Suppression of Evidence From Unconstitutional DUI Checkpoints

May 11, 2012

If police officers stopped you at a roadblock and gathered evidence now used against you by the prosecutor who charged you with drunk driving, your Boston DUI lawyer may need to show the unconstitutionality of the roadblock. In the United States Supreme Court case, City of Indianapolis v. Edmond, the court held that police may not set up a drunk driving checkpoint for the primary purpose of catching drunk drivers and prosecuting them on DUI charges. During the hearing for the suppression motion in your case, your defense lawyer may try to show that police did establish the roadblock for the primary purpose prohibited by Edmond.

Your Boston DUI lawyer may try to show the impermissible purpose of the police roadblock during questioning of the police officer who testifies about catching you at the checkpoint. Under Edmond, your lawyer must establish the purpose of the roadblock by questioning a “programmatic level” police officer—i.e., an officer who develops checkpoints as part of his regular responsibilities rather than a street officer who lacks programmatic duties. Your lawyer will identify the programmatic-level officer by asking about his prior experience with roadblocks and his regular activities with the police department.

After establishing the police officer’s checkpoint duties, your Boston DUI lawyer will need to proceed strategically with the cross-examination. Your lawyer may choose to ask a series of basic questions about the time, date, location of the roadblock, and number of individuals caught. These questions may allow the officer to relax and feel overly confident about the process of questioning. Your lawyer may then ask the officer whether the main point of the roadblock was to catch drunk drivers whom the state would later prosecute through DUI charges. If the officer answers affirmatively, your lawyer will argue that roadblock was impermissible due to Edmond. If the roadblock was improper, the court may be able to exclude the DUI evidence gathered during operation of the roadblock.

An unconstitutional roadblock may lead to a favorable outcome in your suppression hearing. In turn, suppressed evidence may hinder the state’s prosecution of your case. A Boston DUI lawyer such as Edward Sharkansky can help you with the legal strategy for suppression of evidence and other aspects of your court proceedings.

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When are Traffic Stops Based on Anonymous Tips Legal?

May 9, 2012

In order to successfully get a DUI conviction against you, the state must prove that every step it makes in prosecuting you is legal. This begins with the initial traffic stop: the police officer’s justification for the traffic stop must be sufficient in order for the traffic stop to be legal.

This seemingly straightforward criterion becomes complicated when anonymous tips are involved. The legality of traffic stops based on anonymous tips depends entirely the on the detail and the specificity of the information given. Here, a Boston DUI attorney will illustrate this with an example from a case in California:

In Kern County, California, an anonymous tipster reported a drunk driver and gave the vehicle’s year, make, and model. In addition, the tipster described the basis for his suspicions that the driver was intoxicated: the driver was weaving across lanes. The tipster also gave the driver’s approximate location, which allowed the officer to locate him over the course of a few minutes. While the officer did not personally observe the driver commit any traffic violations, the California Supreme Court ruled that the information in the tip was specific enough that the tipster could not have been referring to any other vehicle, and the public threat of a drunk driver justified the officer’s actions.

The ability to deal with these ambiguous issues distinguishes an experienced Boston DUI attorney from others. If you have been charged with a DUI in California, make sure you have the right attorney to defend you. Call dedicated Boston DUI attorney Edward Sharkansky today for a free initial consultation.

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Can An Officer Pull Me Over On Suspicion Of DUI For Weaving Or Driving Slowly?

May 7, 2012

One of the most important questions in any DUI case is whether or not the officer had legal justification for pulling you over. If the stop was illegal, then the DUI itself may be invalid. As such, your Boston DUI attorney may challenge the justification for the stop at which you received your DUI.

Two commonly challenged reasons for DUI stops include weaving within a lane and driving slowly. There is still some legal controversy regarding the legality of using either of these to justify a DUI stop.

One Kansas court ruled that an officer was justified in pulling over a driver who crossed the centerline three times and frequently changed his speed. AnotherFloridacourt ruled that an officer acted improperly when he pulled over a driver who crossed the edge line three times but did not travel significantly into the other lane. In addition there were no other cars around. In yet another case, aMainecourt ruled that an officer acted improperly in pulling over a driver whose tired were straddling the center dividing line for approximating 40 yards, especially given the low traffic in the area.

There is similar ambiguity in cases where the officer pulled over drivers for driving slowly. A Georgia court ruled that an officer acted properly when pulling over a driver who was driving too slowly when it disrupted the flow of traffic on a highway. AnotherGeorgiacourt found that there was no legal justification to pull over a car going 30 miles an hour in a 55 mile-per-hour zone. AMontanacourt ruled that an officer could pull over a driver who had been stopped at a green light for 25 seconds and did not respond to being honked at.

It seems that one of the deciding factors in these cases is how disruptive the driver was being towards the other traffic in the area. An experienced Boston DUI defense may be able to use this to your advantage. Call Edward Sharkansky today for a free initial consultation.

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How Your Boston DUI Attorney Evaluates Your Case

May 5, 2012

After an initial consultation where you present your side of the story, your DUI attorney will evaluate your case’s chance of going to trial or reaching a plea deal. Your Boston DUI attorney will examine whether the prosecution can prove each element of its case beyond a reasonable doubt. A good DUI attorney will also analyze all of the state’s evidence, such as police officer reports, field sobriety tests, chemical tests, the anticipated testimony of the state’s witnesses, and your own prior criminal record, if any.

After reviewing and critiquing the state’s case, your Boston DUI lawyer will analyze the strengths and weaknesses of your own case. This includes the expected testimony of lay and expert witnesses, defenses available to the charges against you, the potential penalties facing you, and California statutes and case law.

The State’s DUI Case In General

Your DUI attorney should analyze each element of the DUI offense that you are charged with and ask whether the state can prove each element beyond a reasonable doubt. One of the first questions is whether the state can prove it had probable cause to stop you, based on your appearance, demeanor, conduct, and driving behavior. Your DUI attorney will also review how you reacted to the stop, as that will also have a bearing on your case. If you immediately pulled off to the side of the road upon seeing or hearing the police sirens or flashing lights, answered questions cooperatively, and agreed to submit to both field sobriety and chemical tests, this may reflect favorably on you and help you reach a good plea deal. And, if you also have a good recollection of these events, even a high BAC reading can be arguably inconsistent with your behavior, casting doubt on the test results.

If you’re facing a criminal trial for a DUI, Boston DUI attorney Edward Sharkansky may be able to provide you with legal counsel. For a free initial consultation, simply fill out the form on this page.

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Your DUI Case: Your Initial Interview with a Boston DUI Lawyer

May 2, 2012

If you have been arrested for DUI, you will want to seek the services of a qualified Boston DUI lawyer to assist you with your case. When meeting with that lawyer for the first time, there are certain pieces of information that the attorney will need in order to properly prepare for your case.

First, your attorney will need to know the facts about what occurred at the time of your stop by the police. If you know of any witnesses who were at or around the scene, your lawyer will want to know about them so that they can be interviewed immediately. Also, your attorney will inquire about any statements or admissions that you may have made to the police officer at the time of your stop. It is essential that your attorney be aware of any statements made, particularly with regard to the amount of alcohol ingested, the amount of time in which it was consumed, and whether or not you were actually driving the vehicle at the time that the police pulled you over.

Additionally, your Boston DUI lawyer will want to know about your physical state at the time of the arrest. Be sure to inform your attorney about any pre-existing conditions you may have had at the time that may have altered your performance on a sobriety test, and also make note of whether you were hurt in any way during the arrest.

If you need the services of a Boston DUI lawyer, please call Edward Sharkansky for a free consultation.

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Your DUI Case: What Your Attorney Needs

February 25, 2012

Recalling the facts after being arrested for a DUI could prove to be quite challenging. However, you should consider creating a list of events that occurred prior to, during and after your arrest as soon as possible so that you can inform your Boston DUI lawyer of the significant facts that will be important to the outcome of your case.
First, try to recall how you were driving when you got stopped. Was your driving erratic in a way that merited a citation for a traffic violation? Did the police officer say why you were stopped? Were you being followed by the officer after you left a bar? Did you have a valid reason for the way you were driving? Sharing this information with your attorney may be helpful, particularly if there is an issue that can invalidate the arrest.
Also, make an effort to recall the traffic stop itself. Examples of things you should try to remember include where the stop took place; the lighting at the time of the stop; and what was said to the officer and what the officer said to you. Furthermore, make special note of any passengers who were with you at the time and whether there were any witnesses to the stop.

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Choosing the Ideal Juror for Your Boston DUI Trial

February 2, 2012

Going to trial on a charge of driving under the influence can be a scary experience, as you have no idea what the jurors will think of you. An experienced Boston DUI defense attorney may be able to help you prepare an effective defense. Depending on the facts of your case, your attorney may be able to find a theme through which to tell your side of the story and get the jury on your side. Your attorney will also try to select jurors who might be agreeable to that theme. Some possible arguments include:

Poor performance on field sobriety tests: Your Boston DUI defense attorney might argue that your poor performance was not due to being intoxicated but due to you having poor physical coordination. Your attorney might look for people who are overweight or the elderly to be jurors, as they are likely to be sympathetic to the argument that they would also perform poorly on field sobriety tests.

The “rising blood alcohol” defense: Your attorney might argue that the result of the blood alcohol test is inflated over what it actually was at the time you were observed driving, because the blood alcohol takes time to be absorbed into the bloodstream and may be higher at the time of the test. Your Boston DUI defense attorney may look for jurors who have recently been sick or gotten over a cold, as they may be sympathetic to the argument that your breath alcohol is significantly higher while your body is absorbing alcohol, and the effects may be comparable to the comings and goings of the common cold and its fluctuating effects.

The “confused” defense: If you refused to cooperate with the police (as some libertarian-types like to do as an act of rebellion against the police), your attorney might argue that you only did so because you were overwhelmed and confused. Your attorney might look for jurors prone to emotion and sympathy, as they might understand the argument that a driver could be so overwhelmed by the activity at the scene of the stop. Drivers with less education or experience might be agreeable to this defense.

If you have further questions about preparing a DUI defense, contact Boston DUI defense attorney Edward Sharkansky.

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.19 Blood Alcohol Level – Not Guilty

April 20, 2009

My client was involved in a motorcycle accident resulting in his bike an body lying on someone’s front lawn when discovered by the homeowner. When police arrived, the client was being treated be EMTs and was transported to the local hospital where blood was taken “for medical purposes.” The blood alcohol level was .19.
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.

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Framingham District Court Not Guilty

March 12, 2009

In a case where my client was stopped for speeding and a marked lane violation on the Mass Pike, the trooper testified that my client could not complete the alphabet and had difficulty counting backwards.  The trooper also claimed that my client could not stand on one leg or walk heel to toe as instructed.  Despite a breath test of .09, the client was found NOT GUILTY.

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.

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RMV Hardship Suspensions

February 11, 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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