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

Articles Posted in DUI news

As a Massachusetts OUI attorney, there will be rare cases where a driver had no intention of driving, but because of some sort of disorder or episode, got behind the wheel without any intention of driving. A question in these cases arises when the person driving is drunk and whether they can be held criminally liable for drunk driving with the lack of intent to drive. The Oregon Supreme Court recently addressed this question State v. Newman and determined a driver must commit some voluntary act in order to be held criminally liable.

In State v. Newman, the defendant was pulled over in a clearly intoxicated state, blew a .15 on the breathalyzer and performed very poorly on the field sobriety tests. In what would seem to be an open and shut case, the defendant offered evidence that he never knew he was driving drunk because of a sleep walking disorder. The defendant claimed he walked home after having drinks with friends and went to sleep. He claims it was an episode of “sleep driving” that caused him to drive drunk. The question then becomes, can evidence that the defendant did not voluntarily drive be a defense to a drunk driving charge.

What the prosecution centered their argument on and what the trial court based the original decision on was that drunk driving is a strict liability crime. Being a strict liability crime would make whether the driving was voluntary or not irrelevant and the sleep driving defense worthless. If drunk driving was a strict liability crime, it would not matter what the circumstances led to the driver driving in his condition; if he drove over the limit, it would be a crime every time.

The Supreme Court of Oregon overturned this ruling and cited a state statute that stated there is a minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or an omission to perform an act which the person is capable of performing. What this decision does is opens the door for the defendant to offer evidence that he did not commit a voluntary act when entering the vehicle and operating it while intoxicated. Instead, he will use a medical expert witness to try and prove that he was not aware of the situation and was in fact sleepwalking when getting into the car. Because of this decision, if the driver did not commit a voluntary act in beginning to drive, there will be no liability.

It is important to note that this decision does not allow everybody to state it was a sleepwalking episode when they started driving. The prosecution will still have the chance to prove in this case and any other case that there was no sleepwalking and it was in fact a voluntary act. Furthermore, drinking alcohol is in itself a voluntary act. Therefore, if voluntarily getting intoxicated directly leads or causes a disorder where the defendant involuntarily drives, it will not be a defense. This rule protects people who have medical conditions or other disorders where they have no control over what they are doing. When sleepwalking, many states hold that there can be no voluntary act needed for criminal liability and Oregon believes this is true in OUI cases. All states should follow Oregon as in these rare situations, it is of no fault of the defendant that they broke the law.

As a Massachusetts OUI defense lawyer, often an argument made at trial is that a motorist drank responsibly and only had one or two drinks with dinner. The proposed reduction of the presumptive legal limit would have potentially impose criminal penalties on those who drink responsibly. Fortunately, the proposal is not likely to be adopted.

The National Transportation Safety Board, or NTSB has recently recommended that states modify the legal limit of alcohol allowed while driving. This modification would mean that a driver would be considered to be driving under the influence of alcohol at a .05 blood alcohol content opposed to the current legal limit of .08. As a Massachusetts OUI attorney, it seems like this change would create a disadvantage to drivers and punish drivers who were once considered responsible.

The NTSB argues that this change is necessary to ensure the safety of the citizens. NTSB argues that alcohol related deaths are on the rise and this is the best way to stop it. Deborah Hersman, the chair of the NTSB states that a .05 blood alcohol content has been implemented as the legal limit in many nations which have safer roads and it is time for this change in America. One example of where NTSB believes the .08 legal limit seems unjust is the death of Sergeant Douglas Weddelton, a Massachusetts state trooper. While pulling someone over, Sergeant Weddelton was slammed into by a pickup truck and killed. The driver who hit him however only had a blood alcohol content of .07 and was not legally drunk.

The notion of lowering the standard of driving while intoxicated seems like an argument that would gain traction, especially by groups whose mission it is to eliminate drunk driving. However, this recommendation of the NTSB has failed to gain support even within those groups. Mothers Against Drunk Driving otherwise known as MADD is a group that is constantly in search for harsher penalties and other ways to reduce drunk driving. However, they do not even agree with this recommendation. MADD would like to focus on catching actual drunk drivers and protecting those who can be injured by them. Their group feels like this would do little to cut down on drunk driving and the focus should be on more officers, more road blocks and harsher penalties rather than punishing people who may not even be dangerous.

The National Highway Safety Administration is another group dedicated to reducing drunk driving, but they to have not supported this suggestion by NTSB. While both MADD and NHSA appreciate the efforts, it seems like this law will punish drivers who are actually being responsible. In a study by Johns Hopkins University, research concluded that it would take a man of 180 pounds 3 drinks in one hour to get to a .05 and a woman of 140 pounds only 2 drinks in one hour. Lowering the standard could mean people who are being responsible with their drinking could be found guilty of a crime according to the NHSA.

Lowering the legal limit for blood alcohol content could have bad effects and as it was said could lead to adults acting responsible to be subject to a crime. Furthermore, lowering the standard would likely lead to more faulty breathalyzer tests. This is because the presence of even a small amount of alcohol can cause a slightly high reading. With the standard lower, now these faulty readings of a small amount of alcohol would put the driver over the limit. Finally, it is important to note that not only people who drive with a .08 or higher can be arrested for drunk driving. If a police officer can show a driver was impaired under a .08, there can still be drunk driving. The only thing a .08 does is that it makes the presumption that the driver was impaired by the alcohol. For these reasons, the legal limit of alcohol should not be changed as it would create more problems than it solves.

Are women targeted when officers make DUI arrests? The answers may be yes, at least in Florida. A Florida State Trooper, Melvin Arthur, is under investigating for targeting women in making DUI arrests, according to the Herald Tribune.

Trooper Arthur is believed to have arrested an unusually high number of women. Statistics of his arrests compared to other officers support this conclusion. His recent arrest of Sally Adams is noteworthy because it is on video. It is hard to understand why Adams was arrested from looking at the video or why she was even asked to perform field sobriety tests and not simply given a citation for the alleged equipment violation.

Adams blew significantly below the legal limit, but even if she had refused the breath test, this would have made a strong case for the defense at trial. The article was reported in the Herald Tribute and can be found by clicking the attached link.

Since there is a video of the arrest, this article and link gives me a great opportunity as a Massachusetts OUI Lawyer to discuss some of the important factors that make for a strong defense at trial and show why it is puzzling why there was even arrest in this case.

Lets look at four things that stand out that make this a strong case for trial.

1. There was no erratic driving; the motorist was stopped for having a plate light out. She pulled over safely and drove appropriately at all times.

2. She got in and out of the car several times and the officers initial reaction was not, she is drunk, but was to look at her plate light and try to help her fix it. She asked the officer for help, not something someone would do if under the influence of alcohol.

3. While the HGN test does not come into evidence in a Massachusetts OUI arrest, the officer performed it incorrectly moving his pen across the face at too high rate of speed for an accurate administration of the test.

4. The video shows it appears she passes the one leg stand and nine step walk and turn. Interestingly, the officer appears to lose balance turing on the instructions on the nine step walk and turn and only takes three steps.

In many OUI arrests in Massachusetts, there would not be a video of field tests being administered on the side of the road. When there is no video, a Massachusetts OUI Lawyer can attack the officer’s conclusion and opinion by understanding how the officer is suppose to administer the test and finding ways to undermine the officer’s credibility and reliability of the opinion.

While many officers perform their job with integrity, this article shows that because it is easy to justify an OUI arrest and it is a crime of opinion, an officer may have a bias in making an arrests. In this case, the investigation surrounds whether the officer signaled out attractive women in making arrests. According to the Herald Tribune Article, the Trooper’s arrests statistics are unusual, while the average number of women arrested in Florida was 25% the Trooper Arthur had a 66% female arrest ratio. It will be interesting to see the results of the investigation. Those arrested for OUI in Massachusetts should keep in mind that an arrest is not a conviction; it is easy to be arrested for OUI, but a conviction requires a jury to say there is proof to a near moral certitude required to meet the standard of proof beyond a reasonable doubt.

Julie Campanini recently published an excellent article in Lawyers USA offering a number of suggestions for improving trial skills. From her experiences during trials combined with years of speaking with jurors, she noticed that many lawyers tend to unknowingly act in ways which place them in a negative light for the jury. Below is a list describing some of the issues she noticed. As a Massachusetts OUI lawyer, I found these suggestions extremely helpful and encourage trials lawyers to read the recent article.

• Act genuinely- It is important for defense lawyers to be themselves in the courtroom and allow elements of their personality to show. Jurors are intimidated by overly formal lawyers, so it is good to relax and show the jury that they can relate to you on a personal level rather than just a “business” level. Jurors, like everyone else, are more likely to believe you if they can empathize and trust what you are saying.

• Act respectively- It is common for opposing counsel to subconsciously intimidate one another with statements and mannerisms which may come across as rude or disrespectful. Campanini mentions how the most successful lawyers are those who treat everyone in the courtroom with respect, so that their statements are taken more seriously and with higher levels of consideration. Over-zealous or short tempered lawyers are least likely to create a positive impression on the jury, as they simply appear arrogant or insecure.

During an OUI trial, this advice means we do not always have to attack the police officer. In many cases, we can argue the officer did his job, but did not have the difficult job of the jury in deciding if there is proof beyond a reasonable doubt. While typically most attorneys are respectful with opposing counsel, it is important to make sure the jury is on your side with the manner of your attack on a police officer.

• Act honestly- From her personal research, Campinini has found the best lawyers to be those who admit to their mistakes. Too many lawyers fear the jury will lose respect for their defense if they realize a mistake was made, but everyone in the courtroom is human so if anything, the jury will relate to you further if you are confident enough to be honest. Putting this into practice means we must acknowledge the obvious weakness in our cases.

• Engage the jury- Many lawyers have the tendency to overly complicate their stories. Instead of stating things in a simple, personable way, they use too much legal terminology and lose the jury as an engaged audience. It is important to remember that jurors already know that you are smart, there is no need to prove your intelligence to them for an influential story. The best told stories are those which maintain the jury’s attention, with clear, concise and logical statements that are easy to follow.

For other great resources on improving trial skills, I would recommend reading Gerry Spence’s book, win your case or visiting his Trial College Website which lists live seminar events and has featured articles. Any lawyers in Massachusetts interested in attending a national seminar or local one on trial skills, can contact me I would be happy to share with you my experience at some recent events.

The Massachusetts Supreme Judicial Court released today the Special Report it had a major Boston law firm prepare on OUI convictions rates following a three part series published by the Boston Globe. The special report makes numerous recommendations geared toward increasing the conviction rate for OUI offenses.

As a Massachusetts OUI lawyer, the most remarkable part of the report is that the highest Court in Massachusetts is seeking recommendations geared toward increasing a result in a particular type of case. The report undermines the idea that the Court should be neutral and about protecting Constitutional rights. While a report like this would be appropriate for a district attorney or journalist, it is disturbing that the Court would sanction a report to investigate the outcomes in a particular charge.

The Supreme Court hired a major Boston law firm to conduct this research addressing the issues raised by the Boston Globe. Apparently, the attorneys at the firm reviewed OUI cases looked at police reports, and in the report state that they agreed with some not guilty verdicts, thought other cases could have gone either way and disagreed with other verdicts. There is a clear difference between reading a police report and even listening to testimony on a CD as compared to seeing it live at trial. Communication experts teach that over 70% of communication is nonverbal so the way it is communicated in court and its value and impact on a judge listening to the testimony cannot be measured by reading the report or listening to a transcript.

The Law Firm preparing the report criticized the acquittal rate in breath test cases, claiming that it is objective evidence of impairment. The report does not detail the numerous factors that can make a breathalyzer test unreliable and how this supposed objective evidence has proven flawed and has been subject to attack in the scientific community.

In order to increase the conviction rate, the special report made the following recommendations:

  • Requiring the prosecutor to consent to a waiver or change the time when a decision to elect a bench trial must be made
  • Have the court revisit its holding that refusal evidence is inadmissible
  • Amend the OUI statute to remove time of driving as a defense
  • Eliminate the possibility of a defendant receiving license back following a not guilty when there is a refusal

I do not believe that the report is correct that jurors are confusing by the time of driving jury instructions. In fact, I do not believe that it is frequently raised as a defense given that judges would instruct jurors that the breath test results at the time of test are presumed to be the same at the time of driving if the test was given within three hours.

Also, to suggest that the SJC should reinterpret Article 12 permitting refusal evidence to be offered, would seriously undermine the legitimacy of the Court as being an impartial interpreter of the State Constitution. It is unprecedented that a Court would be influenced by a media report aimed at changing the way judges look at OUI cases.

While it is understandable the public interest in reducing drunk driving, it is unfortunate when the SJC authorizes a report aimed at achieving a particular result in a certain type of case. The judges in Massachusetts have faithfully fulfilled their Constitutional duty of only finding someone guilty if there is proof beyond a reasonable doubt and this attempt to lower the standard to achieve a result is unfortunate.

Hall of Fame catcher Carlton Fisk was arrested and charged with DUI in Illinois this week.

ESPN Chicago reported police found Fisk passed out behind the wheel of his vehicle in the middle of a cornfield. New Lenox Deputy Chief Bob Pawlisk said Fisk was charged with a lane violation, driving under the influence and illegal transportation of alcohol. 300130_catchers_gear.jpg

Police say an open vodka bottle was found in his vehicle. As a Massachusetts DUI defense lawyer more information is needed to determine the best course of action. Did Fisk submit to a breathalyzer or was he given a blood test? Did he perform field sobriety tests? Is there a medical condition involved that could help explain how he ended up in the middle of the field? The fact that he was found on private property could also complicate things for prosecutors.

“They contacted local paramedics in New Lenox, had him examined, and the officers had reason to believe he was under the influence,” Pawlisk said. Fisk was transported to the local hospital.

The 64-year-old Fisk posted bond and was released. He is due back in court on Nov. 29.

Fisk played for the Red Sox upon entering the major league in 1969 and was a member of the 1975 World Series team. His last game was in 1980. Ironically, his arrest came just one day after the 37th anniversary of his game-clinching home run in Game 6 against the Cincinnati Reds. The Reds went on to win Game 7. Fisk signed with the Chicago White Sox in 1981 and retired from baseball in 1993.

Thus, Pudge was a Sox of one sort or another for his entire career. He was the first player to be unanimously voted American League Rookie of the Year when he took the award in 1972. At the time of his retirement, he held the record for most home runs all-time by a catcher (351). Until July 2009, he held the record for most consecutive games as a catcher (2,226).

He is still the American League record holder for most years behind the plate (24). Also known as a fierce competitor and a superb handler of pitchers, Fisk was an 11 time All-Star.

He was inducted into the Hall of Fame in 2000.

In Illinois, a first-offense DUI is punishable by a one-year suspension of your driver’s license. Massachusetts DUI Law (MGL c.90, s.24) also outlines possible penalties that include license suspension, as well as fines and jail time. A typical disposition for a first-time offender is a 45-day license suspension, completion of an alcohol-education class, fines and court costs.

Fisk now lives in New Lenox, Illinois. However, many times an out-of-state charge can pose additional hassle for the defendant. And Boston is a frequent tourist destination. Fighting an out-of-state DUI charge is just as important. With increasing frequency, such cases are being used to enhance future charges in a driver’s home state should a subsequent arrest occur. An experienced defense attorney can work to reach a favorable resolution in your case without you ever returning to appear in court. Even in the worst case scenario, these cases can be properly defended with a single court appearance arranged to meet a defendant’s schedule.
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A series of serious and fatal crashes on Route 24 and I-195 have prompted state troopers to boost their patrol efforts on both highways, hoping to nab speeders, drunk drivers and careless motorists. emptybeercan.jpg

Massachusetts DUI lawyers know that more patrols are likely to equal more arrests. It’s important to understand the background of why law enforcement is targeting this area, as well as what you should do if you’re stopped.

A recent two-part series by The Enterprise newspaper detailed what has been a treacherous year, particularly on Route 24. Drivers spoke of how they drive defensively because they felt it often a matter of life or death on that stretch of highway.

In fact, the newspaper staff, after combing through four years worth of crash data, determined that it’s one of the most dangerous roads in the state. In the last year, there have been 630 crashes on Route 24, resulting in 11 deaths and many more injuries. That averages out to about two crashes a day.

Law enforcement say the reasons behind these crashes vary, but mostly put blame on certain dangerous driving habits, including speeding, impaired driving and wrong-way driving.

Certainly, reckless drivers are out there. However, Massachusetts DUI attorneys know that a lot of it also has to do with poor road design. Even the newspaper reported that when the road first opened back in 1952 as the Fall River Expressway, there were approximately 30 exits over a span of just 43 miles. Most of those ramps are abrupt, allowing motorists just a few car lengths to either speed up and merge or slow down and avoid a collision. Sure, some people go too fast, but poor road design can be a factor in a crash – and in some cases, a possible defense. Drivers could be doing everything right, but accidents will still happen.

Some motorists interviewed by the paper indicated that scofflaws were to blame, as was the lack of police enforcement. So now, law enforcement is answering that claim by tripling their patrols on both Rt. 24 and I-195, particularly on weekend nights through September. When increased enforcement is announced, it also means there is an increased probability of being stopped. When law enforcement is predisposed the make traffic stops and take enforcement action, motorists are also at increased risk of questionable or unfair arrest.

Of course, the best way to avoid a DUI is not to drink before you get behind the wheel. The legal limit in Massachusetts for blood alcohol content is 0.08 percent, but the problem is, many people have a hard time telling once they’ve reached that limit.

Because the chances of your getting pulled over and arrested on Rt. 24 and I-195 are increased, here are some things to keep in mind if you get stopped:

1. Reduce your chances of being pulled over by keeping your vehicle in good working condition. This means making sure your rear and headlights are working, you don’t have illegal window tint and your vehicle is generally well-maintained. Also, make sure that your license plate is properly renewed and your license, registration and insurance is current.

2. Remain calm and be polite. Almost everyone is nervous when getting pulled over, but try to maintain your composure. Remember too that being rude will probably get you nowhere.

3. Don’t be combative, but know that you have the right to decline to take a field sobriety test, take a breath test and to tell the officer whether you’ve been drinking. Understand that under the Massachusetts implied consent law, if you refuse a breath test, you will likely be arrested and lose your license for at least 180 days. This statute is found under Massachusetts General Laws 90-24(f). On the flip side, there will be less evidence to prosecute you for a DUI or OUI.

4. If you are arrested, do not make any statement to police or investigators without an experienced DUI attorney present. Contact an attorney as soon as possible.
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Massachusetts DUI cases repeatedly prove no one is immune. Retired porn star Jenna Jameson recently became the latest high-profile person arrested for DUI.

Massachusetts DUI attorneys understand that the charge that was filed in Jameson’s case was a misdemeanor. While that may not mean much to someone with Jameson’s wealth, it can have a lasting impact for the average joe – which means investing in an experienced lawyer is so important in these cases.

In fact, it can have a lasting impact for anyone. It’s worth noting most of actress Lindsey Lohan’s legal problems stem from probation violations in the wake of a pair of DUI arrests that occurred years ago.

Here’s what we know about Jameson’s arrest, according to recent media reports:

The 38-year-old former adult film star reportedly slammed her vehicle into a light pole while driving in Westminster, California. It happened around 1:30 a.m. She suffered only minor injuries as a result of the crash and refused further medical treatment.

Officers arriving on scene reported that she showed “signs of intoxication,” and administered a field sobriety test, which she failed.

Let’s pause here for a second.

Police outline certain signs of intoxication – such as glassy eyes, slurred speech or stumbling – as indicators that you are drunk. Of course, there can sometimes be other explanations to those “signs,” and it’s important if you’ve been arrested for a DUI in Massachusetts that you reveal to your defense attorney whether you’re on any medication or if there are any other factors that may have contributed to those alleged signs.

Secondly, field sobriety tests can be highly subjective. They are not an exact science, and as such, mistakes can be made. An experienced attorney can analyze how police administered each test to determine whether it was done appropriately and whether the outcome was indeed accurate or whether there may have been some flaw that could render it inadmissible in court.

Jameson in this case submitted to a field sobriety test and reportedly failed, though we don’t know at this point what kind of test it was or how exactly she performed.

In many cases, you may also be asked to give a breath or blood sample. If you refuse to submit to a breathalyzer or blood test, you will receive an automatic license suspension of a minimum of 180 days, according to

Massachusetts DUI attorneys are paying close attention to the developments surrounding the efforts of state legislators to close a legal loophole that allows certain individuals convicted of Boston DUIs to avoid certain penalties. balance.jpg

It involves Melanie’s Law and those individuals who may have admitted to driving drunk, but are not actually found guilty according to the law. This is called being continued without finding. Those individuals may still have to preform community service or pay fines, but they aren’t technically found guilty of drunk driving.

Last week, in our Massachusetts DUI Lawyers’ Blog, we wrote about the decision by the Massachusetts Supreme Judicial Court, which ruled that should they be arrested again for driving drunk, those offenders who aren’t actually found guilty the first time should not be subjected to the harsher sanctions imposed by Melanie’s Law for repeat offenders.

This came after a 2010 case in which a man was arrested for his second DUI. Prosecutors attempted to have him punished under the tough penalties of Melanie’s Law. But the issue was that following his 1997 arrest for DUI, he admitted to a “sufficient facts for a finding of guilty.” The key here is that he never actually pleaded guilty, nor was he found guilty by the court.

In some cases, judges have allowed defendants to admit there is enough evidence to convict, but then the judge will continue the case without finding. Generally, this happens when judges believe the person isn’t going to re-offend. It’s a break, in other words, and one an experienced Massachusetts DUI defense lawyer can sometimes negotiate.

Those individuals are likely to agree to undergo substance abuse counseling or some other form of treatment.

So when he appealed those increased penalties, the court sided with him, saying legislators did not specifically say in the language of the law whether those in his situation should be deemed a repeat offender. It calls into question the whole meaning of the word, “convicted.”

That brings us to today. The implications of this ruling are that some penalties for certain repeat offenders could be lifted.

However, state legislators are trying to prevent this from happening. They want to introduce language into the law that would include this subset of DUI offenders, and effectively close the loophole.

They may in fact be successful in this, so what that means is that if you fall into this subset, you need to contact an experienced Attleboro DUI attorney who may be able to help you appeal your case, based on this new ruling.

According to The Boston Globe, this ruling could impact thousands of cases annually. In fact, between just 2008 and 2011, officials with the state’s Registry of Motor Vehicles say there are about 33,000 cases that were continued without a finding.

That means that the RMV doesn’t count them when considering civil penalties for repeat drunk driving offenses. This would include sanctions like the length of time your license is suspended, which increases with every subsequent offense.

In order for the law to be changed, both the House and the Senate would have to vote to approve an amendment, which would then have to be signed off on by the governor.
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As a Massachusetts DUI lawyer, a frequent question surrounds the significance of statements contained in the police report. The arrest of Senator Ruggerio in Rhode Island resulted in his police report being published in the Providence Journal and provides a good opportunity to explain how I review DUI police reports.

According to the report, the officer is alerted to the car by a 911 call. If the police have the information for this witness and the witness testifies at trial, it makes for a more difficult case for the defense as the witness would probably be credited by a jury as being a neutral witness.

The officer attempted to stop Ruggerio immediately; in many Massachusetts OUI arrests, the driver will pull over immediately and there will be nothing in the report about how the car was stopped. When a police report does not mention how a driver pulled over, it is a strong point for the defense because it shows normal response in an emergency situation. One thing I look for in addition to what the officer alleges is the driving infraction that caused the stop, but how the driver responded to the emergency lights.

This case is unusual as the report states that the officer deactivated his lights when Senator Ruggerio did not stop immediately. The officer alleges some minor traffic violation of a wide and slow turn. The officer claims that Ruggerio pulled over in the middle of the road, though it appears the car was stopped on a side street.

For the defense, the driving is the State’s best evidence as the rest of the case does not show someone under the influence of alcohol. The difficulty with the license and registration is fairly typical as people keep many documents in the glove box.

The field sobriety tests show an officer unsure whether to make an arrest. Ruggerio tells the officer he has a bad knee making the exercises unreliable when given to him. Still, he does fairly well considering his physical condition.

The key point for a Massachusetts OUI lawyer would be how long it takes to decide to arrest. Despite given three field tests, the officer states in the report he needed to use his Advanced Field Sobriety Test Training to come to his opinion. But for his advanced training, he would never have been able to tell if the Senator was under the influence of alcohol.

The key argument at trial would be that if it is hard to decide to arrest, then there is reasonable doubt because we have an unsure, indecisive officer. These two additional tests have never been studied for reliability and should be excluded at trial.

Senator Ruggerio would have a strong case for trial if he were charged in Massachusetts. Being charged in Rhode Island and having refused the breath test, he may be able to get his DUI dismissed if he admits to the refusal. This option is not available in Massachusetts, where his refusal and OUI charge are completely separate. Given that his DUI charge is very defensible, he may want to have a trial on both the DUI and refusal to avoid a potential license loss in Rhode Island.