Massachusetts DUI Law : Mass Lawyer & Attorney for Drunk Driving Arrests in Boston, Worcester, Framingham

I just received this e-mail:

I just have a quick ? My daughter was 19 years old at the time of the offense "OUI" failure to take the Breathalyzer test. 1st offense of any kind I may add,never even a parking ticket So After 11 months of back and fourth in court she took a plee and and the results were found with out a finding, Suspension of lic. for 210 days and of course probation for a year and was to in-roll in some alcohol classes .Then the registry of motor Vehc. sent her a letter stating that she has lost her lic. for 3 years,6 months and an additional 210 days. Over ruling the Judges decision. Can they do this is my question.

Please answer this for me Because it seems my attorney does not have the answer and its eating me up inside.

The answer is simple, the gentleman's daughter refused to submit to a chemical breath test and the Registry suspended her license for three (3) years as a result thereof, pursuant to G.L. c. 90 § 24(1)(f)(1). The chemical test refusal suspension is 180 days in length for adult first offenders, 3 years for second offenders and those under 21 years of age, 5 years for DUI 3rd offenders, and lifetime for OUI 4th offenders. Any half-decent Massachusetts DUI lawyer would know this off the top of his or her head. If you're facing a drunk driving charge in Massachusetts, beware of "quacks" who masquerade as competent DUI attorneys. In dealing with the Registry of Motor Vehicles in DUI license suspension appeal and hardship license cases, I have personally seen countless examples of glaring errors and horrific blunders made by self-proclaimed DUI specialists. This means you must do your homework and research prospective DUI lawyers prior to signing any attorney-client agreements.

Here's a post about another incompetent DUI lawyer, who cost his unsuspecting client a 2 year license suspension.
 

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The lifetime lookback law has been unsuccessfully challenged numerous times. Massachusetts appellate courts have repeatedly determined that the law is not “ex post facto” and it does not violate the “double jeopardy” clause of the Constitution. Challenging the law on these grounds is a complete waste of time. It is unfair that a plea to a first offense OUI from some twenty or thirty years ago will now come back to haunt a DUI defendant and old drunk driving cases can now result in severe penalties in the form of very long, and even lifetime, license suspensions. However, the law cannot be successfully challenged. There is considerable confusion, even on the part of Massachusetts DUI Lawyers, regarding the lifetime look-back procedures which the suspension unit of the Massachusetts Registry of Motor  Vehicles now uses to determine the length of DUI license suspensions, which are calculated independently of whether the a subsequent offense DUI charge was reduced by the court.

Motor vehicle violations for which there is a lifetime look-back include: DUI Alcohol, DUI Drugs, both of which are also referred to as operating under the influence, OUI, or driving while intoxicated, OUI Boating, DWI Alcohol / drugs, DWI causing serious bodily injury, CDL DUI Liquor, CDL DUI Drugs, Vehicular Homicide, by reason of alcohol intoxication. These violations count whether they were committed here in Massachusetts or in any other states.

Since November 28, 2002, the Massachusetts DUI Law has required that DUI and related offenses remain on Massachusetts Driving Records for permanently, for life. Prior to this law, there was a 10 year DUI look back period, and prior to that there was a 6 year drunk driving look back period. Now, however, all drunk driving and related convictions, regardless of age, are to be considered for purposes of calculating multiple DUI offenses.

What this means is that prior to November 28, 2002, if a Massachusetts license holder was convicted of an offense of Vehicular Homicide, the Mass. RMV would only "look back" at the drunk driving and/or vehicular homicide findings within a 10 year period. The suspension period would be determined by the individual’s driving record within that 10 year "lookback" period. The Registry uses these old DUI convictions for determining the length of new drunk driving license suspensiosn and for deciding whether a driver is required to have the ignition interlock device. 

Like Melanie's Law, the lifetime lookback law has been unsuccessfully challenged numerous times. Massachusetts appellate courts have repeatedly determined that the lifetime look-back DUI law is not “ex post facto” and it does not violate the “double jeopardy” clause of the Constitution. Challenging the law on these grounds is a complete waste of time. It is extremely unfair that a plea to a first offense OUI from some twenty or thirty years ago will now come back to haunt a DUI defendant and old drunk driving cases can now result in severe penalties in the form of very long, and even lifetime, license suspensions. However, the law cannot be successfully challenged.

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In the recent Massachusetts DUI case of Commonwealth v. Fisher, Lawyers Weekly No. 81-411-10, Appeals Court No. 09-P-154, the prosecution was unable to prove beyond a reasonable doubt that the DUI defendant had committed two prior operating under the influence offenses. Those arrested for second or subsequent DUI in Massachusetts are entitled to require the prosecution to prove not only that the defendant operated a motor vehicle while under the influence, but that the defendant had been previously convicted of DUI. The prosecution must prove each and every prior drunk driving offense.

Fisher was convicted in District Court of operating a motor vehicle while under the influence of liquor (OUI), 3rd offense, and leaving the scene of an accident after causing property damage. The Massachusetts Appeals Court ruled that Fisher’s DUI conviction, as to the third offense element. Melanie’s Law made it easier to prove prior offenses, but the Commonwealth must still introduce sufficient evidence, usually in the form of court and Registry records, to properly identify the drunk driving defendant and show that he or she was convicted of the prior offenses. The prosecution must prove, beyond a reasonable doubt, that the defendant in the courtroom is the same person named in records showing prior drunk driving convictions. Mere identity of name is not sufficient to indicate an identity of person. Identity must be proven by other demographical and biographical information.

Because the government is required to prove prior offenses beyond a reasonable doubt, it may make sense to take a DUI case to trial on that limited issue. If the Commonwealth is unable to prove its case, by showing prior convictions, the court will not be able to subject the defendant to the enhanced penalties associated with the subsequent drunk driving offense.

However, the Registry Motor Vehicles is not constrained by the requirement to prove prior offenses and, for ignition interlock and license suspension purposes, it can count prior offenses based on the official records of the Registrar.

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There appears to be some confusing regarding the program utilized for DUI second offenders in Massachusetts. This program differs from the 16 week out-patient 24D Program which is designed for DUI First Offenders. This post will briefly explain the alcohol treatment program which 2nd offenders must complete. Individuals who are convicted of or plead out to a 2nd offense DUI in Massachusetts are assigned by the courts to a two-week alcohol education program. Operated by the Middlesex Human Service Agency, the DUlL or Driving Under the Influence of Liquor Program is a 14-day residential program for individuals who are referred by their probation officer for intensive alcohol and/or drug education and treatment. Individuals attending the program receive a comprehensive substance abuse evaluation, individual and group counseling, alcohol and drug education, and self-help meetings. The DUIL program is operated out of the Saunders Building at Tewksbury State Hospital, which is located at 50 Apple Hill Dr, Tewksbury, MA 01876. The phone number is (978) 863-0048. Michael Kennedy is the DUIL Proggram Director and you may reach him via e-mail: DUIL@MHSAInc.org.  

Upon completion of the DUIL program, a certified alcohol counselor will issue a certificate of completion and generate a Discharge Summary &. Aftercare Plan. This document will include a risk of recidivism. Everyone initially receives a “high” recidivism classification. However, the Discharge Summary &. Aftercare Plan will contain treatment recommendations, such as the completion of a 26 week out-patient program. At the conclusion of the recommended aftercare, another Discharge Summary is completed. This document is often considered for the purposes of deciding whether or not to grant a hardship or work license. A low risk of recidivism will increase the chances of obtaining a DUI hardship license. For more information, visit the Massachusetts DUIL Program website.

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Writing for the Berkshire Eagle, Reporter Conor Berry has reporetd that in September, Judge Richard Sullivan of the Worcester District Court will hear testimony in a case being followed by DUI attorneys across Massachusetts. The case involves a Massachusetts DUI Lawyer’s request for the “source code” of the Draeger Alcotest 7110 MK III- C, the breathalyzer which all Massachusetts Police Departments use.

The source code is essentially the computer program used to operate the Draeger Alcotest breathalyzer. The computerized set of instructions which comprise the breathalyzer’s source code govern all aspects of breath alcohol testing and breathalyzer operation. If the source code is flawed, breathalyzer results may be excluded at drunk driving trials across Massachusetts. In the State of Florida, source code defects were found which resulted in the breathalyzer reporting results when it was not supposed to, because the breath sample was inadequate. Also, breath samples which should have been accepted were improperly rejected.

Draeger, the breathalyzer manufacturer, has been resistant to attempts to obtain the source code, claiming that it is proprietary and a “trade secret.” I’ve personally spoken to Draeger employees about the issue and they claim that even if the source code is ultimately released, it will be in a format which even the best Massachusetts DUI lawyers will not understand. According to the Berkshire Eagle, Draeger is now willing to release the source code to the Commonwealth of Massachusetts. A court order would force the state’s DUI prosecutors to turn the information over to Mass. DUI defense attorneys.

Obtaining and analyzing the breathalyzer source code could be a boon for Massachusetts DUI lawyers. Breathalyzer results often form the central piece of evidence in a DUI prosecution and these devices are not infallible. False positives can result from diabetes, exposure to paint thinners, and even being on the Atkins Diet. DUI defense lawyers are, therefore, rightfully seeking an opportunity to learn exactly how the electronic devices work by having an expert analyze the computer program which controls the machines. Source code discovery requests have been successful in Florida, Georgia and New Jersey. Hopefully, Massachusetts will soon be added to the list.

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Massachusetts DUI Lawyer Paul B. Watkins, a former police officer and Drug Recognition Expert (DRE) appeared as guest speaker before the Essex County Bar Association Advocates tonight. He addressed a group of Essex County DUI Lawyers regarding effective cross-examination of quasi-expert police officer witnesses who are certified as drug recognition experts.

Massachusetts DUI prosecutors have attempted to utilize police officers as expert witnesses for their opinions as to whether or not a DUI defendant was under the influence of drugs. Mainly due to the growing number of DUI arrests nationwide, there is no greater use of police officers as expert witnesses in criminal trials than in this relatively new area of drug recognition. A new class of Massachusetts Drug Recognition Experts just graduated and more classes have been scheduled. These police officers will be on the streets, eager to apply their training by making arrests for OUI Drugs.

In cases where a driver suspected of drunk driving may exhibit signs and symptoms of intoxication, but a preliminary breath test (PBT) shows little or no alcohol, the arresting officer may call for a police officer specially trained in the area of drug recognition in order to further the investigation. This officer is later called as a witness and allowed to give his or her “expert” opinion regarding whether or not the DUI defendant was operating under the influence of drugs. In Massachusetts, the crime of DUI drugs carries the same harsh penalties as DUI alcohol. These include license suspensions, fines, fees, probation, mandatory use of the unreliable ignition interlock device for repeat offenders and, in some cases, incarceration.

At tonight’s meeting, Paul instructed the Massachusetts DUI lawyers on how to aggressively defend against DUI Drugs by cross-examining police officers who have been trained as Drug Recognition Experts. Just as it takes specialized training to arrest and effectively prosecute those suspected of DUI Drugs, it takes the same type of training to successfully defend against those charges. As a former police officer who has made a number of DUI arrests and Drug Recognition Expert,

Attorney Paul Watkins will be valuable resource for Massachusetts DUI Lawyers. In addition to representing DUI defendants in cases across the Commonwealth, Paul will make himself available to testify as a defense expert witness in DUI drug cases throughout New England. His unique education, training, background, and experience will help level the playing field so that the prosecutors are not the only ones with a Drug Recognition Expert at their disposal.
 

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In a recent news report, Fox News of Chicago recently exposed the inaccuracies of the Breath Alcohol Ignition Interlock Device. Fox News reported that “DUI Breath Interlock Devices Frequently Malfunction,” and it mentioned documented examples of mouthwash, pizza crust, bread, English muffins, and even hot dogs causing false positive alcohol readings on ignition interlock devices.

The Illinois interlock program has been criticized because malfunctions and inaccurate readings have discouraged drunk driving offenders from joining the IID program. Massachusetts drivers have no choice. The ignition interlock provision of Melanie’s Law requires mandatory use of the interlock for at least 2 years after getting a full license reinstatement, for second or subsequent DUI offenders. It is required during the entire length of any hardship license for drivers with two or more DUI convictions on their records.

In Illinois, the penalty for ignition interlock alcohol readings is a 3 month license suspension. In Massachusetts, alcohol readings result in 10 year or even lifetime loss of license. The State of Massachusetts has the harshest ignition interlock penalties in the country, with 10 year and lifetime license revocations based on alcohol readings from an inaccurate and unreliable device that was never designed to be an evidentiary breathalyzer.

It is nice to see that the news media recognizes some of the problems associated with these devices and that Fox News of Chicago has the courage to report on the difficulties and lack of scientific accuracy associated with ignition interlock devices. The news story recognized that there is not a lot of sympathy for those who suffer with the ignition interlock device.

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Massachusetts Police Officers are allowed to conduct DUI roadblocks or checkpoints, where they stop vehicles and screen the drivers to see if they are operating under the influence of alcohol. Under established DUI checkpoint procedures, drivers are subjected to initial screening where a Massachusetts State Trooper or local police officer will make initial contact with the driver and decide whether further, more intrusive screening is warranted.

In the case of Commonwealth v. Bazinet, the Massachusetts Appeals Court ruled that odor of alcohol alone constitutes reasonable suspicion of the crime of operating under the influence of alcohol (OUI), and it allows police to detain a motorist at a DUI checkpoint to conduct further investigation and field sobriety testing.

Massachusetts DUI lawyers recognize that this case announces a very low standard which must be satisfied to request that a motorist perform DUI field sobriety tests, the results of which will likely determine whether or not the driver will be arrested for drunk driving. Indeed, many people who may exhibit an “odor of alcohol” are not legally intoxicated. Furthermore, in a car with multiple occupants, the alcohol odor may be coming from one of the passengers and not the driver. Nevertheless, the driver can be directed to a “secondary screening area,” where he or she will be questioned and likely asked to perform field sobriety tests.

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Under the Massachusetts Safe Driver Insurance Plan, insurance companies sharply increase automobile insurance rates for those who have been convicted of drunk driving, operating after suspension, driving to endanger, or a variety of other traffic violations. Insurance companies will also increase your car insurance rates for 6 years if you have been found to be more than 50% at fault in a motor vehicle accident, no matter where the accident occurred. Massachusetts car insurance surcharges can cost thousands of dollars for those who have any DUI convictions, surchargeable accidents, or traffic tickets on their driving records.

One of the ways to avoid these expensive surcharges is to win your DUI case and appeal any citations and at fault accidents with the help of a surcharge appeal lawyer. My office is committed to helping our clients keep their insurance rates down by fighting DUI cases and other automobile surchargable events. Motorists have 20 days to appeal a civil motor vehicle citation and 30 days to appeal car accident surcharges. The instructions for both of these types of appeals are printed on the back of the traffic ticket or surcharge notice. Massachusetts surcharge appeal lawyers are available to help.
 

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