentage of caffeine. Studies have indicated that people consuming caffeine with alcohol feel less drunk even though they actually are often more drunk than people who have been drinking alcohol without caffeine. This is because as alcohol is metabolized, it reduces glucose available to the brain, which makes you feel tired. But when caffeine is added to the mix, it masks the tiredness with its stimulant properties, so people don't recognize how drunk they are.

However, as a Massachusetts intoxicated driving defense lawyer, I was fascinated to read that studies have also shown that caffeine can have a "synergistic" effect with alcohol. British researchers reported in "Interactions of Alcohol and Caffeine on Human Reaction Time," Aviation, Space and Environmental Medicine 528 (June 1983), that "Caffeine has a synergistic interaction with alcohol...(It) has the effect of potentiating the detrimental effects already induced by alcohol....Motor skills which involve delicate muscular coordination and accurate timing have been found to be adversely affected by caffeine." That means caffeine can increase the symptoms of alcohol intoxication -- not counteract them, mask them, or help you to "sober up." In essence, it makes people seem more drunk than they really are.

This is important for a Massachusetts OUI defense attorney like me to know about, because it could provide an avenue of defense for clients charged with intoxicated driving. For someone pulled over by the police for drunk driving, this means that their performance on a field sobriety test could perform worse than they would have without the caffeine. The caffeine would make them shakier and less able to perform the field sobriety tests than the alcohol alone would have left them. Field sobriety tests are supposed to provide evidence of whether a person is intoxicated, by demonstrating whether they can perform tasks such as "walk-and-turn", "finger-to-nose" and "one-leg-stand." These tests are not always possible for people who are haven't even consumed any alcohol to perform perfectly, so the tests' accuracy is less than ideal. For example, the test results can be affected by a person's age, weight, athletic ability, emotional state, fatigue, and lack of familiarity with the tests. They can also be affected by conditions including passing traffic and by the police officer's communication skills. With the addition of caffeine, the test results could make the person appear to be drunker than he or she really was, and the person would be more likely to get arrested.

Continue reading "Beware of Caffeine: It Can Raise Your Chances of a Drunk Driving Arrest" »

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.

Continue reading "Drivers Should Be Aware of Sobriety Checkpoints as Holidays Draw Near" »

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.

Read article: 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.

Continue reading "Watertown Woman Arrested in Parking Lot for Driving Under the Influence " »

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.

Read Article: 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.

Continue reading "Holbrook Massachusetts Man Faces Second OUI After Failing Field Sobriety Tests" »

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.

Read Article:

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.

Continue reading "Boxford Massachusetts Woman, 50 Charged With OUI In Haverhill Court" »

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.

Read Article:

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.

Continue reading "Mother Facing Charges Of OUI Drugs In Salem Massachusetts" »

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.

Read Article:

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.

Continue reading "Braintree Massachusetts Woman Arrested And Charged With OUI Drugs, Alcohol" »

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.

Read Article:

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.

Continue reading "Framingham Massachusetts Man Charged With OUI After Hitting Pedestrian" »

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.

Read Article:

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.

Continue reading "Holliston Massachusetts Man Involved In Crash Charged With OUI Serious Bodily Injury In Framingham Court" »

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.

Read Article:

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.

Continue reading "Chelmsford Massachusetts Man Charged With Drunk Driving After HItting Methuen Police Officer's Car" »