Often an OUI charge in Massachusetts will begin with a civilian calling 911 to claim you were driving erratically.  What can be done to challenge the basis of the stop and your arrest for OUI?

It is well-settled that under Massachusetts law, a 911 call can be used as the basis for a stop on suspicion of drunk driving. However, you understand that the Commonwealth must pass both the basis of knowledge test and the veracity test of Aguilar-Spinelli to show both that there was a sufficient basis for reliability in the 911 call. Additionally, the Commonwealth must show that the stop was not pretextual on the basis of race. Simply demonstrating that there was reasonable suspicion for the stop does not satisfy the Commonwealth’s burden to show it did not violate the defendant’s equal protection rights.

Regarding the sufficiency of particularity given in a 911 call to be the basis for a car stop, the recent case Commonwealth v. Westgate, 101 Mass. App. Ct. 548 (2022) affirmed a 2009 decision where that court stated “Where a police radio broadcast directs an officer to make an investigatory stop of a vehicle, the stop is lawful only if the Commonwealth establishes both the particularity of the vehicle’s description and indicia of the reliability of the transmitted information.”  In Westgate, the trial court initially granted the defendant’s motion to suppress based on the fact that there was insufficient information to show reliability of the stop of the defendant’s Mercedes. However, the Commonwealth appealed, and the Appeals Court reversed, indicating that a 911 call of an apparent “drunk driver” who “almost hit a telephone pole” provided sufficiently reliable information to justify a traffic stop under the reasonable suspicion standard, where the caller also was able to give the description of the vehicle, a white Mercedes, the direction of travel of the vehicle, and was able to read the license plate number to the car, despite the fact that the second occupant of the vehicle did not give her name.

The content of a 911 call can be pivotal in the prosecution of a drunk driving case. This was evident last week in the second offense DUI case of Commonwealth v. John C. Depiero. The defendant in this case appealed his conviction, arguing that the appellate review erred in denying his motion to suppress evidence obtained during a stop. On January 4^th, the Supreme Court of Middlesex County, MA affirmed the Appeals Court denial, but for reasons different to those previously given. The Supreme Court’s decision raises issues surrounding the reliability of 911 calls and whether the caller’s report sufficed as reasonable suspicion for the officer to stop the defendant’s car.

What happened during the “stop”?

In August 2011, an anonymous 911 caller alerted authorities of erratic driving on a Cambridge road. According to the caller, a Mercedez Benz was showing signs of erratic driving, swerving and crossing the divider line. The caller offered the driver’s license plate number and car description, and also referred to the driver as being “drunk”. After running the car details, it became apparent that the driver in question was on probation for drunk driving, and a state trooper was sent to the defendant’s residential address.