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October 18, 2013

West Andover Teen Punished by School for Picking Up Drunk Friend

Erin Cox, a North Andover teen, is currently facing punishment from her high school after driving a friend who was too drunk to drive home.

A few weeks ago, Erin answered a call from one of her friends who was at a party and too drunk to drive home. Erin went to the party after work to give her friend a ride home. However, only minutes after she arrived at the party the police came. Several underage kids were busted for possessing alcohol. Everyone who was at the party received a summons for 'minor in possession'.

Erin is an honors student at North Andover High School and was cleared at the scene by the police. They agreed that she did not possess alcohol and was not drinking. However, her school decided that she was in violation of the district's zero tolerance policy for alcohol and drug use. During her senior year, Erin faced a demotion from her position as volleyball caption as well as a five game suspension.

Now, the Cox family is taking their daughter's case to court. They filed a lawsuit in District Court against the school district. The school district disputed an injunction of any type, and the judge in the case ruled the court did not have jurisdiction. North Andover superintendent Kevin Hutchinson would not discuss the case, but says that decisions like this are made to be consistent and fair with the Massachusetts Interscholastic Association rules.

Outside the legal system, parents of Erin's volleyball teammates have created a petition to show their support. Erin's parents stand behind their daughter's position. Her mother, Eleanor Cox, is devastated because her daughter thought she was doing the right thing.

The laws in Massachusetts that involve minors and alcohol are very strict. For instance, any teenager who operates a motor vehicle with a blood alcohol content of .02 or more faces a license suspension lasting at least 30 days and as long as three years. It can also greatly impact the teenager's ability to be admitted to a school or find employment.

On top of that, students often face punishments for violations of school district alcohol policies. The strict policies can be interpreted in some cases to punish innocent teens like Erin Cox.

Cox has said that she still stands behind her decision to go get her friend. She believes she prevented her friend from driving while drunk and potentially hurting herself or someone else.

August 23, 2013

Non-Responsiveness is not an Affirmative Refusal of Sobriety Test

The Appeals Court ruled in an unpublished Rule 1:28 decision that a driver accused of OUI must affirmatively refuse a field sobriety test for the evidence to be excluded. The court found that mere non-responsiveness does not constitute a refusal of a sobriety test.
In Massachusetts, the court has treated an affirmative refusal of a field sobriety test as reason to exclude evidence concerning the refusal of the test. But, here, the court decided that the defendant driver did not manifest a refusal of the field sobriety test and the lower court allowed the state trooper's testimony into evidence.

According to the alleged facts of the case, Commonwealth v Kulbeth, the defendant driver was pulled over by a state trooper and questioned for suspicion of drunk driving. The state trooper advised the defendant as to the possible consequences of a failed sobriety test and the defendant allegedly acknowledged that he understood. The state trooper then gave instructions for the field sobriety test to the defendant that the defendant also acknowledged, according to the state trooper. But, when the state trooper instructed the defendant to begin the field sobriety test, the defendant allegedly just stood there looking at the ground. The state trooper reported that the defendant had no reaction at all, describing him as "locked out." The term "locked out" apparently means that the state trooper felt the driver was too intoxicated to answer his questions or perform the sobriety test. Then, when the trooper asked the driver if he was refusing to take the sobriety test, the defendant again did not answer.

The defense argued that the driver affirmatively refused the field sobriety test. Further, the defense argued the inaction, or silence, constituted a clear refusal and the evidence was erroneously introduced. But, the court found, "[t]he fact that he then physically "locked out" and did not perform the tests does not mean that, as a matter of law, he refused to take them." Therefore, the court ruled the testimony from the state trooper about the sobriety test on the driver was permissible.

The court distinguished this case from previous case law based on the defendant's unresponsiveness and lack of affirmative refusal. In previous cases, evidence pertaining to refusal of a sobriety test was excluded pursuant to the defendant driver clearly refusing the test with verbal expressions. Here, the court stated, "[w]e decline to extend these cases to a situation, such as this one, where the defendant makes no verbal or nonverbal expression of refusal."

Massachusetts is one of a minority of states that does not allow evidence of a refusal of a field sobriety test to be admitted into evidence. This decision seems to be more analogous to the majority of jurisdictions across the country.

Although this panel's ruling, pursuant to rule 1:28, may be cited for its persuasive value, it is not a binding precedent. Critics of the ruling point to the fact that silence in a confrontation with police will act against the defendant in these situations. Proponents rely on the premise that this will allow for more evidence against drunk drivers, which, in turn, will increase public safety.

August 9, 2013

Woman Arrested for OUI after Causing Serious Car Accident, Threatens Trooper with Voodoo

Vivencia Bellegarde, of Everett, Massachusetts, was pulled over by a state trooper on suspicion of OUI and running a Boston Globe delivery truck off of Route 93 onto the Leverett Connector. The surveillance video shows her car slamming into the Boston Globe truck and forcing it into a 40-foot fall off of the road. When the truck hit the connector it fell apart.

However, this is not when the real action began. When the trooper approached Bellegarde's vehicle, it was noted that she was carrying three different EBT cards- both her own and two other people's cards. She responded to questions from the trooper with expletives, and mocked him for paying for his own food when she gets it for free. She also threatened to place a voodoo curse on the trooper.

The trooper's report also notes that Bellegarde called him a racist multiple times, informed him that she was from Haiti and would put voodoo on him. She also told the trooper to Google her name to find out who she was, and said she was coming for him.

Following the incident, a spokesman for the Department of Transitional Assistance issued a statement saying that action would be taken regarding the EBT cards found in Bellegarde's possession.

Bellegarde was held on $10,000 bail and charged with both drunk driving and causing serious injury due to the Globe truck. There has not been any public mention of charges regarding the EBT cards or the threats placed on the state trooper.

The driver of the truck was injured in the crash and taken to Massachusetts General Hospital, where he was listed as being in fair condition.

Since then, the defendant confessed that she had been at a party before the crash occurred, and didn't care about the injured driver because he wasn't dead and she wanted a cigarette. She initially denied that she was the driver of the car. However, she has since acquired legal counsel and stopped talking. Bellegard has had 10 previous suspensions, and has already has a first-offense drunk driving charge on her record from Lincoln. In the arrest report from 2011, it says that the trooper could smell the booze on them and failed multiple sobriety tests, but was polite and cooperated with the officers at the scene. She had called the cops herself for tire help while on her way home from a Boston club during the early morning hours. The Registry of Motor Vehicles noted that because she refused to take a breathalyzer test following the crash, she faces a 3 year license suspension.

December 19, 2012

Lower Court Verdict Reversed due to Error in Jury Instructions Regarding Defendant's Right to Refuse Breath Test - Boston Criminal Defense Attorneys Parker Scheer

A Massachusetts' appellate court has reversed a lower court's verdict where the judge erred in instructing the jurors on the defendant's right to refuse to take a breath test. Commonwealth v. Gibson.

On Super Bowl Sunday, Henry Gibson went to a Super Bowl party where he ate food and drank two light beers. At halftime he went to another party where he drank two more light beers and had more food. On the way home, Gibson stopped at a red light. Impatient, he proceeded through the red light, and was immediately stopped by the police. After the officer smelled alcohol, Gibson admitted to drinking four beers. The officer asked Gibson to step outside his car and perform several field sobriety tests.
When the officer felt Gibson failed each test, he was placed under arrest for driving under the influence (DUI).

At trial, the prosecution did not enter into evidence the results of a breathalyzer test. At the close of the trial, the judge instructed the jury that "The police do not have to offer [a breathalyzer test, and] a person does not have to take it ... You are not to mention or consider it in any way whatsoever, either for or against either side."

Gibson appealed his guilty verdict arguing that telling the jury that a person may refuse a breathalyzer test was a violation of his right against self incrimination.

In Massachusetts, it is settled law that a defendant's refusal to take a blood test or breath test to detect alcohol is not admissible as evidence because such a refusal is testimonial in nature and its admission violates the privilege against self incrimination. While the trial judge correctly instructed the jury that there were not to consider any absence of breathalyzer evidence, the judge erred when he also said that "a person does not have to take [a breathalyzer test]." Further, the fact that defense counsel did not object to the instruction is not relevant since the judge's instruction error created a substantial risk of a miscarriage of justice.

Trial court decision reversed and verdict set aside.

If you or a family member has been charged with DUI or any other drunk driving related charge, please contact Parker | Scheer LLP for a free consultation with one of our experienced Criminal Defense Lawyers.

November 13, 2012

Lawsuit Against Foxborough Stadium Tests the Limits of Massachusetts' Social Host Law - Boston Criminal Defense Attorneys Parker Scheer

Debra Davis loved country music. So when the Country Music Festival came to Foxborough Stadium she and her friends couldn't wait to go. They didn't have tickets so they hung out in the stadium parking lot drinking alcohol. On the way home, Davis, whose blood alcohol level registered .20 and the driver, whose blood alcohol level registered .25, crashed into a tree and died.

Davis' family is now suing the Kraft Group which owns the Foxborough Stadium parking lot. According to the lawsuit, the Kraft Group had been told repeatedly by police that underage drinking and tailgating was a continual problem at the Festival.

Under Massachusetts' Social Host Law, "the estate of a patron who died in an
automobile accident after becoming intoxicated at a licensed establishment may maintain a wrongful death cause of action against such licensee. The plaintiff must prove willful, wanton or reckless conduct on the part of the licensee.

Earlier this year, the Supreme Judicial Court held that a husband and wife were not responsible for the injuries resulting from a drunk-driving related car crash since they did not furnish the liquor that was consumed when their teenage daughter hosted an underage drinking party in their home. Further, the court held that social hosts are only liable for injuries caused by the drunk driving of a guest IF they actually served or made the alcohol available. Julio v. Simpson. The Kraft Group alleges Julio exonerates them from a liability in the Davis matter, while the Davis family alleges Julio does not apply to commercial entities.

Summary judgment motions are pending.

"If you or a family member has been charged with criminal activity related to drunk driving, please contact Parker | Scheer LLP for a free consultation with one of our experienced Criminal Defense Lawyers."
 

June 25, 2012

Court ruling limits reach of OUI repeat offender penalties: License suspensions could be reduced

A recent court ruling in Massachusetts could potentially affect thousands of motor vehicle licenses suspended under the state's drunk driving laws for repeat offenders.
As a result of the court's decision, you could seek to reduce your license suspension from three years to 180 days if your first offense ended with a "continuance without a finding" (CWOF) and probation, and you subsequently refused a breathalyzer for your second offense.

I have over 25 years of experience handling criminal defense matters, including OUI offenses. My initial consultation is free and I welcome the opportunity to discuss your OUI matter with you.

First-time offenders often will admit to sufficient facts for a finding of guilty of operating under the influence (OUI), and accept probation and admission to an alcohol or substance abuse treatment program. The charges are usually dropped after the offender successfully completes the terms of probation.

A CWOF is commonly used to resolve first-time OUI offenses. In fact, over 33,000 OUI cases in 2008-2011 were resolved by way of this type of plea deal, according to the Registry of Motor Vehicles.

The highest court in Massachusetts recently faced the issue of whether a CWOF should be considered a "conviction" for purposes of triggering harsher repeat offender penalties against a man who was arrested a second time for OUI and refused a breathalyzer test. The man's first OUI arrest resulted in a CWOF after he admitted to sufficient facts for a finding of violating the law and agreed to probation. The charges were later dropped after he completed the terms of his probation.

Continue reading "Court ruling limits reach of OUI repeat offender penalties: License suspensions could be reduced " »

April 5, 2012

Brockton Man Registers a Breathalyzer Test Score of .384

A Brockton man was reportedly pulled over by the Rhode Island State Police in Providence, and suspected of drunk driving. Apparently, upon arrival at the police station, the suspect agreed to submit to a breathalyzer test.

Keeping in mind that the legal limit is .08, the suspect registered a staggering .384. Deni Carise, the senior vice president and chief clinical officer at PhoEnix House addiction recovery center reportedly advised that, using industry standards, a male about the same size and body weight of the suspect would have to consume 20 alcoholic beverages in the previous hour to reach the recorded breathalyzer test score of .384.

Analysis by Parker | Scheer LLP Attorney Vincent A. Tofani:

The frighteningly high score reported indicates one thing to me: a faulty breathalyzer machine. As a practicing criminal defense attorney, I have never represented an individual that registered such a high score after submitting to a breathalyzer test. In my experience, any individual with such a high blood alcohol level would not be able to function; instead, would likely be in a near death coma.

Inaccurate breathalyzer test scores as a result of both human and mechanical error are all too common in cases involving suspected drunk driving. This is one of the many reasons that we advise our clients to exercise their right to politely decline to submit to the breathalyzer test after they have been arrested. Instead, a more accurate mechanism for measuring one's blood alcohol level is to go directly to a hospital where a health care professional can draw a blood sample.

Both the Massachusetts General Laws and the Code of Massachusetts Regulations include guidelines addressing the proper maintenance of the machines, and method of conducting the particular test in an attempt to mitigate the likelihood of inaccurate scores being recorded. Notwithstanding, these machines often malfunction, and the results can be devastating for an individual suspected of operating under the influence of alcohol because the state courts of the Commonwealth treat the breathalyzer test score as prima face evidence of impairment, which is one of the elements of the offense that the prosecutor is required to prove beyond a reasonable doubt at trial. In other words, the element of impairment is satisfied, as a matter of law, when an individual registers a breathalyzer test score of .08 or higher.

Continue reading "Brockton Man Registers a Breathalyzer Test Score of .384" »

April 3, 2012

Allegations of Operating Under the Influence

Patricia Anderson, Norwell Town Clerk, was arrested on March 16, 2012, by Hingham Police, and charged with operating under the influence of alcohol. The Patriot Ledger reported allegations made by police that Anderson was found standing in a pool of gasoline, next to her sport utility vehicle, which was stuck on a traffic island. It appeared that she had been travelling south on Whiting Street (Rt 53) Hingham, when she struck the island at the Gardner Street intersection, knocking over the "keep right" sign and blowing out two tires.

Ms. Anderson, 61, of Norwell, appeared confused, and had trouble answering questions according to the Hingham police officer, who noted that he could detect a strong odor of alcohol on Ms. Anderson.

According to the Ledger, the police allege that Anderson admitted to having consumed three glasses of wine earlier in the evening. She was arrested after a series of sobriety tests, charged with drunken driving and failure to stay within a marked lane. She was to be arraigned in Hingham District Court on Monday, March 19, 2012.

Read the entire Patriot Ledger article here.


Analysis by Parker | Scheer LLP Attorney Francis T. O'Brien, Jr.:

This story, as reported in the Ledger, is an example of how certain allegations by police may be presented in a manner which causes the casual reader and inexperienced trial observer to conclude that the operator was guilty of operating under the influence. However, after more than 25 years of practicing criminal defense law, including handling thousands of OUI/DWI cases, many in the Hingham District Court, I have learned that most often the complete story and true facts do not appear in police reports or newspapers. This is not to insinuate that police officers or journalists are intentionally untruthful, (although some undoubtedly are). It is more a product of the fact that police reports are written after a defendant has already been arrested, so police officers will naturally record those observations which they believe support their decision to arrest. Police reports are not written in a manner reflective of what a judge or jury might write if they were analyzing all of the facts surrounding an arrest and applying a neutral and detached eye to the rendering of a verdict.

The fact of the matter is that police officers are "interested" parties in cases where they have made an arrest. It is a natural human tendency to recollect facts favorable to support one's decision and police officers do just that. They present themselves in the most flattering way possible. This oft times slanted view can be further exacerbated when newspapers report on arrests. Most often, newspaper articles reporting on arrests receive their facts exclusively from the police, either directly or through court prosecutors reciting the words of the police. Therefore a newspaper article on an arrest is often times reporting a totally one sided account of the facts.

This case illustrates the importance of being represented by an experienced and knowledgeable drunk driving/OUI/DWI attorney, whether in Hingham District Court or any other District Court in the Commonwealth of Massachusetts. I see numerous issues which may be effectively developed for the defendant in this case:

Any time there is a motor vehicle accident, dazed, erratic, unsteady or confused behavior might be attributable to injuries suffered in the collision. Symptoms which police attempt to portray as signs of alcohol impairment may be equally consistent with injury. Additionally, a question arises how a police officer encountering a defendant standing in a pool of gasoline, which obviously emits overpowering noxious fumes, might detect the odor of alcohol from the defendant?

The fact that a defendant may have consumed alcohol earlier in the evening is by no means an indication that the defendant was legally impaired. It is not a crime to drink and drive. It is only a crime if the amount of alcohol consumption has diminished the person's ability to operate safely. Three glasses of wine does not necessarily constitute legal impairment and the passage of time only serves to diminish the effect of the alcohol.

Other than alleging that the defendant was arrested after submitting to field sobriety tests, there are no details in this article concerning the tests. Field sobriety tests are entirely subjective. Often times at trial, when all of the relevant facts are brought out by a skilled and knowledgeable drunk driving attorney, juries do not agree with the opinions expressed by police officers concerning the reasonableness of the defendant's field sobriety performance.

With regard to the accident, there are many reasons why people are involved in accidents, other than alcohol impairment. It will be interesting to watch this case proceed in the Hingham District Court.

Continue reading "Allegations of Operating Under the Influence " »

March 30, 2012

Obama's Uncle Temporarily Loses License After OUI Case

According to a report by WBZ 1030's Lana Jones, the half brother of President Obama's late father, will lose his license for 45 days, as of today after a hearing in Framingham District Court.

Oyango Obama was arrested August 2011, in Framingham, MA after a police officer claimed Obama had made a rolling stop at a stop sign. The officer alleges that this caused him to almost crashing into Obama's SUV. His blood alcohol registered 0.14, the Massachusetts state limit is 0.08.

Obama's attorney told the judge that there are sufficient facts in the case against his client. He agreed to a continuance without a finding, avoiding a plea of guilty to drunk driving and the charge will be dismissed, if he stays out of trouble for one year. He will lose his license for 45 days and pay fines and fees of $1,000.

"By admitting to sufficient facts today to operating under the influence and failure to yield at an intersection, the defendant has admitted responsibility for the essence of the crime he committed and has now been held accountable for his actions," District Attorney Gerry Leone said in a statement.

Immigration investigators became aware of Obama after the August arrest and claim he violated a 1992 order to return to Kenya. This case is still before the immigration court.

Analysis by Parker | Scheer LLP Attorney Francis T. O'Brien, Jr.:

The fact that this case involves a relative of the president is irrelevant. The defendant in this case received no "special" consideration from the court. What this case illustrates is the fact that defendants in drunk driving/OUI/DWI cases do not always wish to proceed to trial. Sometimes clients are interested in having their cases resolved quickly. Reasons vary from financial (legal fees are significantly less in cases where defendants advise us that they wish to resolve the case via some form of plea bargain, rather than proceeding to trial), to emotional (some clients simply do not like going to court and want the process to end as quickly as possible), to practical (some clients need to obtain a hardship license for work purposes as soon as possible, and hardship licenses may not be obtained during the period of time waiting for trial), to self recognition (some clients simply believe that they are guilty of the offense and want to "cut their losses"), to criminal record preservation (some clients want us to attempt to preserve their lack of a criminal record by obtaining for them a "continuance without a finding" such as the defendant Obama obtained in this case).

This case also illustrates the frequently occurring situation where a non United States citizen is a defendant in a criminal case. It is imperative that a non citizen be represented by an experienced criminal defense attorney IN CONJUNCTION WITH an experienced immigration attorney. In my opinion, although some attorneys dabble in both criminal and immigration courts, it is extremely rare that an attorney can accurately be described as an expert in both criminal and immigration law. At Parker | Scheer, we never resolve a case involving a non citizen without consulting with an immigration expert. We are affiliated with immigration experts and we are also willing to work in conjunction with our clients' own immigration attorneys.

We advise every client on the various options that are available to them. We give them candid opinions on the likelihood of achieving the result that the client wants. Ultimately, however, we respect the choice of each individual client and attempt to obtain the desired result for each client. There is no blueprint to be applied in every case. Each client and each case is different and must be treated on an individual basis.


Continue reading "Obama's Uncle Temporarily Loses License After OUI Case" »

March 27, 2012

Red Sox Reliever Bobby Jenks Arrested

Local and national news outlets report that Red Sox relief pitcher, Bobby Jenks, was arrested early Friday morning in Fort Myers, Florida for suspected DUI, Property Damage and Leaving the Scene of an Accident. It was further reported that Lee County police officers stopped Jenks's vehicle after apparently observing erratic driving.

It was further alleged that Jenks made a number of statements to the investigating officers during the motor vehicle stop, concerning his "erratic" driving, ingestion of medication and an accident that he was involved in outside of a Florida nightclub earlier in the evening. Jenks was reportedly arrested at approximately 3:43 AM, and released from police custody a few hours later, presumably on his own personal recognizance.

Red Sox General Manager Ben Charington reportedly responded to the allegations via text message, indicating that Red Sox team officials are aware of the incident, and currently gathering information regarding the allegations.

To read the full article, please click here.

Attorney Tofani, of counsel to Parker|Scheer LLP and an associate of the firm's criminal practice group, reflects:

Reviewing the complete police report would allow for a more complete picture of the allegations that are involved with the reported incident involving Lee County police officers and Red Sox relief pitcher Bobby Jenks. At first glance, the most problematic elements with respect to Jenks's defense are the reported statements that he provided during police questioning. As a general rule, I advise my clients to be cooperative and respectful when stopped by police; but, to politely exercise their constitutionally protected right to remain silent. Despite the commonly cited fear of angering police by doing so, in my experience, most police officers respect the polite and respectful exercising of one's right against self incrimination.

The rules of evidence generally prohibit the inclusion of out of court statements, when they are offered as proof of the matter asserted - otherwise known as hearsay. But, one of the most commonly utilized exceptions to the rule against hearsay is the admission of out of court statements offered for their truth when such statements are declarations made by the party opponent. In other words, when the defendant in a criminal matter makes statements out of court, the prosecution, as the "party opponent," can introduce such statements as evidence under this exception to the rule against hearsay.

Accordingly, if the news reports are accurate, the statements that Jenks offered during police questioning will likely be introduced as incriminating evidence against him to prove: operation; impairment; consciousness of guilt; intent; and, destruction of property. These are merely a few examples of the elements that the prosecution will likely use Jenks's out of court statements as evidence in support thereof. Therefore, these admissions could prove to be a substantial obstacle for his criminal defense attorney, in furthering Jenks's defense to the charges of Driving Under the Influence, Destruction of Personal Property and Leaving the Scene of an Accident.

Often, members of the criminal defense litigation group at Parker|Scheer LLP successfully argue motions to suppress physical evidence and statements that is being offered against our clients. When preparing Jenks's defense, an experienced criminal defense attorney would likely scrutinize the totality of the circumstances surrounding these alleged admissions. For example, I would be interested in determining whether the statements were the result of improper police interrogation and whether Jenks was entitled to being advised of his rights to remain silent at that point. More specifically, if the officers continued to pepper Jenks with questions that were specifically designed to elicit incriminating responses during a custodial interrogation, and failed to advise Jenks of his Miranda rights, he would have a colorable argument in support of suppression of the damaging statements.


Continue reading "Red Sox Reliever Bobby Jenks Arrested" »

November 29, 2011

MELANIE'S LAW - MA OUI Penalties

Melanie's Law was spawned following the tragic death of, then 13 year old, Melanie Powell, who was killed in an automobile accident that was caused by a repeat drunk driver. The public mourning following this tragedy fueled the expeditious implementation of enhanced penalties for OUI related offenses. Melanie's Law was signed into law on October 28, 2005, furthering the clear objective to enhance both criminal penalties and administrative sanctions for OUI related offenses. The following is a summary of changes in Massachusetts OUI law following the implementation of Melanie's Law:

NEW OUI LAW: OUI while License Already Suspended for OUI

This is a separate and distinct offense from OUI; thus, if probable cause exists to charge an individual with OUI, during the period of time that their license to operate a motor vehicle is already suspended as a result of a prior OUI charge, this individual can be charged with two crimes at once: 1) OUI; and, 2) Operation while License Suspended for OUI.
PENALTY: The penalty for the latter offense is severe, carrying a mandatory minimum one year jail sentence.

NEW OUI LAW: Employing or Allowing an Unlicensed Operator to Operate a Motor Vehicle

i. No person shall employ an individual with a suspended license as a motor vehicle operator.
PENALTY: 1ST Offense: Up to a $500 Fine, coupled with a license suspension up to one year. 2nd Offense: Up to one year House of Correction sentence, and license suspension up to one year.
ii. No person shall allow a vehicle owned by him/her, or under their control, to be operated by an unlicensed person.
PENALTY: 1st Offense: One year House of Correction sentence; a fine up to $500; and, a license suspension up to one year. 2nd Offense: Two and one half years House of Correction sentence; and/or a fine up to $1000; and, a license suspension up to one year.
iii. No person shall allow an individual with an Ignition Interlock restriction to operate a vehicle not equipped with the device.
PENALTY: 1st Offense: Up to one year imprisonment and up to a $500 fine; and, license suspension up to one year. 2nd Offense: Up to two and one half years imprisonment and/or a fine of up to $1000; and, license suspension up to one year.


NEW OUI LAW: Manslaughter by Motor Vehicle

Melanie's Law provides that: Any driver who commits manslaughter while Operating a Motor Vehicle while Under the Influence of Alcohol or Drugs shall be convicted of Manslaughter by Motor Vehicle.
PENALTY: Mandatory minimum State Prison sentence of five years, and up to twenty years, and a fine up to $25,000; and, a minimum license suspension of fifteen years, up to a lifetime suspension.


NEW OUI LAW: Child Endangerment while Operating a Motor Vehicle Under the Influence of Alcohol

This new OUI Law is applicable when an individual is charged with OUI, and they were operating the motor vehicle while accompanied by a child fourteen years old, or younger.
PENALTY: 1st Offense: Imprisonment in a House of Corrections for ninety days to two and one half years, and a fine of $1,000 to $5,000; and, one year license suspension. 2nd Offense: House of Corrections sentence of six months to two and one half years, and a fine of $5,000 to $10,000; and, three year license suspension. Or, a State Prison sentence of three to five years.


ENHANCED CIVIL SANCTIONS PURSUANT TO MELANIE'S LAW:

REGISTRATION CANCELLATION - Pursuant to Melanie's Law, the Massachusetts Registry of Motor Vehicles can cancel the registration plates of any individual that is convicted of a third or subsequent alcohol - related driving offense for the duration of the period of license suspension.
VEHICLE FORFEITURE - Akin to seeking forfeiture of a motor vehicle, for which probable cause that it was used in the furtherance of a drug transaction exists, Melanie's Law provides that the prosecutor can exercise discretion and may seek forfeiture of a defendant's vehicle, if they are convicted of a fourth or subsequent alcohol - related driving offense.
TEMPORARY LICENSE ELIMINATED - Prior to the implementation of Melanie's Law, an individual that was arrested and suspected of an alcohol - related driving offense was afforded a fifteen day temporary license. Melanie's Law eliminated this provision and provides that the operator's motor vehicle be impounded for at least twelve hours following the arrest for OUI.

Click here for more information.

Continue reading "MELANIE'S LAW - MA OUI Penalties" »

July 20, 2011

Winthrop Massachuestts Man Charged with 8th DUI

According to Suffolk County District Attorney Daniel Conley, a Winthrop man has been held without bail following an arrest for an unprecedented 8th drunk driving (DUI) conviction. Joseph F. Limone, 60, reportedly gave a fake name and failed every field sobriety test administered by State Police following his July 12th arrest on Revere Beach Parkway.

Police reports indicated that shortly after 5 p.m., Limone was repeatedly sounding the horn of his 1988 Lincoln Town Car, swerving, driving very closely behind another car, and yelling out the window. A state trooper pulled him over to administer a series of standard tests, all of which he failed.

Limone has been charged with operating under the influence as a fifth or subsequent offender, operating with a revoked license, furnishing a false name as an arrestee, malicious destruction of property, making a harsh or objectionable noise in the operation of a motor vehicle, and other civil offenses. The 7 prior drunk driving offenses date back to 1970.

The full article can be seen here.

Continue reading "Winthrop Massachuestts Man Charged with 8th DUI" »

July 15, 2011

Fatal Car Accident: Jamaica Plain Man Killed by Drunk Driver in Quincy

According to Boston State police, a fatal crash took place early Sunday morning in Quincy, Massachusetts. The fatal car accident involved a head on collision between two cars resulting in the death of a Jamaica Plain resident.

Reports indicated that the crash took place on Quincy Shore Drive and Rice Road. State Police arrived at the scene of the car crash around 12:30 a.m. Officials indicated that a Chevrolet Silverado was traveling South when it crossed over into the northbound lane and hit a Ford Explorer head-on.

The driver of the Explorer, 50, was killed, and his passenger, 23, of Dorchester, suffered serious injuries. The driver of the Silverado, a 28 year old Plymouth man, was arrested on the scene and charged with operating under the influence (OUI), among other charges. He was also carrying a 27 year old passenger from Hull who suffered serious injuries. After the accident all victims were transported to Boston Medical center.

The full article can be seen here.

Continue reading "Fatal Car Accident: Jamaica Plain Man Killed by Drunk Driver in Quincy " »

February 11, 2011

Somerville Drunk Taxi Driver

Tyler A. Bryan was charged with operating a vehicle under the influence and refusing to identify himself to an officer, and negligent operation of a motor vehicle, after officers found his taxicab embedded into a snow bank early on the morning of January 27th. The taxi driver from east Somerville exhibited odd behavior when State Police Trooper Paul Conneely found him in the passenger seat of his vehicle in Brighton.

After driving down Soldiers' Field Road in Brighton, Officer Conneely stopped to look at a car that was mounted into a snow bank. Conneely noted Bryan's bloodshot eyes, drooping head, odor of alcohol, and is inability to support himself. He then asked Bryan how he came to his current situation. Bryan claimed he was a pedestrian who noticed the car while he was walking by, but then claimed he reached the car by snow mobile. He later told police that two comedians would bail him out of jail, after they arrested him.

After several other bizarre remarks, Bryan was arrested and charged with operating under the influence of alcohol, and negligent operation of a motor vehicle. In Massachusetts, the driver does not need physically be pulled while over driving the car to be charged with operating under the influence. If convicted, Bryan faces court penalties, and the loss of his operating license.

January 24, 2011

Mandatory Florida DUI Checkpoints

Historically, United States law has protected drivers from mandatory breathalyzer tests. If a driver is stopped for a traffic violation, she can refuse a test to discover if she has been driving under the influence. As it is her right; unfortunately, it can also be an advantage to a driver who has actually been drinking, because she might have time to "sober up" before a charge can be made.

The move for Florida to issue mandatory blood tests, if a driver refuses a breath test, is supported by groups like Mothers Against Drunk Diving. One representative, Linda Unfried, said "we don't want to violate people's civil rights. That's the last thing we want to do, but we're here to save lives." Unfried and supporters of mandatory tests, called "no refusal checkpoints," think people will be less likely to drink and drive if they know check points are stationed in the area.

Those who disagree with mandatory check points, like DUI defense attorney Kevin Hayslett, think it's an extreme measure; "what other misdemeanor offense do we have in the United States where the government can forcefully put a needle into your arm?"

It's unclear if the "no refusal" blood-alcohol tests and "heavily advertised" checkpoints will actually deter drunk drivers, or simply send them to areas that don't have them. It's also unclear if our current right to refuse a breath-alcohol test, with a Breathalyzer, in turn warrants the state's right to order a mandatory blood test.

Read the full article: "No refusal" DUI checkpoints could be coming to Tampa