The police responded to the hospital and questioned my client about his odor of alcohol, where he had been drinking and how much he had to drink.  As a result of the blood alcohol levels and my clients statements, the client was charged with his second offense OUI.

At trial I did not question the blood alcohol level but merely relied upon the lack of evidence that my client was driving the motorcycle.  Despite the officer’s testimony that he saw my client laying 10 feet from the crashed bike, he admitted that he never directly asked if my client was driving.  Oops.  Was my client a passenger?   

After trial the police officer, prosecutor and judge admitted that they never saw it coming.  It takes an experienced eye to see all the issues.  Another example of why it is critical to make the government prove their case.

This case was the classic example of a trooper losing credibility by trying to make more of the facts than reality allows.  (also known as distortion or exageration).  I still do not understand how my client “swayed so much during the heel/toe test that he almost lost his balance” yet his feet never stepped of the line.  Thats a pretty good trick.  Equally confusing was the officers insistance that my client’s foot never left its original position during the one legged stand yet it moved throughout the test. 

As long as officers insist on telling jurors that a driver’s speech was slurred after hearing a stranger speak a single sentence and that a driver was unsteady after seeing this stranger walk only six steps, they will continue to make my job easier.

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.

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.

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.

The increase is the result of heightened furor over drinking and driving and the increased incidences of sobriety checkpoints set up by the state police.  The increased furor means the scrutiny of local officers upon stopping a citizen and investigating for impairment is lessened.  Throw the net wider and more people get caught.  The real question is whether the conviction rate has increased as well.

Anyway, be on the lookout this weekend as the state police have announced roadblocks in Middlesex and Hampden Counties on Halloween.  As always, the best defense against be arrested for OUI is to never drive after drinking.

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.

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.

                                                  -Massachusetts Bar Association

Stopping an automobile while conducting a sobriety checkpoint is a “seizure” under the Fourth and Fourteenth Amendments to the United States Constitution and Article Fourteen of the Massachusetts Declaration of Rights.  For Massachusetts roadblocks to be permissible, the selection of motor 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 is being conducted pursuant to a plan devised by law enforcement supervisory personnel.

Massachusetts courts have held that failure to strictly comply with the guidelines established by law will result in the supression of any evidence obtained as a result of the stop and likely dismissal of the case.  In a nutshell, an experienced Boston DUI lawyer should review any case involving a road block to ensure that the accused’s rights were not violated.  Once again, an arrest is not a conviction and as always, it is wise to consult with a Massachusetts criminal defense attorney to determine what defenses may be available in any particular case.