A couple of weeks ago, an older gentleman and his wife appeared before the RMV Board of Appeal. He was seeking relief on a 2 year loss of license because of a second offense DUI conviction. His first DUI offense occurred more than twenty (20) years ago. Not being able to afford a lawyer for the Board of Appeal hearing, he appeared without counsel. The gentleman and his wife had difficulty understanding the complexities associated with the 2 year suspension and how to obtain a license. At no charge, I researched the man’s situation and learned that the lawyer who handled the DUI case screwed up in a big way. The lawyer was obviously not familiar with Massachusetts DUI law, because he wrongly told the judge that the client would serve a 2 year loss of license. This was a major mistake. His client was entitled to a 45 to 90 day loss of license and not a 2 year suspension. The attorney should have fought for the shorter suspension and he would have received it.

Because the man’s first offense occurred more than 20 years ago, he could have been treated as a “second chance first offender,” meaning that he could have gotten a 45 to 90 day license suspension which is associated with first offender programs under G.L. c. 90 § 24D and not the 2 year license suspension which is associated with second offense drunk driving convictions. This man’s first offense was continued without a finding (CWOF) and he was assigned to the 24D alcohol program. The District Attorney’s Office did not even try to prove second offense at his trial. Instead, they agreed that it would be treated as his first DUI offense. However, the man’s lawyer foolishly and wrongly stated that his client would be subjected to a 2 year DUI suspension. In sentencing the man, the judge agreed this and simply repeated what the lawyer told her, thereby making it a court-imposed sentence.

So now, the gentleman is without sufficient funds to hire a lawyer to fix the mistake made my an attorney who had no business handling DUI cases. He clearly lacked the required knowledge of Massachusetts DUI laws. The lawyer did nothing that the client could not have done himself. I am sure that he paid the lawyer thousands and got absolutely no benefit from the representation.  This is not the first major mistake I have seen and, unfortunately, I know it will not be the last. Anyone can claim to be the best DUI lawyer or a “DUI specialist.” However, to effectively represent clients in Massachusetts DUI cases, a lawyer must have up to date knowledge regarding DUI laws and consequences. DUI clients should screen their lawyers and make sure that the person who holds the client’s future in his or her hands takes the job seriously and has the required knowledge, skills, and abilities to achieve the best outcome.

Former Police Officer and Drug Recognition Expert Paul B. Watkins, who is now a Massachusetts DUI Lawyer, spoke tonight at the Essex County Bar Association Advocates meeting. He addressed Mass. DUI Lawyers regarding how to successfully cross-examine police officers who have been trained as Drug Recognition Experts. These officers, who have undergone specialized training, have been allowed to offer opinion evidence in Massachusetts DUI drug cases. This has placed DUI lawyers in the difficult position to trying to counter that testimony with an expert of their own. Now they have one. Massachusetts DUI Lawyer Paul Watkins is an academy trained and experienced police officer who has made numerous DUI arrests in the City of Malden, where he worked for a number of years. In addition to making arrests for drunk driving, Paul investigated drug offenses and received training as a Drug Recognition Expert. He will be putting that training and experience to work in courtrooms throughout the Commonwealth by making himself available to Massachusetts DUI attorneys who are defending their clients who have been charged with DUI Drugs.

At tonight’s Bar Association meeting, Paul presented effective cross-examination strategies, so that DUI lawyers can properly cross-examine a police officer who has been trained as a DRE. With more and more police officers receiving this specialized training, DUI drug arrests will undoubtedly increase in Massachusetts. Now, defense lawyers will have an expert who can review police reports and testimony to determine if the proper procedures were followed.

Most Massachusetts DUI Lawyers would agree that breathalyzer evidence is often the most damaging element of the prosecution’s case. Armed with this evidence, prosecutors can try to prove either that the DUI defendant was impaired by alcohol such that his or her ability to drive safely was diminished or they can prove that the DUI defendant was operating a motor vehicle on a public way, or where the public had a right of access, and the driver’s blood alcohol content was .08 or above.

If you have been arrested for operating under the influence in Massachusetts and you have taken the breathalyzer, this does not mean that your case is hopeless. Breathalyzer results are not automatically admitted and they can sometimes be suppressed, which means that they are excluded from evidence in the drunk driving trial.

There are many potential grounds for the suppression of breath testing results. The following are some examples. First, the police officer conducting the breathalyzer test must have been trained, tested, and certified as an infra-red breath test operator. Tests conducted by uncertified operators are invalid. Some police officers may have allowed their certifications to lapse or expire. Secondly, like the police officer administering the DUI breath test, the breathalyzer and simulator solution must be certified on an annual basis. The annual Massachusetts breathalyzer certification process is designed to insure that the blood alcohol readings are accurate. In addition to this, there must be periodic calibration standard analyses performed. During this process, the alcohol simulator solution, which has a known BAC of .15, is tested by the breathalyzer. If the simulator test readings are anything but .14, .15, or .16, any blood alcohol content results produced by the breathalyzer are inadmissible in court.
The breath testing process in Massachusetts requires the person arrested for drunk driving to provide two breath samples. For the breathalyzer test to be admissible, the blood alcohol readings must be +/- .02 BAC. When the readings are introduced in court, assuming that they are admissible, the jury must only hear about the lowest of the readings.

Furthermore, for breathalyzer results to be admissible in Massachusetts DUI cases, the person arrested for DUI must be observed for fifteen (15) minutes prior to taking the breath test. This observation period is required to make sure that the DUI defendant did not hiccough, belch, burp, or put anything in his or her mouth which may throw off the breathalyzer results. Breath tests conducted without the 15 minute observation period are legally invalid.

Finally, any problems with the breathalyzer such as maintenance issues, errors, or inconsistencies may be used to exclude breathalyzer results from being entered into evidence. A good Massachusetts DUI lawyer will investigate the status of the breathalyzer used in the case and explore whether or not the blood alcohol results can be excluded from evidence. Knocking out this type of evidence can result in a dismissal of the drunk driving charges or a not guilty verdict after the OUI trial; two very favorable results.

Because of the sweeping effects which this case may have in other Massachusetts DUI cases, the highest court in Massachusetts has decided to review the exclusion of blood alcohol test results in the DUI case described below.

As a result of a DUI motorcycle accident, Brian Parmenter was charged with Operating Under the Influence of Liquor causing serious bodily injury to himself and another person. He was transported to U-Mass Medical Center in Worcester by Lifefight helicopter. Incident to his medical treatment, hospital personnel drew and tested his blood. In his DUI case, the prosecution obtained a warrant for his medical records which showed that Parmenter’s blood alcohol content was .09 at the time of the DUI accident. The prosecution also subpoenaed the medical records and intended to present certified copies at Parmenter’s DUI trial in Marlborough Dist. Court. The prosecution indicated that it did not and would not have the phlebotomist or hospital personnel who swabbed the defendant and drew or tested it testify as to what blood drawing or testing procedure they used.

Parmenter’s Massachusetts DUI Lawyer alleged that the prosecution’s failure to produce the personnel who drew or tested the blood violated the DUI Defendant’s constitutional rights under the confrontation clause of the U.S. Constitution.  The District Court agreed.  District Court Judge Mark E. Noonan held that “the Sixth Amendment to the United States Constitution made applicable to the States by the Fourteenth Amendment, provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” Melendez-Diaz v. Massachusetts, 129 S. Ct. 2531 (2009).

In Melendez-Diaz, the United States Supreme Court held the admission at trial over objection of a drug certificate of analysis under G.L. c. 111 § 13 violated the Confrontation Clause, as interpreted in Crawford v. Washington 541 U.S. 36 (2004).” Judge Noonan also noted that “in Melendez-Diaz , the court found that the defendant had right to confront a  drug analyst as to the practices,  procedures and conclusions contained in the drug certification. In this case the defendant makes a similar argument…”

The court held that the blood alcohol test results would be inadmissible in the DUI prosecution without the testimony of hospital personnel who drew the blood. This case is now before Massachusetts Supreme Judicial Court for a ruling. The ultimate decision may have sweeping effects on Massachusetts DUI cases and Mass. DUI Lawyers are following it closely. 

This case shows how hiring the wrong lawyer or making the wrong decision in your Massachusetts DUI case can have lifelong consequences and, if you are a commercial truck driver, it may even cost you your career.

I spoke with a client this weekend, (yes, unlike most lawyers, I answer my phone on weekends) who is charged with a Second Offense DUI, with his first offense having been committed many years ago. He is unhappy with his current Mass. DUI Lawyer and he contacted me for assistance. He has one prior Massachusetts DUI conviction and he refused the breathalyzer in the recent case.

The client is employed full-time as a truck driver and, until his recent breathalyzer refusal, he held a Class A Commercial Driver’s License. Because he refused to submit to a breath test after being arrested for DUI, and he has a prior Mass. DUI conviction, his CDL license was revoked for life. There is no ability to get a CDL hardship license and the lifetime CDL revocation is automatic. Incidentally, his lawyer did not appeal the breathalyzer refusal to the Registry of Motor Vehicles within the 15 day appeal period.

The client’s only way to avoid the loss of his career is to get a not guilty at trial and convince the judge to order the reinstatement of his license, at a breathalyzer refusal court hearing. In situations such as these, with the stakes so high, the skill and experience of your Massachusetts DUI lawyer is critical. Cases like this are not for inexperienced public defenders, general practitioners, rookies, or those who dabble in DUI defense. Instead, this is a case for a DUI specialist with a proven track record of not guiltys and dismissals.

The term “drunk driving” is somewhat of a misnomer. To be found guilty of DUI in Massachusetts, with respect to intoxication, all the Commonwealth must prove is that the defendant was driving a motor vehicle on a public way or public right of access, while he or she was under the influence of drugs or intoxicating liquor. This means that the prosecution does not have to prove that the driver was drunk. Proof that the driver was merely “under the influence” will suffice.

On the other hand, Massachusetts DUI law does not require that citizens never consume any alcohol at all prior to driving. Instead, the law requires that drivers limit their alcohol consumption prior to driving, so that their driving ability will not be impaired.  This means that it is not illegal to drive after having you have been drinking. It is illegal to drive when the amount of alcohol consumed would diminish your ability to drive safely.

The level of intoxication is explained to jurors, in Massachusetts DUI cases, as follows: “A person is under the influence of intoxicating liquor if at the time of his consumption and as a result of his consumption of alcoholic beverages, his ability to operate a motor vehicle safely has been reduced, diminished.” Commonwealth v. Stathopoulos, 401 Mass. 453, 455 n. 2 (1988). See Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). “[T]hat instruction provides that the jury could convict the defendant even if alcohol was only one contributing cause of the defendant's diminished capacity or if the effect of the alcohol was magnified by some other cause....” Commonwealth v. Lampron, 65 Mass. App. Ct. 340, 347 (2005) “When the defendant is charged with operating while under the influence of intoxicating liquor, it is immaterial whether the driver is under the influence of intoxicating liquor and other substances.... [In] order to find guilt, the jury need only to find that the liquor contributed to the defendant's impairment.” Id. at 348, quoting from Stathopoulos, supra at 457.

Hopefully this will clarify and explain an often misunderstood, but important part of any Massachusetts DUI case.

In the case of Commonwealth v. Egan, which the Massachusetts Appeals Court decided on March 5, 2010, the Massachusetts Appeals Court upheld the lower finding that Egan was guilty of operating a motor vehicle while under the influence of intoxicating liquor. Egan’s DUI lawyer claimed that there was not enough evidence to prove that Egan operated the vehicle, as the prosecution alleged.

To be convicted of drunk driving in Massachusetts, the prosecution must prove that the defendant operated a motor vehicle on a public way or on a way where the public has a right of access as invitees or licensees.

Here are the facts in Egan’s DUI case:

On November 15, 2005, at approximately 11:15 P. M., Marlborough, Massachusetts Police Officers James Zichella and Borden Wicks responded separately to a report of a suspicious motor vehicle located on Church Street in a residential area of Marlborough. The defendant's vehicle was parked at an angle in a no parking area facing oncoming traffic. The vehicle's lights were illuminated, the key was in the ignition, but the engine was not running. Both the defendant, who was seated in the driver's seat, and a passenger were asleep inside the vehicle. When awakened and questioned by Officer Zichella, the defendant stated that he was driving his friend home and that he had “a couple of beers a couple of hours ago.” The defendant's friend lives on Church street. The defendant also told Officer Wicks that he “had been out driving around.” Officer Zichella detected an odor of alcohol from the vehicle and observed that the defendant's eyes were glassy and his face was red. When the defendant exited the vehicle he was unsteady on his feet and Officer Zichella placed the defendant under arrest for operating under the influence. The result from the breathalyzer test, which the defendant took at the police station, was .07 percent.

The Massachusetts Appeals Court found as follows:

The evidence here was sufficient for the jury to conclude that the defendant was operating the vehicle under the influence of intoxicating liquor. Most significantly, the defendant told both officers that he had been driving that night. Moreover, a reasonable jury could find that the defendant had in fact operated the vehicle based on ample circumstantial evidence in the record: the defendant was seated in the driver's seat; the vehicle was parked opposite the direction of traffic, in a no parking zone, at an angle, with the headlights on, and with the keys in the ignition. Additionally, the passenger, who the defendant stated he was driving home, was in the car, and the car was on Church street across from the home of the defendant's friend. See, e.g., Commonwealth v. Hilton, 398 Mass. 63, 64-68 (1986) (sufficient evidence of operation where defendant stated she was headed to town, was seated in the driver's seat, keys were in the ignition, engine and lights were off, and the car was partially parked on the sidewalk). The judge properly denied the defendant's motion for a required finding of not guilty.

This case shows that, in Massachusetts DUI cases, operation can be inferred by circumstantial evidence. Massachusetts DUI Lawyers should be mindful of this legal principle.

A Bill proposed in 2005 by Marie J. Parente of Milford, Massachusetts would trigger automatic license suspensions for those who refuse to submit to a blood test after being arrested for operating under the influence of drugs in Massachusetts. A first offense will result in a 120 day suspension, a 2nd offense and a refusal by someone under the age of 21 would trigger a 180 day license suspension, someone previously convicted 2 or more times who refuses to submit to the blood test would have his or her driver’s license suspended for one year.  When determining prior offenses, there is a 10 year look-back period.

This bill was undoubtedly proposed due to the difficulties associated with successfully prosecuting a DUI drugs case in Massachusetts. The prosecution of DUI alcohol cases has been made easier because of breath testing, and the “per se” law, which allows the prosecution to prove the “under the influence” element of DUI by showing that the driver’s blood alcohol content was .08 or above. No such  presumption exists in Massachusetts DUI Drug cases and the prosecution often lacks sufficient evidence to prove its case.

If enacted, House Bill 1991 would give Mass. DUI prosecutors laboratory reports which would show the presence of illegal drugs. However, because of the U.S. Supreme Court’s decision in Melendez-Diaz v. Massachusetts, the admissibility of such laboratory reports has been made more difficult. The Prosecution generally can no longer rely on a drug certification or similar scientific report without making the scientist or chemist who generated the report available for cross-examination. Solely relying on the report violates the confrontation clause of the United States Constitution.