Massachusetts DUI Lawyers Blog

On the front page of today's Eagle Tribune, the paper reports that while Methuen School Superintendent Judith Scannell was in New York over the weekend, police were dispatched to her home. There, they discovered a party of youths (under 21), with several beer bottles and cups inside the kitchen and in the backyard. None of the youths was found to be directly in possession of alcohol, and no arrests were made. Based on the online comments to this article, the town of Methuen seems to be completely divided on whether the police acted appropriately, and they seem even more misguided on the law regarding minors in possession of alcohol. I hope that this blog covers some basic facts and fiction regarding this area of criminal law in Massachusetts.

Under MGL c. 138 s. 34C, "Whoever, being under twenty-one years of age and not accompanied by a parent or legal guardian, knowingly possesses, transports or carries on his person, any alcohol or alcoholic beverages" is considered to have violated this statute (with the exception of performing job-related duties). In house parties such as this one, the critical question becomes "What constitutes possession?"

In dealing with a controlled substance, there are two types of possession- active and constructive. If a police officer saw one of the youths with a beer in his/ her hand, that would be active possession. According to police, that did not happen. The only question is now whether any of these kids was in constructive possession of alcohol. This is often a last-ditch effort to make an arrest where one probably isn't warranted, because constructive possession of alcohol in this situation is almost impossible to prove.

Constructive possession means that the person had knowledge that the substance (alcohol) was there, and the person also had the ability and intention to exercise dominion and control over that substance. Just the knowledge that alcohol is present, without evidence of intent to actually possess it, is not enough. A clear example of such intent would be if the officer saw a youth reach into a cooler filled with nothing but beer, demonstrating an intent to actively possess that beer. But a youth who is merely in the presence of alcohol at one of these unsupervised parties is not guilty of this crime, without other incriminating evidence. Of course, there are still police who often make weak arrests under these circumstances. I actually love taking on these cases as a defense attorney, because I am able to either have them dismissed, or I take them to trial and win. To suggest that the Methuen police selectively chose not to arrest anyone because it was Superintendent Scannell's home, or that they "ignored the law" as has been posted by many bloggers, is unfounded and incorrect. I praise the Methuen police for knowing, understanding, and following the law in this situation, despite the risk of misguided accusations against them.

If you have been charged with Minor in Possession of Alcohol, or any other criminal offense in Massachusetts, contact:

Law Offices of Benjamin P. Urbelis, P.C.
1211 Commonwealth Avenue
Boston, MA 02134
Ben@urbelislaw.com
www.urbelislaw.com

In November 2011, the Andover High School Boys' Basketball team made national news for a hazing incident of a sexual nature that allegedly occurred at a private summer basketball camp, not sponsored by or affiliated with Andover High School. Initial reports indicated that two upperclassmen, who were eventually expelled from school, were the ringleaders who pressured at least two younger players to engage in a contest, the loser of which was forced to eat a semen-soaked cookie. While the incident did not occur during school hours, nor was it at a school-sponsored event, Massachusetts' new anti-bullying laws likely guided the private administrative proceedings that led to the expulsions, and will also serve as the governing law for any criminal charges that may follow; the Bristol County District Attorney's Office has already convened a grand jury to investigate the matter.

While the media and general public has expressed outrage over the alleged hazing perpetrated by the now-expelled seniors, it is the suspensions handed out to two freshman players that has sparked a civil law suit against the Andover school district seeking an injunction to squash the suspensions and protect their otherwise clean school records. The complaint discloses detailed findings from the school's administrative proceedings that were not previously made public. The semen-soaked cookie, also dubbed "wet biscuit", was just one of three options that the team's newcomers were given as their initiation task- the other two choices included grinding on each other naked, or fondling each other's nude genitals. The report also highlights ongoing bullying, the likes of which include forcing players to walk through hallways naked, placing bowel movements on their beds, and pouring chewing tobacco spit on the face of one boy.

Under M.G.L. c. 269 sec. 17, "hazing" is defined as any conduct or method of initiation into any student organization, whether on public or private property, which wilfully or recklessly endangers the physical or mental health of any student or other person. Conviction under this statute carries up to one year in prison and a $3,000 fine.

Based on the school administration's findings, there is certainly prima facie evidence to charge the perpetrators criminally under this statute. The boys were being initiated into Andover High School's basketball program by the upperclassmen who willfully engaged in specific conduct likely to endanger BOTH the physical and mental health (either one would suffice to convict) of the younger victims.

If charges are brought, and depending on how the Bristol County District Attorney's Office chooses to proceed, the perpetrators may face more significant sentences under other state statutes. For example, under M. G. L. c. 265 sec. 43(A), the criminal harassment statute, "Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment and shall be punished by imprisonment in a house of correction for not more than 2 ½ years or by a fine of not more than $1,000, or by both such fine and imprisonment."

Were these acts so egregious that they might cause a reasonable person (or in this case, a reasonable 14 year old) to suffer substantial emotional distress? I think that most people would say yes, especially after the public outrage already showcased in the local media. So if these boys are charged with criminal harassment, and if the school's findings are expected to be proved at trial, as their attorney I would likely seek alternative ways of resolving the matter short of putting my clients' fate in the hands of an emotionally-charged jury looking to convict.

Turning to the suspension of the two freshman who had just barely finished eighth grade at the time of the alleged incident,

Continue reading "Andover's "Wet Biscuit" Scandal" »

It has been a while since I've posted a blog, but I believe that today's article in the Boston Globe about the Supreme Judicial Court's formal inquiry into the acquittal rate of jury-waived drunk-driving trials in Massachusetts is extremely misleading. The high acquittal rate is based on several factors that are not mentioned, all of which I believe are far more significant than the charge of judicial leniency.

My first experience presiding over a criminal trial as lead prosecutor for the Commonwealth of Massachusetts was in 2007. I was in my final year of studies at Suffolk University Law School, working as a student-prosecutor. My supervisor handed me the file and said "Here, take a look at this case, you're trying it tomorrow." (I quickly learned that prosecutors were often lucky to have the case even THAT far in advance, as first contact with a case in the morning, taking a look at it over lunch, and then arguing in front of a jury by the afternoon was commonplace). When I got home and looked at the file, I realized why my supervisor handed me this particular case as my first trial- it was a loser.

The defendant had been stopped for a broken taillight (in other words, no "erratic operation" to suggest that he was impaired), there was no breathalyzer taken, and when asked, the defendant stated that he had consumed one beer. The strongest evidence of impairment against this defendant was that he failed two out of three field sobriety tests that were administered to him. While he was able to recite the alphabet without any issue, he failed both the one-legged stand and the nine-step walk and turn. The problem was that the officer never asked the defendant if he had any medical problems that might prevent him from doing such tests. As it turns out, 71 year old defendant had undergone a total of 5 surgeries on his legs and back over the past 10 years, and he had significant arthritis, all of which was documented in his medical records. The jury-waived trial took all of 45 minutes, and the judge did not say a single word at the close of the evidence other than "Not Guilty."

Continue reading "High Acquittal Rate for Jury-waived OUI Trials in Massachusetts is Not a Result of Judicial Leniency " »

According to the Massachusetts Registry of Motor Vehicles Merit Rating Board, the conviction rate for Operating Under the Influence from 2006- 2009 was 49%. To the average person who learns this statistic, and apparently to Northboro Police Chief Mark Leahy, this might suggest that the Commonwealth has been unsuccessful in prosecuting drunk driving cases. However, this number indicates that the vast majority of people who are arrested for drunk driving eventually face significant penalties, even for a first offense. The 49% conviction rate does not include thousands of defendants whose attorneys were able to work out a deal with the prosecution to avoid the uncertainty of a trial. For most first-offenders, experienced defense attorneys are able to negotiate a Continuance Without a Finding, where the defendant admits that if the case went to trial there would be enough evidence for him/her to be found guilty, and in exchange for such an an admission, the case will be dismissed without a "Guilty" finding after the period of one year, so long as the defendant successfully completes the terms of probation. While the defendant's record is spared a criminal conviction, he/she is far from being let off the hook. The terms of probation generally include $600 in statutory court fines and fees, $65/month probation supervision fee ($780 for the year), a 16 class alcohol education program at the cost of $567.22, a 45-90 day license loss with $500 reinstatement fee, and travel restrictions which prohibit the defendant from leaving the state for the entire year of probation (although a skilled defense attorney may be able to limit this restriction). Additionally, the dismissal is a misnomer. While successful completion of probation might technically result in a "dismissal", it still counts as the defendant's first-offense in both the criminal justice system AND with the Registry of Motor Vehicles. In other words, if the person is ever arrested again for an OUI, they will be charged with a second offense, facing much more severe criminal penalties and license loss consequences. Finally, a Continuance Without a Finding for a first-offense operating under the influence charge will also add five points to the driver's insurance rate, likely increasing the annual premium by thousands of dollars. A defendant who is found "Guilty" of a first-offense generally faces these exact same consequences and penalties. Practically speaking, the only difference between a "Guilty" verdict and dismissal after a successful plea negotiation is the wording, and the defendant's ability to truthfully say on any job/school/financing or other application that he/she has never been "convicted" of a crime, although a Continuance Without a Finding will still show up on any full background check. So while people such as Mark Leahy may feel "frustrated" that most people arrested for operating under the influence avoid conviction, the truth is that most do face significant penalties and life-altering consequences that serve as a deterrent to drunk driving.

Continue reading "Police Chief Misinterprets OUI conviction rate" »

If I told you that OUI/DUI/DWI arrests dropped nearly 17% from 2008 to 2010, you would probably think that tighter law enforcement, sobriety checkpoints, and increased public awareness has yielded positive results. Well, the total number of drunk-driving arrests has decreased by 17% over that two-year period, but the most significant reason for the drop is an unfortunate one. Since 2006, the number for State Troopers patrolling our Massachusetts highways has decreased by 20%. Prior to these budget cuts, studies showed that less than 0.2% of impaired drivers are apprehended on any given night. So while the number DUI/DWI/OUI arrests in Massachusetts suggests a positive turnaround, the slashed police budget has left our highways, where most OUI investigations are initiated, with even more impaired drivers who will not be apprehended.

Continue reading "Massachusetts DUI Arrests Down; Public Safety Threatened" »

Last week, the Boston Globe published an article about Suffolk County District Attorney Dan Conley's attack on Boston Municipal Court presiding Judge, Raymond Dougan. The article portrayed Dougan as overly defense-friendly and in the words of Conley, "a clearly biased judge who ignores the law and threatens public safety." Conley mounted an unprecedented attack on the judge, having each of his Assistant District Attorneys who stands before the judge in a criminal case ask his honor to recuse himself on the grounds that he cannot be fair. (As a former prosecutor, I can say that this puts the young ADA in an extremely uncomfortable and difficult position). Conley took his cause even further when he asked the Judicial Conduct Commission and the Supreme Judicial Court to prevent Dougan from hearing criminal cases altogether.

Within days, the Massachusetts Defense Bar appropriately fired back, outraged by DA Conley's recent actions, which they call an attempt to intimidate judges.

Some judges are prosecutor-friendly, some judges are defense-friendly. That's the nature of our criminal justice system. Judges are expected to use their legal education, life experience, legal experience, and judicial experience to apply the law and ensure justice. Judges are human and will differ in the manner in which they handle and rule on cases. Case law is created when judges issue "Opinions." The extreme position that Judge Dougan is biased and a threat to our public safety could also be said of several judges that Massachusetts defense attorneys would love to remove from the bench; but we understand that it is not our job, nor our right, to do so.

As a Massachusetts criminal defense attorney specializing in drunk driving defense, I am well-aware of the need for strong enforcement of our OUI laws. Melanie's Law was a monumental step in tightening the laws for repeat offenders, and I generally agree with most of what was passed within that legislation.

I recently read a Boston Globe article, and then watched a similar segment on "World News Tonight", on new technology that will be able to detect alcohol on the operator's breath, or even on his or her skin. The concept of this technology would be remarkable. It would, in effect, operate the same way as the interlock ignition device that repeat drunk driving offenders are now required to install in their vehicles, but it would avoid the blatant "breath test" that may cause inconvenience and embarrassment.

While the concept is well-intentioned, its implementation would be a nightmare.

Continue reading "Drunk Driving Technology Threatens Personal Liberty" »

As a Massachusetts OUI/DUI defense attorney, I cannot stress enough the importance of one's right to remain silent. If you have been ordered out of your car by a police officer for suspicion of operating under the influence of alcohol, usually this is the time to invoke your right to remain silent. You are not required to answer any questions, and you are NOT required to perform any "Field Sobriety Tests." While the Massachusetts Registry of Motor Vehicles may suspend your license if you refuse to submit to a post-arrest breathalyzer, there is absolutely no criminal penalty or RMV consequences for declining the Field Sobriety Tests. In most cases, the less information you provide to police during an initial investigation, the less potentially incriminating evidence they can gather before you have the opportunity to speak with an experienced OUI attorney.

In keeping up with Massachusetts OUI news, I read about a case last week in which a 40 year old Weymouth man was pulled over after leaving the scene of an accident. In addition to being charged with Operating Under the Influence of Alcohol, he was also charged with child endangerment while operating under the influence of alcohol, a separate charge that carries a mandatory minimum sentence of 3 months and up to 2 1/2 years in jail, after it was discovered that his 6 year old daughter was in the car at the time of the accident.

And now comes the time to "remain silent"......

When police stopped him, he allegedly stumbled out of the car. When asked about his daughter, Tompkins said that it wasn't his 6-year-old daughter in the car, it was his 17-year-old girlfriend.....Police called Tompkins' wife who picked up the child.

Continue reading "When "Right to Remain Silent" Should be Invoked" »

As a Massachusetts criminal defense attorney specializing in OUI/DUI/DWI, my representation of a client usually does not end in court. Whether working out a deal for my client, or going the distance and beating the case entirely, there are often collateral consequences of the arrest. If my client refused to take the breathalyzer, then even after an acquittal I may have to assist him or her through the process of license reinstatement, which may become very complicated depending on the person's previous record and circumstances. In advising my client, I always have to consider the potential collateral consequences based on his or her personal circumstances, including occupation, school enrollment, professional licenses, and immigration status. The collateral consequences of a Guilty verdict or a Continuance Without a Finding can be even more severe than the court's penalties.

Yesterday, I read about one example of these collateral consequences. A middle school principal, Misty McBrierty, resigned after being arrested in Massachusetts for Operating Under the Influence of Alcohol. Government employees, politicians, and those entrusted with educating or working with our youth are often held to a higher standard of conduct, as their public image is a vital part of their employment. A relatively minor offense, such as an OUI charge, can cost someone his or her job; even before that person's "day in court." While Ms. McBrierty chose to step down before having her day in court, her swift action demonstrates how the negative publicity associated with an OUI arrest can be enough to cost a person his or her livelihood.

Continue reading "Collateral Consequences of OUI (drunk driving) Arrests" »

As a Massachusetts DUI and motor vehicle law defense attorney, I was recently contacted by a few media sources seeking my opinion on the new texting laws which take affect on Thursday. Along with several other new driving regulations and penalties outlined in these laws, it will now be illegal for anyone to text-message while driving. It will also be illegal for anyone under the age of 18 to talk on a cell phone while driving. These laws are a step in the right direction in the name of public safety, however as an attorney who specializes in criminal, OUI and driving related-offenses, I know that these new laws will be extremely difficult to enforce.

Please read Boston's Metro Newspaper in which I, along with other local driving-offense experts, explain that these laws will be difficult to enforce.

Continue reading "My Interview in Metro Newspaper on Texting Laws" »

In a blog article I wrote earlier this summer, I discussed the increasing number of Massachusetts police officer injuries and fatalities cause by drunk drivers. This trend led to increased law enforcement on the Commonwealth's roads and highways, more arrests, and a very busy summer for defense attorneys such as myself. These numbers are not going to go down anytime soon in the greater Lowell area, as a highly-decorated, off-duty police officer was killed by an alleged drunk driver just steps from Lowell District Court, where the 26-year-old suspect found himself held on $5,000 bail earlier today.

Officer Patrick Johnson leaves behind a wife, Lindsey, a three-year-old son, and an infant daughter.

In Massachusetts two years ago, a person could be arrested for smoking a joint. Even a first-offense possession of Class D (marijuana) charge carried up to six months in jail. Now, possession of less than one ounce of marijuana is not a crime. It is merely a civil infraction. In fact, the consequences for marijuana possession now are even less severe than for a parking ticket.

A police officer may fine you $100 for possession or use of the drug. But unlike with a motor vehicle stop, if an officer stops you on the street for smoking pot, you do not even have to tell him your name. As executive director of the Massachusetts Chiefs of Police Association Wayne Samson says, "If [the person stopped] tells [the officer] their name is Yogi Berra or Ronald McDonald, nothing allows for further positive identification." Further, unlike with speeding or even parking tickets, which can have collateral license consequences with the RMV or may even turn in to criminal cases if unpaid, marijuana citations are, in all practicality, unenforceable. The only way to enforce collection of these fines would be for the government to take offenders to small claims court, which is certainly far more effort an expense than recouping $100 is worth. So until the laws are redrafted, police can try to cite you for smoking pot, but they really have no way of making you pay the fine.

For more on this issue, see last week's article in the Huffington Post.

In response to the public outcry surrounding two teenage suicides linked to harassment and bullying at school, Massachusetts passed legislation in May which requires public schools to create bullying prevention plans by years end. Today, the state Education Department released a 14-page template to help schools develop their own policies in response to harassment among students.

The legislative action was reactive, as blame and criticism fell directly on the South Hadley High School administration for failing to intervene in the student-led bullying of Phoebe Prince which led to her suicide in January of this year. The state has been praised for its devoted efforts and zero-tolerance stance on bullying, as the Education Department states: "We will not tolerate any unlawful or disruptive behavior, including any form of bullying, cyberbulling, or retaliation.''

The plan goes on to say, "The school or district expects students, parents or guardians, and others who witness or become aware of an instance of bullying or retaliation involving a student to report it to the principal or designee."

This plan appears to provide the exact framework that the people of Massachusetts called for after the bullying-related deaths of teenagers this year, including that of Phoebe Prince. One would be hard-pressed to find many who disfavor such a plan. However, there are two major problems with enforcement.

First, the plan "expects students.... to report [bullying or retaliation] to the principal or designee." I would hope that in the wake of the bullying-related tragedies, students would become more proactive in reporting such harassment in an effort to protect their peers. However, expecting adolescents to make themselves targets for emotional, social, or even physical harm by their peers in the name of what's right is overly optimistic; and because the students are usually the first, and many times only eyes to most bullying, most instances will likely remain undisciplined.

Second, in those situations that have become severe enough for law enforcement to get involved, there are no legal consequences for a student who failed to intervene or report harassment by or on another student. In Massachusetts, there is no "duty to act," meaning if one student witnesses someone bully, threaten, or even assault another student, there is no legal duty to intervene or report the crime. The duty is different for teachers and school officials, who are placed in a "special relationship" with the students as caretakers and MUST report such conduct. However, school officials are usually the last to find out about student-on-student harassment. So, while teaching the students about the recent tragedies and inherent dangers that come with ongoing bullying and harassment is certainly a step in the right direction, enforcing these new guidelines will be very challenging, especially with such heavy reliance on young adolescents who face no legal consequences for minding their own business and just want to fit in.

When it comes to the death penalty debate, I join most Massachusetts criminal defense attorneys in opposition to the ultimate form of punishment. As a group, we take the same position as the liberal majority here in the bay state, but as lawyers we tend to view the issue through our legal lens. We see the number of convictions that have been overturned as a result of mistaken identification, prosecutorial misconduct, and dozens of other factors that have landed thousands of innocent people in prison. The criminal justice system and jury verdicts are completely in the hands of human beings, who will never be without error. Thus, there will always be wrongful convictions, and most criminal defense attorneys understand that the potential execution of innocent people heavily outweighs the state's interest in the death penalty. This view is consistent with the people of Massachusetts. So why, then, are we far less progressive than the rest of the country when it comes to the rights of juveniles who have been convicted of murder?

A recent article by James Alan Fox provides commentary on John Odgren's appeal of his first-degree murder conviction. Odgren was only 16 years-old when he killed 15 year-old James Alenson. The crime was unthinkable. However, Odgren does not fit the characteristics of the killer for whom a life sentence, without the possibility of parole, was intended. Odgren was a severely troubled teenager who suffered from several mental disabilities including Asperger's Syndrome, bipolar disorder, depression, anxiety and ADHD. He, like most 16 year-olds, was not capable of fully appreciating the consequences of his impulsive actions until after they had taken place, as evidenced by his attempt to save Alenson from dying just moments after committing the brutal stabbing, and then crying "Oh God, What have I done?"

Even the most conservative, death penalty, red states such as Texas have abolished life sentences without the possibility of parole for juveniles, while Massachusetts MANDATES that all children 14 years old charged with murder be tried and sentenced as adults. As a progressive leader in almost all areas of civil rights policy, it is time for Massachusetts to distinguish the cold-blooded murderers for which our first-degree murder statute was intended from adolescents who should serve significant jail sentences so as not to diminish their criminal acts, but who may someday have the chance at rehabilitation to join our free society.

As the temperature continues to climb, so does business for Massachusetts OUI/DUI defense attorneys. Every year, statistics show that more people in Massachusetts are arrested for drunk driving throughout the summer months than during any other season. Whether the warm weather leads people to drink more, the sun increases the affect of alcohol on the body, or the warm, dry roads make people feel confident in their ability to make it home safely, this summer has generated even more arrests of those suspected of drunk driving than in past years. There is one main reason: in the past few weeks alone, five Massachusetts police officers have been either injured or killed while on patrol during the hours of 12- 2:30 am after being struck by a driver suspected of operating under the influence. Police are entrusted with discretion to arrest, and naturally the injuries to their own will lead to many criminal charges that four or five years ago might not have been. The legislature enacted a law in March 2009 known as the "move-over law" to protect officers on patrol after several were injured last year, but these recent incidents have sparked the police union to call for more patrol units to crack down on drunk driving. There does not seem to be much opposition to their request, so we can safely predict the already high volume of OUI/DUI arrests this summer to continue to climb with the temperature.