On Thursday, the Mass. Appeals Court decided Commonwealth v. O’Leary, a case wherein Martin O’Leary was arrested for driving under the influence of liquor 4th offense, negligent operation of a vehicle, and failure to stay within marked lanes. For the first time on appeal, O’Leary claimed that the Mass. State Trooper who stopped him lacked the required reasonable suspicion. O’Leary’s DUI attorney never raised this issue at his OUI trial.

At approximately 12:15 A.M. on February 22, 2008, Trooper Dana Tobey of the Massachusetts State police was traveling eastbound on Route 25, a three-lane highway. As Tobey was driving, he observed a vehicle “weaving” from the center lane, to the left hand lane, back to the center lane, to the right hand lane, and then back to the center lane again. This weaving pattern occurred three times in medium traffic. On the first occasion, Tobey observed the vehicle move halfway into the left hand lane before swerving back to the center lane. After the third instance of weaving, Tobey activated his emergency lights to signal to the driver of the vehicle to pull over. The vehicle then signaled to move right, but moved to the left hand lane. Tobey then activated his siren, and the vehicle moved to the breakdown lane, traveling approximately one-quarter of a mile before coming to a stop.

Tobey approached the driver's side of the vehicle and found the defendant alone in the car. Tobey requested that the defendant produce his license and registration. The defendant gave Tobey his license and looked for the vehicle's registration in the glove compartment, but was not able produce a registration. Tobey, however, was illuminating the vehicle with a flashlight and could see the registration in a clear plastic container in the glove compartment. Tobey observed the defendant's eyes to be glassy and bloodshot, and smelled a heavy odor of alcohol emanating from his mouth. Tobey asked the defendant a series of questions, and then requested that he perform a field sobriety test in the form of a recital of the alphabet. The defendant attempted to recite the alphabet three times, but each time stopped at the letter “C.”

Tobey then asked the defendant to exit the vehicle. As the defendant alighted, he stumbled and fell into Tobey. Tobey then escorted the defendant to a safe area and told him that he was going to have him perform another field sobriety test known as the “nine-step walk and turn.” Tobey first demonstrated the procedure for the defendant, but during the demonstration the defendant stumbled and fell, and Tobey had to stop his demonstration. Tobey then discontinued all field sobriety testing as a safety precaution for the defendant and for himself. He formed an opinion that the defendant was “incapacitated due to being under the influence of an intoxicating liquor,” and placed him under arrest for OUI.

The Court ruled that there was sufficient evidence for the car stop. Here, Tobey observed the defendant weaving across three lanes of traffic on three separate occasions and observed him commit a marked lanes violation. The civil marked lanes infraction alone furnished an objective basis for the stop. Thus, Trooper Tobey had reasonable suspicion to stop O’Leary and his arrest for DUI was valid.

Massachusetts courts follow the “authorization” approach to vehicle stops, under which any pretext or ulterior motive for the stop on the part of the police is irrelevant; the police may stop a vehicle so long as they “are doing no more than they are legally permitted and objectively authorized to do.” Here, they had cause to stop O'Leary for weaving.

Intoxicated Driver With a Revoked License Rear-Ends Police Officer. The Final Result: Not Guilty.

While driving on a revoked license, Joseph Limone rear-ended a police officer, who was in uniform and returning to his home after working a traffic detail. Limone was arrested for operating after revocation and DUI. Thanks to good lawyering, on appeal, the court found in favor of Limone and it reversed his drunk driving and revoked license convictions on legal grounds. This case shows how having a good Massachusetts DUI lawyer can make the difference between winning and getting your license back or losing and having to face all of the consequences and stiff penalties associated with a Mass. DUI conviction or operating after suspension arrest. In this case, the DUI defendant received a state prison sentence, since it was his 7th DUI conviction.

The Court reversed the 7th offense DUI conviction because the officer who Mr. Limone rear-ended lacked the legal authority to detain Limone by ordering him to step from his vehicle and taking his keys. The accident occurred in the City of Woburn and the police officer was from another jurisdiction. Based on his observations, he formed the opinion that Limone was under the influence of alcohol. However, since he was outside of his jurisdiction, he had no lawful authority to detain Limone. Although he could have obtained authority by contacting the Woburn Police Department under the doctrine of transferred authority, he failed to do so.

This case is an example of how a lawyer who was familiar with the laws regarding the authority to make a DUI arrest was able to successfully challenge the arrest and get his client’s convictions reversed.

I routinely get inquiries regarding whether a Massachusetts First Offense DUI will count as a previous offense when it resulted in an admission to sufficient facts followed by a continuance without a finding or CWOF. Under the Massachusetts DUI Law, previous convictions, guilty pleas, and alcohol program assignments, all count for the purposes of determining whether to subject someone to the enhanced penalties created by Melanie’s Law for being convicted of operating under the influence with prior offenses. This rule applies both when determining the length of the DUI suspension and when determining whether use of the ignition interlock device is required.

Whether a DUI defendant was actually charged with or convicted of DUI 2nd, 3rd, 4th, or 5th offense in court is completely irrelevant when it comes to determining interlock requirements and the length of the DUI suspension. All that matters is whether there were prior DUI alcohol program assignments, guilty pleas, or convictions. DWI alcohol program assignments are mandatory in cases where someone gets a continuance without a finding (CWOF) as a result of a trial or DWI plea bargain. Therefore, for the purposes of determining whether interlock is required and for determining the length of the license suspension for having been convicted of operating under the influence, a CWOF counts the same as a guilty plea or adjudication. Contact a Massachusetts DUI Attorney for more information.

Estranged spouses or other family members are often the source of calls to the police claiming that someone is operating under the influence or driving on a suspended license. When provided with this information, the police are obligated to respond and investigate the allegations. This can lead to being arrested for DUI, operating after suspension, or some other motor vehicle violation such as “no liability policy.” In some cases, the caller is motivated by vengeance or revenge and the person being accused of DUI is not under the influence. Nevertheless, the police cannot ignore the allegations and they are required to attempt to locate the subject of the complaint. These calls often happen when couples are going through separations, divorces, marital unrest, or family disputes. Sometimes the disgruntled spouse hopes that the police will make a DUI or suspended license arrest, so that I can be used against the person reported in a divorce, custody, or other legal proceeding. Those involved in acrimonious family or dating situations should be aware of this issue.

Often times, going through a separation or divorce is traumatic enough. Having to deal with drunk driving charges on top of fighting regarding child support, alimony, child custody, and the division of marital assets can be devastating. Also, any license suspension which may result from the DUI case may be used to prevent an individual from transporting his or her children. Fortunately, there are certain ways to fight DUI charges which result from a tip to police. Bias can be shown through cross effective examination by a Mass. DUI Attorney and it may also sometimes be shown in court that the target of the call was not actually under the influence of alcohol.

Because of Melanie’s Law, being convicted of DUI in Massachusetts can trigger harsh DUI penalties and consequences, which could last a lifetime. It is therefore critical to hire a Massachusetts drunk driving specialist, such as Attorney George E. McCarthy, Jr., a DUI trial lawyer who has over thirty years of experience in the courtroom. Here are 30 ways to beat your DUI charge and get a not guilty verdict or dismissal of the operating under the influence charges.

1.    Not a public way.  Driving under the influence is only a crime if it occurs on a public way or in a place where the public has a right of access as invitees or licensees. Therefore, a DUI committed on private roads or in other similar areas may not be a crime.

2.    Inadequate justification for the OUI car stop. Police officers must have reasonable suspicion to pull someone over in Massachusetts. If a DUI defendant is stopped without reasonable suspicion, any observations made or evidence obtained can be suppressed and the DUI charges will be dismissed or the defendant will be found not guilty, due to lack of evidence.

3.    Insufficient evidence of operation. To convict someone of drunk driving, the prosecution must prove, beyond a reasonable doubt, that the defendant operated a motor vehicle. In some cases, where the defendant was not observed behind the wheel, a not guilty verdict may be possible.

4.    In order to administer field sobriety examinations in Mass. OUI cases, the police officer administering the tests must have taken and passed a NHTSA approved field sobriety testing course.  Field sobriety tests (FSTs) administered by an officer who has not been certified to conduct them are invalid.

5.    Chemical Breath Test not administered in accordance with Massachusetts Office of Alcohol Testing Regulations. In order for breathalyzer evidence to be admitted in Massachusetts, the breathalyzer test must be performed in accordance with a strict set of regulations. Violating the Massachusetts Breath Test Regulations  can lead to a not guilty verdict or dismissal of the DUI charges.

6.    Operator Certification. Only certified infrared breath test operators are allowed to conduct breath testing in Massachusetts. Blood alcohol results obtained from breathalyzer tests conducted by uncertified operators are inadmissible and invalid.

7.    DUI Blood Evidence not properly collected. In order for blood evidence to be admissible in Massachusetts drunk driving cases, it must have been collected in accordance with a strict protocol designed to insure the integrity of the blood evidence.

8.    Chain of Custody. Evidence collected in connection with Massachusetts OUI arrests must be secured, preserved, and properly accounted for. Hole in the “chain of custody” of the DUI evidence may result in a not guilty verdict.

9.    Failure of Witnesses to Appear. Those charged with drunk driving in Massachusetts have the constitutional right to a speedy trial. DUI cases cannot be repeatedly continued in violation of this important right.

10.  Missing Evidence or Documents. In some cases, the police lose reports, documents, or DUI evidence. The loss or destruction of this material, even if inadvertent, can result in a not guilty verdict or dismissal of the OUI charges.

11.  Misgrading of Field Sobriety Tests. There are only certain ways that someone can “fail” field sobriety tests. Some police officers are unaware of this and they freelance the grading of the test based on mistaken beliefs as to what constitutes a “failure.”

12.  Deviation of BAC readings. Mass. DUI Law requires that the simulator solution used in Massachusetts breathalyzers must read .14, .15, or .16. Any other readings render the blood alcohol readings invalid.

13.  Failure to Read Rights. Those accused of drunk driving who are in custody must be read their Miranda rights prior to custodial interrogations. The failure to afford Miranda rights may result in suppression of drunk driving evidence. However, Miranda rights are not required during initial conversation at roadside stops.

14.  Violation of the 15 minute rule. Mass. OUI defendants must be observed for at least 15 minutes prior to being administered the breathalyzer test. The purpose of this is to insure that the defendant did not belch, hiccough, or regurgitate, or introduce anything into his mouth which may trigger false breathalyzer readings.

15.  Video evidence. In some cases, a video recording of the DWI defendant, taken either by the police, surveillance cameras, or other means, can be used to refute testimony regarding alcohol intoxication.

16.  Medical issues. Issues such as knee, leg, hip, back, foot, inner ear, or balance problems may impact field sobriety test performance and make it appear that the DUI test subject is intoxicated when he or she is not. Similarly, weight, vision, and hearing problems may result in the same false conclusion.

17.  The failure to allow a person arrested for drunk driving in Massachusetts to use the telephone within one hour of his or her arrival at the police station may result in a not guilty finding. The person arrested for DUI must be informed of this right upon arrival at the station. It is usually done as part of the DUI booking process.

18.  “Homemade” or non-standard field sobriety tests. Only NHTSA Standardized Field Sobriety Tests may be used in Massachusetts drunk driving cases.

19.  Anonymous tips. In some cases, an anonymous tip regarding erratic operation may be insufficient to stop a motor vehicle in Massachusetts in an operating under the influence case.

20.  Discrepancies. Differing accounts by witnesses or contradictions in testimony can make the difference between winning and losing a DWI case.

21.  Expert Testimony. In some drunk driving cases, a defense expert witness can effectively refute the Commonwealth’s case, especially in cases involving scientific principles or evidence.

22.  Failure to ask preliminary questions. In order for the NHTSA field sobriety tests to be valid, the officer administering the tests must ask the DUI suspect certain preliminarily questions and document the answers.

23.  Surface defects. The nine step “heel to toe” test, which is also known as the “walk and turn” test, must be conducted on a dry, flat, level, non-slippery surface. This test is sometimes conducted on improper surfaces such as wet roads or those covered with snow, ice, sand, or other debris.

24.  Time. It must be proven beyond a reasonable doubt that the accused was under the influence of alcohol at the time of operation. Long delays between the operation and the arrest or breath testing may be used to get a not guilty judgment on the grounds that the accused was not intoxicated at the time of operation.

25.  Identification. Failure to prove that the DUI defendant was the same individual named in records showing prior drunk driving convictions (for 2^nd or subsequent DUI offenses).

26.  Jury nullification is a process whereby a jury in a drunk driving case may find the defendant not guilty because of sympathy, empathy, or some other reason unrelated to the evidence. This can and does happen in Massachusetts DUI trials.

27.  Medication. Prescription drugs can make someone appear to be under the influence of liquor when, in fact, the person is sober and had not been drinking.

28.  Failure to Properly Demonstrate FSTs. Sometimes the arresting officer in a DUI case can be asked in court to demonstrate field sobriety tests. If he or she is unable to properly do so in court, a not guilty finding may result.

29.  Breathalyzer malfunction. Massachusetts Police Departments currently use the  Dräger Alcotest® 7110 Breathalyzer. It must have been certified and in good working order at the time of the test.

30.  Insufficient evidence of intoxication. The state must prove that the person charged with DUI had his or her ability to drive safety diminished by alcohol consumption. Good DUI lawyers know how to refute this evidence and provide other explanations for driving deficiencies.  

These are only a few examples of how to get a not guilty verdict or dismissal in a Massachusetts Operating Under the Influence case. The best DUI lawyers are aware of countless other ways to achieve positive results for their clients. Remember, in any DUI case, the defendant is not on trial. Instead, the prosecution’s case is on trial and a guilty verdict can result only when the prosecution has established the defendant’s guilt beyond a reasonable doubt. With DUI lawyers like George McCarthy and Paul B. Watkins, who is a former police officer, you can maximize your chances of being found not guilty of drunk driving. Because of the escalating penalties and DUI license suspensions, a not guilty verdict is very important in DUI 2nd, DUI 3rd offense, and subsequent offense cases.

In Massachusetts, if you are arrested in for DUI, which is also known as operating under the influence, within one hour of your arrival at the police station, you have the legal right to use the telephone to contact your friend or family, or to arrange for bail, or to hire a Massachusetts DUI Attorney. This right is afforded by Mass. DUI Law, G.L. c. 276 § 33A. If the telephone call is being recorded, both parties must be so informed. In some Mass. OUI cases, it may be possible to have the drunk driving charges dismissed, or to get a not guilty verdict, if you were not allowed to use the telephone, as required by law. This is an important right which may allow an individual accused of operating under the influence of liquor to get exculpatory evidence in the form of a comparison blood test or medical examination. Good Mass. DUI lawyers are aware of the telephone law and they may use it to achieve favorable outcomes for their clients. 

I just received a telephone call from a 29 year old gentleman from South Carolina who works as a carpet installer. He has 3 young children and he is danger of losing his job because he doesn’t have a license. The client’s license was revoked because, in November of 2009, he followed the bad advice of his OUI Lawyer. The attorney advised him to plead guilty to Operating Under the Influence of Liquor, first offense, Negligent Operation, and Leaving the Scene of an Accident after causing Property Damage. By pleading guilty to these three charges, based on the advice of the client’s DUI Attorney, he triggered a 4 year automatic loss of license under the Massachusetts Habitual Traffic Offender Law.

Under the Massachusetts HTO Law, the Mass. RMV is legally required to revoke an individual’s license upon conviction of the three above-mentioned violations within any 5 year period. Massachusetts DUI lawyers should be aware of this when counseling or advising a client to plead guilty. The lawyer told this client that the prosecution was offering a “great deal” and that he should take it.  Based on that advise, the client pled out and believed that was only facing a short loss of license. Instead, he found out that his right to drive was lost for a 4 year period. Because he lives out of state, the Massachusetts Registry of Motor Vehicles will not issue him a hardship license. He cannot get licensed in his home state of South Carolina, because his right to drive is blocked and revoked in the Problem Driver Pointer System (PDPS) of the National Driver Register (NDR).

This case illustrates why hiring the right DUI lawyer is critical and hiring the wrong DUI lawyer can result in severe consequences. Generally, once a plea agreement is made, it is very difficult to re-open the case.

Massachusetts DUI Penalties are often misunderstood by clients, their families, the police, some criminal defense lawyers, and even some Mass. DUI Attorneys, so I am taking this opportunity to explain how the Mass. RMV calculates DUI license suspensions. It must be understood that whether an individual was charged with a first, second, or third offense DUI is largely irrelevant. When it comes to the length of the OUI suspension, all that matters is the number of prior convictions or alcohol program assignments. Except in cases where there are only two DUI offenses and the conviction date of the first offense OUI is 10 or more years prior to the 2nd DWI offense date, it does not matter how old the prior drunk driving convictions are or where they occurred. DUI Second offenders, where the first offense is less than 10 years old, will have their licenses suspended for 2 years, DUI 3rd offenders will be suspended for 8 years, and 4th offenders will be suspended for 10 years. Those convicted for a 5th or subsequent DUI will be revoked for life.

Again, whether the judge treated a case as a first, second, or third offense DUI is irrelevant when it comes to license suspensions. All that matters is the number of prior drunk driving convictions or program assignments. Out of state DUI convictions count just as if they had occurred here in Massachusetts. For the Mass. RMV to treat someone as a DUI repeat offender, all that is required is a court or Registry record showing the prior drunk driving offenses. However, with the help of a DUI lawyer, it is sometimes possible to challenge these records.

When calculating DUI license suspensions, a continuance without a finding, which is known as a CWOF, counts just like a guilty finding in cases where the OUI defendant was assigned by the Court to an alcohol education program such as the Mass. 24D Program.

In addition to the mandatory license suspension penalties for having been convicted of drunk driving in Massachusetts or having been assigned to a DWI Alcohol Program, the Registry imposes suspensions for breathalyzer refusals. 1st offenders will lose their licenses for 6 months, those under 21 years of age and OUI 2nd offenders will generally be suspended for 3 years, and 3rd offenders will be suspended for 5 years for refusing to submit to a breath or blood test. Individuals with 3 prior drunk driving convictions will be revoked for life with no possibility to get a DUI hardship license. A not guilty verdict in the DUI case may result in a license reinstatement on a chemical test refusal suspension. Pursuant to Massachusetts DUI law, the Mass. RMV runs chemical test refusal suspensions consecutively and not concurrently with DUI license suspensions. For example, if someone refuses to submit to a breath test on a 3rd offense DUI, their license will be revoked for 5 years for the breathalyzer refusal, during which time they cannot be considered for a hardship license, and for 8 years for being convicted of DUI 3rd offense, for a total revocation period of 13 years.

If you have questions regarding a drunk driving license suspension, please call Attorney Brian E. Simoneau at 508-656-0057 for a free review of your situation. Depending on the facts and circumstances of your case, it may be possible to reduce or appeal your suspension. 

Boston media outlets are reporting that Matthew Amorello, the former head of the Massachusetts Turnpike Authority failed to appear at his arraignment on drunk driving charges in Haverhill District Court this morning. In accordance with standard practice when a defendant fails to appear in court, a default warrant was issued for Amorello’s arrest.

A Haverhill, Massachusetts Police Officer arrested Amorello for operating under the influence of liquor early Saturday morning. In addition to the first offense DUI charge, he was also cited for 2 counts of leaving the scene of an accident. If Amorello is convicted of all three charges, in addition to the license suspension penalties associated with the 1st offense DUI and the leaving the scene charges, he will face a 4 year revocation under the Massachusetts Habitual Traffic Offender Law, a fact which some Massachusetts DUI lawyers overlook.

The Boston news media obtained copies of Amorello’s drunk driving arrest report and publicized details of the incident which included his having to be subdued with pepper spray. No breathalyzer was administered. However, it is unclear if he refused to submit to the chemical breath test or if none was offered. If he refused to submit to the test, after being arrested for OUI, he faces an additional 6 month license suspension. Under Melanie's Law, this breathalyzer refusal suspension would run consecutively and not concurrently with any DUI license suspension. The police report indicates that  Amorello was uncooperative and refused to get out of his vehicle when a police officer instructed him to do so.  More details to follow as the story develops.

Even the best Massachusetts DUI Lawyers may be unaware that the Registry of Motor Vehicles will refuse to issue a hardship license in drunk driving cases where the OUI defendant is convicted of driving to endanger or leaving the scene of an accident in addition to DUI. Under Massachusetts Law, a person commits the offense of driving to endanger when he or she operates on a public way or right of access, recklessly so that the lives or safety of the public might be endangered. Negligent operation carries a 60 day license suspension for a 1st offense and a 1 year license revocation for a 2nd offense. Leaving the scene of an accident after causing property damage, personal injury, or death also triggers license suspensions. In combination with DUI, these suspensions may trigger a loss of license under the Massachusetts Habitual Traffic Offender Law. HTO revocations are 4 years in length, with eligibility for hardship consideration after 1 year.

In a Massachusetts DUI case, if a defendant is convicted of OUI and an associated charge such as negligent operation, operating so as to endanger, or leaving the scene of an accident, the Mass. RMV will not issue a hardship license and the OUI defendant will be forced to apply to the Division of Insurance Board of Appeal for hardship consideration. The Board applies strict standards when it comes to the granting of hardship licenses and the law gives the Board considerable latitude and discretion. 

Mass. DUI attorneys should be mindful of this when advising their clients regarding whether or not to plead out a drunk driving case. In making DUI plea agreements, lawyers and their clients should be careful to avoid unpleasant surprises by insuring that charges which may trigger a license suspension or revocation are resolved by something short of a conviction. For example, a continuance without a finding (CWOF) on a charge of leaving the scene or operating so as to endanger will not trigger a license suspension or 4 year habitual traffic offender (HTO) revocation.

I have personally seen cases where DUI lawyers have failed to act in accordance with the aforementioned advice and, for example, they’ve pled out a 1st offense DUI along with leaving the scene of an accident and negligent operation. The plea agreement called for a CWOF with an alcohol program assignment on the drunk driving charge and guilty findings on the other charges. The lawyer told his unsuspecting client that she would face only a 45 day loss of license, with the ability to be considered for a hardship license at the RMV. When the DUI client when to the Registry to try to get a hardship license, she learned that her license was revoked for 60 days for leaving the scene, 60 days for driving to endanger, 45 days for DUI, and 4 years, as a habitual traffic offender for having been convicted of the aforementioned motor vehicle violations. This case shows how it is critical to understand all of the consequences of pleading guilty or admitting to sufficient facts.