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

Each Massachusetts DUI 2nd or subsequent offense case essentially contains two cases, with each tried separately. First, the prosecution must prove beyond a reasonable doubt that the defendant operated a motor vehicle under the influence of intoxicating liquor on a public way or a road where the public had a right of access.

The second part of a second or subsequent offense Massachusetts OUI case requires the prosecution to prove that the OUI defendant had been previously convicted of OUI. The prosecution must prove each prior OUI offense. Thus, if the prosecution can prove only the current OUI case, and not the prior convictions, a 2nd or subsequent offender may only be found guilty of a first offense.
It should be noted that even in cases where a second or subsequent offender is only found guilty of a first offense DUI, due to lack of proof of prior convictions, the Massachusetts Registry of Motor Vehicles may still treat the individual as a 2nd or subsequent offender. The sufficiency of evidence proving prior DUI convictions can be challenged by filing for a hearing before the RMV Board of Appeal. The Board has the power to review prior OUI convictions and determine the proper length of DUI license suspensions.

When counting prior DUI offenses, those committed anywhere in the world can legally be counted against a Massachusetts DUI defendant. This includes similar offenses such as Driving While Alcohol Impaired (DWAI), a common charge in New York and Colorado.

In Massachusetts DUI trials, the prosecution can prove prior offenses by introducing originals or certified attested copies of court papers, probation records, and records from correctional facilities. Under Melanie’s Law, the documents are self-authenticating and no live witness testimony is required. It is sometimes possible to avoid a DUI second or subsequent offender conviction in cases where the documents contain insufficient biographical information for the court to determine that the individual named in the documents is the same individual who is on trial for DUI 2nd or subsequent offense. Biographical information which is customarily considered includes: name, date of birth, social security number, address, gender, and race.

DUI defense lawyers should raise lack of identification as an issue in 2nd or subsequent offense DUI cases if it appears that the information identifying the defendant in the prior cases is insufficient. This DUI defense tactic may save the Massachusetts DUI defendant from enhanced penalties.

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A firearm possession case which was decided yesterday may have implications in Massachusetts DUI cases. In Commonwealth v. Ware, firearms possession convictions were reversed on appeal because the admission of a certificate from a Massachusetts State Police Ballistician, without the ballistician’s live testimony, violated the confrontation clause contained in the 6th Amendment to the U.S. Constitution, as recently outlined in Melendez-Diaz v. Massachusetts.

In Melendez-Diaz v. Massachusetts, the U.S. Supreme Court held that criminal defendants have the constitutional right to confront an cross-examine witnesses who perform scientific and laboratory testing in connection with a criminal case. Reliance on a laboratory certificate without the production of the live witness was held to be improper.

The legal principle clearly established by Melendez-Diaz was recently used to suppress blood alcohol evidence in Commonwealth v. Parmenter, where blood was drawn by medical personnel in connection with the treatment of a DUI suspect. This case is currently under appeal and will be deiced by the Massachusetts Supreme Judicial Court. More information will follow as it becomes available.

The Melendez-Diaz decision might also be used in Massachusetts DUI cases with respect to certificates relied upon to prove the accuracy of breathalyzer instruments and simulator solutions used in Massachusetts DUI cases.

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After a man avoided a drunk driving conviction when he was alleged to have operated under the influence on the campus of Assumption College in Worcester, Massachusetts, State Representative Lew Evangelidis filed legislation today to close what he called a “loophole” in the Massachusetts DUI law.

The plain language of the Massachusetts OUI Law, G.L. c. 90 § 24, limits OUI prosecutions to intoxicated operation on “any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees.” This is not a “loophole.” It is the clear language of the statute. If the Legislature wanted OUI cases to be prosecutable no matter where the offense occurred, it would have said so. The inclusion of this limiting language was obviously purposeful.

In contrast to the crime of DUI, the crime of driving on a suspended license is prosecutable no matter where the operation occurs. This shows that the Legislature included the aforementioned limiting language in the statute for a reason. There is no “loophole” or “technicality.”

The new DUI bill would expand the coverage of the Massachusetts OUI law to Massachusetts college campuses, both public and private. Currently, a public or semi-public way is required for a successful Massachusetts OUI prosecution.

View the news story on this issue.

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In the case of Commonwealth v. Dennis Bauer, the Massachusetts Supreme Judicial Court decided today that the practice of allowing judges to review, and potentially vacate, breathalyzer refusal suspensions in Massachusetts DUI cases is proper and constitutional.

After being arrested for operating under the influence of intoxicating liquor (OUI), Bauer refused to submit to a breathalyzer test. Because he had 3 prior OUI convictions, his license was revoked for life pursuant to G. L. c. 90, § 24 (1) (f) (1). After a jury trial, Bauer was found not guilty and his DUI lawyer filed a motion to have his license returned. The judge denied Bauer’s motion.

Bauer challenged the judge’s authority to uphold the license revocation on the grounds that the judge’s order violated the separation of legislative, executive, and judicial powers mandated by art. 30 of the Massachusetts Declaration of Rights. Bauer claimed that the authority to suspend and restore a driver’s license or right to drive lies only within the exclusive purview of the executive branch of government.

In deciding Bauer’s case, the highest court in Massachusetts declared that, “[t]here is nothing unconstitutional about the legislative allocation of authority over restoration decisions described in G. L. c. 90, § 24 (1) (f) (1).” A judge’s power to review and possibly reverse a chemical test refusal suspension has been judicially affirmed.

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Ignition interlock devices used in Massachusetts are manufactured by 4 companies: Consumer Safety Technology (CST), Draeger, Guardian, LifeSafer Interlock, Inc., Sens-O-Lock and Smart Start. None of these devices use infrared spectrometry, which is used in evidentiary breathalyzers. In fact, these interlock devices are not intended for use as evidential breath alcohol testing devices. Instead, they were designed to effectively lockout automobile ignitions and prevent vehicles from starting if the driver’s breath contains alcohol above a certain pre-set limit. In Massachusetts, that blood alcohol limit is .02.

The Mass. RMV requires use of the ignition interlock device for anyone who has 2 or more OUI offenses on his or her record, who is reinstating from a DUI suspension or coming off of a DUI hardship license on or after January 1, 2006, the implementation date of the interlock provision of Melanie’s Law.

The IID requires the user to blow into the device to start his or her vehicle. It also requires random rolling re-tests while the vehicle is in operation. The purposes of these rolling re-tests is to insure that an intoxicated driver did not have someone else blow into the device to start the vehicle.

Massachusetts Ignition Interlock Violations include missing rolling re-tests, tampering with the IID, attempting to circumvent, disconnect, or bypass the interlock device, or registering alcohol readings above .02. Violations of the Registry’s Ignition Interlock Regulations will result in an ignition interlock violation hearing being held. You are entitled to representation at this hearing and you should absolutely have counsel.

The results of your ignition interlock violation hearing will determine whether the Registry will excuse the violation or revoke your license for 10 years or lifetime. These penalties are so severe that many people do not believe that the RMV will actually impose them, only to have their driver’s licenses revoked for 10 years of life. There is no ability to get a hardship license during a Mass. IID license revocation.

The Registry of Motor Vehicles does a very good job in administering the ignition interlock program, especially considering the limited resources available. However, the interlock device is not without technical limitations. False positive results are fairly common and many innocent drivers have been called in for interlock violation hearings. Representation by an experienced Massachusetts Ignition Interlock Device Lawyer can make the difference between winning your interlock hearing or having to serve a 10 year or lifetime loss of license.

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The Middlesex District Attorney’s Office is appealing a ruling of a Marlborough District Court Judge in the Massachusetts DUI case of Commonwealth v. Parmenter, wherein a Judge suppressed blood alcohol results obtained as a result of blood drawn for medical purposes from a DUI defendant. 

The prosecution attempted to introduce a laboratory report regarding Parmenter’s blood alcohol content without producing, for cross-examination, the individuals who drew and tested the blood. The defense claims that this violated the rule announced in the U.S. Supreme Court case of Melendez-Diaz v. Massachusetts, (PDF) wherein the U.S. Supreme Court held that a so-called “drug cert.” was inadmissible without the Mass. State Police chemist who did the testing. The Court held that failure to produce the chemist as a witness violated the 6th Amendment to the U.S. Constitution.

It was determined in Melendez-Diaz v. Massachusetts that the drug certification was not a business record, as it was produced specifically for litigation. Business records are considered non-hearsay and are generally admissible. Here, the prosecution is likely to argue that the laboratory report falls within the business record exception to the hearsay rule because, unlike the “drug cert.” in Melendez-Diaz, the laboratory report was not produced for litigation.

More information will be posted as this important Massachusetts DUI case progresses.
 

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In the recent Massachusetts DUI case of Commonwealth v. Parmenter, (November 24, 2009), Marlborough District Court Judge Noonan excluded evidence regarding the DUI defendant’s alcohol levels which were determined from blood drawn while the defendant was airlifted from the scene of an OUI accident to the hospital. The blood alcohol evidence was excluded based on the Supreme Court’s decision in Melendez-Dias v. Massachusetts, 129 S. Ct. 2531 (2009).

Judge Noonan ruled that the blood alcohol evidence will be inadmissible at Parmenter’s DUI trial unless the Commonwealth produces the medical personnel who drew the blood. The laboratory personnel who tested the blood should also be required to testify.

In Melendez-Dias v. Massachusetts, the Supreme Court held that the introduction of laboratory certifications without making available the scientist who conducted the laboratory tests violates the confrontation clause of the U.S. Constitution which gives criminal defendants the right to confront and cross-examine adverse witnesses. The Melendez-Dias decision may prove to be a powerful tool in Massachusetts DUI cases.

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The Massachusetts State Police, in partnership with a local police agency, will conduct a field sobriety DUI roadblock on a secondary state highway in Middlesex County on during the evening of Saturday, December 19, 2009 into Sunday, December 20^th.

The Mass. State Police are equipped with a mobile breathalyzer and OUI booking facility called the “BAT Mobile.” In accordance with judicially approved DUI roadblock procedures, state and local police officers will stop drivers to detect signs and symptoms of intoxication. Officers will have a brief conversation with the driver of the stopped vehicle, during which time they will be looking for slurred speech, glassy or bloodshot eyes, the odor of alcoholic beverages, open containers of alcohol, or any other indicators that the driver might be operating under the influence of intoxicants.

If the police suspect intoxication or other criminal activity, drivers will be directed to a “secondary screening area” where they will be ordered to produce a driver’s license and subjected to additional screening which may include standardized field sobriety tests.

Based on all of the facts and circumstances of the encounter, including the results of the field sobriety tests, the police will decide whether there is probable cause to arrest the driver for DUI. Anyone arrested will be booked and offered the opportunity to submit to a chemical breath test. The penalty for refusing is a license suspension ranging from 180 days to life. Those who are arrested and refuse will only have 15 days from the date of arrest to appeal the breathalyzer refusal suspension. Failure to appeal during the 15 day CTR appeal period will result in the inability to challenge many aspects of the refusal suspension.

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If you were arrested for DUI in Massachusetts and you refused to submit to a chemical breath test, it is absolutely critical that you contact a Massachusetts DUI Lawyer immediately. I say this because you only have 15 days to appeal most aspects of a breathalyzer refusal suspension.

Melanie’s Law dramatically increased Massachusetts breathalyzer refusal penalties so that your license or right to operate will be suspended for 180 days for a first offense DUI, 3 years for those under 21 years of age or for those with one prior DUI, 5 years for a 3^rd offense, and lifetime for a 4^th offense DUI.

Also, there is no guarantee that your breathalyzer refusal suspension will be vacated if you are found not guilty of DUI. This means that you may get an acquittal or dismissal of the DUI charge and still have to serve a license suspension ranging from 6 months to lifetime, depending on your record.

Chemical test refusals appeals must be filed within 15 calendar days of the date of arrest. This includes weekends and holidays. This 15 day period is jurisdictional and cannot be waived. Failing to file a breathalyzer refusal appeal with the Registry of Motor Vehicles within the 15 day appeal period can be a huge mistake, often with consequences which may last a lifetime. I have personally seen “slam dunk” winner breathalyzer refusal suspension appeals lost because the DUI defendant failed to appeal within the 15 day period. One of these resulted in a lifetime loss of license, with absolutely no ability to get a hardship license.

In subsequent offense DUI cases, the breathalyzer refusal period sometimes exceeds the DUI suspension period. For example, a 2^nd offense DUI will result in a 3 year breathalyzer refusal suspension followed by a 2 year DUI suspension. A 4^th offense DUI will result in a 10 year suspension for being convicted of DUI and a lifetime suspension for refusing the breath test. To make matters worse, in most cases, there is absolutely no ability to get a hardship, work, or Cindarella license during a breathazlyer refusal license suspension. Both the Massachusetts Registry of Motor Vehicles and the RMV Board of Appeal routinely refuse to issue hardship licenses during 3 year, 5 year, and lifetime CTR suspensions.

Many lawyers do not bother appealing breathalyzer refusal license suspensions. Not appealing is usually a mistake. There are numerous grounds upon which to challenge these administrative license suspensions. For a refusal to be valid, it must have been done in a very specific way, with certain rights provided. Also, it must be adequately documented by the police. Under the Massachusetts Breathalyzer Refusal Law, legal difficiences with the refusal will result in it being overturned. Although, in most cases, the Registry “rubber stamps” these refusals it is possible to win in District and Superior Court, so long as the original suspension appeal was field with the Mass. RMV within 15 days of the OUI arrest.

If your license was suspended for a breathalyzer refusal in Massachusetts, please contact me. I may be able to get you back on the road with a full license reinstatement, as I have done for numerous grateful clients in the past. 

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Users of the Apple iPhone can reduce their chances of being arrested for operating under the influence of liquor, which is also known as DUI or OUI, by using one of several handy applications which run on the popular iPhone. For example, “Last Call” is a free app.  which estimates blood alcohol content based on time, the drinker’s weight, and the number & types of alcoholic drinks consumed. It has been reported that the app. contains buttons that will call a taxi or, if necessary, a DUI lawyer.

The Colorado Department of Transportation has released its own DUI app. called “"R-U-Buzzed.” This is also a free app. which uses estimates blood alcohol content based on gender, time, type of drinks, and amount of alcohol consumed. It also has a feature to contact a taxi cab if the iPhone user is over the limit.

These apps. are based on a formula established by Swedish physician EMP Widmark in 1932. This formula is still used today to estimate blood alcohol content. It is based on the premise that an average person metabolizes .015 bac, roughly the equivalent of one alcoholic drink, per hour. I have used this formula to successfully defend numerous clients who were charged with ignition interlock violations. In Massachusetts, ignition interlock violations result in 10 year or lifetime license revocations.

Both of these DUI iphone Apps. can be downloaded directly from the iPhone using the iTunes app. download feature.

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Part of pre-arrest screening often includes the use of a preliminary or breath test. Police administer these roadside tests to preliminarily determine a DUI suspect’s blood alcohol content. A preliminary breath test instrument (PBT) is not a breathalyzer. It does not meet the breathalyzer accuracy standards and it does not use infrared technology to determine a driver’s blood alcohol content. Therefore, PBT results are legally inadmissible at any DUI trial. Furthermore, a preliminary breath test is considered a field sobriety evaluation and a refusal to submit to a PBT, like the other field sobriety tests, is also inadmissible.

Many drivers feel compelled to submit to a PBT, because they believe that failure to do so will result in a breathalyzer refusal license suspension. This is a misconception. There is absolutely no penalty for refusing to submit to a preliminary breath test and refusing to submit cannot be held against the DUI suspect.   

If a DUI suspect demonstrates signs and symptoms of intoxication during the pre-arrest screening and the PBT indicates no alcohol, the police will suspect that the driver may have been operating under the influence of drugs instead of alcohol. Most Massachusetts police officers lack the training and education to properly detect and screen for this. However, in addition to being certified in the administration of NHTSA Standardized Field Sobriety Evaluations, DUI Lawyer Paul B. Watkins is a trained and certified Drug Recognition Expert.

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The Massachusetts Habitual Traffic Offender Law may create some surprise consequences for Mass. OUI Defendants. The HTO statute requires the Mass. RMV to suspend the license of anyone who has committed 12 minor violations, 3 major violations, or any combination thereof in any 5 year period. Minor violations include most civil motor vehicle infractions such as speeding, marked lanes violations, etc… Major violations include driving without a license, driving on a suspended license, operating under the influence of liquor or drugs, driving to endanger, making a false statement on a license, learner’s permit , or registration application, leaving the scene of an accident, or using a motor vehicle in the commission of a felony.

The Habitual Traffic Offender issue often comes up in Massachusetts DUI cases, because the driver is often charged with other offenses in addition to driving under the influence. It is critically important to consider whether any of the charges, either minor or major, will result in a 4 year habitual traffic offender license revocation if the driver is convicted. For example, if a driver is charged with OUI, leaving the scene of an accident, and driving to endanger, he will automatically be considered a habitual traffic offender if he is convicted of these charges. Judges have absolutely no discretion to with respect to these mandatory revocations. However, knocking just one charge out, or getting a disposition of anything less than a guilty, such as a continuance without a finding, will avoid a 4 year license revocation.  

Every Massachusetts DUI lawyer should be mindful of the potential consequences of the habitual traffic offender law. Otherwise, a DUI client could get a very unpleasant surprise from the Registry; a 4 year loss of his or her driver’s license.

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In most cases, a Massachusetts municipal police officer may only make arrests in the city or town which employs him or her.  This legal rule has been used to achieve dismissals of Massachusetts OUI charges where the motorist is stopped outside of the officer’s jurisdiction, usually just over the city or town line. See  Commonwealth v. LeBlanc, 407 Mass. 70, 73 (1990).

In response to these dismissals based on the officer’s lack of authority to stop vehicles and make arrests outside of his or her jurisdiction, the Massachusetts Senate is considering Bill 1742. This legislation would empower police officers to stop vehicles outside of the officer’s jurisdiction, where the vehicle recently traveled through the officer’s city or town and the officer had reason to believe that the driver committed a crime therein. If this legislation passes, it will undoubtedly be used to avoid dismissals of Massachusetts DUI cases where the officer’s territorial jurisdiction is challenged. Massachusetts DUI practitioners should be aware of this legislation, as it may eliminate a way to challenge some DUI arrests.

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Massachusetts Senate Bill 1925, which would require DUI offenders to use the ignition interlock device appears to be gaining momentum. According to the Weymouth News, last month Smart Start, Inc., one of the authorized suppliers of Ignition Interlock Devices in Massachusetts,conducted a demonstration of the device at the Hingham Police Department.

A District Court Judge, prosecutor, police officials, politicians, and numerous supporters of the proposed Massachusetts ignition interlock law attended the demonstration. Massachusetts Senator Robert Hedlund filed the new interlock bill on behalf of MADD.

This well attended demonstration shows that there is considerable support for Senate Bill 1925, which would mandate all Massachusetts DUI first offenders to use the ignition interlock device in any vehicle which they lease, operate, or own. Although the Registry of Motor Vehicles does a commendable job administering and operating the ignition interlock program, the interlock device itself is flawed. There are numerous problems with false positive alcohol results which are caused by contamination or malfunction. Nevertheless, the interlock bill is almost certain to pass. Lawmakers and supporters to tough drunk driving laws are not at all sensitive to the difficulties which users of the device routinely encounter. A similar ignition interlock bill was recently enacted in New York.

Unlike breathalyzers, which use infrared spectrometry to determine blood alcohol concentration, the ignition interlock device uses much less reliable fuel cell technology. This results in many food products, drinks, and other common and innocuous chemicals registering as alcohol.

Toughening Melanie’s law by requiring OUI first offenders to use the interlock device may have an unintended consequence. First offense OUI defendants who might have otherwise “plead out,” may now take the drunk driving case to trial. A not guilty verdict would save the Massachusetts OUI defendant from the expense and inconvenience associated with the ignition interlock device.

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