Aggressive Defense of All DUI Matters
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True field sobriety tests are commonly referred to as divided attention tests. Their purpose is to see whether or not you can pay attention to some very basic rules while performing a simple physical task. If you have no physical limitations the tests assume that you can follow the directions and complete the test. If you are impaired the test will not be so easy to complete satisfactorily. True field sobriety tests are standardized and explained later in this post. However over the last twenty or so years Massachusetts police officer have become somewhat tricky in terms of how they administer field sobriety tests. They administer tests that are unreasonable and not approved by professional authorities. These tests are often developed by creative police officers who have no regard for proper “objective” procedures. In Massachusetts an experienced OUI defense lawyer will exploit the officer’s unfair actions. He will show the jury that the police officer’s conduct is unjust. The result is often an acquittal.

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I get this question several times each week. Someone gets arrested for drunk driving in Massachusetts. This is their first OUI and usually their first time having to go to court. After the initial shock and embarrassment wears off they start thinking about defending the case and ultimately how much the case is going to cost them. In order for me to properly answer that question I have to go through several scenarios with them to make sure they understand how the process works and what they are facing. There are however some short answers I can give them right away. Here they are along with the questions.

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OUI drugs in Massachusetts is a crime not often prosecuted. Police officers will make a stop of a vehicle based on their observations of operation or a report or erratic driving. Just after making the stop the officer will contact the operator. They usually ask for a license and registration and make some comment about the reason for the stop. During this initial encounter the officer makes observations about the driver. He looks for signs of intoxication. Alcohol intoxication. The typical patrol officer is trained to look for objective manifestations of impairment, unsteadiness of one’s feet, slurred speech, the inability to respond to simple commands and of course the odor of alcohol. Few are trained to look for indicia of drug impairment. This is why you rarely see OUI drug cases being charged in Massachusetts. When you do they usually cannot be proved.

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Just prior to the New Years weekend I saw a rash of articles talking about how DUI checkpoints in southern California were being set up not only with breathalyzer test machines but also cheek swab tests. Much of this is law enforcement’s response to the decriminalization and legalization of marijuana throughout the country. So I imagine that it is only a matter of time before the Massachusetts legislature approves similar tests. So what exactly are cheek swab tests and how do they work? These are portable machines that through your saliva can determine whether or not you have ingested alcohol or other drugs at some “recent” time. The inside of your cheek is swabbed. Then the swab is checked for the presence of listed substances including alcohol, marijuana, cocaine, ecstasy and certain prescription drugs. A positive test will likely result in an arrest and charge for OUI liquor or drugs depending on the test result.

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Just about every OUI case that we handle in some way implicates the field sobriety tests. Most people know a little bit about these tests. Or, at least they think they do. Sometimes you see these being administered on the side of the road. Other times your friends who have been arrested for DUI tell you about their experiences taking these tests. You see them in the movies or on Internet videos, through Facebook, Google+ or YouTube. What you don’t know is that most of these tests are inadmissible in court. They lack scientific reliability. They are not probative of guilt and should never be mentioned in front of a jury. A good, experienced drunk driving defense lawyer is aware of this and will prevent the prosecutor from getting into this evidence at trial.

What Field Sobriety Tests are Used in Massachusetts?

This is a great question. Police officers attempt to administer about six separate tests in Massachusetts. In no particular order these are the horizontal gaze nystagmus (HGN) test, the walk and turn test, the alphabet test, the one-legged stand test, the finger to nose test and the counting test. The HGN test requires a police officer to observe the eyes of a suspect while the person follows a slow moving object with his eyes horizontally. The officer looks for certain reactions in the eyes that, if shown, can demonstrate alcohol impairment. The walk and turn test requires the suspect to walk nine steps, heel to toe, turn on one foot after the ninth step and repeat the process in the other direction. The one-legged stand test has the subject stand on one leg while holding the other leg six inches off of the ground for thirty seconds. The alphabet test and counting test are administered in several ways. The suspect can be asked to recite the entire alphabet or portions thereof. For example, he might be asked to start at “h” and end at “q”. The counting test is conducted similarly and may require the subject to count backwards. The finger to nose test asks the person to close his eyes and touch an area of the nose with one finger.

What Field Sobriety Tests Are Admissible in Massachusetts Courts?

The National Highway Transportation Safety Administration (NHTSA) has approved three field sobriety tests for use in court; the HGN test, the walk and turn test and the one-legged stand test. In order for the HGN test to be admissible in Massachusetts courts the prosecution must show that the test is reliable and that it was properly administered by someone qualified to do so. In other words, there must be expert testimony to support the admission of that evidence. The district attorney in this state is never able to do so. For reasons stated in the Massachusetts case of Commonwealth v. Sands, 424 Mass. 184 (1997), testimony relating to the HGN test is almost always excluded.

The alphabet test, the counting test and the finger to nose test are not approved in the NHTSA protocol. Accordingly, it is the best practice for Massachusetts criminal defense lawyers to move for the exclusion of this evidence; unless of course the tests were performed satisfactorily.

So that leaves only the walk and turn test and the one-legged stand test as admissible in Massachusetts. However, these are not usually given correctly and are subject to attack by the defense. The NHTSA has listed eight indicators of impairment that the police should look for when administering the walk and turn test and four for the one-legged stand test. I have never had a trial where the officer could list each indicator for each test thereby making his testimony on this subject very vulnerable to attack.

Do I Have to Take the Field Sobriety Tests if I Am Pulled Over in Massachusetts?

Absolutely not. Your refusal to take field sobriety tests in Massachusetts cannot be used against you at trial at all. As with a breathalyzer refusal, the prosecution cannot even mention it. Keep in mind that without field sobriety tests and without breathalyzer tests the only thing the prosecution typically relies on while prosecuting you is the subjective observations of the police officers. If you are properly represented a conviction becomes difficult if this is all the district attorney can use at trial.

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Here in Massachusetts, persons charged with first offense operating under the influence (OUI /DUI) and certain second time OUI offenders may have the option of what is called the alternative “24D” disposition, which includes participation in an alcohol education program as a condition of probation. Many different approved alcohol education programs, all of which are on their face secular in nature, are listed with the Bureau of Substance Abuse Services. However, when alleged offenses other than OUI are “alcohol-related” (such as domestic violence, assault and battery, property crimes, resisting arrest, etc.) it is not uncommon for Massachusetts prosecutors to request and for judges to impose participation in Alcoholics Anonymous, an organization that is very arguably religious, as a condition of probation. While the Supreme Court has yet to rule on whether A.A. is a religious organization, there is a fairly strong argument that imposition of A.A. as a probationary condition is unconstitutional.

Much of the law on whether A.A. is “religious” arose from cases where prisoners and probationers claimed free exercise and establishment clause violations after being forced to attend A.A. meetings. Courts in California, Tennessee, and New York have held that A.A. is religious, while courts in Kansas have said that it is not. The Second Circuit Court of Appeals has determined that an atheist drunk driver’s constitutional rights were violated when he was forced to participate in A.A., described by the court as “religion-tinged,” as a condition of probation.

While the A.A. preamble states that the program is not religiously affiliated, its practices and “12 Steps” indicate that it might well be. For instance, the “Twelve Steps” reference “God” and a “Higher Power,” though they don’t reference organized religion. The so-called “Third Step” instructs that one has “[m]ade a decision to turn our will and our lives over to the care of God, as we understood him,” according to A.A.’s “Big Book.” Furthermore, A.A. meetings conclude by reciting the Lord’s Prayer, according to A.A. literature.

Prosecutors who request, and courts that impose, mandatory A.A. meetings as probationary conditions also completely ignore the plight of voluntary A.A. participants. It would seem that voluntary participation in such a program loses its meaning when persons are forced to attend as a form of punishment. It would also seem that voluntary participants might be less than comfortable sharing with forced participants.
As a practical matter, A.A. is free, whereas more secular alcohol education programs are not. Often, A.A. attendance is imposed as a condition of pre-trial probation in alcohol-related cases, and in such circumstances, it could be wise to accept such a condition. You should speak with an experienced criminal defense attorney about your options.

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Just a few days ago the Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Smeaton, SJC-11208 a matter occurring in the vicinity of the Smith College Campus in Northampton, Massachusetts. The Court found that in October of 2010 the defendant was driving on a public way. A Smith College police officer saw him operating recklessly on a road that intersects the campus. The officer effectuated a stop of the car. Local police arrived and arrested the defendant. He was charged criminally with OUI and Reckless Operation of a Motor Vehicle. The defense succeeded in getting the case dismissed prior to trial on a Motion to Suppress. It claimed that the campus police officer lacked the authority to make a stop off campus property. In allowing the motion the lower court judge found that the officer making the stop acted beyond the powers extended to special police (campus police) pursuant to Massachusetts General Laws Chapter 22C section 63. That law empowers campus police “to make arrests as regular police officers for any criminal offense committed in or upon lands or structures owned, used or occupied by such college, university, or other institution or hospital”. The prosecution appealed the decision.

Embracing established case law the Supreme Judicial Court stated that the authority of the campus police may in some instances extend “to the environs surrounding the campus when the ‘special vigilance of an officer might be required to keep the peace and preserve order amongst those frequenting [the campus and] those carrying persons to and from it.’ “. The Court interpreted the word “used…by [the] college” in G.L. c. 22C Sec. 63 not to be exclusive. Rather, if the school used a road as it did in this case, such use would sufficiently satisfy the statute. The Court also held that even if the road failed to satisfy the term “used” the stop was lawful as the criminal activity occurred “within the environs” of Smith College. Accordingly, the Supreme Judicial Court reversed the order suppressing the stop and remanded the case to the district court.

This decision goes on to state that the word “environs” will vary from school to school. As a Massachusetts Criminal Defense Lawyer that suggests that it remains potentially beneficial to litigate this issue in all Massachusetts Criminal Cases. There are other issues to scrutinize when campus police makes stops as well. Does the school “use” the property where the stop was made in the legal sense? Was “special vigilance” required in the context of this case. The issue of extraterritorial stops does come up frequently in criminal matters in Massachusetts. It is something that lawyers often neglect to litigate, usually because they do not know the law. This is another reason why your selection of a criminal defense attorney is extremely important. Cases can be won on this issue.

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According to reports in several media outlets New England Patriots starting defensive back Alfonzo Dennard was arrested earlier today. He is being charged with Drunk Driving or OUI as it is known in Massachusetts. The Motor Vehicle stop occurred just prior to 2:00 a.m. The police making the stop observed Dennard’s car “straddling lane lines”. He further reported that Dennard “emitted an odor of alcohol and displayed signs of impairment”. Dennard then took Field Sobriety Tests and refused a Breathalyzer Test.

This incident is not Dennard’s first brush with the law. He was convicted of Assault and Battery on a Police Officer stemming from a 2012 incident outside of a bar. Dennard is on two years probation for that case and has a thirty day jail sentence stayed until March of 2014 at which time it may be reconsidered.

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Probation Violation Defense Attorney in Massachusetts

Not knowing much about Nebraska state law, the jurisdiction in which this case is pending I can tell you what could happen to Dennard were he in Massachusetts. First is the OUI case. The excerpts from this police report are no different from the vast majority of reports we see in Massachusetts. The substance of these reports is as follows: The officer will report some sort of erratic driving. He will claim to have followed the car for a certain distance while observing several Motor Vehicle violations. He was then stop the driver. Upon his approach to the vehicle he will detect a strong odor of an alcoholic beverage coming from the interior of the car. He will then comment to the driver on the reason he pulled him or her over. The driver will respond with thick, slurred speech. The officer will ask the operator for a license and registration. The suspect will fumble with papers in the glove box and wallet prior to producing the license and registration. The officer will then ask if the operator had been drinking. The response will be “I had a couple of beers”. The officer will then ask the operator to get out of the vehicle and to perform some Field Sobriety Tests. There will be three tests. The alphabet test, starting in the middle of the alphabet. The driver will mess up a few of the letters. Next will be the heel to toe test. The subject will not follow the instructions properly. He or she will use arms for balance and turn around at nine steps rather than ten. Last will be the one legged stand test. The defendant will be able to hold it for a count of 6 only. The officer will then form the opinion that the suspect is under the influence and he will be arrested.

I have read hundreds of these reports. They are virtually identical. I have wondered why local public defender’s offices do not keep files of these reports catalogued by officer’s last name. I can assure you that if officer “Jones” has made one hundred OUI arrests ninety five of these reports will be troublingly similar. At least on the surface Mr. Dennard’s arrest report seems to follow this pattern. His bigger problem might be the Probation Violation matter. In Massachusetts someone can be found in violation of probation without a conviction on the new case. He can then be sentenced to the maximum sentence allowed by statute on that case.

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Lon Fuller, a legal philosopher and law professor, was known for, among other things, his careful analyses of legal fictions, which are basically assumptions in the law that something false is true. Fuller once identified the following three legal fictions surrounding the crime of drunk driving: (1) the assumption about risk that allows attribution of blameworthiness to drunk drivers; (2) use of a fixed BAC to prove drunk driving; and (3) the potential fiction that alcohol use is the cause of death or injuries in alcohol-related car accidents. As a Massachusetts drunk driving attorney, Fuller’s insights are interesting to consider, as they undermine the logical basis of drunk driving legislation and the justice of OUI prosecutions and convictions. It is also important to consider these legal fictions from a policy perspective, as government resources are wasted on prosecution and punishment when drunk-driving laws are based on fallacy.

First, Fuller explored the fiction of risk. Under this idea, a drunk driver is culpable because he engaged in very risky behavior and violated his duty of care to other people. Fuller notes that the concept of “duty” is so indefinite that we don’t have any way to test the reality of a “duty” besides looking to courts to define its existence. In that way, because there is no way to test the reality of a duty, a duty in itself cannot be a fiction. However, according to Fuller, legal relations become fictions when they are linked to extra-legal inaccuracies. In the context of drunk driving, the risk is linked to group statistics about drunk driving in the aggregate as opposed to any information relative to the risk created by the individual OUI defendant. Using a collective group to assess the risk created by an individual is a fallacy and is at odds with criminal theories of culpability. This fiction relieves the government from proving something that might not exist at all: an ignored and substantial risk.

Next, Fuller addressed the fiction of per se BAC. Statutes that define operating under the influence in BAC terms are conclusive presumptions, which Fuller said are necessarily fictions. Certainty is attached to something that does not deserve certainty, and the government evades having to prove that a person was actually drunk. Per se BACs also assume another thing that is false: that people are able to self-monitor their blood alcohol concentration. While per se BACs are constitutional, that does not cure the fact that they are not quite logical.

Finally, Fuller addressed the product of the first two fictions, the fictitious imputation of legal cause. If the first two fictions are accepted, that a person with a certain BAC is drunk and that the person’s drunk driving created a serious risk, then deaths or injuries in drunk-driving accidents can be viewed as foreseeable. Using this fiction, two persons involved in accidents, one with a BAC under the limit and one with a BAC over the limit, can be treated very differently despite the fact that they exhibited identical driving behavior.

Use of these fictions in the context of OUI / DUI / DWI, largely for the sake of efficiency, does not serve anyone. It prevents the government from addressing the real social problem. It also results in individual OUI defendants being treated as one-dimensional and forces them to share responsibility with a collective group.

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The New York Police Department is going to start using the word “collision” instead of the word “accident” to describe drunk-driving crashes, a move which the New York Times described as a “symbolic semantic change” that has long been requested by OUI victims. A police commissioner explained that the term “accident” inaccurately suggests that there is no fault associated with the event. The department has changed the name of its “Accident Investigation Squad” to the “Collision Investigation Squad.” An anti-DUI group tweeted on March 12, “NYPD agrees that drunk driving crashes aren’t accidents.”

I’m not sure that the difference between “collision” and “accident” is as significant as the Times and the NYPD seem to think, though it does raise an interesting issue of police use of language, including euphemisms and reverse euphemisms, in the context of operating under the influence and other Massachusetts criminal offenses. Euphemisms are a form of “doublespeak.” “Doublespeak” is language that doesn’t really communicate anything, even though it pretends to. Euphemisms, nice words used to hide an unpleasant reality, are “doublespeak” when used to deceive.

In the context of law enforcement, one common example would be use of the word “pacify.” An officer might report that he “pacified” an unruly drunk driver. What that officer might really mean is that he used force, possibly excessive force, against the suspect. The phrase “gained access” is also an example. Police might say that they “gained access” to a residence or a vehicle. One is left to wonder the manner in which they “gained” such “access.” Did they jimmy a lock? Did the police break down the door to “gain access”? Another example is the word “removed.” “Removing” a defendant from a car might be a nice way of saying “pulled him out of the car and threw him on the ground.” It is no secret that police sometimes use this kind of language to obscure arguably unlawful tactics.

While police tend to use nice words to describe or disguise their own conduct in reports, the opposite is true in their description of OUI defendants. When police report that a defendant “stumbled,” it might really mean that the defendant tripped over a crack in the pavement while it was dark outside. When police say that a defendant was “lethargic,” that might mean that it took the defendant a minute or two to locate his registration. When police report that a defendant “failed to follow directions,” it might mean that the defendant simply asked the officer a legitimate question. Police generally use these and other terms, including “unsteadiness on feet,” “slurred speech,” and “watery or bloodshot eyes” in providing canned descriptions of those accused of driving under the influence in Massachusetts and elsewhere.

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