Articles Posted in Second Offense OUI

Many drivers in Massachusetts do not realize that a license suspension or revocation, or even a conviction on a serious driving offense, leaves a long term mark on their records that can be accessed by several different types of inquirers. This blog will address the National Driver Register, and how information on your driving offenses – civil or criminal – can be stored by different states for others such as future employers and driving agencies to review.

What is the National Driver Register?

The National Driver Register – also known as the NDR – is a nationwide database maintained by the National Highway Traffic Safety Administration containing private personal and driving information on millions of drivers across the country. The NDR is the primary channel by which different states interact with one another to report problem drivers, or drivers with license suspensions/revocations and driving-related criminal convictions.

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.

When you are charged with a Second Offense DUI in Massachusetts, how does the Commonwealth prove that you had a prior conviction. The Appeals Court addressed this issue in the case of Commonwealth v. Ellis which was decided on April 25, 2011.

The Ellis case involved an appeal of a Fourth Offense OUI conviction from the Chelsea District Court. However, regardless of whether you have a second, third or fourth offense, drunk driving charge, the method of proof is the same. With a third or fourth offense, the Commonwealth needs to prove either two or three prior convictions rather than just one prior conviction as for a second offense Massachusetts DUI charge.

In a second offense, the Commonwealth can prove the existence of the prior conviction in a number of different ways. First, the Commonwealth can offer into evidence a certified copy of the conviction from the court in which the prior offense occurred. This is the most common method used by prosecutors. Second, the Commonwealth can offer into evidence a certified copy of your Registry of Motor Vehicle driving record showing the prior conviction. Lastly, the Commonwealth can offer into evidence a copy of your probation record.

The Massachusetts OUI lawyer representing Ellis challenged the method of proving the prior convictions of the defendant. The Commonwealth attempted to offer the defendant’s probation record into evidence as a business record. If a record is a business record, then it can come into evidence at a criminal trial without requiring the maker of the record to testify. To qualify as a business record a record must be kept in the ordinary course of business and not prepared in anticipation of litigation. If a record is a business record, it is considered nontestimonial and the Commonwealth does not have to present live testimony of the author of the record in court.

The court rejected the classification of probation records as business records and held that these records are prepared in anticipation of litigation and according fall outside of the hearsay exception for business records. The Appeals Court adopted the argument of the lawyer in this case that under Melendez-Diaz the probation records were testimonial and required the Government to present a witness to admit the records into evidence. To read more about Melendez-Diaz and the right of confrontation, you can click on my prior blogs on this issue and refer to a Law Review Article from Creighton University, attached here.

Despite upholding the Massachusetts DUI lawyers objection to the probation records coming into evidence, the Court ultimately found that the error was harmless as the Government also admitted the defendant’s driving records from the Registry of Motor Vehicles. The court held that RMV documents are nontestimonial and can come into evidence without the presentation of a live witness.
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A Sacramento police officer, Brandon Mullock, is accused of falsifying information on 79 DUI police reports. In some of these cases, the State has already obtained a conviction. The fabrication of the officer was discovered when a prosecutor noticed that the police dashcam differed substantially from the written police report of the officer.

DUI charges in Massachusetts, and throughout the country, are based primarily on the opinion of the arresting officer. In many Massachusetts DUI arrests, the police officer testifies to subjective factors that the officer claims shows an individual is under the influence. These factors include that the officer claims that the motorist was unsteady getting out of the car, spoke with slurred speech or had difficulty retrieving his or her license. Additionally, when an officer administers a field sobriety test, like the nine step walk and turn, the difference between an officer claiming that the defendant passed or failed is based on small details. Many officers will testify that they are unaware that missing heel to toe is a clue on the test only if there is more than a two inch gap. It is easy for an officer to claim on the report that the defendant failed to touch heel to toe either through not knowing how the test is scored or through embellishing to justify an arrest.

At an OUI trial in Massachusetts, cross examination can demonstrate that an officer overstated, embellished or exaggerated in the police report. The fact that so much of the evidence is opinion based evidence, which can be distorted, fabricated and misinterpreted by the officer demonstrates the importance of hiring an experienced Massachusetts OUI lawyer.

In Massachusetts, a defendant can challenge the basis for the stop at a motion to suppress which would require the officer to testify in court and can challenge the officer’s opinion at trial. These opportunities to confront witnesses granted by the Sixth Amendment to the United States Constitution are the only way that a motorist can challenge the opinion of the arresting officer.

In California, the corrupt police officer was discovered as a result of a prosecutor comparing the dashcam to the written police report. In Massachusetts, police departments vary as to whether they have any dashcam or even booking video. As a Massachusetts criminal defense lawyer, I have argued that a lack of video taped evidence should be held against the Commonwealth at trial and support reasonable doubt. Yet in many cases, there will be no video evidence to contradict the officer; the only way to challenge the officer’s opinion will be through cross examination at trial by a skilled Massachusetts DUI trial attorney.
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