Articles Posted in 1st Offense OUI DUI

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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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An Irish council passed a motion in January to permit rural drinkers to drive home on certain isolated backroads and at a restricted speed. The County Kerry Council voted 5-3, with seven members abstaining and 12 absent, to issue permits allowing those who have “two or three” drinks at pubs to drive home. This is a proposal, not a law, and the council will have to petition Justice Minister Alan Shatter before issuing the permits.

While many have criticized the motion, one councilor explained that it is designed to curb depression and suicide, particularly among the elderly, resulting from deprivation of the sense of community enjoyed in the local pubs. “A lot of these people are living in isolated rural areas where there’s no public transport of any kind, and they end up at home looking at the four walls, night in and night out, because they don’t want to take the risk of losing their license…The only outlet they have then is to take home a bottle of whiskey, and they’re falling into depression, and suicide for some of them is the sad way out,” the councilor said.

Those who have been quick to judge and those who have resorted to “Irish-as-drunks” stereotyping fail to take this into proper perspective. The legal BAC in Ireland is 0.05, according to, as compared to the 0.08 limit in Massachusetts and every other state. Obviously, the number of drinks it takes to exceed the legal limit is variable, depending on many factors including body weight, the type of drink consumed, timing, diet, and more. Still, many here in Massachusetts and elsewhere in the United States readily get behind the wheel, whether in poor judgment or not, after having “two or three drinks,” thinking that they are not legally drunk by our 0.08 standard. This rural Irish county’s move to make driving after “two or three drinks” permissible is essentially just an attempt to codify what many or most in our country assume, mistakenly or not, to be okay.

This story also raises the issue of public transportation as it relates to operating under the influence. Efforts against drunk driving have focused almost entirely on increasing drunk-driving penalties, and this approach has not been effective. Legislators and organizations that lobby against drunk driving have failed to consider that increased access to public transportation and cab services in suburban and rural communities would likely decrease drunk driving, perhaps significantly. These groups have also failed to consider that less restrictive zoning might decrease Massachusetts OUI. It seems that there would probably be less drunk driving if residents of suburban and rural communities could walk to a neighborhood bar. Maybe it’s time to think outside the box and evolve from the tired and unsuccessful focus on harsher penalties.

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Our Supreme Judicial Court has recognized that the legislature could not have intended to make it a crime to drive after unknowingly being “slipped” drugs or alcohol. Where intoxication is an element of a crime, as it is in operating under the influence (OUI / DUI) cases, the government has the burden of proving voluntary intoxication, even where the degree of the intoxication isn’t enough to create a basis for inferring lack of criminal responsibility. As such, Massachusetts defendants in operating under the influence cases can, but rarely do, raise “involuntary intoxication” as a defense. One example of involuntary intoxication would be a situation in which a defendant was compelled against his or her will to ingest alcohol or drugs. Another example would be a situation in which a defendant took prescription medication as instructed but, nevertheless, ended up suffering intoxicating effects.

As a Massachusetts OUI defense attorney, I find the concept of involuntary intoxication interesting in the context of those who suffer from alcoholism. In other words, should alcoholism be a defense or an affirmative defense to drunk-driving charges because the disease renders alcohol consumption involuntary?

Steven S. Nemerson’s Cardozo Law Review article Alcoholism, Intoxication, and the Criminal Law raises several points worth considering. Nemerson asserts, and few would dispute, that alcoholism is a disease. The disease causes those afflicted to lose control when it comes to alcohol consumption. Because alcoholics suffer from an inability to abstain from drinking, drinking is not a voluntary action for those affected by the disease. Still, Nemerson concludes that protecting the safety of innocent persons, even from the morally blameless, is more important and desirable than protecting the rights of those who involuntarily commit crimes. He does, however, think that alcoholism should be an available affirmative defense.

Here in Massachusetts, the standard for lack of criminal responsibility due to a mental disease or defect is set forth in a case named Commonwealth v. McHoul. Our courts hold that neither alcoholism nor drug addiction count as a “disease of defect” which, alone, could trigger McHoul. However, the SJC has said that the government, in the context of OUI cases, has to prove both intoxication and that the intoxication was voluntary, regardless of whether there is a triggering basis for McHoul. This is because proof of intoxication is an express element in drunk-driving cases. Thus, even if alcoholism is not a “disease” for McHoul purposes, it could, presumably, still be something for a jury to consider in assessing whether the government has met its burden of proving that intoxication was voluntary. Such a defense strategy would, still, be very risky, since many might not consider an alcoholic’s consumption of alcohol “involuntary” within the usual sense of the word.

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Today, in the case of Commonwealth v. Gibson, 11-P-1107, the Massachusetts Appeals Court reversed an OUI conviction. The Court in Gibson reported the following facts:

In February of 2010, the defendant went to a couple of Super Bowl parties to watch the New Orleans play the Colts. In total Gibson drank four beers. Around 10:00 p.m. he started to drive home. He approached a red light. He waited for several seconds, became impatient, looked both ways and drove through the red light. He was pulled over. The investigating officer testified that he exhibited symptoms of alcohol impairment. Field Sobriety Tests were administered. Gibson failed each one of these tests. Consequently he was arrested. He never took the Breathalyzer Test. He was charged with OUI. During the deliberation process the jurors had a question about the absence of Breathalyzer Test evidence. Among other things, the judge told the jury that “a person does not have to take [the breathalyzer test]”. Gibson was convicted of OUI and appealed. In reversing the jury’s verdict, the Massachusetts Appeals Court ruled that those words in response to the jury’s question constitute improper on a defendant’s right against self-incrimination. The error being one of constitutional magnitude required reversal of the OUI conviction.

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Commonwealth v. Gibson, 11-P-1107
Massachusetts OUI Defense Law Firm

Drunk Driving Defense Attorney in Massachusetts

In Massachusetts the law is well settled that a person’s refusal to take a Breathalyzer Test and/or Field Sobriety Tests cannot be used against him at trial. Such evidence is inadmissible in that it violates a person’s right against self-incrimination. However, Massachusetts Courts have reasoned that since the general public is well aware of the existence of Breathalyzer Tests in OUI Cases there should be a limiting instruction addressing the issue, provided the defendant requests the instruction. That instruction prohibits reference to a defendant’s legal right to refuse the Breathalyzer Test. Here, the instruction given by the judge violated that prohibition.

Now usually a case will not be reversed where the defense attorney did not object to the error. The Massachusetts Appellate Courts often deem the attorney’s silence as strategic. Deference is given to a lawyers’ trial tactics unless his performance is deemed ineffective. The Court in Gibson did not find the lawyer’s actions to meet that standard. Rather, the Court found that the failure to object coupled with the improper instruction created a substantial risk of a miscarriage of justice warranting a reversal of the conviction. In more simplistic terms, the Court believed there is “a serious doubt whether the result of the trial might have been different had the error not been made”. Gibson’s Massachusetts Criminal Appeals Lawyer recognized this and by doing so was able to get his conviction reversed and to secure him a new trial.

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“Controversial New Group: Drunk Drivers Against Mothers,” an article by Tom McCaffrey published in the Huffington Post comedy section, is about a fictional group of 6th-year college fraternity brothers establishing DDAM while playing beer pong and watching Cinemax pornography. The group, enraged by their mothers’ concerns with their drunk-driving habits, holds nightly meetings to drink and complain about their mothers and mothers in general.

“Moms are total buzz kills these days. All they do is bitch and whine about dudes who like to party. It’s always, ‘Don’t drive drunk or you shouldn’t fight the police or you got my daughter pregnant!’ It’s like chill out,” one of McCaffrey’s fictional DDAM leaders said. “My mom is always like ‘I can’t believe you got drunk and then drove our new car into a lake again!’ I’m like f*** you! I like to party! You’re just mad because you can’t party as hard as me!,”
While the DDAM story is satire, it’s interesting that real life anti-drunk driving campaign advertisements, designed to be serious, regularly feature these same stereotypes of a stupid, immature male drunk driver and a “buzz kill,” motherly female. Some examples these public service announcements can be viewed here:

One might wonder about the extent to which these stereotypes shape the views of the public, and therefore the views of jurors, judges and prosecutors in OUI cases. For instance, which way could the fact that males are generally portrayed as infantile in PSAs cut? On one hand, it might make male, particularly young male, defendants more sympathetic to some based on the idea that they “just don’t know any better.” The reverse could be true where an accused is female, the sex commonly depicted in PSAs as being more responsible and “knowing better” than to drive drunk or to let others do so. On the other hand, the portrayal of males in PSAs as reckless might cause some to think them more culpable.

It could be that these campaigns are using the female mother figure as the voice of reason discouraging OUI because people tend to respect their mothers and listen to their advice. According to the Oct. 10 CNN article “What sways teens not to drink, drive?,” parents are (not surprisingly) among the most powerful influences affecting teenage drunk-driving and drinking .

While not reflected in most anti-drunk driving PSAs, persons from all walks of life, from soccer moms to frat guys and everyone outside and in between, find themselves charged with OUI/DUI/DWI. While very few drunk-driving PSAs feature a female drunk-driver, the number of female OUI arrests has increased dramatically since the 1980s. In the past decade, female drunk-driving arrests have increased by almost 30 percent. Male drunk-driving arrests have decreased in recent years.

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Orange County, California police made 843 drunk-driving arrests between August 17 and September 3, according to the Orange County Register. Police used checkpoints and heavy patrols over the period and expect that this year’s DUI arrest numbers will be higher than last year’s numbers. The police plan to use similar measures around both Halloween and Thanksgiving. Funding is provided by the California Office of Traffic Safety.

Here in Massachusetts, drunk-driving / OUI / DUI / DWI checkpoints or roadblocks constitute warrantless seizures. Thus, they must be reasonable, and the prosecution has the burden of proving that the roadblock in question was reasonable. In order to meet that burden, the prosecution must at least prove that police followed certain guidelines. The purpose of requiring that police stay in line with guidelines is to ensure that there are “neutral limitations” on the officers. The idea is that “neutral limitations” serve to limit officer discretion as it relates to individuals’ expectation of privacy and to minimize individuals’ fear and inconvenience. The prosecution is not required to prove that the checkpoint or roadblock was the least intrusive measure available.

One problem with these “neutral limitations” is that they do not do much in the way of curbing police discretion. The Supreme Judicial Court has held that the screening officer, the officer who first comes into contact with the drivers, is not required to send the drivers along to the second point. This is so even if the officer has reasonable suspicion that the driver may be drunk. The SJC reasoned that even though this might open the possibility of abuse of police discretion (i.e. singling out certain motorists based on race, sex, ethnicity, economic status, etc.), the risk is no different in roadblock cases than in normal street encounters.

The constitutionality of the roadblock seizures is measured by compliance with these “neutral” guidelines, and there does not need to be any individualized suspicion. According to Massachusetts courts, compliance with the guidelines must be “strict.” It is not enough that police “substantially” complied.

Massachusetts OUI checkpoints must be in “problem areas.” The area must be one in which police have previously made drunk-driving arrests. Courts consider the age of the previous OUI arrests in determining whether the site- selection requirement has been met. In one case, the Appeals Court decided that reliance on a 2-year-old report indicating that OUI arrests and accidents had occurred at the roadblock site was too old.

There were three Massachusetts roadblocks in August, according to The three took place in West Springfield, Hingham and Stoughton. There has been one roadblock in September so far, which took place on Thorndike Street in Lowell, according to that website. Statistics indicate that drunk-driving / DUI / OUI / DWI roadblocks and checkpoints are not uncommon in Massachusetts.

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drunk-boating.jpgA man was arrested in Alaska for operating under the influence Aug. 3, 2012 as he floated down a river on an inflatable raft. In Alaska, as in Massachusetts, the legal limit is 0.08. A wildlife trooper arrested William Modene, 32, after authorities received reports of a “heavily intoxicated” man floating along the Chena River. Modene’s alleged BAC was 0.313. “Modene had been floating on the river for the day and consuming alcoholic beverages the entire time,” according to the troopers’ website.

Alaska’s drunk-driving laws apply not only to vehicles but also to “water craft,” which is defined as “a vessel used or capable of being used as a means of transportation on water for recreational or commercial purposes…” In interpreting a law, such as the Alaska OUI law at issue here, courts do not consider the wording of the statute alone, but also try to determine the intent of the legislature in enacting the law. Courts generally consider the words used in connection with the causes of the law’s enactment and the goal to be accomplished.

Here, it would seem that by including the “water craft” language, the Alaska legislature likely intended to cover boats, jet skis, and other such motorized watercraft. Operating boats and jet skis while drunk has become a rising concern, and boating accidents have been the cause of thousands of injuries and deaths in recent years, according to Global Legal Resources. Typically, the primary goal of OUI laws like this Alaska law is to protect the lives and safety of the public. While it appears that a float would be included under the wording of this law, the legislature likely did not intend to criminalize drinking while on a float or inner tube, as such activities generally do not endanger the lives or safety of the public.

The reader “Comments” section on the Fairbanks Daily News website indicates that a majority of readers thinks that arresting this man for OUI was unreasonable. One reader wrote, “How can a guy in a non-motorized plastic blow up boat do any harm to anyone but himself?” Another reader wrote, “I don’t need someone to run my life and tell me what is safe or not safe as long as I’m not endangering others…Can I drink beer and go swimming in the ocean?” Yet another reader wrote, “I disagree with all of this. If he causes no harm to others, leave him be. If he dies, see you soon.” One reader who supported the arrest wrote of Modene’s “self endangerment” and the duty of the police protect “people who…are incapacitated to the point of self endangerment. ” This sampling of reader comments illustrates the topic of our last blog post, which involved the idea of potential harm to others v. potential harm to oneself.

To read the article upon which this post was based and the accompanying reader comments, see:

Massachusetts Drunk Driving Defense Law Firm

Operating under the influence laws throughout the country, including Massachusetts OUI / DUI / drunk-driving laws, are increasingly being applied to cover a broader range of conduct. This arrest for operating an inflatable float while drunk is just one example.

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