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The Massachusetts Court of Appeals addressed an important question for Connecticut Drivers charged with DUI in Massachusetts in the case of Thomas Scheffler v. Board of Appeals. The Appeals Court held that a driver’s assignment to a diversionary program, which is not considered a DUI Conviction in Connecticut, does count as a like offense for the purposes of determining whether the Massachusetts Registry of Motor Vehicles will issue a license suspension.

In 2009, Mr. Thomas Scheffler was charged in Connecticut for operating under the influence of liquor, in violation of a Connecticut statute. Because Mr. Scheffler refused a breathalyzer test, his license was suspended for six months. However, the OUI charge was dismissed upon Mr. Scheffler’s completion of a pretrial alcohol education diversion program, in compliance with another state statute.

Almost two months later, the RMV notified Mr. Scheffler that his license would be suspended for one year based on the Connecticut OUI charge. Despite being later informed that Mr. Scheffler’s license was actually suspended for refusing a breathalyzer, and that the OUI charge was dismissed following completion of the diversion program, the RMV did not clear Mr. Scheffler’s record. Instead, his record now reflects both the breathalyzer refusal and the OUI dismissal, in addition to the completed alcohol education program.

As a , anytime a person comes into the office after having failed the breath test, I know that I will have to explain to them why the breath test machine can be unreliable and ways the case can be won despite the breath test results. While breath test evidence must be challenged, these results do not mean the case cannot be won in court. In this Blog, we will review a decision from Ohio finding the breath test machine unreliable.

A prominent trial judge in Ohio has just decided that the results of the Intoxilyzer 8000 “are not scientifically reliable.”

On August 14, 2013, in the matter of State v. Lancaster, Judge Teresa Liston concluded proceedings that lasted over the span of several months challenging the reliability of the Intoxilyzer 8000 in the Marietta Municipal Court in Ohio. Judge Liston, a well-respected retired judge, was called to the bench specifically to hear several cases combined by the court for the purposes of challenging the Intoxilyzer 8000 alone.

For one facing an OUI charge in Massachusetts, the first hearing will be an arraignment and then the next hearing will be a pretrial. This pretrial will be the defendants first opportunity to raise issues of evidence or even raise a motion to dismiss the charges. The purpose of this hearing will usually be for the judge to decide whether or not there is evidence that needs to be suppressed or to rule on any other motions by the defendant. If there is no probable cause for the charges and the defendant raises a motion to dismiss, the case should be dismissed at this point. The recent case of Commonwealth v. Huggins examines what evidence can be examined when determining if there is probable cause or not.

In Commonwealth v. Huggins, the defendant was arrested and charged with a second offense OUI. This is after police found the defendant off the road, facing the woods, stuck on rocks. After asking for his license and registration, the defendant had trouble finding it and the officer noticed a strong smell of alcohol on the defendant’s breath. After finally getting out of the vehicle, the defendant refused to take a field sobriety test and was arrested for an OUI. At the pretrial, the judge looked at the totality of the circumstances including the position of the car, the smell of alcohol and the defendant’s refusal to submit to the field sobriety test in determining if there was probable cause to continue the action. The judge denied the defendant’s motion to dismiss and the case proceeded to trial where the defendant was convicted. On appeal, the defendant raises the sole issue of whether the judge erred in concluding there was probable cause to support the charge of OUI.

The main issue here that the defendant raises is that the judge relied on the refusal of taking the field sobriety test in determining whether there was probable cause. The Supreme Judicial Court upheld the conviction and stated that a judge can use this refusal in determining whether there is probable cause. When a judge is determining this, she will have to look at the totality of the circumstances which is what the judge did when denying the defendant’s motion. The defendant also brought up the fact that there was a disagreement over the witnesses who brought forward the complaint, this being the officer. The court ruled that in the pretrial, a defendant will not have the right to cross-examine witnesses or call his own witnesses to show whether or not there is probable cause. This probable cause hearing is essentially a paper trial i.e. the judge will look at the facts as brought forth in the complaint and determine whether there is probable cause. Debates over facts and witnesses will be handled at the trial.

In response to the Boston Globe Special Report on OUI bench trials in Massachusetts, the Globe reported that prosecutors are seeking legislation requiring prosecutors to consent to a bench trial. Assuming this report is accurate, this legislation would have to apply to every type of criminal case as legislation relating to criminal procedure cannot be crime specific. This legislation if proposed would be an unconstitutional violation of a defendant’s right to a fair trial under the Sixth Amendment.

The apparent aim of the legislation is to combat the perceived high rate of not guilty verdicts in Massachusetts OUI bench trials. This legislation would clearly be unconstitutional under the Sixth Amendment. The Sixth Amendment provides that a defendant in a criminal case enjoys certain rights: These rights include the right to a speedy trial and the defendant enjoys a right to a trial by jury. The use of the word “enjoys” in the Constitution provides strong textual support for the argument that a defendant can waive this right.

The right to a trial by jury was added to the Bill of Rights because the Framers of the Constitution feared that judges would not be impartial to defendants because their salary depended on the rule of the King. The original intent of the jury trial was to limit the power of Government and ensure that citizens judged citizens. The right to a jury trial is not Constitutionally required in all cases; in minor offense, with no possibility of jail time, there is no Constitutional right to a jury trial.

In defending charges of DUI in Massachusetts, one of the field sobriety tests that appears frequently in police reports and causes the most confusion for people arrested for drunk driving is the Horizontal Gaze and nystagmus field sobriety test, sometimes referred to by those arrested as the pen test.

It is understandable why this test causes some much confusion because it does not appear to have an scientific basis or reliability. You are on the side of the road, cars going by, and the officer is waiving a pen quickly in front of your face. If you stopped and asked most officers what they are looking for, many probably could not correctly explain the correct procedure in administering the test.

Fortunately, the HGN test is typically not admitted into evidence at a Massachusetts DUI trial as a result of the decision of the Massachusetts Supreme Judicial Court in Commonwealth v. Sands. The HGN test can be admitted; however most prosecutors do not attempt to admit the test into evidence.

In some cases, I have used the HGN test to discredit the officer and demonstrate that the investigation was not properly conducted, so what are the signs that someone exhibits nystagmus.

The first clue that the officer looks for is lack of smooth pursuit. The officer is suppose to start with the pen in the center and move it to the left, taking two seconds out and two seconds back for a complete pass and following the same procedure for the right eye. The idea is that the officer is looking to detect any involuntary jerking of the eye, called nystagmus of which alcohol is one of many causes. Click here to read about court decisions regarding the HGN test.

The second clue is referred to as distinct and sustained nystagmus at maximum deviation. For this clue, the officer is suppose to move the pen until the eye has gone as far to the side as possible. The officer is then required to hold the pen in this position for a minimum of four seconds and observe to determine if there is an involuntary jerking of the eye. In many cases, the officer does not recall that the correct administration of this part of the test requires that the pen be held for four seconds at maximum deviation.

The final clue on the HGN test is called onset of nystagmus prior to 45 degrees. The officer is suppose to start with the stimulus in the middle and move it toward the right shoulder at a speed that would take four seconds to reach the edge of the left shoulder. In many cases, when officer perform this test, they are rapidly moving the stimulus contrary to the clear instruction of the police training manual.

With this clue, the officer is looking to see if there is any involuntary jerking of the eye prior to 45 degrees and is suppose to hold the stimulus to verify that it continues.

Although this test is rarely used in Massachusetts, according to the National Highway Traffic Safety Administration Study, the HGN test is the most accurate of the field sobriety tests at 77% reliable, as compared to 68% for the nine step walk and turn and 65% for the one leg stand. The head Police officer for the Massachusetts State police who speaks occasionally at drunk driving seminars for lawyers has repeatedly indicated his confidence in the reliability of the test. I have had an officer testify that he has never had a suspect fail the HGN test who was under the legal limit. During that hearing, the officer demonstrated how he conducts the test and did it in a very rapid fashion contrary to the careful and deliberate process outlined in the police manual.
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