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Archive for the ‘DWI Defense’ Category

RMV FAIRNESS ??

Tuesday, January 20th, 2009

I represented a client this morning at the Registry of Motor Vehicles (RMV) as he was called in for a hearing to determine whether he had violated the terms of his ignition interlock device (IID).  The notice he received informed him that he had missed a service visit in July 2008 and as a result we prepared a defense to that allegation.  After all, the purpose of providing notice is so the accused can prepare a defense, right?

Well, not surprisingly, upon walking into the hearing we were sandbagged.  The RMV representative handed me a notice for 5 other alleged violations.  When questioned as to why the original notice did not contain these additional allegations, the Board gratiously offered to allow me to take my client in the hall and discuss the issues.  Lets imagine that conversation…

“Mr. J, do you remember if you had your IID serviced on this particular date 8 months age and if not why not?”

“Well Mr. Lawyer, can you believe I have no memory of that particular date and did not bring my 2008 calendar with me.  In fact, I left my file cabinet at home also so I can’t look for any documents that may refresh my memory.  By the way, why is the RMV raising these allegations so many months later when my memory is exhausted and any witnesses or documents I may have had to prove my innocence are no longer available?”

“Please Mr. J, I know I am your lawyer and you hired me to ensure that you are treated fairly and that justice prevails, but now is not the time to get crazy.  We are at the RMV.”

Although I am making light of this experience in my blog, my frustration is overwhelming.  Be clear, this is no inconsequential hearing.  If the RMV finds that a violation has occured, the penalty is a 10 year license loss.  You would think that with the stakes so high, the RMV would at least pretend to treat the accused fairly.

Now, I know what most of you are thinking, “If he had the device in his car, he must be a drunk driver and he shouldn’t have violated any terms of his IID.”  Truth be told, there are many circumstances that rebut the various allegations made by the RMV.  False positive tests are known to be caused by hand sanitizers, certain foods and drinks.  Mechanical malfunctions or power failures have been caused by drained car batteries and other installation issues.  In this instance my client was out of town for work many weeks each month.  There was ample evidence to prove that he had not been in Massachusetts to either drive his car or have it serviced as required.

I am optimistic (cautiously) that the RMV will accept this explanation and refrain from taking my client’s license.  However, I write to inform and warn that if you are subject to IID restrictions and you have any problems with the device, service provider or otherwise, document the problem, save your evidence and prepare to be brought before the RMV even if you resolve the problem without hearing from them.  I assure you, as RMV fairness will have it, the allegation will reamerge when you least expect it and are least prepared to defend against it.

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Posted in DWI Defense, General, Motor Vehicle Stops | 1 Comment »

Ignition Interlock Devices for Repeat OUI Offenders

Thursday, October 16th, 2008

The Massachusetts Registry of Motor Vehicles (RMV) requires anyone who has been convicted, made an admission or been assigned to a Driver Alcohol Education Program more than once in their lifetime to install an iginition interlock device in their car before they will reinstate driving privileges.  This requirement is imposed even if the court characterizes your case as a first offense. 

An Ignition Interlock Device is a handheld breath alcohol testing device that is connected to the car’s ignition.  The car will not start with an initial test of greater than .02.  In addition, the car will require random “rolling retests” which tests your breath alcohol level periodically.  The driver is required to have the device installed and calibrated every 30 days.  A calibration includes a data upload which reports any infractions to the RMV.

Possible violations of the Ignition Interlock requirement include failed intitial tests or missed rolling retests as well as failed rolling retests, missed monthly calibration and device tampering.  The penalties for any of these infractions range from a lockout (the car will remain disabled) to a 10 year license loss.  With such extreme penalties it is critical that drivers who require an ignition interlock device remain vigilant about following the guidelines and protect themselves from device malfunctions.

Specifically, if your device indicates a failed test and you have not been drinking, immediately report to a medical office for a blood test or to the police department to prove your sobriety.  It may be months later that the RMV questions the violation and it is the driver’s burden to prove innocence. 

Be warned, these devices are not accurate as there are endless cases of erratic breath test results being recorded within minutes.  If accused of a violation, contact an experienced DUI attorney and protect yourself.

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Posted in DWI Defense | 3 Comments »

Child Endangerment While OUI

Monday, October 6th, 2008

In Massachusetts it is an additional offense to operate a motor vehicle while under the influence of alcohol with a child under the age of 14 in the car. While this offense could result in a sentence to the house of correction, it will also result in a one year license suspension. Furthermore, although you may be eligible for a hardship license for the OUI conviction and suspension, you are not eligible for a hardship license during this one year suspension. Therefore, when a person is charged with a first offense OUI, the stakes are increased when child endangerment is alleged.

Your Boston DUI Lawyer must have the experience to prevent the government from proving the child endangerment charge.  This requires significant knowledge of the rules and laws of evidence and what is admissible and what should be excluded from evidence at your trial.  Always remember, the government has the burden of proof and must find some way to prove the age of the child.  In most cases, it is not permissible for a witness to give an opinion of a child’s age or for a jury to determine age based on physical descriptions.  Moreover, the government can not rely upon hearsay evidence (what someone else told the witness) to prove the age.  This is just another way an aggressive defense attorney can protect your rights by compelling the government to prove its case.

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HIRING A DWI DEFENSE LAWYER

Monday, August 11th, 2008

I always find it interesting when a prospective client asks me about my won/loss record.  Even more interesting is that other Boston dwi defense lawyers actually give an answer.  I will always discuss success stories during an initial consultation, but to profess some New England Patriot like unbeaten streak is simply silly.

 First, how does the client know if the attorney is even being truthful?  Would any Boston dwi defense attorney actually sit across from a prospective client and claim he is in a slump and hasn’t won a case since Melanie’s Law was enacted? Doubtful.  From what these clients are telling me, all dwi defense attorneys  claim to win all of their cases.   A quick look at drunk driving statistics will reveal the impossibility in that.

Let’s assume some Boston dui attorneys are actually telling the truth and simply can not lose.  The question never asked is what cases the lawyer has taken to trial.  Anyone can create an unbeaten streak when the only cases defended at trial are the ones with no field sobriety test evidence, no breath or blood test evidence and no witnesses as to the client’s operation of the car.  What needs to be discussed is how the lawyer pursuaded the jury that the collision with a house (or a parked police cruiser with flashing lights) was not caused by alcohol impairment.  What should be outlined is the argument made to convince the jury that the breath test evidence was not reliable. 

Selecting the right Boston drunk driving attorney is important when charged with Driving Under the Influence.  Rather than asking about winning percentages and statistics, however, a prospective client should talk to people who have experience in the area and collect names based on personal knowledge.  Those attorneys should be interviewed and their level of knowledge assessed.  The interview is an opportunity to hear how the attorney presents himself.  After all, once the legal issues have been decided and the case is going to be presented at trial, the lawyer is simply a salesman.  If he can’t sell himself to you, he isn’t likely to sell you to the jury.

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RECENT RULING OPENS DOOR FOR BREATH TEST EXCLUSION

Wednesday, August 6th, 2008

The Massachusetts Court of Appeals issued a ruling last month which opened the door for Boston drunk driving defense lawyers to request that breath test evidence be excluded from trial.  In Commonwealth v. Ralph Pierre, the court excluded the breath test evidence based on the claim that the required 15 minute observation period prior to administering a breath test was not adhered to by the breath test operator.

In essence, Massachusetts law requires that breath test administration occur in compliance with the regulations detailed in the Code of Massachusetts Regulations.  501 CMR 2.55 states that the breath test operator should keep the defendant in observation for fifteen minutes prior to the administration of the breath test.  The purpose of the observation period is to ensure that the defendant does not put anything in his mouth or otherwise regurgitate such that the breath sample would be contaminated.   

Although the court had previously ruled in Commonwealth v. Kelley that such a defense would not result in the exclusion of the breath test evidence but could be argued that the breath test results should not be given much weight, the Court in Pierre determined that substantial deviation from regulatory compliance should result in exclusion.

The effect of this ruling is two-fold.  First, Boston dwi defense attorneys are now on solid ground in filing a Motion to Suppress in all cases involving breath test evidence.  A hearing on this motion will expose the negligent manner in which the breath test operator “observes” the defendant prior to the test.  Judges will be hardpressed to find that the breath test operator who is also involved in the booking process is actually observing the subject as required by the regulations.

 In addition, this ruling stands as an admission by the Appeals Court that a breath sample can be contaminated by a foreign substance or regurgitation thereby resulting in a false positive or inflated result.  Perhaps this concession by the higher court will pursuade trial judges that breath test evidence should be scrutinized prior to its admission at trial.

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Posted in DWI Defense, General | 1 Comment »

CLIENT TESTIMONY IN A DWI TRIAL

Tuesday, July 8th, 2008

The question of whether a client should testify at a Massachusetts DWI trial is one that is often debated amongst Massachusetts DWI lawyers.  Some Massachusetts criminal defense lawyers believe it is important to for the accused to be presented to the jury to provide an explanation of the events leading to the arrest and to create a personal connection with the jurors that may make it difficult to convict. 

On the other hand, it may not be wise to have a client on the witness stand answering questions about how much alcohol was consumed prior to driving.  Relying on the cross examination of the police officers and creating reasonable doubt as to the officers’ opinions that the client was impaired by alcohol can be the best tactic.

Certainly, in a Massachusetts DWI trial, the client has a right not to testify as he is presumed to be innocent and the burden of proof lies with the government at all times.  In fact, the jury will be instructed by the judge that there should be no consideration of the decision not to testify and no negative inference should be made as a result of the choice to remain silent.

In the end, the decision must be made on a case by case basis.  An experienced Massachusetts DWI defense attorney will have the client prepared to testify and may make the decision at the last minute.  If the cross examination of the governments’ witnesses was effective then it may be wise to keep the client off the stand.  If an explanation is needed and if the client can present well in front of the jury, then the client should be sent to the witness stand. 

Only an experienced Massachusetts DWI defense attorney can evaluate the situation as the trial progresses and make the appropriate decision when called upon.

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OUI AND MENTAL ILLNESS

Friday, May 9th, 2008

As a DWI defense attorney in Massachusetts, I am engaged with clients who are at some level struggling with alcohol.  While some first offenders are simply social drinkers who have been caught in the aggressive net of law enforcement. Many more live at some point on the addiction spectrum.  This may range from habitual drinker to full blown alcoholic. 

All along that spectrum runs the underlying likelihood that the addiction is actually secondary to mental illness.  It is quite common that persons suffering from a variety of mental health issues, including bipolar disease and manic depression, struggle with addiction as a means of coping with their illness.  Some may refer to this as self-medicating.

When I represent a repeat OUI offender, I being my representation by investigating the source of the drinking and driving problem.  I have many clients who live productive, law abiding lives and suddenly begin to accumulate repeated drunk driving arrests in a short period of time.  This obviously indicates that something other than “partying” is at play.

I have recently learned that even mild depression medication can trigger bipolar disorder in a person with a genetic predisposition for the disease.  This means that a person who suffers from depression (not unusual for a person who is bipolar) and is prescribed antidepressants because the bipolar disorder is not yet diagnosed, can then begin to suffer symptoms of the bipolar disorder.  This is the pattern that an experienced drunk driving defense lawyer can recognize and begin to build an effective defense around.

In many instances while defending Boston, Brockton and other Massachusetts DUI clients, I have been able to successfully negotiate with prosecutors and/or judges to sentence my client to probation with specific conditions of counseling and treatment for the addiction and mental illness.  This negotiation can only be successful when the DUI attorney is prepared with medical records evidencing the mental illness and a plan for treatment that will stabilize the client’s mental health and allow the addiction to be treated.

An experienced Operating Under the Influence attorney will be able to recognize the issues and defenses that lie behind and beyond the facts stated in the police reports and will then be able to envision and implement and effective defense strategy for the client.

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DEFENDING THE ACCUSED

Monday, April 14th, 2008

     In professional settings and social gatherings we are all likely to be asked  what we do for work.  When I report that I am a criminal defense attorney specializing in defending persons accused of operating under the influence of alcohol, the conversation usually turns in one of two directions.  Most people want to know what their rights are when confronted with police after drinking and driving.  Others want to know how I can represent such monsters.

     This is my first blog entry and therefore I compelled to answer the second question first.  I expect that many future blog entries will detail our rights and defenses to a prosecution for operating under the influence and in fact will detail the many success stories that I have experienced in Massachusetts criminal courtrooms.  However, before I discuss such details, it is important to disclose why and how I believe that my role as a Boston OUI attonrey is as critical as any other function in our democratic system. 

     Essentially, I believe that a criminal defense attorney is the last and only protection standing between the people and the government.  Without such interference, the government would inevitably consume our civil liberties.

     I would never be described as “antiestablishment.”  However, everyday I see the government stopping cars, questioning citizens and seizing property without just cause.  I understand that law enforcement often believes that the end justifies the means if a gun is taken off the street or a drunk driver is taken off the road.  However, I also understand that with each illegal stop and search, regardless of the result, we lose a piece of the civil liberties that we continue to sacrifice lives to protect both within our borders and overseas. 

     Be clear, as a husband, father and citizen who travels the public roadways, I in no way condone impaired driving.  I believe that drinking and driving is a very real danger and my professional work has made me keenly aware of the use and abuse of alcohol throughout all segments of our society. 

     So, how and why do I represent persons accused of a crime that often times results in “carnage on our roadways?”  Well, I do it very well and with great pride.  The answer to why I do it begins with the knowledge that some people who are accused are simply not guilty.  Even the most cynical and conservative citizen knows, despite his response during jury selection, that everyone accused of a crime is not necessarily guilty.  That fact demands that an experienced Boston OUI defense attorney participate in the justice system to ensure that the accused’s rights are protected and only the truly guilty are convicted.

     What about the clients that I know are guilty?  The fact that someone struggles with addiction or otherwise made a bad choice does not translate into a loss of rights and protection under Massachusetts laws and the United States Constitution.  In fact, the only tragedy greater than the results of the accused’s behavior would be depriving the accused of his presumption of innocence, not holding the government to its burden of proof and ignoring all of the other critical rights that protect our citizens and maintain our democracy.

       Simply, each time I stand for an accused in a courtroom, whether my client is undoubtedly guilty or obviously innocent, I stand for the rights of all citizens, accused or not.  Be sure that the accused’s loss of rights at any stage of criminal proceedings is a loss of rights to all citizens.  After all, as is often stated in the OUI arena, there but for the grace of God go I. 

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Posted in DWI Defense | 1 Comment »