Massachusetts Criminal Defense Lawyer Blog

Discussion on attacking the one leg stand field sobriety test at a DUI trial

July 11, 2011 | by Michael DelSignore

This is Massachusetts DUI lawyer, Michael DelSignore Second blog on field sobriety testing as part of a five part blog series that will be published on this Blog.

The One Leg Stand field sobriety test is the most difficult test given by the police because many people cannot perform this test even if no alcohol is consumed. Accordingly, the idea that failure on this test means someone is under the influence of alcohol is flawed from the start. Even when given under ideal conditions, the test is only 65% reliable according to the studies regarding this exercise. I have attached a link to a field sobriety test student manual used by police officers.

The One Leg stand has the following clues that the officer is suppose to observe:

Sways while balancing
Using arms for balance
Hopping
Puts foot down

If a person exhibits two or more clues, that is considered a failure. Though not listed as clues, an experienced Massachusetts OUI attorney will also point out other factors showing good mental ability and coordination.

Like the nine step walk and turn, the one leg stand has an instruction phase. Accordingly, when a person maintains balance during the instruction phase, and starts the test at the appropriate time, those factors showing that the motorist can follow instructions demonstrating, a normal mental ability. Typically, there is no mention of any difficulty maintaining balance during the instruction phase. The idea behind this test is to stress for the jury that the motorist had normal balance other than when required to perform the difficult exercise of balancing on one leg.

While the test requires someone to balance until the count of 30, most jurors probably would consider the test as successfully completed with someone who balances for a much shorter period of time. Further, the inaccuracies of the scoring can be pointed out as typically the officer will not put the details in the report that justified the conclusion. One of the clues on the one leg stand is that a person cannot use their arms for balance; however, the training of the officer states that the arms have to be more than six inches from the body. In many cases the details of how someone performed are missing from the police report.

If you read your police report and see that the officer found you failed the one leg stand, your case can still be won. In almost all cases, the police will claim that a motorist failed field sobriety tests. The one leg stand is the most difficult exercise to perform; even the police training manual, states that some people cannot perform the test, including someone over 50 pounds overweight or over the age of 65. As a result, the officer would have to admit that the test is easier for someone younger and in shape, then for someone older, who has been working throughout their life and may have physical injuries. In fact, the early versions of the police training manual stated that some people could not perform the one leg stand test even without consuming any alcohol; this language has since been removed from the manual.

Techniques to minimize the one leg stand at trial:

Point out that the motorist had no trouble with balance when on two feet, listening to the instruction to the one leg stand, no trouble with balance getting out of the car, did not stumble when walking on the nine step walk and turn, and had no difficulty with balance during booking.
Stress that this is a physical fitness test and is one size fits all, the officer gives the same test to a college student as a carpenter who has spent years working doing manual labor. The older person, with physical aliments, is disadvantaged from the start.
underscore that even the Government study indicates that the test is only 65% reliable, under perfect conditions. A 35% failure rate should raise a reasonable doubt.

The Nine Step Walk and turn field sobriety test

July 1, 2011 | by Michael DelSignore

Fighting a Massachusetts DUI charge at trial often involves contesting the reliability of field sobriety tests. To help readers better understand how these tests should be performed, what clues to look for and way to challenge these exercises at trial, I am going to write a series of blogs on the three standardized field sobriety tests, the nine step walk and turn, one leg stand, horizontal gaze test, other non-standardized tests that are used by police. The final Blog in this series will discuss what the police training manuals tells the officer to look for when observing your driving and making the initial contact with you at the scene of the motorist vehicle stop. In this Blog, I will discuss the nine step walk and turn field sobriety test.

The walk and turn field sobriety test is an exercise that many people perform very well on even when arrested for drunk driving in Massachusetts. While the officer will likely say you failed, the purpose of this blog is to explain to you what the officer should have been looking for and how the results of this test can be used in front of a jury to argue that you were not under the influence of alcohol and to achieve a not guilty verdict.

A police officer is suppose to score the nine step walk and turn according to his police training, which is based on the National Highway and Detection Field Sobriety Test Manual. I have a copy of these manuals for the various officer; there are about four different manuals depending on when an officer was trained; however, the testing procedure is basically the same for each manual. Click here to see a copy of a police training manual.

What does an officer look for on the nine step walk and turn.

Cannot keep balance during the instructions; this is maintaining the heel to toe stance during the instruction phase
Starts before the instructions are finished
Stops while walking
Does not touch heel to toe: This is an important clue because some officers make the test more difficult to perform by not recognizing that the feet do not have to touch. The training manual of the officer indicates that there can be a one-half inch space. Most officer do not recall from their training that the heel and toe do not have to touch for the test to be performed correctly.
Steps off of the line
Uses arms for balance: This is another clue that requires the arms to be more than 6 inches from the body. The arms do not have to be glued to the person’s body. Most officers do not tell the suspect that the arms do not have to be stuck to the person’s side.
Improper turn
Incorrect number of steps

It is considered a failure on the nine step walk and turn if two or more clues are present. However, the test is only deemed 68% reliable if given under ideal conditions. There are many ways to attack the reliability of the exercise based on medical conditions, weather conditions or conditions of the roadway where the test was performed, but for the purpose of this Blog Post, I will discuss how taking the officer’s training, this exercise can be used to help demonstrate normal coordination and mental ability, which is vital to winning a DUI trial.

In using this test at trial, one common method for a Massachusetts DUI lawyer is to change the jury view of the scoring on the test. Many reports do not contain any details of a motorist stepping off the line. Typically, there is no designated line, making the test harder. Given there are nine steps forward and nine back, one way to look at the scoring is to divide up each of the clues and base the scoring on a maximum of 18 points for each part of the test done correctly. This method of changing the scoring on the field sobriety tests is stressed at conferences held by the National College of DUI Defense.

Missing heel to toe: in some reports the officer states that the person missed heel to toe on 2 or 3 steps; if this is the case, the idea is to show the jury that overall the motorist did very well, scoring 16 for 18, on an unfamiliar test, under difficult conditions.

Taking the correct number of steps is also a good opportunity to demonstrate good mental ability, because it requires the person to count while performing a physical exercise.

Since the nine step walk and turn has so many different components and potential places for a defendant to make a mistake on the exercise, it provides a DUI lawyer with many opportunity to stress positive aspects of the performance that demonstrate good ability to follow instruction, to think clearly and to demonstrate good coordination.

When looking at your police report in your case, it is important to understand how the exercise is to be scored, what other clues the officer could have found, to evaluate how this exercise will be used at trial.
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United States Supreme Court agrees to hear Confrontation Clause case of Williams v. Illinois addressing questions raised in recent Bullcoming decision

June 29, 2011 | by Michael DelSignore

The United States Supreme Court has agreed to hear another case raising the issue of the scope of the Sixth Amendment Right of Confrontation. The case of Williams v. Illinois directly raises the confrontation clause issues raised in the concurring opinion of Justice Sotomayor. The filings in the Williams case can be found on the Scotus Blog, attached as a link here.

The Williams case involved charges of sexual assault, kidnapping and robbery. The defendant allegedly grabbed the victim while she was walking home and sexually assaulted her. In the case, according to the police, the victim initially identified her attacker as a man named McChristine, but later told the police that he was not the attacker.

Over a year later, the defendant was arrested and identified by the victim as her attacker through a line-up identification procedure. At trial, the State called a forensic scientist to testify, Sandra Lambatos who testified that samples from the victim’s sexual assault kit were sent to Cellmark diagnostic laboratory for DNA analysis. Lambatos testified that Cellmark derived a DNA profile for the person whose semen was recovered from the victim. The expert witness testified that in her opinion the profile matched the defendant. The testifying expert at trial did not know what procedures were used by the lab, whether the lab calibrated its equipment, and how samples were handled once received. At trial, no witness from Cellmark testified and the report was not introduced into evidence.

United States Supreme Court decision in Bullcoming v. New Mexico

June 23, 2011 | by Michael DelSignore

The United States Supreme Court issued its decision in Bullcoming v. New Mexico today, holding that the Sixth Amendment precludes the State from introducing a lab report of a forensic blood test without calling the analyst who conducted the analysis. The State attempted to satisfy the confrontation clause by calling a different analyst who did not conduct the test but was familiar with blood testing procedures. The United States Supreme Court found that the defendant’s right of confrontation was violated by this procedure in a 5-4 decision. Click this link to read a copy of the decision.

The decision of the Court is notable in that four justices viewed the result to be governed by the Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009). The Court rejected the argument that the seeming reliability of scientific evidence does not exclude this evidence from being subject to the Confrontation Clause. The Court cited argument raised in the brief of the National Association of Criminal Defense Lawyers that errors in forensic blood test are not so remote to be negligible.

Finally, the court rejected the argument that requiring live testimony is too burdensome for the State. As in Melendez-Diaz, the Court stressed that notice and demand procedures can be used to help reduce the expense of having a forensic expert testify in court.

Massachusetts Supreme Judicial Court holds that RMV documents are testimonial requiring the opportunity for Confrontation under the Sixth Amendment.

June 10, 2011 | by Michael DelSignore

The Massachusetts Supreme Judicial Court decided today that Registry of Motor Vehicle documents are testimonial, requiring the Commonwealth to present the testimony of a live witness to admit the records into evidence at the time of trial. The SJC announced its decision in the case of Commonwealth v. Parenteau.

In the case of Peter Parenteau, a judge of the Ayer District Court admitted a certification from the RMV stating that the defendant was mailed notice that his license was suspended for ten years. The defendant had accepted a guilty plea to an OUI charge in the Palmer District Court and believed that his license was suspended for two years. It is likely that the prosecutor did not know of the other, likely out-of-state convictions, and believed that the defendant only had one prior OUI offense; however, the RMV records must have indicated that the defendant had three other Prior DUI convictions in addition to the Palmer conviction to trigger the ten year license suspension. A Fourth Offense Massachusetts DUI charge carries with it a ten year license loss; in some case the RMV records differ from the record of conviction possessed by the court, in those cases, the RMV will always rely on its own records in imposing a license suspension.

In Parenteau, the RMV purported to mail the notice to the home of the defendant’s parents and at the time he was no longer living at that residence. Accordingly, at trial, the defendant was contesting the issue of whether he received notice of the suspension.

The SJC, following the landmark United States Supreme Court decision in Melendez Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) held that the RMV documents were testimonial because they were used to establish the fact that the defendant was mailed notice of the suspension. The Court held that the RMV documents were no different than the drug certification at issue in Melendez-Diaz as the certification was a solemn declaration created for the purpose of proving some fact.

The SJC rejected the Commonwealth’s argument that the RMV certification was a business record because the court held that it was not created at the time that the notice was purportedly mailed. The SJC indicated that it would have considered the notice a business record if the notice was created contemporaneous with the mailing of the notice to the defendant.

The SJC’s decision will likely result in the RMV changing its policy to create a contemporaneous business record when mailing notice of a license suspension. Even if a business record existed in this case, the defendant was contesting the issue of where the notice was sent and whether it was sent to the correct address; accordingly, the defendant still would have had the right to confront a witness from the RMV regarding where and when the notice was sent.

As a Massachusetts DUI lawyer, the decision of the SJC was contrary to several recent decisions rejecting Confrontation Clause challenges and could signal a change in the court’s interpretation of the right of confrontation. In the context of the Parenteau case, where the trial centered around the issue of whether the defendant received notice, it is clear that the SJC made the correct decision as the defendant was essentially denied any opportunity to contest the issue at trial without being provided the opportunity for cross examination.

For Massachusetts OUI lawyers, this decision may mean that the Commonwealth will be unable to prove any charge of operating with a license suspended for OUI or other unlicensed charges as the RMV does not have contemporaneous business records and likely has no ability to track the identity of the person who sent the notice to present live witness testimony. Accordingly, I would expect that many of these charges will be dismissed as a result of this decision.
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Fourth Offense Massachusetts OUI conviction upheld by the Appeals Court

June 7, 2011 | by Michael DelSignore

A Massachusetts Fourth Offense OUI conviction was upheld by the Appeals Court in the case of Commonwealth v. Russell Beaulieu, decided on March 18, 2011. The Beaulieu decision also involved the issue of refusing field sobriety tests which was the subject of an earlier blog.

In the Beaulieu case, the Massachusetts DUI lawyer argued that because the defendant was charged with a Fourth Offense drunk driving charge and the charge of operating with a suspended license because of an OUI conviction that the court should bifurcate the counts of the criminal complaint in order to ensure the defendant a right to a fair trial.

Ordinarily, in a charge of a Second or Third DUI, the jury does not learn of the prior convictions. The jury decides whether the driver operated under the influence of alcohol and in a separate proceeding either a judge or the same jury decides the number of prior offenses. Because of the charge of operating on a suspended license for OUI, the jury learned of the prior conviction.

The Massachusetts Appeals Court did not address the obvious prejudice to the defendant in refusing to severe the counts for trial, but held that the evidence of the prior conviction was necessary to prove the Count of operating on a suspended license for OUI. Additionally, the Court noted that the jury was properly instructed on the purpose for which that evidence was offered.

The Appeals Court distinguished the reason for the separate trial on the number of prior DUI offenses because it held that in those situations the court was dealing with a sentence enhancement and not an element of the offense.

As a Massachusetts DUI attorney, I would expect the Massachusetts Supreme Judicial Court to grant further appellate review. While courts do not like to severe counts of a criminal complaint because it is more time consuming for the court, here, that was required to preserve the defendant’s Sixth Amendment right to a fair trial. Having heard that the defendant had a prior OUI offense and continued to drive, the defendant was clearly prejudiced in front of the jury regarding this count.

While the defendant may not have been willing to accept a plea on the Operating on a suspended license charge, as it would have involved jail time, it would have been a way to avoid the prejudice of this evidence coming in at the time of trial. However, it is unfair to require a defendant to surrender his right to a jury trial in order to obtain a fair trial. In this case, the only avenue will be an appeal to the SJC in the hopes that the highest court in Massachusetts, reverses the conviction and orders a new trial.
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Massachusetts Sex Crimes Lawyer reviews recent Indecent Assault and Battery Case addressing excited utterances and the Right of Confrontation

June 2, 2011 | by Michael DelSignore

The Massachusetts Appeals Court in the case of Commonwealth v. Figueroa, decided on April 29, 2011, upheld a defendant’s conviction for indecent assault and battery in Chelsea, Massachusetts despite arguments that the court improperly allowed statements of the victim into evidence without providing an opportunity for cross examination.

In Figueroa, the defendant was working at Fairlawn Nursing Home in Leominster, Massachusetts and was alleged to have had sex with an eighty-six year old woman suffering from dementia. At trial, the victim did not testify, but two witnesses from the hospital did testify, including a witness that claimed to have witnessed the incident.

The legal issue surrounding this Massachusetts sex crime was whether statements that the victim made to another CNA describing the defendant’s actions, in having sex with the victim and indicating that the defendant claimed to be performing a test on the victim. The Massachusetts criminal attorney objected to these statements being admitted into evidence.

The Appeals Court stressed that an excited utterance is admissible if it is made following an occurrence or event that is sufficiently startling to render inoperative the normal reflective process and the statement was a spontaneous reaction to the occurrence or event.

Having found that the statement was admissible under the rules of evidence, the next issue for the Appeals Court was whether the statement could be admitted without providing the defendant an opportunity for cross examination of the speaker. Accordingly, the Court addressed the issue of whether the statements were testimonial.

The Court discussed that statements made in response to law enforcement questioning are testimonial per se, except where the statements are meant to secure a volatile scene or to establish the need to provide medical care. The Court went on to stress that it will evaluate whether or not a statement is testimonial based on whether a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting a crime.

The Appeals Court concluded that the victim’s statement that the defendant did the test again indicates that the victim understood the question to be about her medical condition. The Court held that the inquiry is whether a reasonable person in the declarant’s position would objectively believe that the statement would be used in a criminal prosecution. The Court held that the declarant would not have reasonably believed her statements would be used to prosecute the defendant.

The decision of the Appeals Court is difficult to reconcile with the decision of the United States Supreme Court in Michigan v. Bryant and I would expect the SJC to reverse the conviction should further appellate review by sought. In Bryant, the United States Supreme Court held that the statement of a victim identifying the person that shot him was nontestimonial because the police were responding to an ongoing emergency.

In contrast, in the case of Figueroa, the victim was describing a past criminal act. The victims purpose in describing the actions of the defendant were not to obtain further medical treatment, but to describe what happened to her; the fact that the victim may not have known of the illegality of the conduct cannot negate that the objective purpose of the statement was to describe the criminal conduct of the defendant. Further, at the time of the statement, there does not appear to be any ongoing emergency as other hospital employees had come into the room. Additionally, the purpose of the victim being questioned was to determine whether the defendant had committed a criminal act in his care of the victim. Accordingly, when the victim was being questioned by the hospital employees, the employees were acting essentially as police officers trying to determine what had happened at a crime scene. In a footnote, the Appeals Court note that the employee testified that when she first spoke to the victim she did not think she would have to report anything to the police, but it was only after hearing the victim’s response that she realized she would be required to notify the police.

The result in this case deprived the defendant of his Sixth Amendment Right of Confrontation and I would expect the SJC to reverse if further appellate review is granted.
The Court’s decision undermines the basic purpose of the right of confrontation to allow for face to face confrontation of an individual accuser at a criminal trial.
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Comments on recent case regarding admissibility of breathalyzer test results

May 24, 2011 | by Michael DelSignore

The Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Zoanne Zeininger which addressed the issue of whether the Sixth Amendment requires the Commonwealth to present the live testimony of a witness from the Office of Alcohol Testing in order to admit breathalyzer test results at a Massachusetts DUI trial. Click here to read in SJC decision in Zeininger.

At trial, the Massachusetts OUI attorney, argued that the Office of Alcohol Testing documents could not be admitted into evidence without the live testimony of a witness from OAT in order to preserve the defendant’s right of confrontation under the Sixth Amendment and the recent case of Melendez-Diaz v. Massachusetts. At a DUI trial, the Commonwealth generally subpoenas a packet of documents from the OAT that show compliance with the annual certification and periodic testing requirements of Massachusetts drunk driving law. The Commonwealth generally seeks to admit these documents into evidence as business records without live testimony from the Office of Alcohol Testing. The Zeininger case raised the issue of whether this practice satisfied constitutional requirements.

The Massachusetts Supreme Judicial Court held that the court undergoes a two part inquiry to determine whether out-of-court statements are admissible at a criminal trial. First, it determines whether the statement is admissible under a hearsay evidence exception and second whether it satisfies the requirements of the Confrontation Clause of the Sixth Amendment.

The SJC held that the OAT documents are made by a public official having a statutory duty to comply with a rigorous regulatory certification. The Court held that these records do not express any opinion but memorialize routine scientific measurements. Further, the court stated that the records qualify as business records because they were not created essentially for use in court, but pursuant to the mandates of Massachusetts statutes creating the regulatory scheme. Accordingly, the court held that the records are admissible under Massachusetts evidence law.

The SJC also rejected challenges to the admissibility of the OAT records based on the Sixth Amendment Confrontation Clause. The SJC held that the Oat records are not made for the purpose of proving some fact at trial but to comply with its statutory mandate.

As a Massachusetts OUI lawyer, the court’s decision is contrary to the United States Supreme Court’s Melendez-Diaz decision as the only purpose for the OAT records is to establish the reliability of the breathalyzer test at trial. But for the fact that breathalyzer results are used in court, there would be no purpose for the records or testing of the machine. Accordingly, the Court ‘s suggestion that the records are not prepared primarily for trial is simply incorrect.

Additionally, the SJC’s claim that the records the records memorialize routine scientific measurements is inconsistent with the language of Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009) which held that the Confrontation Clause is essential to ensure the reliability of scientific procedures in court. The SJC ignores the language of the Supreme Court in Melendez-Diaz by suggesting that the OAT testing procedure is simple so that confrontation is not required.

As a Massachusetts DUI lawyer, the court’s decision and reasoning is incorrect and contrary to the requirements of the Confrontation Clause as set forth in the United States Supreme Court case law. The United States Supreme Court is expected to release its decision in Bullcoming v. New Mexico by the end of the terms, which may undermine the SJC reasoning in Zeininger.
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Proving Prior Convictions in Second Offense Massachusetts DUI arrest

May 6, 2011 | by Michael DelSignore

When you are charged with a Second Offense DUI in Massachusetts, how does the Commonwealth prove that you had a prior conviction. The Appeals Court addressed this issue in the case of Commonwealth v. Ellis which was decided on April 25, 2011.

The Ellis case involved an appeal of a Fourth Offense OUI conviction from the Chelsea District Court. However, regardless of whether you have a second, third or fourth offense, drunk driving charge, the method of proof is the same. With a third or fourth offense, the Commonwealth needs to prove either two or three prior convictions rather than just one prior conviction as for a second offense Massachusetts DUI charge.

In a second offense, the Commonwealth can prove the existence of the prior conviction in a number of different ways. First, the Commonwealth can offer into evidence a certified copy of the conviction from the court in which the prior offense occurred. This is the most common method used by prosecutors. Second, the Commonwealth can offer into evidence a certified copy of your Registry of Motor Vehicle driving record showing the prior conviction. Lastly, the Commonwealth can offer into evidence a copy of your probation record.

The Massachusetts OUI lawyer representing Ellis challenged the method of proving the prior convictions of the defendant. The Commonwealth attempted to offer the defendant’s probation record into evidence as a business record. If a record is a business record, then it can come into evidence at a criminal trial without requiring the maker of the record to testify. To qualify as a business record a record must be kept in the ordinary course of business and not prepared in anticipation of litigation. If a record is a business record, it is considered nontestimonial and the Commonwealth does not have to present live testimony of the author of the record in court.

The court rejected the classification of probation records as business records and held that these records are prepared in anticipation of litigation and according fall outside of the hearsay exception for business records. The Appeals Court adopted the argument of the lawyer in this case that under Melendez-Diaz the probation records were testimonial and required the Government to present a witness to admit the records into evidence. To read more about Melendez-Diaz and the right of confrontation, you can click on my prior blogs on this issue and refer to a Law Review Article from Creighton University, attached here.

Despite upholding the Massachusetts DUI lawyers objection to the probation records coming into evidence, the Court ultimately found that the error was harmless as the Government also admitted the defendant’s driving records from the Registry of Motor Vehicles. The court held that RMV documents are nontestimonial and can come into evidence without the presentation of a live witness.
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Rhode Island Legislator Charged with Drunk Driving, Possession of Marijuana, at Sobriety Checkpoint

April 27, 2011 | by Michael DelSignore

A Rhode Island lawmaker has been charged with driving under the influence and possession of marijuana and drug paraphernalia after being stopped at a DUI checkpoint in Connecticut, Channel 12 News reported.

A Massachusetts criminal defense lawyer has more ground upon which to challenge charges that result from a car stop at a sobriety checkpoint. These stops infringe upon your Fourth Amendment rights to be free from unreasonable search and seizure.

Massachusetts sobriety checkpoints and law enforcement roadblocks in Connecticut are permitted under state law, though law enforcement must obey strict rules regarding the checkpoint’s operation to ensure everyone is treated equally. The training of officers involved, the probable cause to request that you submit to field sobriety testing or a breathalyzer examination and the probable cause for any search of your vehicle or person are all issues a defense attorney may challenge in defending a client charged as a result of a DUI checkpoint.

Roadblocks in Rhode Island have been deemed unconstitutional and are not permitted under the state constitution.

House Minority Leader Robert Watson, R-East Greenwich-West Greenwich, was among those arrested Friday at a checkpoint in East Haven Connecticut. NBC 10 News reports Watson is expected to keep his leadership position despite the arrest after Republican House members voted unanimously to support him.

Watson denied failing the field sobriety tests and stated that he wished there were cameras. In many cases, a driver charged with DUI in Massachusetts will dispute the version of the police contained in the police report. Many motorists are upset when reading the police which often is inaccurate, exaggerates what occurred and distorts innocent activity to justify the arrest. According to the police report, the officer observed only three clues on the nine step walk and turn out of a total of eight clues. While the officer concluded Watson failed, his DUI lawyer will be able to use this test to show that he had normal balance, coordination and mental ability given the substantial number of things he did correct in performing the test.

The Providence Journal reported Watson was flagged over while driving his Ford Ranger. Police report that he smelled of alcohol and marijuana. A bag of suspected marijuana and a wood pipe were found upon a search of the vehicle.

A test of his blood-alcohol level at the station was .05, below the legal limit of .08. However, the presence of marijuana could complicate the case as prosecutors could argue he was driving under the influence of drugs as well as alcohol.

In Massachusetts, there is a presumption that a driver is not under the influence if a breathalyzer reading is .05 or below. If the breathalyzer reading is .06 or .07, the Commonwealth may still charge a motorist with DUI and will proceed under an impairment theory. Most cases of under .06 and .07 result in not guilty verdicts after a bench trial. However, when there is allegations of driving under the influence of drugs, the Commonwealth may charge OUI drugs in the alternative.
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