Boston Criminal Defense Lawyers Blog

The Boston Globe's 3-part discussion regarding the reportedly high rate of acquittals when OUI trials are held before a judge instead of jury in Massachusetts courtrooms is misleading. First, I do not intend to minimize the detrimental societal impact of drunk driving; and, the Globe articles raise a number of legitimate points. Notwithstanding, the undertones of the article reek of a certain level of malfeasance, on the part of the judiciary, that simply does not exist. The implication--that many Massachusetts judges ignore their respective oaths; the evidence that is presented before them; and, the Massachusetts General Laws that they have sworn to uphold, consistently with the United States Constitution and the Massachusetts Declaration of Rights--is offensive.

Preliminarily, the "drunk driving" statute to which the Globe refers is Massachusetts General Laws chapter 90, section 24. The law presumes anyone charged with any crime, including OUI, innocent until which time, if ever, the Commonwealth ("prosecution") proves every element of the offense beyond a reasonable doubt. In an OUI case, the prosecution must prove the following three elements: 1) the defendant operated a motor vehicle; 2) on a public way; and, 3) the ability to do so was impaired because of consumption of intoxicating liquor. The entire burden rests with the prosecution, and the defendant has no obligation to introduce a scintilla of evidence to challenge the allegations.

Worth noting, is the fact that a police report is not evidence, and these reports generally tell only one side of the story, and often omit factors that benefit the defendants' case. The most common form of evidence submitted for the consideration of the fact finder (judge or jury) in OUI cases is sworn testimony. This affords the fact finder an opportunity to observe any witnesses to the alleged incident testify, under the pains and penalties of perjury, be subjected to cross examination by the opposing party, and judge their credibility with regard to the allegations.

The first installment of the three part series addressing OUI acquittal rates in the Commonwealth of Massachusetts accurately pointed out that most district attorneys' offices, as a matter of policy, never break down OUI offenses. This puts the accused in the uncompromising position of either: effectively pleading guilty to the crime as charged, or contesting the allegations at trial. Moreover, often times the prosecution and defense counsel can assess the evidence that they expect to be presented at trial, and accurately predict whether there is sufficient evidence to sustain a conviction.

The 'zero tolerance' type approach of the district attorneys' policy regarding OUI cases precludes the prosecution from amending the complaint to charge the defendant more appropriately with regard to the state of the evidence. Also, the prosecution has no discretion to voluntarily refrain from proceeding with a case that will likely be thrown out at trial because of the lack of evidence. Under these circumstances, the criminal defense lawyer will almost certainly try the case before a judge because the judge is required to enter a finding of not guilty where the evidence is insufficient.

Like the implication of malfeasance on the part of the judiciary, the assertion that criminal defense attorneys can simply bring their case before a judge that they know will be lenient, is also offensive. First, the defendant is limited to the judges presiding in the district in which they were charged. Simply, no judge will allow a motion to change venue on the grounds that the defense counsel prefers a different judge! More importantly, this behavior, often referred to as "judge shopping," is explicitly proscribed by the Rules of Professional Responsibility. Before practicing, every attorney takes an oath swearing to abide by these ethical rules. This oath is not taken lightly.