Massachusetts DUI Lawyers Blog

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" »

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" »

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.

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.

As a Massachusetts OUI defense attorney, I am reminded everyday of the devastating affect a drunk driving arrest can have on a person's life. The person feels ashamed and helpless. Most of the time, the arrestee is a good person with no prior criminal record who made a mistake. He or she now faces the societal stigma associated with the OUI (operating under the influence charge). Even the most favorable plea deal allowed by law includes a period of license loss, significant court courts, alcohol awareness classes, travel restrictions, and legal fees. Since 2005, much harsher penalties have been imposed for those charged with OUI, as a result of the public's commendable admonishment of drunk driving.

Unfortunately, the inevitable negative consequence has been the punishment of those charged with OUI, but are in fact Not Guilty. Even with an eventual dismissal or Not Guilty finding, the defendant suffers the trauma of an arrest and criminal prosecution (which may drag out for a year or longer), his or her name in the local newspaper, significant court and legal costs, and an automatic suspension from the Registry of Motor Vehicles. Only those who have gone through this process can truly understand how devastating it can be on one's life. Police are usually faced with a very difficult decision whether or not to arrest a person for drunk driving. There is usually an "investigation" that lasts no more than a few minutes, based on nothing more than the officer's initial subjective observations, before the decision to arrest is made. Fortunately, due process of law allows for the defendant to have his or her day in court, where ALL of the evidence is gathered and considered before the person can be found "Guilty" of the charge. In Massachusetts, the majority of cases that are fully examined and decided by juries or judges after evidence and facts have been gathered for months, rather than minutes, end with verdicts of "Not Guilty."

So why are Massachusetts Police officers commended and rewarded for the raw number of OUI arrests made, without regard to the validity of the arrest, the finding of a judge or jury, and before the person has had her or her day in court?

Continue reading "Massachusetts Police Honored for both Valid & Invalid Drunk Driving Arrests" »

While looking at some of the latest drunk driving cases in the news, "British man arrested for drunk driving in toy barbie car" caught my eye. It brought up an amusing situation that I have yet to encounter as a Massachusetts drunk driving defense attorney. A few days ago, a 40-year-old British man who happened to be a former Air Force aeronautical engineer was helping his son re-build a discarded, battery-operated, barbie-mobile for a college project. After consuming enough alcohol to set him over U.K.'s legal limit, the 40-year-old hopped into the two-foot high car, his knees tucked under his chin, and attempted to "drive" it to a neighbor's house to show-off their work. Although the car's top speed is just 4 mph, the man was pulled over by local police on the road outside of his house. His license is now suspended for 3 years.

All other factors being equal, and assuming this man does not have a significant criminal record, the United Kingdom's 3-year license-loss for the offense is certainly more harsh than Massachusetts' first-offense drunk driving penalties. However, a police officer would actually have legal grounds to arrest this man had this situation occurred in Massachusetts.

Under Massachusetts Law, in order for a person to be arrested for operating under the influence of alcohol, three elements must be present:

1. The person operated a motor vehicle,
2. on a public way,
3. while under the influence of alcohol.

In this case, if the man was driving the vehicle on the road in front of his house while over the legal limit, elements two and three are clearly present. Although it may seem a little ridiculous, the vehicle may be considered a "motor vehicle" for purposes of this statute. I am not aware of any Massachusetts cases involving an intoxicated person driving a 2 foot-high pink barbie car with his knees tucked under his chin at under 4 mph, but I would love nothing more than to take the first one to trial.

When speaking to a jury, I always refer to Field Sobriety Tests by a much more fair and accurate phrase: "Roadside Gymnastics." You are set up to fail these "tests" before they are even explained to you. I have come up a list of the top ten reasons why you should NEVER submit to these roadside gymnastics:

10. The officer already suspects that you are under the influence of alcohol or drugs. If you are arrested, he/she will make sure that the police report contains sufficient incriminating evidence to warrant an arrest and then prosecute you criminally. This often leads to an exaggerated or misleading report and then testimony by the officer to support that report if your case goes to trial.

9. The officer who administers these roadside gymnastics has likely practiced them hundreds, if not thousands of times. He was trained in a comfortable environment. It is not fair to expect you to perform them perfectly on your first try under the threat of being arrested.

8. Weather conditions such as rain, cold temperatures, ice, wind, snow, and fog may significantly affect your ability to perform the "tests."

7. The testing area may affect your performance. Any uneven surface, gravel, cars whizzing by, inadequate lighting, or the absence of a visible straight line (for the walk and turn test) may negatively affect your performance.

6. You do not know whether you will perform these roadside gymnastics to the officer's satisfaction. You make think that you can perform the tests well enough, but there are many cues of impairment the office is trained to detect, many of which you aren't even aware.

Continue reading "Massachusetts Field Sobriety Tests: 10 reasons to always refuse" »