January 5, 2013

Breathalyzer Refusal Not Admissible to Jury, Even at Defendant's Reqeust


The Massachusetts Supreme Judicial Court recently decided a legal issue in Massachusetts Drunk Driving Cases involving the proposed admission of a defendant's refusal to submit to a Breathalyzer Test.

In the case of Commonwealth v. William H. Jones, Jr., the defendant was charged and proceeded to jury trial on the charge of Operating Under the Influence of Alcohol. Following his conviction, the Massachusetts Supreme Judicial Court considered whether evidence of a defendant's initial refusal to submit to a breathalyzer test, and then his subsequent request to take one, should have been introduced to the jury at his trial.

In Massachusetts, evidence of a defendant's refusal to take a breathalyzer test is not admissible to the jury. Prior to trial in this case, however, the defendant requested the trial judge to allow him to introduce evidence that, although he initially refused the breathalyzer test, that he then subsequently requested he be given one but was denied by the police.

The trial judge, however, denied the defendant's request and the Massachusetts Supreme Judicial Court ruled that it was in the judge's discretion to do so because a trial judge may exclude evidence if he feels that its probative value is substantially outweighed by the risk of any prejudice.

The SJC held that admission of the breathalyzer refusal and evidence that the defendant then requested one would serve as only exculpatory evidence or evidence of consciousness of innocence. Massachusetts does not, however, allow evidence of consciousness of evidence to be admitted at trial because it has little value, and the court explained that a variety of different motives can prompt action consistent with innocence.

For example, in OUI / DUI, a defendant's recantation of his initial refusal to submit to a breathalyzer test may be attributed not only with his innocence, but may also be attributed to his desire to avoid a lengthier license suspension for his refusal.

Where the admissibility of this type of evidence is squarely within the sound discretion of the trial judge, the SJC's decision does not necessarily mean that no future defendant's could seek to have evidence of their refusal admitted in their trial. As each cases facts and circumstances stand apart from other, it would obviously be incumbent on the trial judge in each case to independently weight whether the admission of evidence has sufficient probation value.

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December 23, 2012

Needham Woman Strikes Massachusetts Trooper, Charged with Drunk Driving


A Needham woman was arrested for Massachusetts Drunk Driving Crimes last Thursday night after she struck a Massachusetts State Trooper vehicle.

The Needham woman was arraigned in Dedham District Court and charged with Operating Under the Influence of Alcohol and Negligent Operation of a Motor Vehicle.

According to police, the woman was traveling in the northbound lane on Route 109 in a construction zone when she struck the trooper's vehicle. The Massachusetts State Police trooper was transported to the hospital with neck and back injuries.

The woman reportedly also refused to submit to a Breathalyzer Test, which triggered an automatic suspension of her driver's license for 180 days.

The Massachusetts OUI / DUI Crime of Operating Under the Influence of Alcohol is a misdemeanor though prosecuted very aggressively in all counties. Although a first-offense OUI / DUI carries the potential for imprisonment for up to 2.5 years in the House of Corrections, Massachusetts law offers an 'Alternative Disposition' for first time drunk driving offenders.

For persons who take advantage of the alternative disposition, persons who admit "sufficient facts for a finding of guilty" are placed on probation for a period of time, typically one year; are ordered to enter a Drug-Alcohol Education Program; will be subjected to a loss of their driver's license for a period of 45-90 days; and will be ordered to pay upwards of $1,000 or more of fines/fees.

In circumstances such as these where the person refused to submit to a Breathalyzer Test, any other license suspension will be incurred following the 180 day license suspension for refusing the breathalyzer test.

Although Massachusetts OUI / DUI laws makes it very attractive for first time offenders to take advantage of this Alternative Disposition, any person charged with OUI / DUI should first thoroughly evaluate the strengths/weaknesses of taking their case to trial.

The reality is that a very large percentage of drunk driving cases are very beatable. For that reason, anyone charged with a drunk driving offense should consult with an experienced OUI / DUI Lawyer.

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December 19, 2012

Boston Woman Arrested for Drunk Driving After Hitting 2 Pedestrians, Killing One


A Boston woman was arrested last weekend on Massachusetts Drunk Driving Charges after she allegedly hit two pedestrians on Woodrow Avenue in Dorchester.

The woman, Champree Dinkins, of Dorchester, was arraigned earlier this week in the Dorchester Division of the Boston Municipal Court on several charges including Operating Under the Influence of Alcohol, Leaving the Scene of an Accident After Causing Injury, and two counts of Assault & Battery with a Dangerous Weapon.

According to the Boston Police Department and the Suffolk County District Attorney's Office, it is still unclear whether the alleged acts in this case were deliberate. Given, however, that one of the pedestrians, a 30 year old Dorchester man, died from his injuries, prosecutors may further charge the defendant with Vehicular Homicide by Operating Under the Influence of Alcohol and Leaving the Scene of an Accident After Causing Death.

The Massachusetts Drunk Driving Crime of Vehicular Homicide by OUI / DUI is punishable by imprisonment to the House of Corrections for 1 to 2.5 years if there is evidence that the person's blood alcohol content was 0.08% or greater; and if not, 30 days to 2.5 years in the House of Corrections; or 2.5 to 15 years in state prison.

The Massachusetts crime of Leaving the Scene of an Accident After Causing Death punishes those who leave the scene of an accident where death resulted without leaving their identity, address and registration information. This crime is punishable with imprisonment in the House of Corrections for not less than 1 year and up to 2.5 years; or to state prison for not less than 2.5 years and up to 10 years.

Following her arraignment in the Dorchester Division of the Boston Municipal Court, the defendant was held on $500,000 bail.

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December 9, 2012

NFL Football Player Charged with OUI / DUI Vehicular Homicide


NFL player Josh Brent was arrested this past weekend and charged with Motor Vehicle Homicide by OUI / DUI, the victim being his close friend and teammate.

According to police, Josh Brent, a defensive lineman for the Dallas Cowboys, was allegedly under the influence of alcohol when he crashed his car, which resulted in the death of his passenger, friend and teammate Jerry Brown, who was on the teams practice squad.

Motor Vehicle Homicide by OUI / DUI in Massachusetts is defined as the operation of a motor vehicle by one who is under the influence of intoxicating liquor and who operates in a reckless and negligent manner which caused the death of another person.

Although the penalties for Vehicular Homicide by OUI / DUI vary from state to state, this crime is punishable in Massachusetts by imprisonment to the House of Corrections for 1 to 2.5 years (or 30 days to 2.5 years if there is no evidence of reckless or negligent driving but only a Blood Alcohol Content of 0.08% or greater); or to state prison for 2.5 to 15 years.

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November 15, 2012

Wellesley ER Doctor Charged with OUI / DUI Drugs & Alcohol


A Newton-Wellesley Hospital emergency room doctor was arrested earlier this month on Massachusetts Drunk Driving Charges after she allegedly crash into traffic in State Street in Wellesley.

Dr. Kristin Howard, 56, was charged with Operating Under the Influence of Drugs and Alcohol, Negligent Operation of a Motor Vehicle, Leaving the Scene of Property Damage and Unlawful Possession of Class C and E Substances.

According to police, the doctor allegedly drove through the Wellesley whole foods parking lot, through grass and bushes, and into the street, striking another car and pushing it into a car on the other side of the street.

OUI / DUI in Massachusetts is punishable by imprisonment for up to 2.5 years in the House of Corrections, along with a loss of license for 1 year. Massachusetts drunk driving laws also provide for an 'alternative disposition' for first-time DUI / OUI offenders if the defendant elects to change his/her plea to a Continuance Without a Finding and be subject to probation and regular reporting; ordered to enter and complete a drug alcohol education program; fines/fees in the area of $1,000 or more; and loss of a driver's license for a period between 45 and 90 days.

With most OUI / DUI cases, the immediate charges and allegations may appear very overwhelming and almost insurmountable. In reality, however, a great many drunk driving cases have very legitimate and strong defenses, so even first-time offenders should strongly consider consulting with an attorney who can evaluate each aspect of his/her case and make an informed decision whether to enter into a change of plea or proceed to trial.

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November 9, 2012

Wayland High School Football Coach Charged with Drunk Driving


An assistant football coach at Wayland High School was arrested last weekend on Massachusetts Drunk Driving Charges following his teams victory that evening.

The Wayland coach was charged with Operating Under the Influence of Alcohol at his arraignment in Framingham District Court earlier this week.

According to police, the defendant almost veered into a police cruiser after he allegedly crossed the double yellow lines. The officer pulled over the vehicle and reportedly smelled an odor of alcohol from the vehicle and the operator slurring his words. In his report, the officer also alleged that the defendant admitted to having a few beers prior to being pulled over.

The defendant also reportedly agreed to perform Field Sobriety Tests. Although he allegedly failed two, but passed the Nine Step Walk and Turn Test, which is arguably the most "difficult" of these ridiculous 'tests'. Nonetheless, the fact that the officer admitted that he 'passed' one out of three field sobriety tests does significant harm to the prosecutions case.

Notably, it is within your legal right to refuse to submit to any field sobriety tests.

The reality is that drinking and driving is not a crime. The consumption of alcohol and driving only becomes a criminal act when the alcohol impairs the driver's ability to operate a vehicle safely. Although evidence of and even an admission of having consumed alcohol is not ideal, that fact is not fatal to a DUI / OUI defense.

In the totality of these circumstances, it appears that the only evidence of erratic operation is the single veering into the opposite lane, for which there could be numerous innocent explanations. For example, the driver could have been distracted with his cell phone; was trying to light a cigarette; was changing the music station; or was simply just tired.

Unfortunately for OUI /DUI defendants, the public immediately convicts anyone and everyone simply arrested for drunk driving, without consideration of all the innocent facts and circumstances and with complete disregard that all criminal defendants are presumed innocent until proven guilty in court.

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November 6, 2012

Worcester Man Charged with Drunk Driving and Child Endangerment


A Worcester man was recently arrested on several Massachusetts Drunk Driving Charges following his involvement in a three-car crash.

The man, who was driving his minivan with his two daughters (6 and 8 years old) on the Massachusetts Turnpike in Sturbridge, allegedly turned onto an exit ramp and was hit but a tractor-trailer. The impact cause the man's car to then crash into another vehicle.

Although there were no injuries, the driver was charged with Operating Under the Influence of Alcohol and Child Endangerment While OUI / DUI.

According to police, the Worcester man submitted to an alcohol breath test which indicated he was at approximately 0.16%. The legal "limit" in Massachusetts is 0.08%.

The Massachusetts Drunk Driving Crime of Child Endangerment While OUI / DUI criminalizes the operation of a motor vehicle while under the influence of drugs or alcohol with a child 14 years of age or younger in the car. The potential penalty for a first offense violation is 90 days to 2.5 years in the House of Corrections, with a driver's license suspension of 1 year.

In cases such as this, the public perception is that where a drunk driving defendant blew a breath test reading over 0.08% that there is absolutely no defense to his case. This is far from the truth.

In reality, a breath test reading over the legal presumptive limit is not a death sentence, as the prosecutor still has to prove that the operator's ability to operate the vehicle safely was impaired by his consumption of alcohol. Even where an accident occurred, although such could be considered by a jury as to the level of impairment, can also be explained.

Accidents do happen, even when people are not drunk or haven't consumed any alcohol. But people tend to immediately focus on the most egregious facts and sometimes disregard other equally important factors.

For instance, the operator was traveling on the Mass. Pike, and presumably, if going with typical traffic, at speeds of at least 50-60 mph. Assuming evidence would show that he traveled several miles, all the while keeping within his marked lanes, this could demonstrate that he was actually not impaired by the alcohol.

For these and many other reasons, it is extremely critical that those charged with Massachusetts Drunk Driving Law Violations consult with a criminal defense lawyer who has experience in defending OUI / DUI charges.

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October 28, 2012

Boston Police Officer Indicted for OUI / DUI Causing Serious Injury


Boston Police Officer Richard Jeanetti, 36, has been indicted by a Suffolk County Grand Jury on Massachusetts Drunk Driving Charges from the May 24 Hyde Park crash that resulted in serious injury to a woman.

The Boston officer has been charged with Operating Under the Influence of Alcohol (OUI / DUI) Causing Serious Bodily Injury to Brianna O'Neill of Foxboro, Massachusetts.

The Suffolk County District Attorney's Office alleges that Boston police officer was speeding up to 68 mph in a 30 mph zone in Hyde Park. He allegedly went through a stop sign and struck the car operated by Brianna O'Neill. The accident then caused her car to strike another vehicle. The operator and passenger of that car were not injured.

Following the accident Brianna O'Neill was transported to Boston Medical Center and reportedly suffered a broken leg and fractured vertebrae.

The Massachusetts Drunk Driving Crime of OUI / DUI Causing Serious Bodily Injury is punishable by imprisonment for not less than 2.5 years and up to 10 years in state prison; or not less than 6 months and up to 2.5 years in the house of corrections.

This case received a tremendous amount of media attention at the time as there was an outcry that the Boston Police Department was allegedly 'protecting' Officer Jeanetti, as she was not immediately arrested at the scene.

According to prosecutors, the Boston Police officer's medical records were obtained and her blood alcohol content (BAC) was allegedly 0.27% at the time of the accident. The presumptive limit in Massachusetts is 0.08%, which would put her BAC at over three times the legal limit.

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October 21, 2012

School Bus Driver Charged with Drunk Driving and Kidnapping


A bus driver for the Perkins School for the blind in Watertown was arrested on Massachusetts Drunk Driving Charges this past week after he allegedly drove under the influence while transporting a 15 year old student to his home in Clinton.

The bus driver, Michael Tantillo, was charged with Operating Under the Influence of Alcohol, Reckless Endangerment of a Child While OUI / DUI, and Kidnapping.

According to the Clinton Police, the student's parents called police after their son didn't return home when expected. Clinton police allegedly tried calling the defendant several times but they were reportedly unable to reach him. Tracking his location from his cell phone, police reportedly waited at the student's home and arrested him when he arrived.

The defendant was arraigned in Clinton District Court on Thursday morning and held on $50,000 bail.

The crime of Child Endangerment While Operating Under the Influence of Alcohol makes it a criminal offense to operate a vehicle while under the influence with a child 14 years of age or younger. A person convicted of a first offense faces 90 days to 2.5 years in the House of Corrections, as well as a loss of license for 1 year. A second conviction could result in a state prison sentence of 3-5 years.

Although the police have charged this defendant with Kidnapping, but I would be very surprised if this charged is ultimately held up in court.

In order to prove the crime of Kidnapping, the prosecutor must prove that, the defendant, without lawful authority, forcibly confined another against his will. According to reports, the defendant did take the child home, though it is unclear how much of a delay it was and what, specifically, the circumstances were. I would imagine that the police would need to allege something more to uphold the charge of Kidnapping than simply stating that he delayed in transporting the child home.

Kidnapping in Massachusetts is punishable with imprisonment for not less than 20 years up to life if the person kidnapped is under 18.

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October 14, 2012

Wilmington Man Charged with OUI / DUI While Carrying Gun


A Wilmington man was charged with Massachusetts Drunk Driving Charges last week as well as Gun Charges, for allegedly carrying a firearm while driving intoxicated when he was pulled over in Tewksbury.

The Tewksbury man was charged with Operating Under the Influence of Alcohol, Negligent Operation of a Motor Vehicle and Carrying a Loaded Firearm While Under the Influence of Liquor.

According to the Tewksbury Police Department, the man was pulled over for allegedly speeding. During the stop, officers removed him from the car and began interrogating him, including asking him whether or not he had any weapons on him. The man allegedly admitted to being in possession of a firearm, but also produced a valid Massachusetts License to Carry.

The crime of Carrying a Loaded Firearm While Under the Influence of Liquor is punishable by imprisonment in the House of Corrections for up to 2.5 years and/or a fine of up to $5,000. A person may be prosecuted for this crime regardless of whether he/she is licensed to carry a firearm or not.

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October 5, 2012

Massachusetts Man Charged with OUI and Vehicular Homicide in Father's Death


A Massachusetts man has been charged with Massachusetts Drunk Driving Charges in connection with an accident that killed his father, the passenger in the car.

The man was charged with Operating Under the Influence of Alcohol, Vehicular Homicide While Driving Under the Influence of Alcohol, and Negligent Operation of a Motor Vehicle.

According to the Massachusetts State Police, the man from Rutland was allegedly speeding on Route 56 when he lost control of his truck and drifted off the road, striking a tree. The man's father and passenger, was found to be pinned in his seat and ultimately suffered from his injuries.

The defendant was arraigned in Western County District Court in East Brookfield and released on personal recognizance.

The Massachusetts DUI / OUI Crime of Vehicular Homicide punishes those who, due to their intoxication and operate their vehicle so negligently that the lives and safety of the public is endangered, and the death of another person is caused. Vehicular Homicide by OUI / DUI is punishable by imprisonment for 2.5 to 15 years.

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September 13, 2012

Massachusetts Man Arrested for DUI / OUI After Driving Wrong Way on Pike


A Massachusetts man was arrested this week on Drunk Driving Charges for allegedly traveling down the wrong way on the Massachusetts Turnpike. He was charged with Operating Under the Influence of Alcohol, 3rd Subsequent Offense.

In Massachusetts, a OUI / DUI 3rd Offense carries severe penalties upon conviction, including imprisonment for not less than 180 days and up to 5 years in state prison; driver's license suspension for 8 years; and cancellation of the vehicle's registration for the duration of the license suspension.

Drunk driving offenses are prosecuted very aggressively in Massachusetts, and the penalties can often be very significant. Subsequent offenses, particularly 3rd offenses and greater, are prosecuted extremely aggressively, and in many cases the government seeks to petition for a Dangerousness Hearing and asks a judge to detain the person without bail pending the resolution of the case.

Boston DUI / OUI Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all Massachusetts Drunk Driving Crimes, including OUI / DUI and subsequent offenses.

To schedule a Free Consultation, Click Here to Contact a Massachusetts DUI / OUI Lawyer or call 617-325-9500.

September 9, 2012

Massachusetts Woman Arrested for Drunk Driving with 4 Year Old in Car


A Stoughton woman was arrested this past weekend and charged with several Massachusetts Drunk Driving Law Violations after getting into an accident with a 4 year old child in the car.

The woman from Stoughton was arraigned in Stoughton District Court this past Friday and charged with Operating Under the Influence of Alcohol, Second Offense; Negligent Operation of a Motor Vehicle; and Child Endangerment While OUI / DUI of Alcohol or Drugs.

The Massachusetts DUI / OUI Crime of Child Endangerment While Operating Under the Influence of Alcohol or Drugs punishes those drivers who operate under the influence with a child 14 years of age or younger in the car. The statute punishes first offenders with commitment of not less than 90 days and up to 2.5 years in the House of Corrections, along with a driver's license suspension of 1 year. Second offenders of Child Endangerment While OUI / DUI can be imprisoned to state prison for 3 to 5 years and may also lose their driver's license for 3 years.

A DUI / OUI 2nd Offense in Massachusetts is punishable by imprisonment for not less than 60 days and up to 2.5 years in the House of Corrections. Second time DUI / OUI offenders will also face a loss of their driver's license for 2 years and must install an interlock device on their vehicle when their driver's license is reinstated.

Massachusetts Drunk Driving Laws also offer an "Alternative Disposition" for a 2nd Offense OUI / DUI which mandates that they be placed on probation and complete an in-patient alcohol treatment program. Even with an alternative disposition, offenders will still lose their driver's license for 2 years and must still intall an interlock device on their car when their license is reinstated.

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August 29, 2012

East Boston Man Indicted for Drunk Driving and Vehicular Homicide


An East Boston man was indicted by the Essex County District Attorney's Office on several Massachusetts Drunk Driving Charges in connection with a crash that occurred on the Lynnway in Lynn that resulted in the other driver succumbing to injuries.

The East Boston man was charged with Motor Vehicle Homicide by OUI / DUI, Operating Under the Influence of Alcohol and Aggravated Negligent Operation of a Motor Vehicle.

The defendant in this case is alleged to have been driving while under the influence of alcohol on the Lynnway in Lynn last October when he struck another car that had just pulled out of the parking lot of the Porthole Restaurant (located on the Lynnway). The crash reportedly caused the victim's van to explode and was fully engulfed in fire by the time the fire department arrived. An accident reconstruction team is alleging that the defendant's vehicle was traveling at approximately 80 miles per hour.

According to the Lynn Police, the East Boston had left a party in Everett and was on his way to the beach at the time of the accident. Also in the car were 3 underage passengers, one of whom reportedly told the police that they had all been drinking in the car. An empty bottle of vodka was allegedly seized from within the car.

The East Boston man was taken to Salem Hospital to be treated for injuries. Medical tests and blood work that was performed allegedly revealed his blood alcohol content at 0.14% (the legal limit is 0.08%).

One of the quirks in cases like this involving blood alcohol content is where the person was involved in an accident and taken to the hospital for treatment. Generally, a person has a right to refuse to a Breathalyzer Test that might reveal his blood alcohol content, and the person's refusal of such test is inadmissible against him at trial.

Where the person was taken to the hospital, however, evidence of a blood alcohol test may be admissible so long as the purpose for their being taken was for medical diagnosis and treatment. Conversely, in a situation where the person refused to go to the hospital for treatment but was forced to by the police for apparent 'investigatory' purposes, evidence of his blood alcohol levels might be excluded.

Additionally, Massachusetts court have ruled that admission of such blood test results that were done as a result of routine evaluation and treatment may be admissible at trial without a right to cross-examine the laboratory technician who conducted the test. The reason for this rule is because, in Massachusetts, medical reports created for treatment purposes are not considered 'testimonial'. If the evidence is not 'testimonial', then there is no right of confrontation.

There may, however, be other reasons for challenging the admission of these and other tests, including their authenticity and certification by the hospital record keeper. That is why is it extremely critical, particularly in serious cases such as Massachusetts OUI / DUI Charges where the person may be subject to length sentences, to have an experience attorney capable of providing you with the best defense possible.

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August 19, 2012

Anonymous Tip Lands Wareham Man in Jail for 5th OUI / DUI


A Wareham man was arrested by Wareham Police Officers this past week on Massachusetts Drunk Driving Charges. He was charged with Operating Under the Influence of Alcohol, 5th Subsequent Offense; and OUI / DUI After License Suspended for Previous OUI / DUI.

According to the Wareham Police Department, an anonymous caller reported that the man was driving and that he was under the influence of alcohol. Officers reportedly located the driver and pulled him over. The driver reportedly failed a series of Field Sobriety Tests and was arrested. The driver reportedly had his last drunk driving conviction in 2004, and the Massachusetts Registry of Motor Vehicles had his license suspended for being a habitual traffic offender.

The Massachusetts Drunk Driving Crime of Operating Under the Influence of Alcohol After License Suspended for DUI / OUI is exactly that - where the person is alleged to have committed another OUI / DUI while his license was already suspended for a previous drunk driving offense.

A conviction for the Operating Under the Influence of Alcohol or Drugs After License Suspended for DUI / OUI is a minimum-mandatory commitment to the House of Corrections for not less than 1 year and up to 2.5 years, as well as a loss of the person's driver's license for 1 year. By statute, however, this sentence must run 'consecutively', or 'from and after' any penalty for the underlying OUI / DUI conviction.

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