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Archive for the ‘General’ Category

RMV Hardship Suspensions

Wednesday, February 11th, 2009

Beware the lawyer who only does half his homework and claims to be a success when you are acquitted on all criminal charges and found responsible of two minor civil infractions.  An experience OUI lawyer will always review a client’s complete driving history as a conviction for any criminal motor vehicle violation or civil infraction could trigger a suspension as a Habitual Traffic Offender.  Suddenly, your big success has landed you with a four year suspension without warning or recourse.

Massachusetts General Laws Chapter 90 Section 22F defines the Habitual Traffic Offender as the following:

Anyone who within a five year period (1) has three or more convictions (singularly or in combination) for OUI, Operating Negligently or Recklessly, making a false statement on an RMV application, leaving the scene of property damage or personal injury, operating with a suspended or revoked license; operating without a license or the commission of any felony involving a motor vehicle; or (2) twelve or more convictions or offenses required to be reported to the RMV for which the RMV is required or authorized to suspend or revoke the person’s license for 30 days or more.

There is an exception created for a person with no prior record of automobile violations who is convicted of multiple offenses within a six hour period.  In this instance, all violations are considered a single offense.  This exception is for the unfortunate person who spoils a perfect driving record with one “bad night out” and gets the OUI, Negligent Operation, Leaving the Scene and Speeding violations in one arrest. 

Otherwise, the penalty is a four year suspension with an opportunity to beg for a “hardship license” after one year.  If and when the RMV lets you drive again, it will only be after you have copleted a driver improvement course and passed a driving test. 

Therefore, if you are aware that you have a history of any type of driving infractions, regardless of what type or how old, let your lawyer know or your may be one of the soldiers who wins the battle but losses the war.

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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 »

MADD Trooper Under Fire

Saturday, December 6th, 2008

Every day I question police officers in courtrooms around the Commonwealth and I believe that most are honest and professional while on the road and on the witness stand.  However, there are always a few bad apples and one in particular is finally becoming exposed.  Trooper Kathleen Carney has long been a “player” in the business of Operating Under the Influence enforcement as she makes no bones about the fact that she works as many road shifts and sobriety checkpoints as possible resulting in substantial arrests and court time.

As an attorney specializing in Massachusetts drunk driving defense, many of Trooper Carney’s arrests end up on my desk and her pattern of conduct reported by my clients is clear and unequivocal.  Now it looks like others are noticing.  For reasons that are not yet clear, Trooper Carney has been taken off the road and stripped of her weapon. Just days before her “modified duty” was released, I questioned Trooper Carney under oath regarding any suspensions, disciplinary action or internal investigations to which she offered a denial on all suggestions.

Admittedly, I can not prove whether she commited perjury in her denials….yet. But as reported in the Patriot Ledger, it may be that the State Police and/or the Norfolk County District Attorney are looking into that possibility. It seems that the day after her testimony in my case, the Norfolk County District Attorney reported that she would not be permitted to testify in future cases and in fact a case in Quincy District Court in which she was present to testify was dismissed for reasons not discussed even with the defense attorney.

I have always been an advocate for the videotaping of OUI investigations on the road and in the booking rooms as the Commonwealth’s reliance on officers’ opinions as the sole basis for convicting a citizen of Operating Under the Influence is inherently problematic.  As we all know, opinions are subjective and vulnerable to influence and bias on many levels.  In addition, while most officers are as honest as possible while testifying about their observations, they view the world through a partial lense (at least while on duty).

Let’s not overlook the fact that OUI enforcement can be big business for law enforcement. While I do not know the details of Trooper Carney’s source of income as a state trooper, I do know that she claims to be in court as a witness nearly five days a week. Her court time, coupled with her road shifts, leaves her little time for details which tells me that when the Boston Herald reports her base salary of $70,000 exploded to $187,152 in 2007, she is making a killing by making arrests.

Remember this….her subjective opinion regarding a citizen’s ability to drive is clearly influenced by her ability to make money. She gets paid for appearing in court whether the citizen is convicted or acquitted. This fact is also ignored by MADD when they recognize her and other officers for their relentless pursuit of drunk drivers. We continue to read the statistics issued by MADD and the State Police regarding the increased number of OUI arrests every year, yet the statistics regarding conviction rates are no where to be found. Perhaps if the local and state police, along with MADD, took a look at the merits of the arrests, Troopers like Kathleen Carney would have been discovered long ago and our justice system would not have been infected by this virus.

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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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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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A GREAT CRIMINAL DEFENSE LAWYER

Tuesday, July 29th, 2008

We lost a great Boston criminal defense lawyer this week with the untimely and unexpected death of Richard Egbert.  Personally, I lost a friend and a mentor.  Someone I credit for being a model and vision of the advocate and colleague I strive to become.

 I met Richie on the golf course and was thrilled to spend time with such a giant.  (Anyone that knows Richie is aware that I am refering to his legal skills and not his golf game).  Our golf rounds were filled with conversations about family, business and the law.  In very short order, Richie always greeted me with a warm embrace and an inquiry about my family. He always left me with a reminder that if there was anything he could do for me, just call.

As an advocate, Richie taught me that nothing was more powerful than preparation.  There is no more effective tool for a Boston criminal attorney than knowing the facts and the law of your case better than everyone else in the courtroom.  Richie was known to be the most aggressive adversary and he was confident in his ability to attack because he knew that no one was more prepared.

As a colleague, Richie was never threatened by competition and believed that giving back to the legal community, especially young lawyers, would make him a better attorney.  In a profession which is competitive by definition and saturated with egos there are many criminal defense attorneys who choose to rise to the top by knocking others down.  Such lawyers should take a page from Richie Egbert’s playbook and realize that the more you give, the more you get.

 Richie certainly opened many doors for me in my practice.  I will forever be grateful for his warmth and generosity.  As a young lawyer, I found myself frustrated with what I perceived to be an inability to reciprocate these gifts.  What I can do, however, is be sure that with every case I prepare, courtroom I enter and young lawyer I meet, I make Richie proud.

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Drunk Driving In Massachusetts Is Serious Business

Wednesday, January 23rd, 2008

Losing your MA DUI OUI case or pleading guilty means you’ll have a permanent criminal record, lose your license, face severe fines, and travel restrictions. You could lose your job. Fight DUI charges vigorously with the expert, professional counsel of Ed Sharkansky, (DUI Lawyer Boston) former prosecutor who knows what police and district attorneys are looking for, and the mistakes they make. This is the right time to hire a great DUI Attorney.

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