Just the other day I got a call from someone looking for an OUI lawyer. The man was extremely upset. He told me that the night before he was arrested for a second offense drunk driving. I asked him what happened and he proceeded to recite a sequence of events that was shocking yet not entirely out of the ordinary. It involved a police officer who has a blatant disregard for justice and for the truth. This post discusses his story, why this happened and ways that this case can be defended. Continue reading →
Articles Posted in 2nd Offense OUI DUI
Massachusetts OUI Laws Are Often Unfair When Measured On A National Scale
In modern society, where travel is easy, the interstate differences in drunk-driving laws may create sticky situations. Melanie’s Law, our Massachusetts OUI statute, provides for enhanced penalties as well as other “remedial” measures, such as mandatory installation of ignition interlock devices, for repeat offenders. In our increasingly interstate system, application of certain repeat offender provisions of Melanie’s Law becomes problematic because different states take different approaches to offender status. For example, some states have a policy of expunging or sealing first offense drunk- driving convictions after the accused successfully completes any probationary term and alcohol awareness program. If an individual with an expunged or sealed OUI conviction is later charged with drunk driving again, the charge in some states would be for an OUI first offense. Massachusetts, on the other hand, would treat that person as a second-time offender.
A major problem created by this interstate inconsistency relates to finality of pleas. All states are interested in the finality of pleas and other dispositions. When Massachusetts converts out-of-state first offenses into Massachusetts second or subsequent offenses, the out-of-state pleas may be challenged for lack of voluntariness or intelligence. Before any accused can enter a guilty plea, he or she must have notice of the nature of the charge. When an OUI is charged as a first offense in another state and the accused pleads, the plea may not be made intelligently when he or she has no notice that it will be a Massachusetts second offense. Massachusetts should apply its laws in a way that is mindful of other states’ interests in finality of pleas instead of creating potential grounds for vacating foreign pleas.
The question becomes, “Why should Massachusetts defer to another state in terms of an OUI offender’s status and the nature of an OUI charge?” One answer involves comity, respect for the sovereignty of other states. Another involves certainty, predictability, and uniformity. It is more than important for people to have some degree of certainty as to their offender status. Treating out-of-state first-time offenders as Massachusetts second-time offenders undermines that certainty. One’s offender status becomes fluid, changing as state lines are crossed. While Massachusetts has valid public policy interests, the intended deterrent effect of enhanced penalties (and so-called “remedial” measures) for repeat offenders is substantially undercut when a person does not even know that he is or could be charged as a repeat offender.
It is true that under traditional approaches to conflict of laws, it is essentially the rule that State A will not enforce the penal laws of State B. This is a fairly- accepted proposition because the wrong is to the particular state. However, not all provisions of Melanie’s Law affecting repeat offenders are considered “penal.” As noted above, the requirement that second and subsequent offenders install an interlock ignition device on cars they own or operate has been deemed “remedial” as opposed to punitive. Also, under more modern approaches in conflict of laws, courts engage in “interest analysis” or “comparative impairment” analysis instead of having clear-cut choice of law rules. “Interest analysis” involves considering which state is more interested in seeing its rule applied. “Comparative impairment” is essentially the flip side to that coin, where courts consider which state would be more aggrieved if its rule were not applied. In light of the conflicting interests noted above, and from the perspective of a Massachusetts OUI/DUI/DWI lawyer, it would be interesting to see how a Massachusetts court would conduct an analysis on this issue.
Special Report on Women and Drunk Driving Says Arrests Have Increased
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.
Emotions Could Affect Test Results in Peabody Second OUI Case
As a Massachusetts OUI criminal defense attorney, my attention was caught by a story about a Peabody woman charged with second offense-drunk driving and two counts of child endangerment. According to The Salem News, bystanders saw the woman order her 11-year-old son out of her car and drive away, leaving him behind. She later returned to find police waiting for her, along with her son. According to a police report, bystanders saw Cheri Cordero, 40, tell her 11-year-old son to get out of her 2008 Cadillac Escalade near an intersection in Salem, and then drive away. He told the bystanders that his mother had been drinking, and that his 9-year-old brother was still in the car.
The bystanders called the police, and when they arrived, the boy told them that his mother had been drinking at a party on a friend’s boat. As they left the party, her boyfriend called and they got into an argument over the phone. Agitated, she began yelling at her sons, the boy said, and that was when she told the older boy to get out of the car and drove away. Some time later, just before 9 p.m., Cordero returned to where she had dropped him off. Police officers arrived at about the same time and noted that Cordero’s eyes were bloodshot and glassy and that she was slurring her words and smelled of alcohol. She said she had not been drinking, and that her kids were upset because they didn’t want to leave the party. She failed two unspecified field sobriety tests. She refused a breathalyzer test at the police station, so police seized her driver’s license and contacted the Department of Children and Families.
Read article: Peabody woman faces charges for drunk driving, child endangerment
Leaving an 11-year-old child to fend for himself on a street corner is clearly not the best choice for a parent to make, even when that parent intends to come right back. But Cordero’s behavior as a parent should not predetermine the outcome of her drunk driving charge. I hope that she will protect her own and her children’s future by contacting an experienced Massachusetts intoxicated driving defense attorney to ensure that she is treated fairly as her case goes through the legal system.
It’s important to note that since there is no breath test, the evidence against Cordero is all based on subjective observations made by police officers, such as field sobriety tests. Last week, I discussed the problems with field sobriety tests, and how easy it is to wrongly label someone as intoxicated based only on those tests. Cordero was most likely very upset at the time that she performed the field sobriety tests, so her performance on them could have been impaired by her emotional state even if she had not been drinking. It could also be that the police officers’ judgments about her mothering affected how they saw the field sobriety tests, too. Cordero never took a Breathalyzer, so there is no objective evidence of her blood-alcohol content — only observations of notoriously unreliable field sobriety tests and personal observations of her appearance and behavior.
Refusing a breathalyzer test comes with its own penalty: loss of driver’s license for 180 days for a first OUI, or three years for a second-offense OUI. Those who lose their license for refusal of the test can appeal the suspension with the RMV within 15 days. If their drunk driving case is resolved in their favor, they are entitled to a court hearing to get their license back as well. But this hearing is not automatic, which is why Cordero or anyone else facing OUI charges involving field sobriety tests should contact a Massachusetts drunk driving criminal defense lawyer who can challenge unreliable field sobriety tests.
Marblehead Grandmother Faces Stiff Sentence After Second OUI Conviction
In April, I wrote about the case of a Marblehead grandmother arrested for drunk driving while taking her nine-year-old grandson to school. An update on the outcome of her case caught my attention because it reminded me, as a Massachusetts drunk driving defense attorney, of how people convicted of OUI can face vastly different penalties for the same crime.
Sharon Faulkner, 63, of Marblehead, was found guilty at a bench trial in Lynn District court of second-offense OUI and leaving the scene of an accident. She pleaded guilty to child endangerment while operating under the influence and negligent operation of a motor vehicle. For these charges, Faulkner will spend a full year in a state house of correction. She will serve half of that time toward the OUI charge’s sentence of two and a half years. The remaining two years are suspended with supervised probation, and during that time, she will not be permitted to drive. The other half of the sentence represents her sentence for child endangerment while operating under the influence. Faulkner is also required to undergo a 14-day inpatient drug and alcohol treatment program, along with random tests to ensure that she remains drug- and alcohol-free, as ordered by the judge. Her home will be equipped with a Sobrietor, a machine that allows probation officers to test by phone whether she is sober.
Read article: Marblehead grandmother faces a year behind bars
Compare Faulkner’s sentence to that of Jane Doe, about whom I wrote last year. Featherstone, like Faulkner, pleaded guilty in Gloucester District Court to second-offense DUI, reckless operation of a motor vehicle and child endangerment. But Featherstone emerged with a much lighter sentence: a two-year loss of license, a 90-day suspended sentence, two years of probation, court costs and completion of the alcohol education program. Featherstone was able to avoid jail time, even though state law requires at least thirty days to be served in jail for a second-offense OUI. Most likely, this was because if the first offense OUI conviction is at least ten years old, the judge can opt for the “24D” alternative disposition, or in Featherstone’s case, a combination of 24D penalties and regular penalties.
Faulkner’s earlier OUI offense was more than ten years old too. She may have been sentenced more harshly because her probation had already been revoked for failure to stay sober, but it’s striking that where one person can receive no jail time at all, another can be sentenced to serve a full year for similar charges. This case shows that Massachusetts OUI defense lawyer’s results can differ dramatically from case to case. Many things factor into the ultimate result that are not disclosed in newspaper articles. When looking to hire a Massachusetts drunk driving defense lawyer, make sure that if you are comparing results you do so with full knowledge of the facts and circumstances of each case. The published result does not necessarily show the quality of lawyering that a defendant received.
Massachusetts law sets out serious penalties for those convicted of a second DUI. In addition to those mentioned above, there are fines and fees ranging from more than $600 to more than $10,000; loss of driver’s license for two years, including at least one year without eligibility for a hardship license; and negative consequences for work, family and auto insurance rates. With so much to lose, drivers facing a second drunk driving charge should not delay in contacting a Massachusetts intoxicated driving defense attorney to help them.
Hull Man Receives Two-Year Jail Sentence for First OUI Offense
According to the Quincy Patriot-Ledger, a Hull man has been sentenced to two years in Plymouth County jail and another four years of probation for a first OUI charge. Derrick D. Jones, 39, admitted that he was drunk when he drove his Chrysler 300 sedan at about 70 miles per hour the wrong way down Summer Street in Hingham on Feb. 19, 2009. Jones crashed head-on into the Toyota Sienna minivan of Courtney Palek, 30, of Hingham, and her three small children. The minivan ran off the road and Jones’s car rolled over onto its roof on the sidewalk. Luckily, everyone involved survived the crash with minimal injury, which police said was because they were all using seat belts or age-appropriate child car seats.
Read articles: Hull man gets 2 years for drunken driving crash in Hingham and Cops: Seat belts saved family in crash with alleged drunken driver
I took note of this article, as a Massachusetts drunk driving defense attorney, because a sentence of two years in jail and four years of probation seems quite harsh for a first-offense OUI, for which the maximum is 2.5 years. In fact, the article says that Jones was originally charged with second-offense OUI, but he agreed to a plea bargain in which he pleaded guilty to first offense drunken driving, driving negligently, speeding and failing to stay in marked lanes. Jones has a history of legal trouble in addition to the first OUI. He has served time in state prison for breaking and entering in the night and larceny, and he is currently awaiting disposition of similar charges in two recent incidents in Hull. In addition, he had been cited earlier on the day of the crash for failing to wear a seat belt while he was a passenger in someone else’s car.
The news reports do not say whether Jones was represented by a Massachusetts OUI defense attorney, but the stiff sentence Jones received in this case demonstrates how important it is to have expert legal representation if you’re in a situation like this. Of course, an experienced attorney can help clients like Jones defend themselves vigorously against the most recent charges, or if a plea bargain is offered, advise them on whether the bargain is fair and worthwhile. In addition, I suspect that Jones’s previous record played a part in the judge’s decision to hand down the unusually harsh sentence. If Jones had been able to defend himself successfully from his first OUI or the larceny and break-in charges, he may have been able to avoid having them on his record. That might have weighed in his favor during the sentencing for this incident.
Lowell Man Pleads Not Guilty to OUI After Accident With Family in Crosswalk
A Lowell, Massachusetts man was in court Nov. 23 to answer charges of drunk driving after he hit a mother and two toddlers in a crosswalk. The Boston Globe reported Nov. 24 that Chamroeun Theam, 60, pleaded not guilty to second-offense operating under the influence and OUI with serious bodily injury, among other charges. Theam is accused of hitting Nina Wilkin, 25; her daughter Katelyn Dickie, 2; and her son Jonathan Dickie Jr., 4. The family was near the end of a crosswalk on Fletcher Street in Lowell when the light changed and Theam accelerated through the intersection. The crash threw Jonathan out of their double stroller, leaving him with head injuries. His mother and sister sustained only minor injuries.
According to the police report, Theam’s blood-alcohol concentration tested at 0.26 — more than three times the legal limit of 0.08. Officers said he failed field sobriety tests and seemed to be talking to himself. The RMV revoked his license immediately. In court, Theam’s daughters and daughter-in-law said they would prefer him to stay off the road and get help for his depression, which they trace to his terrifying experiences living under the Khmer Rouge in his native Cambodia. Police said Theam’s driving record includes a DUI in Wisconsin from 1994 as well as two crashes and five other traffic citations.
Read article: Family on mend after close call
As an experienced Massachusetts drunk driving defense attorney, I doubt Theam makes a good candidate for a “second chance” 24D/alternative disposition sentence. The 24D program is generally not available to second offenders, but Massachusetts law allows an exception for cases where the first offense is more than 10 years old. Rather than facing the sentence for a second OUI, which includes mandatory jail time and steep fines, these offenders can be sentenced to two years of probation, alcohol classes and much lower fines. (However, the RMV will still suspend their licenses for two years, and install an ignition interlock device if any hardship license is granted.)
If his daughter-in-law was telling the truth, Theam survived a horrifying episode in his native country’s history, in which a totalitarian regime killed fifth of its population in four years through torture, execution, famine and disease. It is not surprising that Theam might be suffering from depression, as his family suggested. If that’s the case, this accident might provide the motivation he needs to get help. But in the hands of a good Massachusetts OUI defense attorney, he may be able to get that help without having his new life in the United States damaged by the harsh penalties for a second drunk driving conviction.
Police Report Reveals Galluccio Was Intoxicated Morning Before Hit-and-Run
A newly released police report shows that state Senator Anthony Galluccio (D-Cambridge) may have been too drunk to drive in the early morning hours of the day he hit a family’s minivan and left the scene. The Boston Herald reported Nov. 17 that a gas station employee called the Cambridge police at around 4:40 a.m. on Oct. 4 to report a customer who was allegedly too drunk to drive. When police arrived, they found Galluccio with a friend who said he was trying to take Galluccio home, but couldn’t find his residence. Officers drove Galluccio home and helped him inside, but because there was no evidence that Galluccio was trying to drive, they did not charge him with any crime or file a police report.
In the evening of the same day, however, Galluccio hit a family’s vehicle and drove away without stopping. He came forward to take responsibility the next day, saying he panicked at the scene. He is not accused of drunk driving in that incident, but his two past OUIs and an accident in 2005 have led to speculation that he could have been intoxicated. As part of the investigation into the hit-and-run, the Cambridge police filed a report Oct. 29 on the escort they provided early on Oct. 4. Galluccio will be back in court Nov. 20 on the hit-and-run charge. The Cambridge police say the officers involved in the escort did nothing wrong, and that no police report is necessary in incidents resulting in no criminal charge. However, Massachusetts state Senate President Therese Murray has reportedly told Galluccio to get a driver.
Read articles: Cops: By the way, we gave Galluccio a lift; Galluccio, ‘too intoxicated to drive,’ driven home by Cambridge police day of hit-and-run
This new information has caused a small firestorm in Cambridge, creating speculation about Galluccio’s relationship with alcohol and second-guessing of the police department’s actions and policies. But as a Massachusetts drunk driving defense attorney, I’d like to point out that none of this new information implicates Galluccio for operating under the influence of alcohol. He may well have been drunk on the morning of Oct. 4, but as the Cambridge police pointed out, he was not observed trying to drive. The hit-and-run accident, in which he was clearly driving, happened about 13 hours later — more than enough time to sober up. As scientists say, correlation is not causation. If an investigation turns up new information showing that Galluccio was intoxicated at the time of the hit-and-run, OUI charges might be appropriate. But at the moment, any experienced Massachusetts OUI defense lawyer could defeat an OUI charge stemming from the events of Oct. 4.
Senator’s Accident Exposes Inconsistency in Massachusetts Traffic and OUI Laws
Massachusetts state senator Anthony Galluccio, D-Cambridge, made headlines last week after he admitted to leaving the scene of a minor accident he apparently caused. According to the Boston Globe, Galluccio hit another vehicle Oct. 4, causing minor injuries to someone in that vehicle, and left the scene. Police searched unsuccessfully for him that night, but Galluccio turned himself in the next day. He told the police and media that he left the scene of the accident because he panicked, believing that his history of DUI convictions would hurt him in this case, and not realizing that anyone was hurt. Galluccio’s past, which includes drunk driving convictions in 1984 (later pardoned) and 1997, has led to speculation that he may have been driving under the influence of alcohol in the most recent case; Galluccio himself has declined to comment on the matter.
In an Oct. 13 editorial, the Globe focused on a larger question: Why has Massachusetts made it better for drunk drivers to leave the scene than to stay and take a breathalyzer? The newspaper pointed out that drunk drivers who cause accidents can avoid taking a breath or blood test, which provides strong evidence of drunk driving, by illegally leaving the scene. If caught, the editorial said, these drivers face fines of $20 to $200, a jail sentence of no time to two years, and a driver’s license suspension of just 60 days. By contrast, a first DUI carries fines and fees ranging from the hundreds to more than $5,000, a one-year license suspension and up to 2 1/2 years in prison. For a repeat offender like Galluccio, those penalties would be harsher and include mandatory jail time. This creates a perverse incentive for drunk drivers, the newspaper said. It called for the Legislature to strengthen hit-and-run penalties.
Read article: Driving: It shouldn’t pay to hit and run
As a Massachusetts drunk driving defense attorney, I would like to start by noting that Galluccio, like all criminal defendants, has the right to be presumed innocent until proven guilty. People are understandably upset when high-profile people like politicians and athletes appear to be above the law, but Galluccio is entitled to due process to establish facts rather than speculation. There are many reasons other than being intoxicated why people might leave the scene of an accident.
But regardless of whether Galluccio was driving drunk, this editorial exposes the unfairness of establishing harsher penalties for OUI than for leaving the scene of an accident. Accidents, almost by definition, involve property damage, injuries or death. When the driver responsible for the accident hits and runs, it throws the victims into uncertainty and could stick them with the bill for damage and injuries they did not cause, if the driver is never caught. By contrast, many drunk driving arrests involve no crash at all, no damage and no injuries. In many of the cases I have defended as a Massachusetts DUI defense lawyer, the defendant was charged after a simple traffic stop, sometimes on a pretext that I could successfully challenge. This situation seems contrary to good public policy and suggests that political popularity, rather than common sense, may be behind the harsher penalties for drunk drivers.
Boston Immigration Official Charged With Second DUI After High-Speed Chase in Weymouth
A man faces a charge of second-offense drunk driving after leading Weymouth, Massachusetts police on a chase that reached speeds of 110 miles per hour, the Boston Globe reported Sept. 28. Oscar Hernandez was reportedly spotted speeding by Weymouth police around 2:30 in the morning of Sept. 27. Officers followed his speeding black Mercedes down Route 18 until Hernandez suddenly stopped near Park Avenue and refused to get out of his car. Officers said they couldn’t perform field sobriety tests — “It was more of a wrestling match,” said a police captain — but charged him with a second drunk driving offense based on their observations that he smelled of alcohol and had glassy eyes. Hernandez works at the Boston office for U.S. Citizen and Immigration Services, a branch of the Department of Homeland Security that handles non-criminal immigration matters, but is not a law enforcement officer.
Read article: Federal immigration official charged with second OUI
As a Massachusetts drunk driving defense attorney, I can’t help but notice that this article doesn’t mention police testing Hernandez’s blood or breath. If officers did not do any such chemical test, their DUI case may rest solely on the observations of the officers at the scene. Law enforcement observations are important — but law enforcement officers, like all human beings, can make mistakes. And a smell of alcohol and glassy eyes are not in themselves proof that a driver was intoxicated. In order to obtain a conviction for OUI liquor, prosecutors must show that the driver had a blood-alcohol concentration of 0.08 or higher, or was under the influence of intoxicating liquor. In a case like this, an experienced Massachusetts OUI defense lawyer may be able to show that the accused was not under the influence of liquor, even if he or she had been drinking — allowing the driver to avoid a conviction.
A second DUI is a serious charge in Massachusetts. If convicted, Hernandez would face a mandatory minimum of 30 days in jail, up to 2 1/2 years; fines and fees ranging from more than $600 to more than $10,000; loss of his driver’s license for two years, including at least one year without eligibility for a hardship license; and negative consequences for his work, his family and his auto insurance rates. With this much to lose, it’s very important for drivers facing a second drunk driving charge to contact a Massachusetts DUI defense attorney before making any decision on their pleas, to discuss all possible avenues of defense.