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.