Recently in Operating Under the Influence of Alcohol Category

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" »

February 2, 2012

"Should I Take a Breathalyzer Test?"

By Attorney Francis T. O'Brien, Jr.

The question that I am most often asked regarding OUI/DWI/Drunk Driving cases is: Should I take a breathalyzer test (BT), if I am arrested? It may be that if you are reading this article you have already been arrested and confronted with that quandary, made that decision and are now the defendant in a case, with or without BT evidence. In that case my comments might seem moot. However, it is important to remember that a skilled attorney who specializes in OUI/DWI/Drunk Driving cases can effectively represent you regardless of whether you took the BT or not. Do not waste energy dwelling on what you might have or should have done. As your attorney I will encourage you to focus on what the facts are, regardless of whether they seem good or bad to you, and move forward with an aggressive defense. I do have an opinion on the issue, however.

I believe that a person who is under arrest for operating under the influence of alcohol in Massachusetts should not submit to a breathalyzer test. There are a number of reasons for this opinion. First and foremost is the fact that a BT result is a concrete piece of evidence that will be offered against you at trial. If you register a score of .08 or above, that score alone is enough to convict you. This places your attorney in a position of having to challenge the accuracy of the BT score in order to effectively defend you. This will often result in increased costs to you as your attorney may need to utilize expert witnesses and/or pretrial motions and hearings to challenge the BT. In a sense, you have created a critical piece of evidence against yourself, which could have been avoided simply by declining to submit to the test. While there are many strategies that a skilled and experienced attorney can use to challenge the BT, you can spare yourself significant time, expense and stress by refusing.

Going hand in hand with instinctively not wanting to create physical evidence against oneself is the reality that there are many factors which can contribute to an inaccurate BT score. It is less than comforting to know that your fate lies in the hands of an inanimate object, a breathalyzer machine, and in the hands of the police officer operating the machine. However, by law, the test results are admissible, flawed as they may be. Therefore, it is my opinion that a person who believes that his or her blood alcohol level is below the legal limit should decline the BT test and immediately upon release from police custody go to the closest medical facility and have blood drawn and tested by trained medical personnel. This is a much fairer and more accurate test, not prone to mechanical and human error like the breathalyzer is.

A person under arrest will be advised that if they refuse to submit to a breathalyzer test they will lose their driver's license for a minimum of 180 days, but if they take the test and fail, they will only lose their license for 30 days. This sounds tempting and police will often apply subtle or not so subtle pressure to take the BT, saying things such as "in the worst case if you take the test and fail, you lose your license for 30 days and you can get a hardship license, but if you refuse you lose it for six months, with no possibility for a hardship license. What's the harm?" Unfortunately, there is significant harm in taking a BT. If the person registers a score of .08 or above, he or she has now placed him or herself in a position where, as discussed above, the defense attorney must devise a strategy in order to challenge this self created evidence. If the person refuses the BT, the defense attorney can focus the defense efforts on challenging the testimony of the police officers.

Police testimony is typically opinion evidence. In other words, the police officer will testify as to his observations of the defendant's driving, demeanor, performance on field sobriety tests, etc., and conclude that based upon these observations, the officer is of the opinion that the defendant's ability to operate was impaired by alcohol. However, opinion evidence may be aggressively challenged by an experienced OUI/DWI/Drunk Driving attorney. Very often defendants do not agree with the version of events offered by the police and a skilled attorney can expose flaws in the testimony of the police. If a defendant does not submit to a breathalyzer test then his or her defense can focus on challenging testimonial evidence.

What very few defendants realize, because the police will never advise them, is that in most cases involving a BT refusal, where the defendant is subsequently found not guilty at trial, the license suspension triggered by the refusal will be vacated and the person's right to operate will be immediately reinstated. So while the police may make it sound tempting to take a BT, with a 30 day suspension for a failed score, versus a 180 day suspension for refusal, the defendant is better served by refusing the BT.

Percentage wise, although a skilled attorney can handle any fact pattern, there are far more defendants who are found not guilty in cases where there is no BT evidence. And most often those defendants will have the remainder of their refusal suspension wiped out. Therefore, in my opinion, a person who is placed under arrest for operating under the influence of alcohol should refuse to submit to a breathalyzer.

Continue reading ""Should I Take a Breathalyzer Test?"" »

December 14, 2010

Fatal Accident Addition: A Family Tragedy

"In the moments after he allegedly struck Cynthia Ray [who was at the barracks to pick up an accident report involving her husband, Brian Ray] with his 2010 Chevrolet Silverado, Robert V. Bryant, 50, the chief operating officer of a computer software company, reportedly asked a state trooper, 'Did I hit somebody? A pedestrian? I don't remember doing that.' At the time, the resident of Haverhill's Bradford neighborhood was being given a field sobriety test, which State Police say he failed.

Yesterday, Bryant was charged with motor vehicle homicide by negligent operation, drunken driving, leaving the scene of personal injury and death, and other offenses.

During his arraignment in Lawrence District Court, he kept his head tilted downward and did not talk. His lawyer, Francis O'Brien, entered a not-guilty plea on his behalf.

'This is a good man who unfortunately is now a defendant in a very serious case,' O'Brien said. He characterized his client as a family man without a criminal record and no history of alcohol abuse. Bryant is married and has four children, three of whom are in college."

Brian Ray's father, Steve Ray said, "I'm sorry for [Bryant] and his family, for the anguish that he caused for his family and our family, but he didn't take his responsibility serious enough. I drive a truck. I know what responsibility is. This man, he took a life that lit up our world.''

The full article and embedded video are featured in the Boston Globe, December 14, 2010: A family tragedy, its toll multiplied

December 13, 2010

Fatal Accident Addition: Bryant Arraigned in Lawrence District Court

"A business executive accused of drunken driving told State Police he did not remember driving into a woman as she walked in front of the State Police barracks in Andover Sunday - a crash that claimed the life of the 30-year-old Haverhill woman, a prosecutor said today.

Robert V. Bryant was arraigned today in Lawrence District Court where he pleaded not guilty to numerous charges including motor vehicle homicide while operating under the influence for hitting Cynthia Anne Ray Sunday afternoon in Andover.

His defense attorney, Francis O'Brien, said Bryant is the chief operating officer for MCA Solutions, a job he handles while working from his Haverhill home where he has lived for the past 15 years.

'This is a horrible tragedy,' O'Brien said during Bryant's arraignment. He said the 50-year-old Bryant has never faced criminal charges before this weekend. 'He's a good man who unfortunately is now a defendant in a very serious case.'

O'Brien also said that Bryant, who wore a dark suit and white shirt during the arraignment and kept his head bent down while in the courtroom, has repeatedly asked about Ray.
'The (Bryant) family is distraught over what happened to this young woman,' O'Brien said. 'He is only asking about her and her family.'''

The full article is featured in the Boston Globe, December 13, 2010: Accused drunk driver did not recall crash that killed Haverhill woman, prosecutor says

December 13, 2010

Fatal Accident Addition: Defense Attorney Francis T. O'Brien, Jr. of Parker Scheer LLP to Represent Bryant

"Her family and co-workers said Cindy Ray literally lit up a room with her smile. The 30-year-old lighting specialist, who earned an interior design degree from Endicott College, lost her life steps away from the State Police barracks in Andover at about 3 p.m. Sunday.

[Ray] and the car in which her mother was waiting were struck by a pickup driven by Robert Bryant, the 50-year-old chief operating officer of a software company whose home happens to be in the same part of Haverhill as Ray's, Bradford.

After Cindy Ray's mother ran into the barracks to report the crash, troopers rushed out, one called for medical help and another arrested Bryant up Route 125.

'This is a man with no history of mental illness, no history of alcohol abuse, no history of any type of conduct other than complete law-abiding,' said defense attorney Francis O'Brien." O'Brien told the court the only violation his client has on his driving record is running a stop sign in 1984 and again in1987.

The full article, video and radio broadcast are featured on CBS News online, December 13, 2010: Woman Killed In Hit & Run Outside State Police Barracks

December 13, 2010

Fatal Accident Addition: Cynthia Anne Ray of Haverhill Killed in Crash

"A Haverhill man [Robert Bryant] has been ordered held on $50,000 bail after pleading not guilty to motor vehicle homicide and other charges stemming from allegations that he was drunk when he struck and killed a woman outside the state police barracks in Andover.

Bryant was arraigned in Lawrence District Court on Monday, a day after 30-year-old Cynthia Anne Ray of Haverhill was killed in the crash."

The full article is featured in the Boston Globe, December 13, 2010: Woman killed outside Andover state police building

December 10, 2010

DUI Drivers Formally Charged with Motor Vehicle Homicide in the Death of Brockton State Trooper

Last week, a Grand Jury indicted Kenneth Weiand (43 of Walpole) and Anthony Perry Jr. (46 of Hyde Park) in the death of state police Sergeant Douglas A. Weddleton of Brockton. The accident occurred on June 18, around 1:15 a.m. Weddleton, a married father of four, was working a construction site detail along Interstate 95 in Mansfield.

Sgt. Weddleton parked his police cruiser along the off-ramp, in order to alert drivers and protect the construction crew. The police reported that Weiand attempted to drive his Acura around the blockade. Weddleton tried to pull him over to speak with him. While speaking with Weiand next to his vehicle, Perry crashed his Ford pickup truck into the back of the Acura at a high speed. As a result, Weddleton was pinned under the Acura, as it careened across the highway due to the force of being hit from behind. He was pronounced dead after being rushed to Sturdy Memorial Hospital in Attleboro.

An alcohol breathalyzer test on scene showed Weiand's blood-alcohol level at .20, significantly above the legal limit of .08. Perry registered a level of .07 at the scene, and a .06 at the police station after the accident. While Perry was driving at under the legal limit, a .07 is still enough to impair driving. The investigation showed that both men had prior motor vehicle offenses, mostly for speeding. Neither men had a previous drunk driving charge.

Evidence was presented to a Bristol County Grand Jury and they found enough to indict the two men with motor vehicle homicide. According to a spokesman for Bristol County District Attorney C. Samuel Sutter, it is not unusual to charge two different drivers with motor vehicle homicide in the same death. The indictments charge both men with "motor vehicle homicide while driving under the influence of intoxicating liquor and/or while driving negligently so as to endanger." The felony charge is the most serious motor vehicle homicide charge there is, and carries a maximum sentence, if convicted, of 15 years in prison. The two men will be arraigned later this month in Fall River Superior Court, and Assistant District Attorney Steve Gagne has been assigned to prosecute the case.

Weddleton's friends on the force said they were grateful for the D.A.'s office pursuing these charges, and praised the diligent work and investigation conducted by the state police.

Patriot Ledger Article on Motor Vehicle Homicide Charges

September 20, 2010

Gardner and Smith Plea Not Guilty to OUI and Motor Vehicle Homicide Charges in Death of Highway Construction Worker

One Tuesday, September 14, Gardner and Smith were allegedly driving drunk on Route 9 and crashed into a highway construction crew. The crash was at a high speed, and killed Gregory Vilidnitsky, an inspector for the state's Department of Transportation. Police and prosecutors say the two were drunk behind the wheel when they smashed into Vilidnisky and then into an oil truck. According to the prosecutor at arraignment, the two men admitted to drinking before driving. In fact, Smith admitted to police that he had consumed four to five jack and coke drinks, and felt intoxicated. The two then tried to run away but were apprehended by the construction crew and an officer on duty. Gardner and Smith are both carpenters who were staying at a hotel in Framingham.

The two men were arraigned in Framingham District Court on September 15, 2010. Both Gardner and Smith claim the other was the driver, and both pled not guilty to the various charges, including: Operating under the Influence (OUI) and Motor Vehicle Homicide. Gardner was ordered held in lieu of $100,000 cash bail, on charges of speeding, motor vehicle homicide and, if convicted, this would be his second OUI. Smith was ordered to be held in lieu of $50,000 cash bail. This is Smith's third OUI charge, and faces a significant sentence if convicted. The prosecutor explained, during arraignment, that a strong odor of alcohol emanated from both Gardner and Smith when apprehended, and they were glassy eyed.

These men are no strangers to a courtroom. Gardner has 11 convictions on his criminal record, including drug convictions and one for operating a car with a suspended license. Smith has two prior OUI convictions in Vermont. Under Megan's Law in Massachusetts, consecutive OUI convictions increase the sentences suspects face. According to Gardner's lawyer, the major question at trial will be who was driving, because that person will face more serious consequences.

2 Held in Death of Highway Worker

Two held on High Bail After Highway Workers Death in Framingham

September 15, 2010

Highway Engineer Killed After Truck Rams into Construction Crew. Drivers Face OUI and Motor Vehicle Homicide Charges.

Jeremy Gardner of Maine is facing a host of charges from the Middlesex District Attorney's Office, including: Operating Under the Influence (OUI) (this being his second offense); Motor Vehicle Homicide; Leaving the Scene of an Accident; and Operating to Endanger. The second suspect, Walter Smith, of Vermont, faces his third OUI charge, according to Cara O'Brien, spokewoman for the Middlesex DA's Office.

According to Police and prosecutors, a pickup truck drove into a state highway construction crew in the middle of a road resurfacing project taking place on Route 9. As a result of the crash, a highway engineer (whose name has not been disclosed) was killed. This accident occurred around 11:30 p.m. on Tuesday, September 14th. At the time of the crash, the highway engineer was wearing yellow reflective gear.

Framingham Deputy Police Chief believes Gardner was driving drunk when he plowed into the construction crew. Following the crash, Gardner exited his pickup truck and tried to walk away, but he was apprehended by the construction crew. Then, Smith (passenger) allegedly moved into the drivers seat, shifted the pickup into reverse and tried to leave the scene. Smith was also apprehended by the construction crew and a Middlesex deputy sheriff who was on duty at the construction site. Police say the two men were staying at a nearby hotel.

The two suspects are scheduled to be arraigned later today, September 15, 2010 in Framingham District Court.

Worker Killed on Route 9 in Framingham

Two Face Drunken Driving Charges After Highway Workers Death in Framingham

July 30, 2010

OUI Suspect Arrested

Officers responded to a car accident at Sullivan Square. Officers upon arrival, observed
two individuals arguing. The operator of vehicle 1 accused the operator of vehicle 2 of
causing substantial damage to her car after rear ending her car at a red light.

Police officers spoke to the operator of the second car, Hunter Delench, 26, of Boston,
and asked if he had consumed any alcohol. Delench replied "I don't drink and drive".
Officers observed that the operator was unsteady on his feet and had an odor of alcohol
on his breath. Officers then found four empty cans of beer and two other full cans of beer
in the vehicle. The suspect then failed to properly perform the sobriety tests administered
or heeding instructions given to him by officers.

Delench, was arrested and charged with Operating Under the Influence of Alcohol and in
violation of the Open Container Law.

BPDNews, July 19, 2010 - OUI Suspect Gets His Wish

If you need a Boston, Massachusetts Criminal Defense Lawyer for a drug offense or an arson offense or a masschusetts dui offense please contact Attorney Francis T. Obrien today at (617) 512-0939.