Recently in OUI / DUI Appeals / Constitutional Challenges Category

December 26, 2013

SJC Says Police May Not Offer Opinion of Impairment in OUI / DUI Cases


In the recent decision of Commonwealth v. Joseph J. Canty, the Massachusetts Supreme Judicial Court ruled that in cases where a defendant is charged with Operating Under the Influence of Alcohol, a police officer may not offer an opinion at trial as to whether the driver's ability was diminished by the consumption of alcohol or that he was probably impaired by the consumption of alcohol.

In this case, the defendant was pulled over for erratic driving. The police officer testified at trial that the defendant breath smelled of alcohol and that he noticed his eyes were bloodshot. The officer also testified that the defendant admitted to having consumed four beer a few hours earlier. After failing several field sobriety tests, the defendant was arrested.

With this background, the police officer offered the opinion at trial that the defendant's ability to safely operate the vehicle was diminished and that he was probably impaired.

In evaluating the officer's testimony at trial, the Massachusetts Supreme Judicial Court held that although a police officer may properly testify that the driver "appeared intoxicated", it was NOT permissible for the officer to offer an opinion as to the effect of any intoxication on the defendant's ability to operate the vehicle. The court explained that the officer's testimony in this regard touched upon the rule that no lay witness may offer an opinion as to a defendant's guilt or innocence.

The court further explained that testimony as to whether the defendant was probably under the influence is perilously close to an opinion as to whether the defendant is guilty, an issue for the jury to decide. The court held that there must be a balance in a witnesses testimony. Specifically, a police witness would be permitted to offer an opinion concerning the driver's level of intoxication but may not offer an opinion whether the driver's consumption of alcohol had diminished his ability to operating the vehicle safely.

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July 3, 2013

Refusal to Perform Field Sobriety Tests Can't be Used At Trial...Well, It Depends...


As far as Massachusetts Drunk Driving trials go, prosecutors are not able to introduce to a jury evidence that the driver refused to perform any field sobriety tests. But what about the scenario where the driver initially agreed to perform field sobriety tests and then decided to stop?

The Massachusetts Supreme Judicial Court recently addressed these circumstances in the case of Commonwealth v. Brown.

In that case, the defendant went to trial on the charges of driving under the influence of alcohol, second offense. At trial, the prosecutor was permitted to introduce evidence that, although the driver initially agreed to perform field sobriety tests, during one of the tests he stated "I can't do this" and refused to perform any additional tests.

These circumstances are a classic illustration of 'governmental compulsion' and the reasons why, in most cases, evidence of a refusal may not be introduced as evidence against the defendant. In other words, there is compulsion when the defendant is forced to choose between two alternatives, both of which are capable of producing evidence against him and therefore putting him in a 'catch-22' situation: either take the test and potentially produce incriminating evidence against yourself; or refuse the test and have adverse testimonial evidence used against you at trial.

On this appeal, the defendant argued that because he expressly stated "I can't do this", he affirmatively exercised his right to refuse any further tests and that it was error for the trial judge to permit the prosecution to introduce this refusal against him at trial.

The Massachusetts Supreme Judicial Court rejected this defendant's appeal because the question in this case turned on the issue of whether there was government compulsion in the first place. Once the defendant agreed to take the field sobriety tests, any expressions of difficulty or inability to perform are expressions not the products of 'compulsion' and are therefore admissible against him.

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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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May 18, 2012

Massachusetts Supreme Court Ruling Rejects Registar's Definition of "Conviction"


In the recent case of Paul J. Souza v. Registrar of Motor Vehicles, the Massachusetts Supreme Judicial Court rejected the Registrar of Motor Vehicle's definition of "conviction" and ruled that a conviction means only dispositions of criminal charges where a determination of guilt was made.

The plaintiff in this case was previously arrested in 1997 for Operating Under the Influence of Alcohol and eventually 'admitted to sufficient facts' for a finding of guilty. His case was "Continued Without a Finding" and later dismissed after a period of probation.

Then, in 2010, the plaintiff was again arrested for OUI / DUI. At the time of his arrest, the plaintiff refused to submit to a Breathalyzer Test. Upon his refusal, the Registrar of Motor Vehicles suspended his driver's license for a period of 3 years by statute. The statute as currently enacted mandates that the arrestee's license is to be suspended for 3 years for refusing to submit to a breathalyzer if he has previously been "convicted" of an OUI / DUI offense (if the person has not been previously convicted, the driver's license suspension of refusal is 180 days).

The plaintiff appealed the 3 year driver's license suspension, arguing that he should only have had his license suspended for 180 days because he had never previously been "convicted" or found guilty. Rather, in his prior case, he only had 'admitted to sufficient facts" for a finding of guilty, which is not the equivalent of a conviction.

In its ruling, the Massachusetts Supreme Judicial Court focused on the language and statutory intent of the legislature, holding that "If the Legislature, in enacting Melanie's Law, had wanted to include an admission to sufficient facts in the definition of 'convicted', it could have done so explicitly." Alternatively, the legislature could have included admissions to sufficient facts for a finding of guilty for the increased penalty in refusal of breathalyzer tests.

So what does this ruling mean for persons who have already had their licenses suspended for increased periods where their prior OUI's were not a result of "guilty" pleas or convictions? Inevitably, as a result of this case, hundreds of other Massachusetts drivers could have their driver's licenses restored whose licenses were suspended under similar circumstances.

For those that do find themselves in similar positions, I would strongly advise them to quickly seek reinstatement of their driver's licenses, as I expect the district attorney's office to consult with the legislature to amend the statute in the next year, if not several months to include a Continuance Without a Finding as a "conviction".

It should also be noted that this plaintiff in this case went to trial and was ACQUITTED.

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October 27, 2011

Admission at Trial of Expert Forensic Testimony in Massachusetts Drunk Driving Cases


The Massachusetts Appeals Court recently decided the case of Commonwealth v. McGrail, where that defendant was tried and convicted of OUI / DUI, and Leaving the Scene of an Accident.

In that case, it was alleged that the defendant was involved in an accident, but was located by police about 1/2 mile away from the scene. The officers alleged that, due to his smelling of alcohol, his staggering and apparent injuries, that he had been the operator responsible for the crash.

After a jury trial that resulted in a conviction of both Operating Under the Influence of Alcohol and Leaving the Scene of an Accident, he appealed his conviction claiming that the admission of expert testimony concerning DNA testing violated his Right of Confrontation pursuant to the Sixth Amendment of the United States Constitution. Specifically, the defendant took exception to the Commonwealth calling a DNA expert to explain how he used the results of another analyst to conduct his own statistical analysis.

The Massachusetts Appeals Court considered the issue in light of a recent United States Supreme Court decision, Bullcoming v. New Mexico. In Bullcoming, the Supreme Court ruled that the Confrontation Clause prohibits the prosecution to introduce forensic laboratory reports containing a testimonial certification, or assertions of fact, through testimony of a scientist who did not execute the certification, or perform or even observe the test reported in the certification. This, the Supreme Court explained, was a violation of the defendant's Right of Confrontation unless he was afforded the opportunity to cross-examine the analyst.

In the McGrail case, however, the Massachusetts Appeals Court distinguished between the two cases by noting that the expert in McGrail was an expert who was asked for his independent opining about underlying testimonial reports that were not themselves admitted into evidence.

Generally, an expert is permitted to give opinion testimony based on hearsay if the particular hearsay is independently admissible with a proper foundation, and if it is the type of evidence that experts can customarily rely on as a basis for forming an opinion.

Going one step further, expert testimony by a laboratory supervisor regarding the statistical probability that another's DNA matches another DNA profile does not violate the defendant's Right of Confrontation, even if the opinion is based on test data that is not admissible into evidence.

The Massachusetts Appeals Court noted, then, that the expert in McGrail did nothing more than express his own opinion expert testimony based on an independent analysis of the data presented to him, and this opinion was therefore independently admissible.

At the end of the day, the McGrail decision is unfortunate for defendants in Massachusetts Drunk Driving Cases or any other case where forensic evidence is at issue, as prosecutors can now technically call in their experts to form "independent opinions" to sidestep a defendant's right of confrontation.

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August 18, 2011

Massachusetts Police Can't Justify Drunk Driving Charges on License Plate Violations


The Massachusetts Supreme Court recently ruled that police cannot justify the stop of a vehicle on the basis of an obscured license plate slogan, and in the process, threw out the DUI / OUI charges the driver was arrested for.

In the case of Commonwealth v. Miller, a Massachusetts State Trooper pulled over a car because the slogan of the persons Massachusetts license plate, "The Spirit of America", was partially covered. After pulling the car over, the trooper then arrested the operator for Operating Under the Influence of Alcohol, Third Subsequent Offense.

The Defendant in then challenged the constitutionality and justification of the state trooper pulling the car over, and ultimately succeeded in getting the charges thrown out. The Supreme Judicial Court agreed that, where there were no motor vehicle violations committed by the operator, there was no justification for the stop simply because the slogan of the license plate was covered.

The court ruled that, although Massachusetts Motor Vehicle Laws require that the numbers on a license plate must be legible and able to be identified by others, including law enforcement, the law does not require that the slogan or border of the plate also be readily identifiable.

A stop based only upon the slogan or the border of a license plate being partially concealed is not justified, and any illegal evidence or criminal conduct, even Drunk Driving Charges, resulting from such an unjustified stop must be suppressed or otherwise thrown out.

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