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

The Highway Safety Division of the Massachusetts Executive Office of Public Safety and Security has announced the availability of $1,450,000 in federal grant money for Massachusetts police departments, to be used for traffic enforcement, DUI patrols, “speed traps” and similar initiatives which will result in drunk driving arrests, license suspensions, and the issuance of traffic and speeding tickets.

The goal of the grant program is to reduce speeding and impaired driving, and to increase safety belt use through high visibility measures.  The program urges Massachusetts police departments to take a zero-tolerance approach to DUI and other traffic violations. The grant funding is being made available to all Massachusetts City and Town police departments as well as qualified university and college campus police agencies.

Departments are required to conduct a minimum of 3 documented motor vehicle stops per hour; if less than the historic statewide average of 2.5 car stops per hour. Failure to comply with this may result in loss of funding. In addition to having to stop a certain number of motor vehicles per hour, the program encourages “zero tolerance” and it encourages departments to submit a signed a zero-tolerance policy for enforcement during all the mobilizations. This strongly suggests that officers will not be allowed to use discretion and instead will be pressured to write citations instead of warnings and make arrests in situations where they otherwise may not have done so. 

Police Departments can use the traffic enforcement grant money to pay officers overtime and to buy equipment such as LIDAR units, Radar guns, and preliminary breath test devices (PBTs). The grant can also be used to purchase breathalyzer supplies and staff DUI sobriety checkpoints, which are also known as drunk driving roadblocks, which are conducted with the Mass. State Police.

Except in emergencies, officers assigned to the program will be dedicated in total to traffic law enforcement, which means writing tickets and making arrests for motor vehicle violations such as DUI, drunk driving,  driving on a suspended license, reckless driving, negligent operation, driving without insurance, speeding, and failure to stop for a red light or stop sign. Convictions for any of these violations will result in substantial insurance premium increases, in the form of insurance surcharges and they may result in license suspensions as well as other unforseen but expensive consequences.

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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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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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Clients often ask about the costs associated with Massachusetts DUI First Offense conviction. They are as follows: a mandatory $50.00 OUI Victim / Witness Assessment, a $250.00 24D OUI Fee, a $250.00 head injury fund assessment, a $65.00 monthly probation fee, a fine of between $500.00 and $5,000.00, 25% surfine, and Massachusetts DUI First Offenders are required to pay for the 24D Alcohol Education Program, which costs approximately $600.00. This class must be completed as a condition of probation and enrollment is mandatory to get a hardship license. The Massachusetts RMV charges a $500.00 license reinstatement fee for first offense DUI cases. The failure to pay these mandatory fines, fees, and costs can result in a probation violation, the issuance of a default warrant, and the conversion of a continuance without a finding (CWOF) to a guilty finding. There are also "hidden costs" such as the substantial automobile insurance premium increases caused by a DUI conviction.

Although jail is not a real possibility for the majority of Mass. DUI First Offenders, many charged with OUI elect to take their cases to trial to avoid the above-listed expenses as well as having a criminal record and having to face being charged as a DUI second offender. Along with the substantial costs assocaited with an OUI conviction, the lifetime lookback period for DUI offenses makes taking a Massachusetts DUI case to trial an attractive option.

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The recent case of Commonwealth v. Tina Boe shows how difficult it is to get Massachusetts DUI and other related criminal charges expunged from your record, even when you are actually completely innocent of the crimes for which you have been charged. I

n the Boe case, there was no dispute that Ms. Boe was not the driver of a vehicle which left the scene of a motor vehicle accident in Boston, after causing personal injury. Although Boe was the registered owner of the car, there was absolutely no dispute that she was not the driver. Nevertheless, the highest court in Massachusetts ruled that the criminal record resulting from the crash did not have to be expunged.

Although a superior court judge ordered the Mass. Commissioner of Probation to expunge Boe’s criminal record, so that she would not be forced to live under a "cloud of prosecution," the Mass. Commissioner of Probation appealed and, today, it was announced that the criminal record reflecting the charge of leaving the scene of a personal injury accident, a violation of G. L. c. 90, § 24 (2) (a½) (1), did not have to be expunged from Boe’s Massachusetts Criminal History, even though there is no question that she did not commit the crime.

Many DUI clients ask about expungement of criminal and court records which reflect prior DUI convictions. This is generally not possible and no Massachusetts DUI Lawyer should advise his or her client that expungement of DUI records can be routinely accomplished. However, it may be possible to have the DUI record sealed, so that access to it is severely limited and its existence does not have to be disclosed on employment applications. However, the Massachusetts Registry of Motor Vehicles maintains its own database which contains DUI conviction information. The Massachusetts sealing law would not require the Registry to seal its records, which are often accessible by the public.

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I routinely get questions and inquiries from Massachusetts residents who were arrested in for DUI New York and convicted the lesser offense of DWAI, which stands for driving while alcohol impaired. In New York, this is the least serious of DUI offenses and it is considered a non-criminal traffic violation, which does not result in a criminal record. In New York, a first offense DWAI results in mandatory 90 day suspension of the driver’s license or right to operate.

Numerous Massachusetts driver’s license holders have asked me how the Mass. RMV will treat a New York DWAI. This article will hopefully answer that question.

First, an out of state license suspension will generally trigger an automatic license suspension in Massachusetts under reciprocity. This means that when the Massachusetts Registry of Motor Vehicles gets notified via the National Driver Registry of an out of state suspension, a mandatory NDR suspension will be imposed. To clear this suspension you must bring 3 items to the Mass. RMV: (1) a clearance letter from the other state evidencing that you have served your time and are clear to drive in that state, (2) a certified copy of the out of state driving record, and (3) a certified copy of the out of state driving record. This will clear the indefinite NDR suspension.

However, the Massachusetts Registry of Motor Vehicles will treat the NY offense of DWAI just like a Massachusetts DUI. This is because the Massachusetts License Suspension law states that “if the registrar receives official notice...that a resident of the commonwealth or any person licensed to operate a motor vehicle under the provisions of this chapter has been convicted in another state, country or jurisdiction of a motor vehicle violation, the registrar shall give the same effect to said conviction for the purposes of suspension, revocation, limitation or reinstatement of the right to operate a motor vehicle, as if said violation had occurred in the commonwealth.” The Registry of Motor Vehicles and the RMV Board of Appeal have determined that a NY DWAI is to be treated like a Mass. DUI.

Further, the Mass. DUI law states that “like violations” committed in other jurisdictions count as Massachusetts DUI offenses for license suspension purposes. Therefore, in summary, the Registry of Motor Vehicles and the Board of Appeal will treat driving while alcohol impaired convictions just like convictions for operating under the influence of alcohol, OUI / DUI.

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A Not Guilty Does Not Automatically Restore Your License on a Mass. Breathalzyer Refusal Suspension

Mass. Drivers who refused the breathalyzer in and were found not guilty of a Massachusetts DUI offense do not automatically get their licenses reinstated. Instead, in cases were all alcohol related charges were resolved in the Mass. DUI defendant’s favor, the defendant can petition the court for a restoration of the driver’s license.

There is a legal presumption that the license should be restored and, to block the license restoration, the prosecution must establish that it is more likely than not that returning the DUI defendant’s license would endanger public safety. The judge hearing the breathalyzer refusal case is required to make written findings of facts regarding his or her decision.

The ability to try to get a breathalyzer refusal suspension vacated may encourage Massachusetts DUI defendants to take the case to trial. A dismissal or not guilty verdict on the OUI charges, at least, gives the driver a chance to get his or her license returned.

Massachusetts DUI lawyers should approach these license reinstatement hearings very carefully. In cases involving repeat DUI offenders, it is important not to apply for license reinstatement too early and it is critical to have a plan. There should be some mechanism in place to insure the judge that the OUI defendant has his or her alcohol issues under control such that he or she is not likely to reoffend. No judge want to learn of a tragedy caused by someone he or she put back on the road. Sometimes a judge will initially deny a DUI license reinstatement motion and allow the DUI lawyer to apply for reconsideration after additional time has elapsed.

In summary, it may be possible to vacate a breathalyzer refusal suspension in Massachusetts DUI cases where the alcohol related charges are resolved by a dismissal or not guilty verdict. It may be also possible to challenge the breathalyzer refusal through other legal means.

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Massachusetts DUI Law provides an important right to those arrested for operating a motor vehicle while under the influence of intoxicating liquor, the right to an independent medical examination. The law, G.L. c. 263, § 5A, requires police to inform Massachusetts DUI defendants of this important right “immediately upon being booked” and it requires that the police give those arrested for DUI in Massachusetts a “reasonable opportunity” to exercise this right. Of course, because blood alcohol evidence is “extremely fleeting,” time is of the essence in obtaining a comparison blood test.

In order to exercise the right to an independent medical examination, which may yield exculpatory evidence, the police must notify the person arrested and provide him or her with use of a telephone. The police have no duty to affirmatively assist a DUI defendant with the exercise of his or her right to an examination, but the police cannot prevent or hinder the DUI defendant's reasonable and timely attempt to obtain such an examination.

For example, in DUI cases, the police must promptly contact a bail commissioner to arrange for the defendant’s release on bail, so that he or she can get an independent examination. The law requires that Massachusetts bail commissioners respond promptly to requests for bail hearings.

If the police fail to afford a Massachusetts DUI defendant the right to an independent medical examination, or prevent the defendant from exercising that right, it may be possible to have evidence excluded or the DUI charges dismissed.

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There is a great deal of confusion and misinformation surrounding Massachusetts license suspensions which are triggered by convictions for DUI and other motor vehicle law violations such as negligent operation, operating to endanger, driving an uninsured motor vehicle, leaving the scene of an accident, and operating after suspension or revocation.

The unknowing may wrongly decide to plead out a DUI or other criminal case based on a mistaken belief that the Mass. RMV will treat the offense in the same way as the court does. For example, if someone has 3 prior OUI convictions or program assignments from anywhere in the world, at anytime in his or her life, the Registry will revoke the person’s license for 10 years upon conviction of the 4th offense DUI. It does not matter whether or not the court reduced the charge to a first offense or the prosecution was unable to prove the prior offenses. So long as the individual has prior convictions or alcohol program assignments, which are the same as convictions, the license will be automatically revoked by operation of law.

Some people understand that Registry action is separate from the court’s treatment of a DUI conviction, but they believe that “the Registry can do whatever it wants.” This is also not true. The Registry has absolutely no discretion and it must follow the law. DUI license suspensions are, for the most part, statutory, mandatory, and automatic. In most cases, the Registry has little to no discretion and it must follow the law. Of course, there are legal disputes regarding what the law says and how it applies to a particular situation.

While some people plead not when they should not, because they do not understand the consequences of their plea, others may take a Massachusetts criminal case to trial when they could plead and avoid a conviction which would trigger an automatic license suspension. For example, agreeing to a continuance without a finding for the charge of operating to endanger or leaving the scene of an accident, will avoid a mandatory license suspension as well as a possible 4 year revocation under the Massachusetts habitual traffic offender law.

Decisions in DUI or other criminal cases should be made after consulting with a qualified and skilled Massachusetts DUI Lawyer or suspended license attorney who thoroughly understands the laws and procedures. A careful review and analysis of your driving and criminal records is imperative to making the right decision and avoiding an unpleasant surprise in the form of an unanticipated license revocation.

Many clients who tried to “represent themselves” or have relied on the advice of incompetent lawyers are now serving long license suspensions, which they did not predict or bargain for. These suspensions could have been avoided, in most cases, by good lawyering and proper handling of the case.

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In another Melendez-Diaz v. Massachusetts scenario, (Commonwealth v. Kevin Johnson) the Massachusetts Appeals Court reversed a drug conviction where a drug certificate was introduced without the testimony of the analyst who produced it testifying. In Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), the U.S. Supreme Court ruled that such certificates are considered 'testimonial statements' and, subject to a narrow exception, criminal defendants have the right to confront and cross-examine the person making them.

In the case of Commonwealth v. Parmenter, the SJC will decide whether the above-cited principle applies in a Massachusetts OUI case where blood was drawn and a laboratory report regarding alcohol content was excluded, because the prosecution failed to produce the witness(s) who prepared the report.

The principles established by Melendez-Diaz might also be used to exclude breathalyzer test results in Masschusetts OUI cases. In order to be admissible, both the breathalyzer and the simulator unit, which is attached to the breathalyzer, must be inspected and certified by the Office of Alcohol Testing of the Massachusetts State Police. Absent an up to date certification, Massachusetts DUI law renders breathalyzer results inadmissible. Challenges could me made regarding the attempted admission of breathalyzer records without the testimony of the state police analyst who certified the device.

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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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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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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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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 the case of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009) (PDF), the United States Supreme Court declared that a defendant in a drug case had the constitutional right to confront and cross-examine a Massachusetts State Police chemist who produced a certificate indicating that a particular substance was, in fact, cocaine. Absent the ability to confront and cross-examine the chemist, the drug certificate was declared inadmissible.

The holding in Melendez-Diaz was based on the Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), wherein the court held that the Confrontation Clause of the U.S. Constitution rendered out of court “testimonial” statements are inadmissible.

This Supreme Court ruling has played out in various drug and gun cases across Massachusetts, where the prosecution has attempted to introduce certificates from chemists and ballisticians wherein items were certified as drugs or guns. Based on Melendez-Diaz, Courts have unanimously excluded this evidence.

The inability to introduce certificates without live testimony from the scientist who conducted the actual scientific testing may play a role in Massachusetts DUI cases. Specifically, Massachusetts courts may prevent the introduction of breathalyzer calibration certificates unless the chemist from the Office of Alcohol Testing who actually certified the breathalyzer is produced for confrontation and cross examination.

Massachusetts breath alcohol testing regulations mandate that breath testing devices and the simulator solution which they use must be tested and certified annually. Absent this annual certification, any breath tests conducted with the uncertified equipment will be rendered inadmissible in court. Although the police officer who administered the breath test routinely appears as a witness, the scientist who tested and certified the breathalyzer as accurate rarely appears. Instead, the prosecution relies on the certificate. This denies the defense the ability to test the veracity and competency of the chemist who issued the breathalyzer certificate.

With the substantial penalties associated with Massachusetts DUI convictions, Massachusetts DUI Lawyers are likely to launch Melendez-Diaz attacks on breathalyzer evidence in the near future.

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Massachusetts Breathalyzer testing is governed by regulations promulgated by the Mass. Office of Alcohol Testing of the Massachusetts State Police Crime Lab. These detailed breath test regulations govern every aspect of Massachusetts alcohol breath analysis including certification and testing of breath test operators, simulator solution, and breathalyzers. The regulations also cover what training is required for police officers who administer breath tests. In short, the Massachusetts breathalyzer regulations cover nearly every aspect of breathalyzer certification, testing, maintenance, repair, and operation. Failure to comply with these detailed and comprehensive standards will result in the exclusion of breathalyzer evidence.

The breathalyzer is a scientific device which is not infallible. There are documented cases where breathalyzers have failed, malfunctioned, and otherwise produced inaccurate breath test results. Many of the false alcohol readings occur because the breathalyzer does not measure alcohol directly. Instead, the device is supposed to measure alcohol contained in deep lung air and multiply that by 2100. This is supposed to produce an accurate blood alcohol reading. However, many factors can cause an inaccurate reading.

Certain medical conditions such as diabetes, acid reflux (GIRD), and ketoacidosis can cause false breathalyzer readings. Also, burping, belching, and hiccoughing within 15 minutes prior to a breathalyzer test can result in artificially high alcohol readings. Likewise, alcohol trapped in the mouth can cause artificial readings which are sometimes extremely high.

Breathalyzer readings can also be affected by radio frequency interference or RFI. This is caused by radio emissions from cell phones, police radios, and other electronic devices interfering with the electronics of the breathalyzer.

In every DUI case involving breathalyzer evidence, it is essential to investigate the facts and circumstances of the breath test to see if the test was valid. Failure to comply with the Massachusetts breath test regulations is grounds for exclusion of breathalyzer readings. It is also important to see if any of the known causes of false or inaccurate alcohol readings may have influenced the readings. Breathalyzer malfunction and inaccuracy is not only a problem in OUI arrest cases. Blood Alcohol Ignition Interlock Devices are also plagued with accuracy and reliability problems.

In cases where the Massachusetts DUI defendant refused the breathalyzer, the facts and circumstances of the refusal should be thoroughly investigated to see if the breath test refusal was valid under Massachusetts law. To trigger a license suspension, the police must properly document the refusal and the defendant must have been given certain information regarding the breathalyzer refusal penalties.

To summarize, whether you refused the test or not, the case should be investigated by a qualified and experienced Massachusetts DUI Attorney. It may be possible to vacate a breathalyzer refusal suspension or prevent the breathalyzer evidence from being used against you.

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There is a substantial amount of confusion and some misconceptions regarding the level of alcohol intoxication required to be convicted of OUI in Massachusetts. Courts have ruled that a person is considered legally "under the influence," for DUI arrest and conviction purposes, if the individual's consumption of alcohol has diminished his or her ability to safely drive a car. This means that not everyone who has gotten behind the wheel after drinking is "legally intoxicated." Not every motorist with an odor of alcohol on his or her breath deserves to be arrested. Only those drivers who have ingested so much alcohol so as to reduce their ability to drive safely are legally "under the influence."
 

Conversely, a driver does not have to be falling down drunk in order to be considered under the influence of alcohol. Indeed, the line lies somewhere between completely sober and highly inebriated.In order to address this question, in 2003 the Massachusetts DUI Law was amended such that the prosecution in a Massachusetts "drunk driving" case is allowed to proceed on two theories: impairment, as discussed above, or "per se."
 

A per se OUI case is established by proving that the driver's blood alcohol content was at or above .08. Once the prosecution proves this by introduction of breathalyzer or blood alcohol readings, the judge or jury is legally required to find the DUI guilty. This is why many people decide not to take the breathalyzer. By denying the prosecution this critical piece of evidence, it makes a not guilty verdict more likely. Consequently, to encourage people to provide this key evidence, the Mass. RMV imposes breathalzyer refusal license suspensions.
 

The impairment theory requires the prosecution to prove, beyond a reasonable doubt, that alcohol diminished the driver's ability to safely operate a motor vehicle. In a Massachusetts DUI trial, the judge or jury must make this determination by applying their knowledge of alcohol intoxication to the facts of the case. Jurors are expected to decide whether alcohol diminished the driver's capacity by considering the signs and symptoms of intoxication, the driver's behavior, and the arresting police officer's opinion. In cases were evidence of intoxication is severely lacking, at the conclusion of the prosecution's case, a DUI defense attorney can make a motion for a required finding of not guilty. In other OUI cases, where there is at least some credible evidence of diminished capacity, the jury will decide whether there is sufficient evidence to warrant a DUI conviction under the diminished capacity standard.
 

It is important to remember that not everyone who gets stopped and even arrested for DUI is actually intoxicated at the level required for a conviction. There have been numerous cases of people who were arrested for drunk driving taking the breathalyzer and getting a blood alcohol reading of .05 or below. The law requires the police to immediately release these drivers from custody.

If you have been arrested for DUI in Massachusetts, contact an experienced Mass. DUI Lawyer for help.

 

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This post will explain the eligibility requirements and benefits of the Massachusetts DUI First Offender Program, which is commonly referred to as the 24D Program.

The Mass. 24D First Offender program allows Massachusetts OUI First Offenders to reduce the statutory one year license suspension for first offenders and, sometimes, the 2 year license suspension for second offense DUI to either 45 or 90 days. It also allows for participants to apply for a hardship license upon confirmation of enrollment in the 24D 16 Week Outpatient Alcohol Education Program.

The 24D program allows qualified first and second offenders to apply for a hardship license during the 180 day or 3 year breathalyzer refusal suspension period. This is the one exception to the rule that no hardship license can be issued while a chemical test refusal suspension is in effect.

A 24D disposition involves being placed on probation for at least one and up to two years and being assigned to a 16 week out-patient alcohol education program. If 24D participants fail to complete or drop out of the alcohol program, the Registry will likely take action against the individual’s driver’s license. The program also requires the payment of costs, fines, and fees.

Because of the ability to apply for a hardship license almost immediately after enrollment into alcohol education classes, the 24D program is oftentimes a desirable outcome, especially for repeat DUI offenders. However, the program is limited to first offenders and those second offenders whose first OUI conviction is 10 or more years prior to their second offense. Second offenders with sufficiently old first offenses may therefore be edible for what is known as a “second chance first offender” disposition. There is absolutely no way for a 3rd, 4th, or 5th OUI offender to get the first offender program. Even if a court awarded a 24D disposition in such a case, the Registry could legally refuse to reduce any suspension or consider the individual for a hardship license.

Please contact me if you have any questions regarding the Massachusetts 24D First Offender Program.
 

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In rare cases, as a last resort, it may be possible to vacate a Massachusetts DUI conviction by filing a motion for a new trial. In situations where an OUI defendant pled guilty to the crime and did not have a trial by judge or jury, it is sometimes possible to vacate the guilty plea by asserting that, at the time he or she pled guilty to operating under the influence, the defendant was not advised of the collateral consequences of his plea or his constitutional rights to confront witnesses and have a trial by jury. Basically, the motion for a new trial would allege that the guilty plea in the DUI case was not made knowingly and intelligently.
 

The prosecution, of course, has the right to challenge and oppose the motion for a new trial and if the prosecution produces documentation showing that the drunk driving defendant voluntarily waived his rights to a jury trial, the motion must be denied. In Massachusetts DUI cases, there is no time limit for filing a motion to vacate a guilty plea, which must be addressed to the judge who initially handled the DUI case, unless he or she is unavailable, as is often the case.
 

In the case of Padilla v. Kentucky, which is pending before the United States Supreme Court, it will be determined whether an attorney's failure to notify his client about the consequences triggered by a guilty plea constitutes ineffective assistance of counsel, which would allow the guilty plea to be vacated. Depending on the court's decision, this case may have a substantial impact on guilty pleas in Massachusetts OUI cases. Indeed, many attorneys fail to inform their clients about the harsh and severe license suspension penalties which they will face because of Melanie's Law.
 

If the above-described motion is successful, it may be possible to have the DUI charges dismissed or to obtain a not guilty verdict. If any one of these outcomes is achieved, as is often the case, then the guilty charge on the DUI defendant's record is replaced with either a not guilty or dismissal. The clerk's office of the District Court should notify the Massachusetts Merit Rating Board and Registry of Motor Vehicles by sending a new abstract of the case, either electronically or by mail. Once this occurs, the driver can go to the Registry for a hearing and request that any resulting DUI license suspension be reduced or eliminated completely.

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There is a widespread misconception among those charged with DUI in Massachusetts that the court’s treatment of a Mass. OUI offense will determine the length of the resulting Massachusetts license suspension. For example, many clients, and even some lawyers, mistakenly believe that if an individual who has multiple DUI convictions is charged as first offender, the Registry will treat him as such. This is absolutely not true. Some also believe that, because the Registry is not bound by the court’s treatment of a particular OUI case, the Registry had discretion and it can do whatever it wants regarding an OUI offense. This is also untrue. 

With respect to DUI license suspensions, the Massachusetts Registry of Motor Vehicles is bound by the law. The Mass. OUI Law requires the RMV to suspend 2nd offenders for 2 years, 3rd offenders for 8 years, 4th offenders for 10 years, and 5th offenders for life. DUI Second Offenders are eligible for consideration for a hardship license after 1 year, 3rd offenders are eligible after serving 2 years, 4th offenders are eligible after serving 5 years, and 5th offenders are not technically eligible to be considered for hardship licensing. However, in some cases, it is possible for a 5th offender to receive hardship consideration from the Massachusetts Board of Appeal.

The OUI license suspensions listed above are mandatory and no judge or court can reduce or eliminate them. Under Melanie’s Law, there is a lifetime lookback period when counting prior OUI offenses and offenses committed anywhere in the world count. Also, it does not matter that the prosecution was unable to prove a previous conviction in the criminal case. The Registry will likely still be able to count this against the driver when calculating the length of the OUI suspension.
In addition to the above-listed OUI suspensions, if there was a breathalyzer refusal, the Registry will impose an additional Chemical Test Refusal Suspension. DUI First Offenders are suspended for 180 days, 2nd offenders are suspended for 3 years, 3rd offenders are suspended for 5 years, and 4th offenders who refuse the breathalyzer are suspended for life. Anyone facing a breathalyzer refusal suspension has a right to challenge the suspension. However, appeals regarding the validity of the CTR suspension must be filed within 15 days of the suspension date.

Those arrested for OUI in Massachusetts should understand these suspensions and not be lured into thinking that because the driver was only charged with a first offense DUI, or a charge was reduced to a lesser DUI, that he or she will get a reduced DUI license suspension. It will not happen. The Mass. RMV will suspend the driver’s license based on his driving record and the law. The Registry will show no lieniency, as the suspension is governed by law.

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I am writing to dispel some myths and misconceptions regarding Melanie's Law, St. 2005, c. 122, which was an act to increase the penalties for drunk drivers in Massachusetts, which was passed and approved on October 28, 2005.

Melanie's law substantially increased the penalties for refusing the breathalyzer and operating under the influence in Massachusetts. It also implemented strict requirements regarding the use of ignition interlock devices for second and subsequent DUI offenders. Under Melanie's Law, there is a lifetime look back period when counting prior offenses.

Many believe that Melanie's Law is unconstitutional because it is "ex post facto." Individuals suffering with long license suspensions and revocations, and those forced to use the ignition interlock device, have expressed a desire to challenge the law on constitutional grounds. Others hope that the Legislature will amend the law to soften its impact. The reality is neither the law makers nor the courts are going to, in any way, water down Melanie's Law. In fact, there is legislation pending to make Melanie's Law even tougher. Indeed, Massachusetts DUI laws are very likely to get more stringent in the future.

In the recent case of Joseph Gordon v. Registry of Motor Vehicles, Gordon challenged the Registry's requirement that he use an ignition interlock device. He based his challenge on the fact that the interlock requirement, which was triggered by two DUI convictions which pre-dated Melanie's Law by several years, violated his constitutional right to be free from "ex post facto" laws. The Massachusetts Appeals Court determined that holding a driver's license is a privilege and not a right. It further determined that Melanie's Law was constitutional and not an "ex post facto law."

The Registry can legally go back into your record for your entire lifetime to find old DUI convictions, to determine the length of a driver's OUI license suspension. It also can use those old OUI convictions to require any repeat OUI offender who is reinstating his or her license, as a result of OUI suspension, on or after January 1, 2006, to use the ignition interlock device during the term of any hardship license and for 2 years after getting a full license. These requirements have been judicially determined to be constitutional and enforceable.

If you have questions regarding how Melanie's Law applies to your particular situation, please contact me for a free consultation and review if your case. 

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To sustain a DUI conviction, the Massachusetts OUI Law requires that the crime be committed on a public roadway or one that is available to the public as invitees or licensees. Recently, in the case of Commonwealth v. Stoddard, the Massachusetts Appeals Court overturned a DUI conviction because the intoxicated operation did not occur on a public roadway. 

Brian Stoddard drove while he was intoxicated on the roadways of a privately-owed campground in Salisbury, Massachusetts. There was only one gated entrance to the campground and access was controlled by electronic key cards, which were issued to registered campers. Certain visitors were also given gate cards. 

In overturning Stoddard's OUI conviction, the Appeals Court announced the following rule: "[T]he essential question ... is whether the way is available for public use ... If the invitation or license is one that extends (or appears, from the character of the way, to extend) to the general public, the way is covered; if instead the license or invitation is privately extended to a limited class, the way is not covered." 

The Appeals Court further noted that the decision in this case may call into question the enforceability of the Massachusetts OUI Law in "gated communities," gated private resorts, or even some college campuses, where public access is restricted. 

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In the case of Padilla v. Kentucky, the Supreme Court will decide whether a lawyer’s failure to inform his or her client about the collateral consequences of a guilty plea, such as automatic deportation, constitutes ineffective assistance of counsel which would warrant overturning the guilty plea.

The 6th Amendment to the U.S. Constitution requires that criminal defendants receive effective assistance of counsel. A violation of this constitutional standard warrants reversal of a conviction. In Padilla v. Kentucky, the defendant’s attorney never told him that he would be automatically deported if he piled guilty to felony drug charges. Padilla got his guilty pleas vacated on appeal, because his lawyer never informed him of the automatic deportation. The prosecution appealed further and obtained a ruling from the Kentucky Supreme Court which overturned the lower court’s decision. The Supreme Court heard oral arguments last month and it will decide the case in the near future.
 

The Court’s ruling may have important implications in Massachusetts OUI cases. Many times a lawyer may not inform the client about license suspensions which are triggered by a guilty plea. Some of these suspensions, which are automatically triggered by a guilty plea, can last a long time. Many criminal defense lawyers, and even some DUI lawyers, are not aware of the license suspensions which can result from guilty pleas. It is therefore critical to hire a lawyer who knows not only the criminal aspect of your case, but also what will happen to your license. Many people have been given wrong information from their lawyer and unpleasantly surprised by the Mass. RMV when they try to reinstate their licenses or get a hardship license. Depending on the court's decision, Padilla v. Kentucky may allow drivers in these situations to vacate their guilty pleas and avoid long license suspensions.
 

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In the recent DUI case of Virginia v. Harris (PDF), the United States Supreme Court refused to hear a case regarding the Virginia Supreme Court's decision to reverse a drunk driving conviction because the police officer who stopped Harris did so based on an anonymous tip and he did not witness any swerving or motor vehicle violations.

The highest court in Virginia ruled that stopping Harris without observing any erratic or illegal operation, based solely on the anonymous tip, violated his 4th Amendment constitutional protection against unreasonable search and seizure. It seems that by deciding not to hear the case, the U.S. Supreme Court was essentially tacitly agreeing with the Virginia court. However, Chief Justice John G. Roberts, Jr. and Justice Antonin Scalia strongly dissented with the majority decision of the Court. The dissenting justices claim that

[t]he effect of the rule below will be to grant drunk drivers ‘one free swerve’ before they can legally be pulled over by police...

In numerous cases, Massachusetts courts had previously established that an anonymous tip generally cannot justify a motor vehicle stop by police. However, this general rule is not without exception and, in some cases, the police will be justified in stopping a motor vehicle based on a citizen's report, even where the officer might not have observed erratic or dangerous driving. Nevertheless, this is an important issue in any Massachusetts DUI case and a skilled attorney may be able to suppress evidence and obtain a dismissal or not guilty verdict on the basis that an anonymous tip did not provide sufficient justification to infringe on a driver's constitutional right to be free from unreasonable searches or seizures.

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