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" »

A recent article in the Boston Globe got my attention as a Massachusetts OUI criminal defense attorney. Massachusetts legislators are reportedly considering several changes to Melanie's Law, the 2005 law that was intended to toughen penalties for drunk drivers. Legislators have proposed several ways to toughen those penalties even further, including a proposal to add ignition interlock devices to the vehicles of people convicted of one intoxicated driving offense. Ignition interlock devices are essentially breathalyzer tests attached to the vehicle's ignition, which require drivers to pass a breath test before the car will start. Currently they are required by Melanie's Law when drivers have their licenses reinstated after two or more OUI convictions. The bill was introduced by state Sen. Robert Hedlund, R-Weymouth, who also suggested eliminating concurrent sentences and "bundling" of charges for repeat offenders.

Read article: Bill targets Melanie's Law loophole

It's not at all clear whether the bill will eventually pass; the Globe noted elsewhere that it won't pass during this session. But as a Massachusetts drunk driving criminal defense lawyer, I hope lawmakers who do eventually consider it will think carefully about whether it's a good idea to require breath tests for anyone convicted of drunk driving. Even drivers with clean records may feel uncomfortable about how invasive the devices are. But even if that's not an issue for most people, there are also serious concerns about their safety and effectiveness. Conventional breathalyzers require drivers to retest every 20 minutes, which means retesting while driving. That requires drivers to either pull over or take the breath test while their eyes are supposed to be on the road. If the device decides the driver is drunk while the car is already moving, the car could come to a halt with little warning. If drivers don't take the test quickly enough, the car will also stop in the middle of the road.

Perhaps more importantly, there is also controversy over whether ignition interlock devices do the job they're intended to do: keep drunk drivers off the road. It's illegal to take the breath test in someone else's vehicle, but the technology can't actually stop this. Nor can it stop people without the devices from simply lending the driver their vehicles (also a crime). And ignition interlock devices have many of the same problems facing police breathalyzers and alcohol-detecting ankle bracelets such as the one famously worn by Lindsay Lohan. These devices detect alcohol in the mouth rather than the bloodstream, including alcohol-containing products like mouthwash. In some cases, they have even been triggered by yeast-raised bread! There may also be problems with how sensitive they are. For example, would a legal and, for many people, harmless 0.02 BAC shut the car down, or would the device consistently detect BACs over the legal limit? As a Massachusetts intoxicated driving criminal defense attorney, I would prefer that lawmakers address these issues before mandating the devices.

Continue reading "Beacon Hill Considering Mandating Breathalyzers for Ignitions After First OUI" »

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" »

If you listen to politicians and the media, you might think drunk drivers are the most serious menace on the roads today. However, a new report from the AAA Foundation for Traffic Safety reveals another under-recognized danger: drowsy drivers. One in six fatal crashes involves a driver who falls asleep at the wheel. Part of my job as a Massachusetts OUI defense attorney is to protect my clients' civil rights. Given the hysteria around drunk driving -- and the lack of hysteria around the apparently far more common sleepy driving accidents -- I am concerned about the disparity in how these threats on the road are treated under the law.

For the family and friends of people killed in car crashes, the loss of their loved one matters much more than the specific reason the driver of the other car was impaired. There may be many different ways to be distracted or impaired while driving, but all of them have the same dangers -- injuries, deaths, and property damage. Jacquelyn Polito, a registered sleep clinician at South Shore Hospital in Weymouth, said drowsy drivers may pose the same danger as drunk drivers with a blood alcohol count of 0.10 percent, which is actually above the legal threshold of 0.08. As I discussed recently, scientific research shows that texting drivers are even more dangerous than drivers who are drunk or high. And this summer, a study by the AAA found that pets are the third most dangerous distraction for drivers, after talking on the phone and texting.

Why is it that, of the many kinds of impairments or distractions that can cause accidents on the roads, the only kind that is treated severely under the law is drunk driving? Many of the other kinds of distractions and impairments are not even taken seriously by the law. For example, the new Massachusetts distracted driving law was passed without the ban on driving with pets in the driver's lap that it originally included, and its penalties for texting while driving are far less severe than those for driving under the influence of alcohol. Instead of treating all dangerous driving equally, the law singles out drunk drivers for special penalties. Perhaps the real issue is social disapproval of drinking, not the level of danger posed by driving under the influence.

As irrational as it may be, it's unlikely that OUI penalties are going to be relaxed anytime soon. That's why it's important for anyone charged with drunk driving to immediately contact a Massachusetts drunk driving defense attorney. There's too much at stake in an OUI conviction to leave your fate up to chance. Even with a first OUI conviction, the penalties can include hundreds of dollars in fines and jail or probation for up to 2.5 years. Compare that with the simple $100 fine that drivers over 18 would face if caught texting.

Continue reading "Study Shows Sleepy Driving May Actually Pose More Danger Than Drunk Driving" »

A Beverly woman is in legal trouble after a teenager claimed the woman hosted a party at which she served teenagers a large amount of alcoholic drinks. That would put the woman in violation of the Massachusetts social host law, which dictates criminal penalties for adults who knowingly serve alcohol to minors. As a Massachusetts OUI defense lawyer, I have been very interested in following how our state's social host law has been applied, because it can easily be used to prosecute innocent people. Anyone charged with violating this law should contact a Massachusetts intoxicated driving defense attorney immediately in order to preserve their rights and improve their chances of getting the charges dismissed or a not-guilty verdict.

In the Beverly case, police received complaints after midnight on Oct. 31 about a loud party at the apartment of Tiffany Clark, 35, at 903 Manor Road. Police entered the apartment, found several teenagers inside and contacted their parents. Police also reportedly found empty beer cans and 75-100 empty cups that they said were probably used for Jell-O shots. They observed Clark to be unsteady on her feet, slurring her speech and responding "somewhat incoherently" to officers' questions. Then she fell down, and police called for an ambulance to take her to Beverly Hospital. Clark's children stayed with a friend's parents, and police notified the Department of Children and Families.

Police also received a report that a 16-year-old girl was hospitalized for alcohol poisoning after being present at the party at Clark's apartment. The girl told police that Clark refused to take her to a hospital or call 911, and that someone else called the girl's relatives for help. When police arrived at Clark's apartment, they informed her about the girl's hospitalization, and noted in their report that she "seemed not to care." Clark is criminally charged with procuring alcohol for minors and with allowing minors to consume alcohol at her home, in violation of the social host law. If convicted, she could be sentenced to up to a year in prison, a $2,500 fine, or both.

Read articles: Beverly mom summonsed for teen booze bash

The articles in the media about this situation portray Clark as being obviously guilty of getting her child's teenage friends drunk. As a Massachusetts intoxicated driving attorney, I know that the law has to adhere to a higher standard than the media do, and that's why it's important for someone in Clark's position to contact an attorney right away. It may be tempting to plead guilty after a trial in the "court" of public opinion, but it takes an experienced attorney to decide whether the charges are supported by the actual evidence. From what we have seen in the news reports, the police did not find any teenagers who were drunk or drinking alcohol at Clark's apartment, and she did not admit to having furnished them with alcohol. Clark herself may have been drunk, but it's not illegal for a 35-year-old woman to be drunk in her own home. At worst, the evidence presented here may suggest poor parenting, but not illegal furnishing of alcohol to minors.

Continue reading "Beverly Woman Faces Criminal Prosecution After Allegedly Giving Alcohol to Teens" »

A series of articles and videos in the Quincy Patriot-Ledger about a rise in the number of women being convicted of drunk driving caught my eye recently. The videos describe the struggles of two women to put their lives back together after their drunk driving arrests. As a Massachusetts drunk driving criminal defense attorney, it's my view that these women's stories demonstrate how important it is for all drivers to use good judgment before getting behind the wheel -- and also, how important it is to make sure that you have expert legal counsel if you get into trouble. It's hard enough to handle the psychological and physical consequences of alcohol abuse without adding legal troubles to the mix.

It's not clear why, but the Patriot-Ledger reported that as nationwide drunk driving arrests for men fell over 8 percent from 1999 to 2009, they shot up by nearly 42 percent for women. In Massachusetts, over 30 percent more women were arrested for OUI in 2009 than in 1999. Sarah Allen Benton, a mental health counselor, suggests that it may have to do with police having decided not to go easy on women drivers. In the past, police may have felt more sympathetic toward and protective of women drivers, she suggests -- but not anymore.Two women profiled in the Quincy Patriot-Ledger's articles and videos said that their OUI arrests forced them to get help for their alcohol problems and get their lives together.

One in 12 American adults abuses alcohol or is alcohol-dependent, according to the National Institute on Alcohol Abuse and Alcoholism. Alcohol problems can develop over the course of decades, starting in adolescence, before anything serious enough to involve legal consequences happens. By that point, a chronic alcoholic may need serious medical and psychological treatment to manage the damage that has been done. Unfortunately, the legal penalties for drunk driving don't necessarily mandate such treatment, even though it would go a long way toward making sure that such dangerous behavior doesn't happen again. For a first-offense OUI, the alternative "24D" disposition sentence includes an alcohol education program. But otherwise, the offenders are on their own to solve any problems they have with alcohol.

Anyone charged with OUI should immediately contact a Massachusetts OUI defense attorney to help them maintain all their personal and legal options. If you have been charged with OUI, with the help of a Massachusetts intoxicated driving defense lawyer, your case is much more likely to win a dismissal of charges or a not-guilty verdict. Then, if you are dealing with the psychological and physical effects of alcohol dependence, you can get help for it without also losing your freedom, your job, and your driver's license.

Continue reading "Special Report on Women and Drunk Driving Says Arrests Have Increased" »

A new Massachusetts law went into effect on September 30, forbidding texting while driving for all drivers, and both texting and cell phone use for drivers under 18. As a Massachusetts OUI defense attorney, I've noticed that some news reports have called the penalties for texting "harsh." This is interesting, since the penalties for texting are nowhere near as harsh as they are for drunk driving, even though studies have shown that texting while driving is actually more dangerous than drunk driving.

Lawrence Police Chief John Romero told the Merrimack Valley Eagle-Tribune that the texting law is "long overdue," since texting has been the cause of many "tragedies." The law punishes texting offenses with fines of up to $500 and up to a one-year loss of license. Romero notes, however, that it will be difficult to enforce the law because police can't be certain what drivers are actually doing with their phones behind the wheel. Dialing while driving is still legal for drivers over 18. If police pull over a driver who appears to be texting, drivers can simply say they were just dialing a phone number. Without a warrant, police may not be able to check the drivers' phones to find out whether they're telling the truth.

Read article: Driving while texting incurs new penalties

What's most striking to me, as a Massachusetts drunk driving defense attorney, is the gap between how the law perceives the dangers of texting compared to that of drunk driving. Britain's Transport Research Laboratory found that texting drivers' reaction times were 35 percent worse than when they weren't texting, while the reaction times of drivers who were at the legal limit for alcohol consumption only deteriorated by 12 percent. Even drivers who had used marijuana performed better than texters, with a 21 percent slower reaction time. Texters were also 91 percent more likely than non-texters to veer out of their lanes, and were less able to keep a safe following distance from the vehicle ahead of them. Yet when a texting driver causes a fatal crash, Utah is the only state that subjects that driver to the same penalties a drunk driver would pay, with up to 15 years in prison.

In Massachusetts, a first offense for texting by drivers over 18 is punishable by a $100 fine. Drivers under 18 pay the fine, lose their license for 60 days, and complete a court-assigned driver attitude course. In contrast, the penalty for a first offense OUI is much steeper: It may include a jail sentence of up to 2 and a half years, a fine ranging from $500 to $5,000, hundreds of dollars in fees, and a license suspension of one year. The alternative "24D" disposition for a first-offense OUI is much harsher than that for texting too. A 24D judgment involves probation for up to two years; completion of an alcohol education program; a 45-day loss of license; and hundreds of dollars in fees.

There are lots of possible reasons for this disparity in penalties. Perhaps not as many people have lost loved ones to texting drivers as to drunk drivers, so the political will to do something about the problem has not developed. But even though the scientific evidence makes clear that texting is at least as much of a menace on the roads as drinking and driving, people charged with OUI face much more serious potential consequences than texters do. That's why it's so important for anyone charged with OUI to work with an experienced and knowledgeable Massachusetts intoxicated driving defense lawyer to help them navigate the system and get the best outcome -- a dismissal of charges or a not-guilty verdict.

Continue reading "Penalties for Distracted Driving Are Still Light Compared to OUI Criminal Penalties" »

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.

Continue reading "Drivers Pulled Over for OUI Should Use a Strategic Approach to Police Encounters" »

The next time you go out to dinner, be sure to drive carefully if you've eaten any bread products. You wouldn't want to be stopped by the police with bread on your breath, since studies have shown that breathalyzer tests can't tell the difference between the amount of alcohol in your blood and the ethyl alcohol that stays on your breath after you eat bread, yeast, or similar foods. Without drinking any alcoholic beverages at all, people who have eaten bread have gotten breathalyzer blood alcohol concentration readings as high as 0.05% -- more than halfway to the legal limit at which you're considered legally intoxicated. As a Massachusetts OUI defense lawyer, I think it's important for people to know that the tests used to determine whether a driver is intoxicated are not foolproof. You can often -- and should -- fight OUI charges based on these faulty tests.

Nobody wants to see more drunk drivers on the road. But evidence shows that the breathalyzer test, on which law enforcement relies heavily, is not a good basis for determining who is driving drunk. I've written lately about the problems with field sobriety tests -- basically, that they rely on faulty science that's decades old. Blood-alcohol concentration tests also have problems because when they look for ethyl alcohol, which is the kind of alcohol people drink, they also can find similar substances that are not intoxicating, but still cause a false positive.

According to sociology professor David Hanson, the test doesn't just pick up on food molecules, either -- people who have been painting a wall can test as intoxicated without ever drinking any alcohol. Breathalyzer results can also show false readings because of "alcohol, blood or vomit in the subject's mouth, electrical interference from cell phones and police radios, tobacco smoke, dirt, and moisture." Tests of the subject's actual blood, not their breath, produced accurate results in these investigations -- but the breathalyzer could be amazingly inaccurate.

Field sobriety tests and breathalyzers make up two out of three of the usual sources of evidence in drunk driving cases -- police officers' personal observations being the third. Scientific evidence and common sense makes it clear that none of these are foolproof or even necessarily accurate -- meaning that there's a real problem with the way police determine which drivers are drunk. This makes it easier for me, as a Massachusetts intoxicated driving defense attorney, to get evidence against my clients thrown out and to achieve dismissals or not-guilty verdicts. But it's unfair to my clients to be arrested and charged in the first place if it's done on the basis of faulty evidence and unscientific tests. Some states, like South Dakota, recognize that breathalyzer tests are inaccurate and don't allow them to be used as evidence; they allow only blood tests because they can rely on them to be accurate. But in Massachusetts and many other states, breath tests are used as evidence at trial, and there are even penalties for drivers who refuse to submit to them. Refusing the breathalyzer, even if you're not intoxicated, results in suspension of your driver's license for 180 days if you're over 21. You can appeal that suspension, but it is an extra burden that may be inappropriate, given that the test is far from reliable.

Continue reading "Home Improvement Projects and Bread Can Trigger False Positives on Breathalyzer" »

Recently, I wrote about a case in which parents were being charged under the social host law for their underage child's party, which involved underage guests drinking alcohol. A new case in Cohasset shows how much of an impact the social host laws can have on a parent's life. A woman whose underage son allegedly had a drinking party at her house has been subjected to the kinds of restrictions that we normally see for people who have been charged with a second or higher OUI offense. As a Massachusetts OUI criminal defense lawyer, I think it's important for anyone with teenage children to be aware of how the social host law could affect them.

On a Saturday night during the first weekend in August, Taylor McQuade, 18, allegedly had 23 teenage friends over at the Cohasset home of his mother, Elizabeth McQuade, 50. A neighbor made a noise complaint to the police. Police officer John St. Ives came out to the McQuade home and reportedly heard people loudly chanting, "take off your shirt" and "we got your shirt off." As St. Ives approached the back yard, he found people aged 17-19 sitting around a table drinking out of plastic cups, and beer cans all over the yard. Elizabeth McQuade came out onto the deck while St. Ives questioned the teenagers. She claimed to have been at a friend's house all night and to have been unaware that the kids were drinking alcohol, but was unable to supply the name of her friend. Two of her son's friends told St. Ives that she had been home for 45 minutes and did know that they were drinking. Both Elizabeth and Taylor McQuade were arrested for disturbing the peace. Elizabeth also faces charges of violating the social host law and keeping a disorderly house. Taylor and his 23 guests are charged with possessing alcohol as a minor.

Read article: Mother and son arrested because of underage drinking party

At their arraignment in Quincy District Court, both McQuades pleaded not guilty and were released on personal recognizance. The judge scolded Elizabeth McQuade for failing to supervise her son. They were ordered not to use alcohol or other drugs and to submit to random testing. Test results showing alcohol or drug use would be grounds to put them in jail for up to 60 days. The Probation Department will install a sobriety-testing device at Elizabeth McQuade's house as well. A probation surrender hearing will be held August 30 to determine whether this incident violates the terms of Elizabeth McQuade's probation from a May domestic violence case. In that incident, she was charged with two counts of assault and battery after going to her ex-husband's home when she was intoxicated and attacking him with her shoe and punching him. If she is determined to have violated probation, she could go to jail.

In my view as a Massachusetts drunk driving defense attorney, it's vitally important to recognize that Massachusetts' social host law forbids adults to knowingly or intentionally provide alcohol to minors or to allow them to drink in their homes. Elizabeth McQuade told police she didn't know that the kids at her house were drinking. As a parent of an 18-year-old, it's understandable that she may have thought she didn't have to supervise Taylor and his friends, since Taylor is a legal adult in all respects except for drinking alcohol. Even if she heard them chanting "we got your shirt off" in the back yard, she may have just assumed they were being obnoxious, rather than that they were playing a drinking game like the police said.

Not paying attention to what teenagers are doing at your house, while perhaps inadvisable, is a far cry from knowingly and intentionally providing them with alcohol. The social host law may make sense for parents of kids under 18, over whom parents legally do have authority, but most parents of 18-21 year olds are trying to give their children the space to become adults and to live their own lives. Watching over them while they spend time with their friends is no way to do that. Anyone convicted of violating this law can be punished by a $2,000 fine or up to a year in prison, though, so the law forces parents to walk a difficult line between protecting themselves legally and encouraging their kids to become responsible adults.

Continue reading "Social Host Law Puts Parents of Young Adults Under 21 in an Untenable Situation" »

As a Massachusetts OUI defense attorney, I was interested in a recent article in the New York Times about the challenges of convicting persons charged with driving under the influence of prescription drugs. The article describes accidents that occurred in New York, Maine and Wisconsin, in which people under the influence of prescription drugs including opiate painkillers, Ambien and Xanax allegedly caused serious, fatal accidents. Under Massachusetts law, charges of driving under the influence of prescription drugs can complex to defend against, because while it is illegal to drive after taking some prescription drugs -- "narcotic drugs, depressants or stimulant substances" -- other commonly prescribed drugs are not in these categories. But the complexity of the law also offers great opportunities for a Massachusetts intoxicated driving defense lawyer to mount a strong defense against these charges.

Read article: Drivers on prescription drugs are hard to convict

When someone is charged with operating under the influence of alcohol, police often use their own observations and field sobriety tests, in addition to a blood-alcohol concentration obtained by a breathalyzer or blood test. When someone is charged with OUI drugs, however, these sources of evidence are not reliable in the same ways. Proving that someone driving under the influence of prescription drugs is impaired is different from showing that they were driving under the influence of alcohol. Field sobriety tests -- which are unreliable anyway, as I've discussed recently -- don't necessarily work for prescription drugs the way they do for alcohol. Police are looking for the same kinds of impairment in all drivers they suspect of being drunk, but different prescription medications can affect different drivers in different ways. Where anti-anxiety drugs can slow someone's reaction time, stimulants can encourage risk-taking and impair someone's ability to judge distances.

Of course, a breath test is unable to detect intoxication by prescription drugs. A blood test can show the presence of prescription drugs in someone's body, and if the drug is included on the state's list of drugs that it's illegal to take before driving, then any amount of it in your blood is enough for an OUI drugs charge, even if it was legally prescribed. However, if the prosecution cannot establish that it's illegal in our state to take the drug at issue and then drive, it has no case. Many prescription drugs fall outside the categories listed in Massachusetts law -- for example, sedatives and sleep aids such as Ambien, or other unclassified prescription drugs like the anti-anxiety medication Xanax, and the anti-seizure medications Neurontin, Lamictal and Topamax (which is also used to prevent migraines).

An experienced Massachusetts intoxicated driving defense attorney can find several ways to defend charges of driving under the influence of prescription drugs. First, if the client is accused of driving under the influence of a drug that's not on the list of illegal substances in Massachusetts state law, there is no illegal conduct. An experienced attorney will argue that the charges must be dropped in this situation. Second, an attorney can challenge any physical evidence that the police collected. Did a blood test show that the client actually had any drugs in his or her body? If there are results showing the presence of prohibited drugs, did they show enough of the substance to impair the person's driving? Could the person's body have metabolized the drugs more slowly than the medication's label indicated, so that the drugs remained in their system longer than expected? Also, the prosecutor in such a case must obtain expert testimony from a Drug Recognition Expert (DRE) to establish that the drug involved violated the law.

Continue reading "Complex OUI Prescription Drug Laws Can Make These Cases Easier to Defend" »

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 Marshfield, a couple with a 19-year-old son are defending themselves against charges that they allowed underage kids to consume alcoholic beverages at their home. Jeffrey and Janet Bessemer have been ordered to appear in court on misdemeanor charges of furnishing alcohol to minors and keeping a disorderly home, and violating the Massachusetts social host law. Fortunately, the case does not spring from a death or injury; police called on a noise complaint found a party at the Bessemers' home. The Bessemers told the Quincy Patriot-Ledger that they had had their own party earlier that day, and they had neglected to put away all the leftover alcoholic beverages and shot glasses after it was over because they were tired.

Later that night, their 19-year-old son planned to have a few friends come over to meet his girlfriend, and the Bessemers said that a larger group of young adults showed up after 10 p.m. without their knowledge. Jeffrey Bessemer said that second group must have supplied the alcohol and that he wouldn't have provided it. A neighbor called police complaining about loud music at 11:45 p.m., and when police arrived, they found both garage doors open with about 20 people hanging around there, and another 10 people inside the house. Only three of them were of legal age to drink alcohol, but police said most or all of them were holding beer containers or red plastic cups containing alcoholic beverages. There was a table in the garage holding plastic cups and a large amount of alcohol in open and closed containers, and in the kitchen police found liquor bottles and shot glasses. The Bessemers came downstairs shortly after the police arrived and told them they had been unaware that anyone was drinking. A Marshfield police officer expressed doubt about this.

Read article: Marshfield couple faces social host charges.

A few months ago, I discussed my concern that the social host law could be overzealously interpreted, and it appears that the Bessemers' case may be an example of just that. As a Massachusetts OUI defense attorney, I would look at the situation with a more critical eye than the police officer may have used. There are a number of possible reasons why the Bessemers could have been unaware of their son's party, even if it did generate a noise complaint. Noise complaints aren't always reasonable, and noise can be blocked by well-insulated or large homes. The Bessemers may have trusted their son and didn't realize that his judgment wasn't as good as they thought.

The social host law specifies that "furnishing" alcohol means to provide it or allow its consumption on your property "knowingly and intentionally." Proving this could be an uphill battle in this case. The Bessemers claim they didn't do it knowingly or intentionally, if they did it at all, and there are alternative interpretations of the situation. The law absolutely should hold people responsible for their actions, but in a case like this, prosecutors and officers should investigate carefully before holding parents responsible for the actions of their adult children and those children's friends. As a Massachusetts intoxicated driving defense attorney, I'm glad that the drinking at the Bessemers' son's party appears to have been harmless, and that no related drunk driving accidents were reported.

Continue reading "Marshfield Social Host Case Underscores Risk of Injustice From Over-Enforcement" »

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.

Continue reading "Forcible Roadside Blood Draws in Drunk Driving Traffic Stops on the Rise Nationally" »

As a Boston drunk driving defense lawyer, I took note of a recent article in the MetroWest Daily News about an arrest warrant issued for a Framingham man charged with OUI. Elias Furtunato Dasilva, 29, did not show up for his arraignment on Tuesday, April 20, in connection with a hit-and-run car wreck that he allegedly caused the previous weekend.

Dasilva was arrested on the night of Sunday, April 18, after police found him down the street from a three-car crash near Wildwood Steakhouse. According to a police report, Dasilva said that he had had three beers before getting behind the wheel of his car. He then allegedly crossed the double yellow line and hit an oncoming car. A third car was also involved in the crash. Dasilva said he ran away because he was scared, but when police found him he admitted to driving the errant car. He failed three sobriety tests, according to the police. A passenger in one of the cars was treated at Marlborough Hospital for serious injuries and released the next day. After posting $1,000 bail on Sunday night, Dasilva had been expected in Marlborough District Court on Tuesday to answer charges of driving without a license, leaving the scene of personal injury, operating under the influence and a marked lanes violation. Since he did not show up, the court issued an arrest warrant. A bail status hearing is scheduled for May 24.

Read article: Arrest warrant issued for Framingham man allegedly involved in hit-and-run.

As a Massachusetts OUI defense lawyer, I know that being involved in a car wreck and being charged with intoxicated driving is often frightening. But anyone charged with OUI is much better off engaging a Boston DUI defense attorney than leaving the scene of an accident and jumping bail. An experienced criminal defense lawyer can challenge the faulty field sobriety tests that police use as the basis for an OUI charge, for example, or challenge the validity of the original traffic stop and search. These and other defenses can lead to getting the case dismissed or winning a not-guilty verdict. The news report does not say whether the police used a breathalyzer as well as field sobriety tests, so it may be possible to call into question whether Dasilva was truly impaired. Three beers may or may not have rendered him legally impaired, with a 0.08% or higher blood-alcohol concentration.

By contrast, leaving the scene and skipping his bail puts Dasilva in a substantially worse position than he would otherwise have been in. If this was a first OUI, he could have been eligible for the 24D/alternative disposition program, which reduces the time when defendants lose a driver's license and carries no possibility of jail. Leaving the scene and then failing to show up to court tells the court you are not responsible or remorseful, which substantially reduces your chances of getting alternative disposition or any other kind of lenient sentence. Of course, it also means more criminal charges. With jail time and hundreds of dollars in fees and fines on the line, it's important to fight drunk driving charges the right way and with confidence, rather than compounding them with bad decisions made out of fear.

Continue reading "Arrest Warrant Issued for Framingham OUI Defendant Who Jumped Bail" »