The Fourth of July holiday is one that is often celebrated by gatherings of friends and family members enjoying a barbeque-style meal, with lots of fireworks. The festivities are often accompanied by the consumption of alcohol. This year, Independence Day fell on a Friday – a convenient circumstance given that fireworks are often the most spectacular late at night and Fridays make for excellent party nights since many individuals do not have work on Saturday morning. Undoubtedly, there were most likely some Massachusetts drivers who didn’t exercise their best judgment this past weekend, and who drank alcohol and then proceeded to drive a vehicle. Continue reading
Sometimes people make mistakes and don’t exercise their best judgment when it comes to drinking and driving. That seems to be the case for Massachusetts State Trooper, Dale Jenkins III, who is the subject of a recent article in the Lawrence Eagle Tribune. Jenkins, of North Andover, has a 14-year history of service with the state police, in addition to belonging to a family legacy of law enforcement officials; Jenkins is the third generation in his family to serve in law enforcement in the state of Massachusetts. However, according to the Tribune, Jenkins was admitted to the emergency room at Lawrence General Hospital after being involved in a car accident, but refused to provide the medical staff with samples of his blood and urine for testing purposes, which fueled accusations by the state prosecutor during Jenkins’ arraignment hearing that the trooper was intoxicated at the time of the accident.
The Lawrence Eagle Tribune recently reported that an American Revolution memorial honoring the Methuen men who fought in the Revolutionary War was struck and damaged by a drunk driver. A Haverhill man was allegedly drunk at the time of the accident and exhibited erratic driving behavior both before and after striking the memorial with his vehicle, witnesses reported. The Tribune notes that Haverhill police arrested the driver of the car and charged him with driving under the influence of alcohol. The Methuen police will charge him with speeding and leaving the scene of an accident after causing damage to property. Continue reading
There are recent reports that Dina Lohan, mother of the infamous Lindsay Lohan, was recently arrested and charged with operating under the influence of alcohol. In Massachusetts the offense of OUI or DUI (driving under the influence of alcohol) is a misdemeanor but depending on the circumstances there can be a myriad of dispositions. If you have been charged with operating under the influence of alcohol in Massachusetts the first thing to do is to hire a Massachusetts criminal defense attorney.
In Dina Lohan’s case it was reported that she was traveling over the speed limit which led to the police pulling over the car. Apparently the actress appeared intoxicated and blew a breathalyzer reading of twice the legal limit. Unfortunately, it appears that Dina is following in the footsteps of her daughter and ex-husband by facing these charges in criminal court. Dina’s ex reportedly stated that he hopes that this incident could be a catalyst for her to seek help.
In these types of cases, an experience defense attorney will examine all of the circumstances surrounding the stop and exit order from the car. In Massachusetts citizens have a constitutional right to a reasonable expectation of privacy and the police cannot pull a car over for no apparent reason. Although speeding, or any civil motor vehicle infraction, can justify a stop–it is important to ensure that the stop was legitimate. For example, in Massachusetts, just because an individual is lost does not provide justification for pulling the car over. In the event that a motion to suppress the stop and evidence [i.e., sobriety test, breathalyzer etc.] is allowed the case is usually dismissed as there is no evidence left to prosecute.
Furthermore, in the event that there was a breathalyzer, all of the circumstances surrounding the taking of the breath sample must be carefully examined. For example, the breathalyzer operator and the machine itself must be certified to ensure that proper procedures were implemented. Again, if proper procedure was not followed a motion to suppress should be filed. However, if it is allowed it does not necessarily mean that the Commonwealth will dismiss the case–the breathalyzer results will be suppressed but the criminal case will probably proceed without it.
In the event the case proceeds to trial the Commonwealth has the burden of proving that the defendant was driving a “motor vehicle”, on a public way while “under the influence of alcohol.’ Most litigation surrounds the element of “under the influence of alcohol.” An experienced attorney will cross examine the arresting police officer and highlight the conduct that the defendant engaged in that supports that he or she was NOT under the influence of alcohol.
News sources report that LaMar Odom, husband to reality star Khloe Kardashian, was recently charged with driving under the influence of alcohol [DUI] in California. According to one report, the police pulled the car driven by Odom over because he was driving it was driving too slowly. Apparently, field sobriety tests were administered which the unlucky basketball star failed, in the officer’s opinion of course, and he was arrested for suspicion of driving under the influence of alcohol.
In Massachusetts a “DUI” if also often referred to as an “OUI” or “operating under the influence of alcohol. Although all of the specific facts are not known in this case, a good place to start for a defense here would be to attack the initial stop and exit order from the car. The paper indicates that the car was pulled over because it was traveling too slowly. It would be important to determine exactly how slowly the car was going-after all driving slowly is usually a good thing–not a bad thing. If the only problem that the police officer had with the driving was that he was driving i too slowly and there was no other indications of impairment i.e., crossing over the lines or swerving, there may be limited evidence to prove impairment or to justify the pulling over of the car.
In Massachusetts, in order to attack the stop of the car a motion to suppress the stop, exit order and evidence should be filed. The grounds for the stop would be that the police had no reason to pull the car over. If the stop, exit order and/or search is found to be unconstitutional then the evidence, i.e., the field sobriety tests and the officer’s observations, will be ordered suppressed as “fruit of the poisonous tree.” When this happens the case is usually dismissed unless the Commonwealth can prove its case by other evidence that was not suppressed.
If the case does proceed to trial then the Commonwealth must prove that the defendant was driving the car, that the defendant was on a public way and that he or she was under the influence of alcohol beyond a reasonable doubt. The most contested area is usually the “under the influence” element of the crime. Often, the police officer testifies that a defendant has “slurred speech,” was “unsteady on his or her feet” and/or was swaying. Relative to the speech, it is important to keep in mind that in most cases the arresting officer has never spoken to the defendant before therefore, would not know what his or her usual speech pattern was like. Similarly, describing someone as “unsteady on his feet” is very vague and if the police officer had not seen the person’s gait before that evening, how can this be used as a factor to determine sobriety? Another piece of evidence that officer’s often say at trial is that there was a “strong odor of alcohol” coming from the interior of the car and/or from the defendant. However, keep in mind that alcohol is actually odorless. Furthermore, it is impossible to tell how much alcohol a person consumed based on order and it is also impossible to determine at what time a person consumed alcohol based on an odor.
Whether the defendant was “operating” the vehicle is also an element that is often contested at trial. It is important to realize that simply having the keys in the ignition is enough to establish operation in Massachusetts. Finally, a public way is a “way” that is operated and maintained by the city and the public has a right to access it. Thus, if a defendant is driving in a parking lot that is a public lot accessible from a highway, the area is public way.
Sally Struthers, best known as her character “Gloria” in the 1970′s sitcom “All In The Family” will have her day in court for her drunk driving charge on September 23, 2013. Apparently, the actress was arrested last summer while she was performing at the Ogunquit Playhouse in the play “Nine To Five.” According to reports, Struthers was arrested at approximately 12:30 a.m. on September 12, 2012. The trial will take place a little over a year after the incident. She did not have any blood drawn and did not take a breath test.
In Massachusetts, in order for the government to prevail on a case on driving under the influence of alcohol it has to prove beyond a reasonable doubt that the defendant was driving the vehicle, on a public way and was under the influence. It is important to understand the “driving” in Massachusetts does NOT just mean having the car moving on the road. Simply having the keys in the ignition can constitute driving. There have been occasions in which a motorist has pulled over in a parking lot, believing it is best not
to drive, and left the keys in the ignition in order to listen to the radio or for heat and is still charged with “operating” under the influence. The fact that the car was not moving does not matter, the simply fact of having the keys in the ignition can constitute “operation” in Massachusetts. Therefore, if you are driving and think you need to pull over, take the keys out of the ignition!
In Massachusetts, the reason most cases go to trial is that a defendant claims that he or she is not “under the influence.” The Commonwealth generally calls police witnesses to testify to observations made relative to the operation of the car and what happened after the office approached the vehicle. An experienced Massachusetts drunk driving attorney can conduct an excellent cross examination to discredit the police officers. For example, if a car was pulled over because a motorist went through a red light or stop sign, a successful Boston defense attorney can highlight alternative reasons for the motor vehicle infraction such as bad weather and/or poor sign location or simply that the officer is not telling the truth or is mistaken.
Additionally, Massachusetts prosecutors often have the officers testify to the manner in which the motorist produced requested items such as a license and registration. In the event the officer testifies that the items were not produced in the manner in which he or she believed was appropriate an experienced Boston area drunk driving attorney can conduct an effective cross examination to take the punch out of the direct examination. For example, the police have been trained in asking specific questions and know their routine. For a nervous motorist, this type of situation is stressful and nervewracking so just listening and responding to the demands as requested is indicative of sobriety NOT being under the influence.
The Commonwealth also often relies on breath tests and blood tests to prove that the defendant’s blood alcohol was over the .08 limit. In the event a client has taken on of these tests there are many avenues that can be pursued to get this evidence suppressed or extrapolate the reading, taken at the station, back to the time that the client was driving and the result may very well have been within the legal limit at the time the vehicle was being operated. Relative to suppressing this information, it is important to examine all of the circumstances of the initial stop and the administration of the breathalyzer to ensure the stop was legal and the breathalyzer was properly administered. If any improprieties occurred in these areas a motion to suppress should be filed which can often lead to a favorable disposition or acquittal of a client.
James Hampton Wade, a 22-year-year old Marblehead man, is facing charges of operating under the influence of alcohol and drugs, both second offenses, operating a motor vehicle to endanger, leaving the scene of property damage, and resisting arrest after allegedly crashing his car into a utility pole on Saturday night. Police allegedly received a report of the accident, which split the pole, shortly after 9 p.m. on Saturday. A person reportedly exited the car, “stuck an air bag back in,” and left the scene. Police allegedly followed a trail of antifreeze from the accident location to the vehicle allegedly operated by Wade. Wade, walking down the street, was located shortly after police found the car. He allegedly told police that he crashed into the pole because he had taken too many Prazosin pills and that he had planned on reporting his car stolen before police arrived. Wade allegedly struggled with the arresting officer, who claims to have injured his neck, for one minute. The car was towed.
During booking, police allegedly found a $12.75 receipt, which had cleared about 20 minutes before the crash was reported, from a local bar. Wade was arraigned in Lynn District Court and released on personal recognizance Monday, and his pre-trial date is scheduled for Jan. 3.
This might be a difficult case for the government to prove if Wade retains an experienced Massachusetts criminal defense attorney. It is unclear whether the drunk-driving count is based on anything more than the bar receipt. For example, it is unclear whether Wade took a breathalyzer test, submitted to any field sobriety tests, or exhibited any signs of impairment. There may not have been probable cause to support this count of the complaint or the government might ultimately struggle with proving it, particularly where the $12.75 bar receipt could easily have been for just one or two drinks, food, or drinks for another person. It would also be interesting to find out how much time elapsed between the accident report and the encounter with Wade. Timing is important because even if Wade did exhibit signs of intoxication at the time police confronted him, it wouldn’t necessarily mean that he was intoxicated at the time of the alleged operation. For example, he could have had drinks after the alleged accident. In order for the Commonwealth to prevail at trial they must demonstrate that Wade was operating a motor vehicle on a public way while under the influence of alcohol. All three of these elements must be proved beyond a reasonable doubt. The most litigated element is the “intoxication element.” The Massachusetts jury instructions tell jurors that to prove this element the Commonwealth does not have to prove that the defendant was drunk but just that his or her ability to operate was impaired do to alcohol. In some cases, such as this one, when the defendant is not arrested behind the wheel of the car an experienced Boston area defense attorney can shed doubt on whether the defendant was driving the car while he or she was under the influence.
With respect to the operating under the influence of drugs count, there doesn’t seem to be any indication that Wade was under the influence, apart from his alleged statement to the police that he had taken too many Prazosin, and a good defense lawyer will examine whether there are grounds, such as whether there was a possible Miranda violation, to suppress the alleged statements.
The basis of the operating to endanger count is also questionable, as it is unclear whether anyone actually saw the way in which the driver was operating the car.
The Massachusetts Supreme Judicial Court in Souza v. Registrar of Motor Vehicles held that a continuance without a finding is not a prior conviction for the purpose of calculating prior offenses for the purposes of an Administrative Driver’s License Suspension.
By way of background, Massachusetts General Laws Chapter 90 section 24 (1) (f) (1) provides that a driver faces suspension of his or her driver’s license for refusing to submit to a breathalyzer test following an arrest for operating under the influence of alcohol. In the event that the driver has previously had a “conviction” for operating under the influence of alcohol the amount of time that his or her license is suspended increases, relative to the number of prior “convictions.”
In Souza, the plaintiff had a “continuance without a finding” for an operating under the influence of alcohol back in the 1990′s and was arrested again 2010. The Registry maintained the position that the “continuance without a finding” counted as a prior conviction and suspended his license for three years. As Souza discusses, “Pursuant to G.L. c. 90, § 24(1) (f ) (1) (§ 24 [f ]  ), the registrar is required to suspend an arrested driver’s license for three years for refusal to submit to a breathalyzer test if the driver has been previously “convicted” of an OUI offense. If the driver has not been previously convicted, the license suspension period is 180 days. Id.” As indicated above, in this case the petitioner’s license was suspended for three years. The plaintiff appealed the finding of the Registry. The Supreme Judicial Court held that the “cwof” cannot be considered a conviction in the context of an Administrative License Suspension Hearing.
The lion’s share of the opinion discussed whether a “continuance without a finding” (cwof) is a conviction in this administrative context. In the criminal law context, a “cwof” is NOT considered a criminal conviction, however a case that is disposed of in that manner will appear on a CORI check and law enforcement and some employers will have access to that information. Additionally, if an individual receives a “cwof” on the offense of driving under the influence of alcohol, it will count as a “conviction” and if the individual gets arrested for that offense again, he or she will be charged as a second, third or fourth offender as indicated by his or her CORI.
When a defendant admits to sufficient facts and receives a “cwof”–the case is continued for a period of time without a finding of guilt and then dismissed provided the defendant satisfies all conditions of probation. In most Massachusetts District Courts a “cwof” is a common disposition for defendants disposing of a first offense operating under the influence of alcohol case. The benefit of this type of disposition is that if an individual applies for a job he or she does not have indicate that he or she has been convicted of a crime because a guilty finding did not enter. However, if a defendant who receives a “cwof” is found to be in violation of his or her terms of probation he or she can be surrendered and a guilty finding may enter. Furthermore, a defendant in that situation faces the possibility of being sentenced to jail for a term of two and one half years if he or she is found to be in violation of the probationary terms.
The Lawrence Eagle Tribune reports that a Marblehead man, Richard Burke, faces charges of a second offense operating under the influence of alcohol, driving an uninsured motor vehicle, driving after his license was suspended and related motor vehicle charges in the Salem District Court. The charges stem from a collision that his car had with a minivan on Sunday during the early afternoon. Apparently, the two car accident left the defendant and two others in the hospital. Unfortunately for Burke, these new charges have been lodged while he was released on bail for another drunk driving case in the Woburn District Court. For that reason the judge ordered that he be held for up to sixty days without the possibility of posting bail and/or until the case is resolved. Although the defense attorney argued that there were other conditions including alcohol monitoring and a curfew that cold be imposed short of incarceration, the Salem District Court Judge did not go for it. It was represented that the defendant has a previous “continuance without a finding” on a previous operating under the influence from 2005.
According to reports, the car driven by the defendant traveled into the path of the minivan and hit it head on. Police officers and an EMT indicated that they smelled an odor of alcohol from the defendant. The defendant did not submit to a blood alcohol test at the hospital.
According to the Tribune, the defendant’s first case was “continued without a finding.” A “continuance without a finding” means that a defendant admitted to sufficient facts but the judge did not find him or her guilty. In many of these situations, the judge continues the case for one year and orders that a defendant enter and complete and “ASAP” alcohol program, pay court fees and not get rearrested. In the event these conditions are satisfied the case is dismissed. The benefit of this type of disposition is that a defendant can state that he or she has not been convicted of a crime. In situations in which a defendant pleads guilty or is found guilty by a jury, that is considered a criminal conviction. However, it is important to understand that even a continuance without a finding on the charge of operating under the influence of alcohol counts as a first offense, even though it is not considered a conviction. Therefore, if a defendant is arrested for operating under the influence or drunk driving after receiving a continuance without a finding, it will be considered a second offense.
The Commonwealth must prove three things beyond a reasonable to secure a conviction for driving under the influence of alcohol. The prosecutor must prove that a defendant was driving a motor vehicle on public way and was under the influence of alcohol. In order to prove “operation” it is not necessary for the government to prove that a person was driving a car down the street in the traditional sense. Simply having a key in the ignition is sufficient in many cases. A public was is a way in which the public has a right to access. For example, a mall parking lot or a restaurant parking lot is usually considered a “public way” even though they may technically be “private property.” They are considered “public” because the public has the RIGHT to access the area. However, a driveway or private property like a private access road is not considered a public way. The most litigated area is the “under the influence” element of the crime. The Commonwealth is not required to prove that the defendant was “drunk.” The prosecutor must however prove that the defendant’s ability to safely drive a motor vehicle was impaired from alcohol.
A Haverhill Massachusetts man, Anthony McLaughlin, has been charged with operating under the influence of alcohol for a third time. According to The Lawrence Eagle Tribune, McLaughlin was arrested at 4:40 Saturday morning as he slept behind the wheel of his car. The arresting police officer, Penny Portalla, claimed that the headlights and taillights to the car were on and the car was running. She also claimed that the interlock device that was inside of the center console was unplugged. Defense counsel argued that if the interlock device was unplugged the car could not have been running. Apparently, neighbors became concerned about the car. When Portalla arrived to check out the situation she claims that she had a hard time waking up the defendant.
The Essex County District Attorney’s office moved to have McLaughlin held without bail and be found as a danger. Following a “dangerousness hearing” Judge Stephen Abany declined to hold the defendant without bail and ordered that he be held unless and until he can post three-thousand dollars cash bail.
In order for the Commonwealth to prove its case it must prove that the defendant was driving a motor vehicle, on a public way while under the influence of alcohol. In this case, they have the additional burden of proving that the defendant was convicted two times previously.
Although all of the facts are not known at this time, it appears that the government may have a problem proving operation and public way. The Massachusetts model jury instruction relative to operation explain that “operation” is not only doing all of the well-known things that drivers do as they travel on a street or highway, butalso when doing any act which directly tends to set the vehicle in motion.The law is that a person is “operating” a motor vehicle whenever he or she
is in the vehicle and intentionally manipulates some mechanical or electrical part of the vehicle — like the gear shift or the ignition — which, alone or in sequence, will set the vehicle in motion. Thus, a person may be found to be operating a car even if he or she is not actually driving the car down the street or highway.
The Tribune indicated that the car was parked off the road, thus the defense may be able to claim that the motor vehicle was not on a public way. To prove that the defendant operated the car on a “public way.” In Massachusetts a public way is any street that is open to the public and is controlled and maintained by the government. This obviously would encompass a state highway and municipal roads. Indicia of a public way include testimony that the road was paved, has streetlights, street signs and fire hydrants. The presence of these items indicate that the roadway is likely maintained by a municipality. This may be one element that the defense can focus on to seucre a not guilty verdict.
In order to prove that a defendant has previously been convicted of operating under the influence the Commonwealth must have certified copies of the prior convictions in which the defendant is clearly identified and it can be shown that he or she was represented by counsel or waived an attorney. There is not time limit on how many years back the prosecution can go to prove the prior offenses.