Articles Posted in First Offense OUI

The Massachusetts SJC decided an important case for Massachusetts OUI Lawyers today.  The SJC held in Commonwealth v. Morgan that the Valor Act permits a judge to dismiss a first or second offense OUI over the Commonwealth’s objection.  The SJC held that the wording of the statute did not exclude dismissal as a remedy and that the legislature is presumed to know how a statute will impact existing laws.

The Valor Act was passed in 2012 in recognition of the service of military personnel in Afghanistan and Iraq. The Act permits someone who has been honorable discharged and has been in active duty to have a criminal charge of a misdemeanor, if the individual has no other record, dismissed under a diversionary program.

Once probation determines that an individual qualifies, the Court continues the arraignment for 14 days to allow the individual to receive a recommendation from the Veteran’s Administration that they meet the eligibility requirements for the pretrial diversion program.  The case is then stayed for 90 days until the program is completed; after the completion of the program, the judge is authorized to dismiss the charge under the recent decision of the SJC today in Commonwealth v. Morgan.

As a Massachusetts OUI lawyer who has represented numerous clients dealing with an OUI charge, I understand it can be extremely difficult. In this blog I want to offer some guidance on how to get through the charge. For many people it is their first time ever being arrested or facing any type of criminal charge. So the stress and anxiety of being charged with a crime is high. Here are a few things that I believe will help you to deal with the situation.

First offense OUI is easy to be charged with. Essentially, it’s a crime of opinion. The officer’s opinion could simply be wrong. However, once you are charged, you have to go through the process and be found not guilty in court to avoid a conviction.  There are very few counties in Massachusetts that will negotiate an OUI, meaning reduce it to negligent operation.  As a generally rule, in 99% of the cases, you will have to go to trial to avoid an OUI conviction.

There is a good chance of winning such cases. Keep in mind, regardless of how the case turns out, whether it is guilty or not guilty, it is a misdemeanor offense, and an offense that many people have gotten through. You are highly unlikely to go to jail for a first offense OUI. I typically tell my clients, whether it be continuing to go to school or work, try to stay on the same course as before you had the charge.

There are often times when police officers have to rely on anonymous callers who dial 911 to tip police off on a crime they had observed. Whenever a defendant is arrested as a result of such a tip, the trial court must determine the caller’s reliability before allowing the case to proceed to trial. In the case of Com. v. Depiero, the Appeals Court determined that it was lawful for police to arrest a driver with a history of drunk driving after receiving an anonymous 911 call reporting erratic driving.

The 911 Call

Police dispatch received a call stating that a “drunk driver” operating on Memorial Drive was “swerving all over the road.” The caller did not identify him/herself, but did provide the dispatcher with a license plate number, make, and model of the car. A state trooper was then dispatched to the driver’s address, where he observed the driver pull into his driveway. After the driver parked, the officer turned on his emergency lights and conducted a traffic stop. The driver admitted to having drunk alcohol, and subsequently failed the field sobriety tests.

Drivers who were stopped and charged with an OUI out of Westborough can expect to appear before the Westborough District Court for pretrial matters. As the case progresses towards trial, the case will be transferred to the Worcester Trial Court, where it will be scheduled for a jury session.

When you face an OUI charge out of Westborough, your case will first be heard at the courthouse at 186 Oak Street – right off of Route 9. There you will be arraigned by the court, and will be asked whether you will be representing yourself or if you have retained a lawyer. If you cannot afford a lawyer, you should speak with the probation office to determine whether you are eligible for a court-appointed lawyer.

Following the arraignment, you will be given later court dates on which you will appear with your lawyer. The court will also schedule later dates to hear motions by either party. During these later court dates, you will have an opportunity to discuss additional evidence that the district attorney has not provided at the first court date as well as discuss a resolution of the case. For someone charged with a First OUI with no record, the standard plea offer is a CWOF or continuance without a finding on the OUI charge. I have discussed this type of resolution on my website.

New Year’s Eve is a time for increased DUI patrol. Police are always looking to crack down on drunk driving, but New Year’s Eve sees a greater police presence. It is important to be careful and consider public transportation or taking a taxi when driving in Massachusetts tonight.

Getting arrested for DUI even if you are found not guilty is an enormous stress for all of my clients. It impacts their work, health and family situation. As a Massachusetts OUI Lawyer, I frequently have to discuss difficult choices with people in proceeding through the legal system after an OUI arrest.

If it is not possible to avoid driving or consuming alcohol, there is always a chance that you will be subject to an arrest for OUI because the crime is based on opinion. Before driving after consuming alcohol, make sure you understand how much you drank and its impact on your ability to drive. Also, make sure you correctly calculate how much you consumed. One of the more frequent mistakes that can lead to an arrest is assuming that one glass of wine is really just one glass of wine. At nicer restaurants the size of the glass makes one glass closer to two glasses.

Many arrested for OUI assume that a police officer must give field sobriety tests prior to an arrest. Under Massachusetts OUI Law, there is no requirement as to which field sobriety tests and officer must give or whether an officer give any tests at all. Most police officers will give the standard field sobriety tests, which consist of the HGN test, one leg stand and walk and turn. Other common tests include an alphabet test, number counting backwards and nose touching test called the finger to nose test.

imagesIn this Blog, I would like to discuss the common practice of a few State Troopers in the area of Wareham, Falmouth and New Bedford who commonly omit field tests or only give one admissible field sobriety test. In Massachusetts, the HGN tests is generally inadmissible as evidence in Massachusetts Courts under the Sands case. Every police officer is trained to administer field sobriety tests according to the methods of the National Highway Traffic Safety Administration.

Accordingly, in a stop for a routine traffic violation, an officer should at least give two field sobriety tests prior to forming an opinion to be fair to the motorist. However, I have increasingly seen officers administer the HGN test, a one leg stand and quickly request the motorist submit to the portable breath test and make an arrest.

You were stopped for speeding after having consumed alcohol? Can a police officer order you to take field sobriety tests in Massachusetts. This Blog will explain under what circumstances field sobriety tests can be ordered and the type of legal motion a DUI Defense Lawyer can make to challenge the officer’s conduct.

Can Police Officer Request Field Tests Merely Because I consumed Alcohol?  

Police officers have the authority to conduct field sobriety tests if they reasonably suspect that the driver was operating his or her vehicle while under the influence of alcohol. This standard, known as the “reasonable suspicion” standard, is the lowest criminal standard used by courts, and its application to roadside sobriety tests makes drivers much more vulnerable to arrest.

Building on the state high court’s recent decision in Commonwealth v. Canty, the Massachusetts Court of Appeals held a booking officer’s testimony in an OUI trial inadmissible to the extent that the officer stated his opinion about a defendant’s inability to safely operate a vehicle. This decision affirms the restrictions on police testimony in OUI trials, while also reminding Massachusetts OUI attorneys of their duty to take proper procedural measures to raise objections and claims on behalf of their clients.

Background

In the matter of Commonwealth v. Saulnier, No. 12-P-931 (Mass. App. Dec. 6, 2013), the Appeals Court heard the case of a driver who was arrested on OUI charges after totaling a vehicle that was travelling in another lane. One of the witnesses to the accident was the owner and a passenger in the vehicle totaled by the defendant. The witness allegedly saw Saulnier pull out of a liquor store and travel diagonally across traffic lanes colliding into her own vehicle. The officer responding to the scene subsequently arrested Saulnier after detecting evidence of alcohol intoxication.

Massachusetts OUI arrests by College Campus police may raise legal defenses that an

experienced Massachusetts OUI attorney could raise in court. Campus police – or public safety officers – are limited by Massachusetts state law from many law enforcement duties of regular city and state police officers, and arrest made outside of these limitations could be defeated in court. The distinction between ordinary officers and campus police officers is critical because, as discussed in the case of Commonwealth v. Smeaton , it can make a difference in the outcome of the case.

College or university police officers are appointed as special State police officers under a Massachusetts statute (G.L. c. 22C, § 63) that grants them the same authority to make arrests as regular police officers for any criminal offense within their jurisdiction. Even though students on campus have fewer rights to privacy because of the college’s interest in keeping the community safe, campus police officers also have less authority to make traffic stops or to question individuals on campus.

The Massachusetts Supreme Judicial Court recently issued a ruling limiting the testimony of police officers during an OUI trial. The case of Commonwealth v. Canty, decided on November 6, 2013, involved whether a police officer’s testimony violated the rule of evidence that a witness cannot render an opinion on the ultimate issue that the jury must decide. As a this decision clarifies how an officer may testify at trial.

In the Canty case, the officer testified as follows:

Did you form an opinion as to the defendant’s sobriety?

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