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

The Worcester Telegram recently reported of a school bus driver who had his license suspended as a result of an immediate threat complaint filed by the Worcester Police Department. Apparently, the bus driver was involved in a “road rage” incident with a motorist who was following the school bus. The motorist reported that the bus driver was “exhibiting odd behavior” and the police stopped the bus as a result thereof.

When the bus driver, who apparently has a clean driving record, told the police that he had been prescribed Oxycontin, the police officer filed, with the Mass. RMV, an immediate threat report wherein he wrote “OUI,” suggesting that the driver had been operating under the influence. Immediately after the incident, the bus driver took drug and alcohol tests which were negative.

The bus driver has filed an internal affairs complaint against the Worcester Police Officer who stopped him and filed the immediate threat complaint. When the RMV receives immediate threat notices, it immediately suspends the driver’s license and schedules a hearing at the RMV Driver Control Unit in Boston. The Worcester Police claimed that the officer “erred on the side of caution” when he filed the report with the Registry.

Certainly, a school bus driver who is driving a busload of students while under the influence of Oxycontin is a serious issue. Here, however, it seems that the driver was no doing so. Instead, he was the victim of an angry motorist who reported him to the police, who “erred on the side of caution” when they filed the report which resulted in the immediate suspension of the driver’s license. The Worcester Telegram article was the most commented on Today, and it had received 94 comments at the time of this post.
 

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The Massachusetts License Suspension Law requires that whenever a Massachusetts resident or license holder is convicted of a crime in another jurisdiction, the Registry must treat the offense as if it had been committed here in Massachusetts, for license suspension purposes. 

One issue which often arises because of the above-cited law is whether or not lesser forms of operating under the influence of intoxicating liquor such as Driving While Alcohol Impaired (DWAI) is similar enough to the Massachusetts offense of OUI to be treated as such by the Mass. RMV and Board of Appeal. This situation comes up where Massachusetts residents and/or license holders are cited in New York and Colorado, both states which often allow DUI charges to be reduced to DWAI.

In the case of Brestien v. Board of Appeal, which was published today, the Massachusetts Appeals Court ruled that the Colorado offense of DWAI is sufficiently similar to the Massachusetts offense of DUI so that it should be treated as such for license suspension purposes. The Mass. Appeals Court reached this conclusion because both the Massachusetts and Colorado statues require proof that a driver’s ability to drive is impaired by alcohol.
 

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In the case of Kelly v. Board of Appeal on Motor Vehicle Liability Policies and Bonds & the Registry of Motor Vehicles,  2010 WL 290502, January 27, 2010, No. 09-P-305, the Massachusetts Appeals court upheld the lifetime DUI revocation of Kelly's Massachusetts Driver's License.

Kelly had 5 DUI convictions. However, at his trial for the 5th DUI offense, the court only found him "guilty to so much of the complaint as alleges a 1st [OUI] offense." In his appeal, Kelly claimed that that the lifetime 5th offense DUI suspension of his driver's license by the Registry of Motor Vehicles was improper because the judge found him guilty of a first offense DUI, not a fifth offense as charged.

The Mass. Appeals Court summarily dismissed Kelly’s argument. The court agreed with the reasons cited by the superior court judge who upheld the lifetime loss of license. The law on 5th offenders states clearly that if a person has been  convicted of or assigned to an alcohol or drug treatment program 5 or more times, “such person's license or right to operate a motor vehicle shall be revoked for the life of such person…” Thus, whether or not the court treated the DUI as a first or 5th offense does not matter at all. If the official records of the Registry show 4 prior offenses, the DUI defendant’s license will automatically be revoked for life. It may, however, be possible to obtain a hardship license.

In lifetime DUI license revocation cases, no hardship license application should be made unless and until the applicant has serve at least 5 years of the lifetime revocation.

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In a civil rights complaint (PDF) filed regarding the death of Kenneth Howe, who died as a result of injuries sustained at a Massachusetts DUI sobriety checkpoint in North Andover, Howe’s estate claims that Howe was “physically removed out of the vehicle, forced to the ground, beaten, handcuffed and placed in leg irons, and dragged to the police cruiser. As a result of the physical beatings and/or the delayed calling for medical services, Kenneth died in North Andover Police and/or Massachusetts State Police custody on or about November 26, 2009. The Office of the Chief Medical Examiner has ruled that Kenneth’s death is a homicide, caused by a ‘blunt impact of head and torso with compression of chest.’”

The complaint (PDF) also admits that Howe, who was riding in his friend’s pick-up truck, was smoking a marijuana cigarette as it approached the DUI checkpoint. The complaint further states that Trooper Gerardi forcefully removed Kenneth from the truck and screamed, “He assaulted me!” It seems that the police smelled marijuana, were investigating further, and Howe became combative, resistant, and physically assaulted Trooper Gerardi. The complaint denies that Howe struck Trooper Gerardi. However, Howe’s attorney would not know if he did or not. Also, it is highly unlikely that Gerardi spontaneously exclaimed that she was assaulted without a reason. 

The complaint states that there was a pit bull riding in the vehicle and it goes on to describe the pit bull as a “docile family dog.” A newspaper photographer from the Eagle-Tribune newspaper took 43 photogrpahs of the incident, according to the complaint.

The case is still being investigated. 

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What should have been a routine interaction between a motorist and police at a North Andover, Massachusetts DUI checkpoint resulted in the 45 year old man’s death. Today, the man’s family IS slated to file a wrongful death suit in U.S. District Court in Boston.

The day before Thanksgiving, Kenneth Howe was a passenger who was riding in a motor vehicle which was stopped by police at a DUI “roadblock.” The medical examiner ruled the death a homicide, which simply means that it was death at the hands of another. The ruling does not indicate whether the homicide was justifiable or not. The Essex County District Attorney’s Office is investigating the death and no criminal charges have been filed. The officers involved have not been placed on administrative leave or restricted duty.

What exactly happened at the DUI checkpoint is unclear. However, it appears that Howe had been smoking marijuana on the night of the incident and he fled from the vehicle which was stopped at the DWI checkpoint. New England Cable News (NECN) displayed some photographs of Howe’s arrest in a recent story. The lawyer for Howe’s family is claiming that police beat Howe and used excessive force. Attorney Lenny Kesten, who was recently named one of the most influential lawyers in Massachusetts, is representing the police officers. Attorney Kesten is an outstanding lawyer and a good friend. In a news interview with Channel 5 last night, he declined comment because he had not been served with the complaint, which names approximately 30 Massachusetts Police Officers and State Troopers as defendants. More information on this case will be posted as it becomes available.

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In an article entitled “Drunken driving arrest doesn’t keep Milton school official off road,” the Patriot Ledger Newspaper makes a veiled attempt to criticize the Massachusetts Drunk Driving Law, because it allowed Christopher Huban, a member of the Milton School Committee, to obtain a hardship license, after he admitted that there were sufficient facts to convict him of operating under the influence, first offense.

Like most everyone else who is arrested for 1st offense DUI in Massachusetts, Huban was entitled to participate in the Massachusetts 24D Alcohol Program, which reduced his DUI license suspension from 1 year to 45 days. He will be required to complete a 16 week alcohol program and be on probation for 1 year.

The article seems to be written to spark controversy regarding the practice of allowing those arrested for a first offense DUI to get back on the road with a hardship license, so they can continue to work and support their families. In previous articles, the Patriot Ledger has been critical of hardship licensing. The paper fails to recognize the general lack of public transportation in Massachusetts and the resultant need to drive. The loss of a driver’s license can be an extreme punishment which often results in the loss of employment.

In Massachusetts, a hardship license is valid for a pre-determined 12 hour period each day. The article notes that residents were calling the Milton Police Department, when they saw Huban behind the wheel. The police checked his license and determined that he was legally able to drive. Incidentally, being caught driving on a license that is suspended for DUI will result in mandatory jail time.

The Patriot Leger article also mentions that Massachusetts DUI First Offenders may soon be required to use the ignition interlock device, if Mass. Senate Bill 1925, which is sponsored by Sen. Robert Hedlund, (R) Weymouth passes. Currently, under Melanie's Law, the Massachusetts Registry of Motor Vehicles requires second and subsequent DUI offenders to use Ignition Interlock devices, which sometimes register false positive alcohol readings and trigger 10 year or lifetime license suspensions. The devices prevent a vehicle from starting if the driver’s blood alcohol content is above .02, a very low threshold. If enacted, the new Massachusetts Ignition Interlock Law would require OUI first offenders to use the interlock device during the term of any hardship license and for a 6 month period after getting a full license reinstatement. Interlock-required drivers must pay for installation, inspection, and monitoring.

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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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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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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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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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In an effort to reduce drunk driving, the Honolulu, Hawaii Police Department will be posting the photographs of those arrested for OUI on the department’s website. This controversial move is bound to draw support from anti-drunk driving groups and criticism from others, who will likely claim that posting the photographs constitutes an unwarranted invasion of privacy.

It is important to remember that the individuals depicted have only been arrested and not yet convicted. There is a big difference between an arrest and a DUI conviction. Posting photos of those not yet convicted of drunk driving appears to run contrary to the “innocent until proven guilty” concept of due process.

Police have always been allowed to post photographs of wanted persons in an effort to locate and identify them. Here, however, there is no legitimate law enforcement purpose associated with posting the photos. Instead, they are meant to publically embarrass the offenders and serve as a deterrent to future OUIs. The efficacy of this practice in reducing drunk driving incidents has yet to be determined.

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A new law allows police in the State of Rhode Island to force drunk driving suspects who were involved in serious motor vehicle accidents to submit to compelled blood alcohol testing. If a driver refuses to submit to a breathalyzer test, police will now be able to obtain a warrant for his or her blood.

The warrant will allow the police to forcefully obtain the blood sample if the DUI suspect refuses to cooperate. Under the new law, the drawing of the blood must be audio and video recorded.

Approximately 44 states have similar laws, which allow police to obtain the blood of a driver involved in a motor vehicle accident that results in death or serious bodily injury. In Massachusetts, legislation is being considered (Senate Bill 1581) which would allow hospital personnel to inform the police of blood alcohol results. The Massachusetts legislature will likely try to enact a blood alcohol law similar to the Rhode Island law in the not too distant future.

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