Articles Posted in DUI/OUI politics looked at 289 OUI (Operating Under the Influence) lawyers in Boston and hand selected Urbelis Law as one of the very best. The goal of is to connect people with the best local experts. They analyzed and scored Boston DUI attorneys on 25 variables across 6 categories, including reputation, credibility and experience. Urbelis Law ranked in the top 20 out of nearly 300 Boston lawyers. Our firm takes tremendous pride in the work that we do and always provides zealous advocacy tailored to each individual client.

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DUI’s, OUI’s in Massachusetts, have become a huge problem throughout the United States. Recently, in an effort to lower the many cases of drunk driving, the National Transportation Safety Board (NTSB) recommended that states lower the legal blood-alcohol limit from .08 to .05. This recommendation is not receiving much support in Massachusetts from establishments that serve alcohol as well as prominent safety organizations. Specifically, the Massachusetts chapter of Mother’s Against Drunk Driving (MADD) does not support the NTSB’s recommendation and believes that there are more proficient ways of curbing drunk driving within the State such as interlock ignition devices and other drunk driving laws that are already in place.

If Massachusetts were to implement a new law based on the suggestion of the NTSB, there could be many positive and negative consequences. For instance, if the OUI limit is lowered, it could reduce the amount of fatalities and property damage caused by drunk driving within the state. People may choose to be more careful with their drinking and therefore create a safer and more law abiding environment on Massachusetts public roadways. On the other hand, lowering the limit may also flood the MA court system with an abundance of less severe OUI cases. Depending on the weight of a person and how long they have been drinking, a blood alcohol level of .05 can likely be reached after two beers or two glasses of wine. This may cause an outpouring of OUI cases in the state of Massachusetts that would never have come through the court system if not for the change in the law.

Although changing the legal blood-alcohol limit is not yet on the state Legislature’s agenda, the Senate will be working with law enforcement and a variety of advocacy groups to review the NTSB recommendation. If the change is made, MA will surely see a drastic change whether it be in it’s OUI fatality statistics, OUI court statistics, or more. Clearly, we all want a safer Massachusetts but the question becomes: is this new legislation really the way to go or are the laws that we currently have in place good enough?

One year ago, the Boston Globe’s Spotlight Team published several articles that completely misled the public about OUI conviction rates in Massachusetts. It tried to generate outrage by reporting certain conviction statistics without fully investigating how OUI cases are actually prosecuted in Massachusetts. In response to the article, the Supreme Judicial Court (SJC) of Massachusetts appointed R.J. Cinguegrana as special counsel to investigate OUI statistics in Massachusetts. Cinguegrana and his team evaluated data of nearly 57,000 OUI cases over a four year period. This much more comprehensive, thorough, and unbiased investigation and subsequent report, which was actually done by highly experienced legal professionals, reveals the truth about how OUI cases are prosecuted and adjudicated in Massachusetts.

Last year’s Globe article suggested that because jury-waived trials in front of a single justice result in acquittals 85-90% of the time, whereas jury trials result in acquittals nearly 30% less-often, the judges are too lenient on defendants. There is a very simple explanation for this disparity: the type of case in which criminal defense lawyers advise their clients to waive a jury are usually different from the type of case in which the defendant is advised to put his fate in the hands of his peers. In my experience, when the defense attorney’s theory of a case rests mainly on an issue of law rather than particular facts of the case, or where the evidence of one element of the offense is so weak that it’s readily recognizable to any lawyer or judge, the attorney will advise his client to waive a jury. Thus, the judges tend to hear weaker cases, resulting in a higher acquittal rate.

In Massachusetts, if you are charged with an OUI, you can rest assured that the prosecution will not be willing to dismiss your case, no matter how weak it may be. The main reason for this practice is that District Attorneys are elected officials, and they want to appear tough on drunk driving. They would rather take a very weak case to trial and lose than dismiss the charge, even when doing so is warranted. This way, they, along with the Boston Globe’s spotlight team, can blame the judges for a high acquittal rate, and still appear to be prosecuting these cases to the fullest extent of the law. With weak evidence of guilt, your attorney may file motions to exclude evidence without which the prosecution is UNABLE to legally go forward with the case. However, in most cases, you will have to go to trial with the hopes that a judge or jury finds you “Not Guilty.” This is a very different practice from other states, where OUI charges are often dismissed or amended to a less serious offense if the case is weak. In New Hampshire, for example, weaker OUI cases are routinely amended to the charge of “Reckless Driving” as part of a plea bargain. The absence of such a practice in Massachusetts forces you to hire an attorney to defend the case all the way through trial, even when the prosecutor knows that a “Not Guilty” verdict is almost certain.

Mark Leahy, president of the Massachusetts Police Chiefs association was quoted as saying, “We absolutely are not wrong 85 and 90 percent of the time. There are always going to be some lousy cases, but it doesn’t begin to approach a majority.” I 100% agree with Chief Leahy. The police are not wrong in making an arrest 85- 90% of the time. In fact, far from that. That’s why 77% of the time, the case is resolved of adversely for the defendant, with either an admission to the offense of OUI as part of a plea, or a Guilty finding after trial, according to Cinguegrana’s report. This number is actually consistent with the national average of 80.5%. Only 23% of OUI cases in Massachusetts result in either a dismissal or a Not Guilty verdict. And even of those 23% of cases with a favorable result for the defendant, the arrest was, in most cases, a good arrest. In order to arrest a person for OUI, the police only need probable cause to believe that the person committed the offense. In order to convict, the prosecution must prove beyond all reasonable doubt that the person is guilty of each element of the offense. Thus, a case in which the police made a legitimate arrest might still not be strong enough for the prosecution to prove beyond all reasonable doubt that the person is guilty.
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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.”
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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.
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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.
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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.
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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.
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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.
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