Recently in OUI Category

June 30, 2014

Breathalyzer Test Results Should Have Been Suppressed Based On Excessive Differential

Last month, the Massachusetts Appeals Court reversed the Boston Municipal Court's denial of a defendant's motion to suppress evidence of his post-arrest breathalyzer test as evidence of his alleged operation of a motor vehicle while under the influence of alcohol. The decision examined the regulations applicable to breathalyzer test results and their reliability.

In Commonwealth v. Hourican, the defendant had driven his vehicle into a police patrol wagon. Police observed that the defendant had "glassy eyes" and smelled of alcohol. After failing two out of three field sobriety tests, the defendant was arrested. He then consented to a breathalyzer test in which he produced two breath samples. One sample measured 0.121% blood alcohol content (BAC), and the other measured 0.143%, resulting in a differential between the two samples of 0.022%. Both samples indicated that the defendant's BAC level was above the legal limit of 0.08%.

Continue reading "Breathalyzer Test Results Should Have Been Suppressed Based On Excessive Differential" »

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.

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" »

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?"" »

November 29, 2011


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.


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" »

November 23, 2011

Parker | Scheer Criminal Defense Lawyer Responds to Boston Globe 3-Part OUI Feature

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

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

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

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

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

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

Continue reading "Parker | Scheer Criminal Defense Lawyer Responds to Boston Globe 3-Part OUI Feature " »

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.

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December 12, 2010

Fatal Accident in Andover, Massachusetts

"A 30-year-old Bradford woman was killed this afternoon after being struck by a drunk driver outside a Massachusetts State Police barracks in Andover, said spokesman David Procopio.

Robert V. Bryant, 50, of Bradford, was arrested...."

Full Article featured in the Boston Globe, December 12, 2010: Pedestrian killed outside Andover barracks, driver faces OUI charges

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