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The Massachusetts Supreme Judicial Court recently considered whether police officers are permitted to testify concerning the administration of field sobriety tests (FST’s) where they suspect the driver is operating under the influence of marijuana.  Unlike in cases involving alleged operation of a motor vehicle while under the influence of alcohol (OUI/DUI), police officers, the state’s highest court held, may not testify to the administration and results of FST’s in cases involving suspected OUI/DUI drugs/marijuana.

In this case, Commonwealth v. Gerhardt, a Massachusetts State Police Trooper stoped the defendant at 12:20 a.m. because his lights were out. The defendant was driving, and there were two passengers in the car.  As the trooper approached the vehicle after the stop, he “saw smoke inside the vehicle” and “detected ‘the distinct odor of burnt marijuana.'”  The trooper asked the occupants when they had smoked marijuana and one of the passengers stated they had smoked about 20 minutes ago. The defendant, however, stated that they had smoked 3 hours earlier. The trooper asked the defendant how much he had smoked, and the defendant stated he had smoked about 1 gram of marijuana.

The defendant was ordered to exit the vehicle and asked to perform field sobriety tests. The trooper administered the horizontal gaze nystagmus test; the 9 step walk and turn test; and the one legged stand test. He also asked the defendant to recite the alphabet from D to Q and to count backwards from 75 to 62.  He passed the nystagmus test and he was able to recite the portion of alphabet and to count backwards.

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District Attorneys across Massachusetts this week have suspended the use of Breath Alcohol Testing (BAT) evidence in drunk driving or Operating Under the Influence cases at trial or in plea negotiations.  This action follows recent claims by defense attorneys that, in prior litigation challenging the reliability of the Alcotest 9510 BAT machine, prosecutors withheld key evidence, specifically, hundred of records purportedly indicating that the Alcotest 9510 machine was unreliable. Continue reading →

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Massachusetts law permits police officers to conduct OUI/DUI roadblocks, or what is legally kndui-checkpoint-300x185own as “field sobriety checkpoints.” For OUI/DUI roadblocks to be constitutionally valid, the selection of vehicles to be stopped must not be arbitrary; safety must be assured; motorists’ inconvenience must be minimized; and assurance must be given that the procedure to be conducted is pursuant to a plan. The police do not have discretion to target which vehicles stop.

The issue in a recent case, however, centered upon whether the deviations from the written operational plan of an OUI/DUI roadblock conducted by the Massachusetts State Police rendered this particular “field sobriety checkpoint” unconstitutional. Continue reading →

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In response to the challenge to alcohol breath test results involving the Alcotest 9510, a Massachusetts judge has recently ruled that the BAT results for yielded by this machine for the period between June 2012 and September 2014 are unreliable and inadmissible at trial.  Results yielded after September 14, 2014, he further ruled, are admissible.

In Massachusetts, it is estimated that approximately 2,000 to 3,000 Drunk Driving or OUI/DUI cases were likely affected and/or waiting for the outcome of this decision. The Alcotest 9510 machine, which is manufactured by Draeger Safety Diagnostics, is an alcohol breath test machine that is used by hundreds, if not thousands, of police departments across the country.

The issues in the challenge to the breathalyzer machine was whether the source code in the Alcotest 9510 produces accurate results; whether the machine’s code in producing breathalyzer ratios is accurate; whether the machine’s methodology produced unreliable results; and whether the BAT machine’s source code has security flaws that would make is susceptible to manipulation, and consequently, unreliable results.

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The defendant in Commonwealth v. Palacios claimed that the ambulance recambulanceords should not have been admitted against her at his OUI/DUI trial and that references to her intoxication should have been redacted.  The Massachusetts Appeals Court, however, concluded that the ambulance records were properly admitted as records of medical services.

This case began when the defendant ran a stop sign and crashed into another car. The police officer who responded to the accident scene observed the defendant to have glassy eyes and be unsteady on her feet. She admitted to having ben drinking, stating she had 2-3 drinks. She was not arrested at the scene because she claimed to be injured and an ambulance was called to take her to the hospital. Continue reading →

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The Massachusetts Appeals Court recently affirmed the trial court’s dismissal of an OUI/DUI indictment because of the Commonwealth’s violation of the “No-Fix Law”. In the case of Commonwealth v. Burnham, the appeals court upheld the trial court’s dismissal where the defendant did not receive prompt and definite notice of the OUI/DUI charge for which he was subsequently charged; and the delay in issuing the citation to him for the charge of Operating Under the Influence of Alcohol was not justified under any exception. Continue reading →

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In the case of Commonwealth v. Rarick, the Massachusetts Appeals Court held that, evidence of alcohol consumption, speeding, along with the officer’s opinion that he was intoxicated, was sufficient to sustain a conviction for Operating a Motor Vehicle While Under the Influence of Alcohol.

The defendant was stopped by police for speeding; traveling 58 mph in a 45 mph zone.  Although there was no evidence before the jury of any erratic operation, field sobriety tests, nor any testimony that he was unsteady on his feet or swaying or staggering, the officer testified that he could smell a moderate odor of alcohol.  The defendant also admitted to having drank a six-pack 2 hours prior.

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In a recent decision, the Massachusetts Appeals Court addressed the defendant’s challenge to the lawfulness of the stop of his car based on an anonymous caller’s 911 call to the police.  Prior to trial, the defendant filed a motion to suppress evidence, arguing that the police did not have reliable information to seize him for suspected drunk driving.  He argued that the subsequent field sobriety tests, which he allegedly failed, should have been suppressed as a result of the unlawful stop.  The appeals court affirmed his conviction and held that the government had sufficient proven that basis of knowledge and the veracity of the anonymous caller.

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The Massachusetts State Police announced that troopers will be conducting a DUI / OUI Sobriety Checkpoint at “an undisclosed location” in Bristol County on the evening of December 12, 2014.  Bristol County includes the towns of Dartmouth; Easton; Mansfield; North Attleborough; Norton; Raynham; Rehoboth; Seekonk; Swansea; and Westport, et.al.

What are your rights when it comes to a OUI / DUI roadblock or, as the police like to call them, ‘sobriety checkpoints’?  Under Massachusetts law, the police are entitled to conduct drunk driving roadblocks, but they must abide by certain rules and procedures… Continue reading →

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In a recent unpublished decision, the Massachusetts Appeals Court reversed the conviction of a man who was found guilty of Operating Under the Influence of Alcohol because his lawyer failed to introduce to the jury evidence that he had an attention deficit disorder and a learning disability.  The Appeals Court agreed that his lawyer failing to introduce this evidence in his defense prejudiced him at trial, as the evidence would have explained to the jury why the defendant was not able to satisfactorily perform field sobriety tests when he was pulled over.

At trial, the Massachusetts State Police Trooper testified that after he pulled the defendant over for speeding at 94 miles per hour, he administered several field sobriety tests, and that the defendant failed them all.  As a result, the trooper concluded that he was operating while under the influence of alcohol and placed him under arrest.  The defendant also submitted to a breathalyzer test which yielded a reading of 0.06%.

Continue reading →