New Year’s Eve is a time for increased DUI patrol. Police are always looking to crack down on drunk driving, but New Year’s Eve sees a greater police presence. It is important to be careful and consider public transportation or taking a taxi when driving in Massachusetts tonight.

Getting arrested for DUI even if you are found not guilty is an enormous stress for all of my clients. It impacts their work, health and family situation. As a Massachusetts OUI Lawyer, I frequently have to discuss difficult choices with people in proceeding through the legal system after an OUI arrest.

If it is not possible to avoid driving or consuming alcohol, there is always a chance that you will be subject to an arrest for OUI because the crime is based on opinion. Before driving after consuming alcohol, make sure you understand how much you drank and its impact on your ability to drive. Also, make sure you correctly calculate how much you consumed. One of the more frequent mistakes that can lead to an arrest is assuming that one glass of wine is really just one glass of wine. At nicer restaurants the size of the glass makes one glass closer to two glasses.

Many arrested for OUI assume that a police officer must give field sobriety tests prior to an arrest. Under Massachusetts OUI Law, there is no requirement as to which field sobriety tests and officer must give or whether an officer give any tests at all. Most police officers will give the standard field sobriety tests, which consist of the HGN test, one leg stand and walk and turn. Other common tests include an alphabet test, number counting backwards and nose touching test called the finger to nose test.

In this Blog, I would like to discuss the common practice of a few State Troopers in the area of Wareham, Falmouth and New Bedford who commonly omit field tests or only give one admissible field sobriety test. In Massachusetts, the HGN tests is generally inadmissible as evidence in Massachusetts Courts under the Sands case. Every police officer is trained to administer field sobriety tests according to the methods of the National Highway Traffic Safety Administration.

Accordingly, in a stop for a routine traffic violation, an officer should at least give two field sobriety tests prior to forming an opinion to be fair to the motorist. However, I have increasingly seen officers administer the HGN test, a one leg stand and quickly request the motorist submit to the portable breath test and make an arrest.

Building on the state high court’s recent decision in Commonwealth v. Canty, the Massachusetts Court of Appeals held a booking officer’s testimony in an OUI trial inadmissible to the extent that the officer stated his opinion about a defendant’s inability to safely operate a vehicle. This decision affirms the restrictions on police testimony in OUI trials, while also reminding Massachusetts OUI attorneys of their duty to take proper procedural measures to raise objections and claims on behalf of their clients.

Background

In the matter of Commonwealth v. Saulnier, No. 12-P-931 (Mass. App. Dec. 6, 2013), the Appeals Court heard the case of a driver who was arrested on OUI charges after totaling a vehicle that was travelling in another lane. One of the witnesses to the accident was the owner and a passenger in the vehicle totaled by the defendant. The witness allegedly saw Saulnier pull out of a liquor store and travel diagonally across traffic lanes colliding into her own vehicle. The officer responding to the scene subsequently arrested Saulnier after detecting evidence of alcohol intoxication.

Massachusetts OUI arrests by College Campus police may raise legal defenses that an

experienced Massachusetts OUI attorney could raise in court. Campus police – or public safety officers – are limited by Massachusetts state law from many law enforcement duties of regular city and state police officers, and arrest made outside of these limitations could be defeated in court. The distinction between ordinary officers and campus police officers is critical because, as discussed in the case of Commonwealth v. Smeaton , it can make a difference in the outcome of the case.

College or university police officers are appointed as special State police officers under a Massachusetts statute (G.L. c. 22C, § 63) that grants them the same authority to make arrests as regular police officers for any criminal offense within their jurisdiction. Even though students on campus have fewer rights to privacy because of the college’s interest in keeping the community safe, campus police officers also have less authority to make traffic stops or to question individuals on campus.

The Massachusetts Supreme Judicial Court recently issued a ruling limiting the testimony of police officers during an OUI trial. The case of Commonwealth v. Canty, decided on November 6, 2013, involved whether a police officer’s testimony violated the rule of evidence that a witness cannot render an opinion on the ultimate issue that the jury must decide. As a this decision clarifies how an officer may testify at trial.

In the Canty case, the officer testified as follows:

As an OUI Lawyer in Massachusetts, I have met many individuals, parents, spouses and family members who come to my office unsure about what to do in response to a recent arrest for OUI. There are three things that anyone charged should understand about the license consequences of a First Offense OUI. In this Blog, I outline these issues.

1. First question always asked is when can I get my license back. There are three different option you need to understand.

You took a breath test and the results was over .08: you can get your license back in 30 days by paying the $ 500.00 reinstatement fee. You will have your license while the case is pending and you attempt to contest the OUI charge. If you admit to the charge prior to the expiration of the thirty days, you would be eligible for a hardship license if the court assigned you to the 24D program. I would not recommend a plea within the thirty days.

You refused the breath test: If you refused a breath test, the suspension is for six months. You can get your license back before six months, but it is difficult. The benefit of having refused the breath test is that there is a good chance you can avoid an OUI conviction with a not guilty verdict; the downside is that you will be without a license for at least three months while pursuing your appeals of a refusal suspension. Many will serve the full six month refuse suspension; there is no eligibility for a hardship license while the OUI case is pending; the third option discusses how you can obtain a hardship license, but requires a plea on the underlying OUI charge and admitting to the elements of the offense as outlined in the statute.

There are two paths to get your license back early.

Path 1: Appeal the breath test refusal suspension and have the district court reinstate your license. For this option, you would appeal the breath test refusal suspension within 15 days, the RMV would likely deny your request and you would appeal to the district court. This process does take probably three months. If the district court judge reinstated your license, you would have it back prior to the six months. I recently had a judge order reinstatement, finding that the police officer did not comply with the law in suspending my client’s license. This client received her license back in three months. While I have had refusal suspensions overturned, many breath test refusal suspension are affirmed.

Path 2: The second way to get your license back prior to six months is if we can obtain a not guilty verdict on the charge and the judge enters an order reinstating your license. It is difficult to get a trial within six months for a number of reasons, making it more difficult to get your license back prior to the six months with this option. Often, there are documents or motions we would want heard that would delay scheduling the case for trial. In all most all courts, it will take at least four to five months to get a trial date, so this option could save one or two months of the suspension.

If you refused a breath test and you want to avoid an OUI conviction, you should plan on having a suspension for six months. After the six months you can get your license back. You should also pursue an appeal of the refusal suspension, but understand that many of those appeals are denied.

Path 3: Admitting to the OUI charge and receiving the 24D program would provide hardship license eligibility for the 45 days license loss imposed by the court and the duration of the six month refusal suspension. While you can get your license back, assuming you can satisfy the hardship criteria, a letter from work, the downside is that you have admitted to the OUI charge.

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As Massachusetts revelers prepare to ring in the New Year, law enforcement agencies are gearing up for the launch of an aggressive effort to arrest drunk drivers.

Massachusetts OUI lawyers are also prepared. We know that these blitzkrieg law enforcement attacks are often riddled with technical errors. Police tend to be so concerned with volume during these operations that they often compromise the quality of the arrest.

This is particularly true during the course of sobriety checkpoints, which must adhere to very strict legal protocol. While the U.S. Supreme Court has upheld the legality of checkpoints, so long as they adhere to these protocol, which includes stopping vehicles at random and having a supervising officer on scene at all times.

Meanwhile, there are 12 states where checkpoints have been barred. One of those, Texas, is the scene of ongoing debates regarding the merits and pitfalls of these operations. These discussions serve to shed light on how we currently operate.

In Texas, checkpoints have been outlawed for the last 20 years. Police in San Antonio are now urging the state Legislature to reconsider. Such proposals have been unsuccessfully proposed just about every year in the Lone Star state since 1994.

Still, others, such as the director of the Texas Civil Rights Project, suggests that the debate is mostly political posturing. The fact is, checkpoints aren’t necessary, they are ineffective, expensive and they expand police power. As the director put it, “Every time you do that, they have more discretion and they can use it in discriminatory ways.”

That is what often concerns Boston DUI lawyers. Discrimination can be easily alleged when officers at checkpoints fail to follow the proper numeric format of stopping every, say, fourth vehicle. This may seem fairly simple, but when you’re stopping hundreds of vehicles within an hour or so, there can be a certain level of confusion and details can be missed.

Another proposal Texas is considering is “No Refusal Weekends.” These are operations in which a judge is on site during checkpoints or traffic stops to sign off on warrants compelling suspected drunk drivers to submit to blood or breathalyzer tests, even when they have refused. Massachusetts has considered such operations as well, with our state being the second-highest state in the country where suspected drunk drivers refuse testing (41 percent, according to the National Highway Traffic Safety Administration). The problem with the No Refusal Weekend continues to be that if a judge is processing these warrant requests in assembly-line fashion, how much consideration is truly being given to each case? A strong argument could be made that it isn’t much of one.

Ultimately, what we want you to understand as you set out to celebrate this New Year’s Eve, is that no matter the circumstances surrounding your arrest, we are prepared with a defense.

There have been numerous successful challenges made with regard to the results of both breathalyzers and blood tests, as well as arrests made in traffic stops where probable cause was faulty or police reports were inaccurate.

We want you to have a safe and happy holiday celebration. If you are arrested, don’t let it ruin the new year. Call us to see how we can help.
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As a Massachusetts OUI lawyer, one of the first things I look into with any new case is whether there is a booking video. There are three types of video that may be available in a Massachusetts OUI arrest:

1. cruiser camera video;
2. a booking tape,
3. or police surveillance cameras.

Police cruiser camera video is not widely used in Massachusetts, though it is used in other states. Many arrested for OUI expect from watching television shows like Cops to see a video of the entire arrest; unfortunately, most departments do not have police cruiser cameras.

In Bristol County, only the Mansfield Police Department has cruiser camera video; in Worcester County, the cruiser camera video is used by the Northborough police department. The Northborough police department cruiser camera video is very clear, capturing sound.

I used cruiser camera video recently at trial to show that my client’s performance on the field sobriety test when viewed on the video did not show any difficulty with balance and coordination and contradicted the officer’s claim of slurred speech. The video contradicted the officer’s claims in the police report and was critical to obtaining a not guilty verdict at trial.

The next type of video is the station booking video. This type of video comes in two forms, with and without sound. There are many police departments that have booking videos so I will only list a few here: These departments include New Bedford, Easton, Fairhaven and Medfield to name a few. I have found that booking videos appear most common in Worcester County.

The final type of video is police security video. Typically, the police report makes no mention of this type of video, unlike booking video, where most department state in the report that there is a video, police security video is typically not mentioned in the police report and only obtained if requested.

Departments that have security video, although with no sound, include Wrentham, Foxboro, Attleboro and Seekonk to name a few in this category. It is important to know that Seekonk only preserves its video for 15 days.

I have not come across any video among the State police, although I have heard from other lawyers that at least two barracks have booking videos.

Since video clearly demonstrates what occurred during an OUI arrest, it raises the obvious question, why does the State police refuse to video the arrest and why is video not more frequently used by police departments. The answer is that many police departments believe that video decreases the conviction rate.

Massachusetts OUI attorneys can argue to the jury that lack of video tape evidence, when video is so prevalent, found on all cell phones, should be held against the Commonwealth and factor into whether the Government has satisfied the burden of proof beyond a reasonable doubt. Since the burden of proof is on the Commonwealth, a defense lawyer can also argue that a lack of evidence raises a reasonable doubt.
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