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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" »

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" »

March 23, 2012

Woman Charged in Crash That Injured Her Children

According to police, a Norfolk woman is being criminally charged in a Wednesday accident that injured her three children. The woman, 36, is being charged with driving under the influence of alcohol causing serious bodily injury, child endangerment, and a seat belt violation.

The Norfolk woman is being hospitalized at Caritas Norwood Hospital. In addition, her children, ages 7, 10, and 11, are also being hospitalized at three local hospitals.

Police reported that the woman lost control of her car on Marshall Street and then struck a utility pole and rolled over. Emergency personnel needed to use the Jaws of Life to free the woman and her children. According to police, additional charges may be filed.

The full article can be seen here.

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?"" »

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.

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