Massachusetts Criminal Defense Lawyer Blog A blog for lawyers looking to improve trial skills and to learn recent case law relating to DUI and Criminal Defense

The results of a sobriety test, such as the Breathalyzer or blood test, frequently play a crucial role in the outcome of a drunk driving case. When assessing how reliable the sobriety test results may have been, it is important to consider the medical background of the client and any conditions that may have impacted their results.

Scientific evidence shows that weight loss surgeries, such as the gastric bypass, can cause a a significant increase in blood alcohol content for someone stopped and arrested for DUI – for several reasons. 

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Facebook is frequently mentioned in Court cases involving violations of a 209A order in Massachusetts.  Recently, I was in Marlborough District Court waiting for an OUI trial to be heard; in front of me were two trials regarding 209A violations allegedly involving Facebook posts.  A case in New York illustrates how Facebook posts can lead to a violation of a restraining order.


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Field sobriety tests are commonly used in OUI alcohol cases. The Massachusetts Supreme Court will address, in the case of Commonwealth v. Gerhardt, whether these tests are accurate and reliable for when someone is arrested for OUI marijuana in Massachusetts.

The police have been using field sobriety tests to help them form an opinion as to whether someone is under the influence of marijuana. However, there is very little scientific evidence that these tests are accurate and reliable for someone impaired by marijuana. The tests were never studied to determine impairment with marijuana, rather they were studied only in relation to alcohol.

The case before the Massachusetts Supreme Court is going to review studies and literature showing that these tests are not very accurate for when someone is impaired by marijuana.

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For the last three days, I have been attending a great conference called the Lawyer Forward hosted by Michael Whelan in Austin, Texas. The seminar focused on improving legal services, raising fees and creating a better life for your law practice if you are a solo attorney.  Mike hosts a podcast called lunch with lawyers.    Mike had an excellent point that as lawyers we need to view our role as a teacher to change how the public views us as a profession.

One feature I liked about the seminar was the number of speakers and the short time provided to each speaker. I found this maximized the content by requiring the speaker to be precise and to the point.

Christina Hollwarth a Divorce Lawyer from Texas delivered a great speech about compassion for clients.  She stressed that when we have compassion for clients it lowers our stress level and increases the reward we get from the profession.  The point that struck me was that she started her talk with a quote from TS Elliot about the world ending not with a bang but a whimper. For our clients, the clang of the handcuffs can make it seem like their world is ending.  Christina did a great job helping me to think of the emotion of the clients problem in a new light.

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In Books on Trial practice, it is typically recommended to trial to label things during the trial. To use names that fit your theory of the case.

Refocus how the Jury Looks At the Key Evidence in the case

In a recent trial I had, my client made many statements to the officer prior to the field sobriety tests which were not helpful to the defense. What I did to change the focus of the inquiry from my client not giving straight answers, being evasive and appearing not to know what was going on, was to count the questions. I would ask the officer a series of questions and ask if that was the sixth question he asked. Eventually the officer agreed to having asked 12 questions.


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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 4th, 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.


The facts of the stop itself are listed below.

  • The trooper’s journey to the defendant’s address took approximately 5 minutes and the defendant had yet to arrive. After a few minutes of waiting, the defendant arrived and parked in the driveway in a reasonable manner.
  • This is when the trooper pulled up behind the parked vehicle, simultaneously turning on his cruiser lights. According to this detail slip, the defendant displayed various signs of being intoxicated- falling over upon exiting the vehicle, disheveled hair and the smell of alcohol.
  • After producing his license and registration, the trooper questioned whether the defendant had been drinking, to which he replied that he had two drinks.
  • The defendant failed the field sobriety tests and the trooper then arrested the defendant.
  • At the station, the defendant agreed to the Breathalyzer, resulting in a test of .18. The defendant was charged with operating a motor vehicle in violation of license restriction and operating under the influence of liquor, second offense.


Discussion of the Facts

The Appeals Court denied the motion to suppress, stating that the 911 caller’s observations were made “under the stress or excitement of a ‘startling or shocking event”, therefore making the information reliable enough to establish reasonable suspicion for an investigatory stop.


The Supreme Judicial Court also affirmed the denial, but based the affirmation on different reasons than those set by the Appeals Court.


Based on Commonwealth v. Lopes, 455 Mass. 147, 155 (2009), an investigatory stop is lawful if the Commonwealth is able to establish the reliability of the information, and specifically the description of the vehicle. In this case, the 911 caller had offered the dispatcher the make, color and license plate number of the vehicle in question. Furthermore, the caller offered the precise location of the driver and detailed the way it was driving along the road.


As the case checked off various “prongs” of reliability, the court then questioned the reliability of the caller. As the call was anonymous, there was no record to prove how honest or reliable the caller has been in the past. However, the Commonwealth affirmed that the caller was made aware at the beginning of the call that the call would be recorded and that the caller was comfortable with this fact. There was therefore minimal reason in doubting the credibility of the caller.


The subject of reliability ultimately came down to two particulars:

  1. The 911 caller has given a detailed description of the driver’s vehicle and location. Based on the vehicle’s apparent location, the trooper was able to drive to the defendant’s residence within 5 minutes and soon identified a car that matched the exact description the 911 caller had given.
  2. The discovered probation status of the defendant for previous drunk driving.



911 calls often initiate police response to drunk driving and it is important for defense attorneys to understand what the standard for a “reliable” call entails. The 911 call was a significant fact in the Depiero case; although the motion denial was affirmed, the reasoning was based on the reliability of the caller and his information. It is common for 911 callers to lack the specificity that this caller had and in those cases, the call may actually prove as insufficient in justifying a police stop.


As seen in this case, there are various approaches to determining the reliability of a 911 call and the content of the caller’s information should be assessed accordingly.  Motion to suppress should be filed in OUI stops based on 911 calls as the details of the call and the manner the evidence is presented during the hearing could result in the motion being allowed, which would in many cases result in the dismissal of the case.  To read more about OUI defenses in Massachusetts you can visit my website.

You can read about the Commonwealth v. Depiero decision on Justia.

The model jury instructions govern how many judges will instruct a jury when a motorist is charged with OUI. It is remarkable that absent from the model instruction is anything saying that is not illegal to consume alcohol and drive in the Commonwealth. When I have asked for that instruction to be added, many judges will comply while some will indicate that the jury is told that at the start of the trial that is not illegal to consume alcohol and drive.Juror

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The legal profession is known to have a high rate of alcoholism, depression and suicide.  While I consider myself luck to have found happiness in my career path, many have had a difficult time with the practice of law as indicated by news reports stating lawyers tend to be unhappy in their profession.  One author I enjoy listening to is Shawn Anchor who I discovered through reading Success Magazine.  I thought this would be a great Blog post for the Start of the new year and wishing those in my profession a great year.

shawn anchor

Shawn Achor is a researcher and speaker of positive psychology and happiness. In his Happiness Advantage CD set, he gives rewarding advice on how to increase happiness in the work life, family life, health, and more. Specifically, he explains how increasing your happiness and positivity will benefit you in your work life and allow you to be more successful.

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In 2008, the New Jersey Supreme Court decided, New Jersey v. Chun, which was the first case where the Court addressed whether the source code of the Alcotest 7110 was scientifically reliable. This is the leading case on the issue of the source code. Massachusetts OUI Lawyers are currently conducting a similar hearing for the newer Alcotest machine the 9510. In this Blog, we will review the findings of the Chun case as the decision will have an impact on how the judge rules in the Consolidated appeal being heard in the Concord District Court.  Currently, the Source code reliability hearing is scheduled for March 14 and is scheduled to take until March 17th.

One of the major differences between Chun and the current hearing in Massachusetts, is that the hearing in Concord involves a different machine, the Alcotest 9510, which has a much more complex source code than the Alcotest 7110.  There is currently a hearing in the Ayer District Court on the 7110 machine; this hearing will effect fewer cases as many case involving the 7110 have been resolved; however, it could result in new trial motions being filed should the court find the source code unreliable.

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The Massachusetts Supreme Judicial Court will decide whether evidence of an unsuccessful attempt to take a breath test was properly admitted into evidence, given the language barrier between the defendant and arresting officer.

A non-English speaking woman is arrested for DUI and fails to pass the Breathalyzer – but is the language barrier a valid defense? 952313_gavel

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