Massachusetts DUI Lawyers Blog

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 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.

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" »