Massachusetts DUI Lawyers Blog

Man arrested 2 times in 3 hours for same Criminal Charge

Tue, 01 May 2012 00:27:31 -0500

How can someone get arrested two times in three hours? Jeffrey Graham of Merrimack, NH found a way to do just that.

At approximately 3:30 in the afternoon, witnesses reported that a motorist was driving in and out of traffic, struck a mailbox, and fled the scene. Police caught up to the motorist, Graham, and pulled him over. He was visibly intoxicated and arrested for Operating Under the Influence of Liquor. He was released on $2,000 bail.

At approximately 6:30, witnesses reported that a motorist later found to be Graham, once again, was back on the road, still intoxicated (or possibly re-intoxicated?), again struck a mailbox, but this time one-upping his earlier performance by driving into a fence. Police made contact with Graham as he was driving near his home, and arrested him for the second time that day. He was subsequently held on $5,000 bail.

If these arrests happened in Massachusetts, a $5,000 bail would be the least of Graham's concerns. The prosecution would probably seek to have him held in custody for up to sixty days. In Massachusetts, if a person is released on bail after being charged with a crime, and is subsequently charged with any new criminal offense before that first charge is resolved, the court can hold the person without bail for up to sixty days if it finds that person to be a danger to any particular person, or the community in general. Based on the fact that Graham was charged with the same offense and each time drove with reckless disregard for the public's safety, fled the scene after striking stationary structures, all within 3 hours, I think the prosecutor would have a pretty strong case for pretrial detention. But, believe it or not, if I were representing Graham in Massachusetts, I think I'd be able to have him out in time for dinner that night.

How? A legal loophole:

If this case happened in Massachusetts, I believe that Graham might actually benefit from the fact that his arrests were only a few hours apart. How does this make sense? In making its determination as to whether Graham should be held for pretrial detention of up to sixty days, the Court must follow M.G.L. c. 276 s. 58, which states, in relevant part:

"The court shall provide as an explicit condition of release for any person admitted to bail pursuant to this section or section fifty-seven that should said person be charged with a crime during the period of his release, his bail may be revoked in accordance with this paragraph and the court shall enter in writing on the court docket that the person was so informed and the docket shall constitute prima facie evidence that the person was so informed. If a person is on release pending the adjudication of a prior charge, and the court before which the person is charged with committing a subsequent offense after a hearing at which the person shall have the right to be represented by counsel, finds probable cause to believe that the person has committed a crime during said period of release, the court shall then determine, in the exercise of its discretion, whether the release of said person will seriously endanger any person or the community.... If the court determines that the release of said person will seriously endanger any person or the community and that the detention of the person is necessary to reasonably assure the safety of any person or the community, the court may revoke bail on the prior charge and may order said person held without bail pending the adjudication of said prior charge, for a period not to exceed sixty days."

Here, because the offenses only happened only 3 hours apart, Graham was never arraigned in court on the first offense. Therefore, he was never informed "by the court" that being arrested while out on bail for his first case could result in his being held up to sixty days in jail under this statute, much less is there even a docket yet for the clerk to show prima facie evidence that he was informed of this risk. If he had waited until the following afternoon to commit his second offense, rather than just a few hours, he would likely be held as a "danger to the community," as he would have already been arraigned and given bail warning pursuant to this statute. But in this case, I believe I'd have him released on a higher cash bail than that set for his first arrest, and if he could post it that day, he'd be a free man (for the time being).

If you have been arrested for any criminal offense in Massachusetts, contact my office:

(617) 878- 2089
www.urbelislaw.com

Should I take the breathalyzer in Massachusetts?

Thu, 08 Mar 2012 17:27:35 -0500

As a Massachusetts dui/oui defense attorney, the most common question I hear is:

Should I take the breath test?

Unfortunately, there is no one-size-fits-all answer to this question. If you take and fail the breath test (a blood alcohol concentration of .08 or higher), your license will be suspended for 30 days. At the police station, you are informed that refusing to take the breath test will result in an automatic license suspension of 6 months if this is your first offense (or 3 years if under 21 years old), 3 years if this is your second offense, 5 years if this is your third offense, and a lifetime loss of license if this is your fourth offense. The longer license suspension may encourage you to submit to the breathalyzer, which is the intent behind the law. However, what the police do not tell you, is that without a failed breath test to use against you in court, the prosecution might have a very tough time proving that you were actually impaired by alcohol.

In Massachusetts, there are two ways that the prosecution can prove that you were "under the influence of alcohol" while operating a motor vehicle on a public way. This first is the "per se" violation, where the prosecution just needs to prove that your blood alcohol concentration was .08 or higher. A valid breath test makes for a very strong case against you, assuming that it was administered properly and there are no other legitimate factors that would have altered the results. The second way to prove that you were "under the influence" is by testimony of the arresting officer about your demeanor, appearance, and performance on the field sobriety tests, the testimony of and any other percipient witnesses, circumstantial evidence, and physical evidence tending to show that your ability to operate a motor vehicle safely was diminished due to alcohol consumption. However, there are MANY ways that a skilled OUI defense attorney can attack this theory of impairment. Without a breath test, and without any other aggravating factors (car accident, belligerent conduct, incriminating statements, etc.), you probably have a legitimate case worth fighting. If you are found NOT GUILTY, there is also a presumption that your license be reinstated if it is still suspended for refusing the breath test, unless the prosecution can demonstrate that reinstatement would pose a danger to the community.

In my opinion, it is usually not a good idea to take the breath test in Massachusetts. Even just a few drinks can lead to a reading of .08 or higher. It is in your best interest NOT to help the prosecution build their case against you. In fact, if you refuse to take the breath test or field sobriety tests, or if you refuse to do both, the fact that you were asked and subsequently chose to refuse these tests CANNOT BE USED AGAINST YOU IN COURT! As far as the jury is concerned, you were never even offered the chance to take these tests. By helping to set yourself up for an acquittal on an OUI charge, you are helping to avoid the significant consequences of a conviction or a Continuance Without a Finding.

On the other hand, if the only thing that matters to you is your driver's license, and you can live with all of the other consequences of a plea deal or conviction (fines, fees, probation supervision, alcohol education classes, a criminal record, future collateral consequences, etc), then taking the breath test is one way to avoid a minimum 6 month license suspension.

If you have been charge with Operating Under the Influence of Alcohol in Massachusetts, or any other criminal offense, contact my office for your free initial phone consultation:

(617) 878- 2089

Criminal Defense Theatrics

Wed, 07 Mar 2012 15:53:22 -0500

SInce Johnnie Cochran's famous phrase, "If the glove don't fit, you must acquit," I've always enjoyed courtroom theatrics. I strongly believe that in certain criminal cases, the defense attorney can gain a significant advantage by pushing the envelope and making a dramatic statement that sticks in the minds of the jury through deliberations. Most recently, while representing State Senator Harri Anne Smith on bribery charges, high-profile Alabama defense attorney Jim Parkman used creative theatrics in order to hammer his point to the jury. During the trial, the prosecution's key witness claimed to have suddenly remembered Smith's role in the bribes while he was eating a chicken sandwich. While delivering his closing argument, Parkman handed the prosecution a chicken salad sandwich, mocking the state's key witness.

If you have been charged with any criminal offense in Massachusetts, contact my office for your free initial consultation. There is no obligation to hire me after the consultation.

Am I going to be held on bail?

Mon, 05 Mar 2012 19:23:38 -0500

As a Massachusetts Criminal Defense attorney, this is a common question I am asked. Here are some basic facts about bail determination in Massachusetts, and the consequences of failing to abide by conditions of bail: http://www.massduidefenselawyer.com/lawyer-attorney-1889023.html

Second Chances: Implications of Massachusetts' New Criminal Record Sealing Law

Mon, 20 Feb 2012 17:35:45 -0500

On May 4, an amendment to M.G.L. c. 276 s. 100A will significantly relax the requirements for sealing a criminal record. As a criminal defense attorney, I anticipate the potential stream of business from individuals looking to finally put their pasts, in the past, for good. From trivial poor choices to first-degree felonies, everyone makes mistakes and has regrets. But it is only with time for reflection, along with opportunity, that people can grow and better themselves. I trust that this amendment will provide second chance opportunities to many who had previously counted themselves out.

The New Law
Under the current law, a person convicted of a misdemeanor must wait at least ten years from any misdemeanor conviction, all court supervision, probation, and the completion of any sentence before his or her record may be sealed upon request. A felony conviction requires a fifteen-year waiting period from all such court contact.

As of May 4, 2012, the required waiting period to seal a misdemeanor conviction will be cut in half, to five years, and a felony conviction may be sealed after ten years. Additionally, under the new amendment, the waiting period begins from either the time of conviction or release from incarceration; probation no longer tolls the start of the waiting period. This is a significant advantage for anyone seeking to seal his or her record after serving a lengthy probation sentence. For example, if an April 2007 misdemeanor conviction resulted in a five year term of probation, under the current law, the person would have to wait until 2022 before requesting to seal the record (five years of probation from date of conviction, plus applicable waiting period). Now, on May 4, the person can walk into court and have his or her misdemeanor conviction sealed that day.

Protecting the Public: Exceptions to Sealing
I expect this law to cause initial concern among the general public, stirring up thoughts of convicted felons working in law enforcement, or sex offenders teaching our children. If I thought the new amendment had the potential for such unintended consequences, I would be outraged as well. But even with the amendment to s. 100A, the safeguards and exceptions remain in place. Crimes against public justice, such as perjury, escape from prison, resisting arrest, and public official corruption, as well as firearms offenses, are excluded from being sealed under M.G.L. c. 276 s. 100A. Sex Offenses require a fifteen-year waiting period from any and all court supervision and probation before such records may be sealed, and any level 2 or level 3 Sex Offender is prohibited from having any sex offenses sealed.

Further, the statute provides for sealed records to be "unsealed" in specific circumstances. As of May 4, records may be unsealed to be used as evidence in custody or child visitation hearings, abuse in restraining order proceedings, and for sentencing in subsequent criminal proceedings. Under M.G.L. c. 6 s. 172, certain requestors of criminal offender record information (CORI) are provided access to sealed records, including firearm licensing authorities, foster home agencies, law enforcement, and school departments or other organizations working with children. So the entities that protect the public and are entrusted with the care of our children still have unfettered access to all criminal record information; even sealed records. In fact, M.G.L. c. 71 s. 38R requires school districts to conduct criminal background checks on any employees, contractors, and volunteers who may have direct and unmonitored contact with children. The affirmative, mandatory CORI checks should promote public confidence and reinforce the notion that our children's safety comes above all else.

Who Benefits?
With the statutory exceptions to record sealing, we can alleviate the fear of having the most violent and predatory criminal offenders gaining access to firearms and employment that might jeopardize public safety. The amendment to M.G.L. c. 276 s. 100A was not intended for, and still protects us from, such results. The beneficiaries of the amendment are otherwise law-abiding people, and their families, whose lives have been stifled by convictions from several years prior.

While a person with a criminal record will still be prevented from pursuing certain jobs and careers, there is no reason to prevent someone, several years after a minor conviction, from finding a job and finally becoming a contributing member of society. A person with one minor misdemeanor conviction should not have to wait as long as a person convicted of a felony before applying to seal his or her record, and the new law still recognizes that premise. As a former prosecutor, I am well aware that most new criminal cases are brought against defendants who already have several prior arrests or convictions on their record. This amendment was not drafted to protect the career criminal. It was drafted in a way that allows the 23 year-old college graduate trying to start a career to not be prevented from doing so by the disorderly conduct conviction he received in high school, at 17 years old. It allows for someone who was convicted of a violent offense twenty years ago, and who subsequently served ten years in prison as a twenty year-old, from now obtaining employment at age forty in order to feed his family. After twenty years to reflect on his mistake and grow as a person, this amendment could provide hope for a second chance, where he might otherwise have given up. This man is grateful for his chance at a fresh start; and so is his family.

DUI-Manslaughter Convict Sues his Dead Victims

Wed, 15 Feb 2012 12:29:28 -0500

A Florida man convicted of killing three people while driving under the influence of alcohol is now suing the deceased for his own pain and suffering, mental anguish, loss of capacity for the enjoyment of life, and the medical bills he incurred as a result of a crash he pleaded guilty to causing.

First, let me start off by saying that I can't imagine any sane lawyer would pursue this case. I find the suit meritless for the reasons I will discuss below. Further, it contributes to the distain that people who don't truly understand what I do already have for "drunk driving lawyers." I hope that people who read this article understand the only reason Attorney Tuomey took on this case is that the convict is her brother, David Belniak.

Without even addressing the moral issue of insensitivity (putting it mildly), I find two major legal problems with this lawsuit. First, Belniak pleaded guilty to three counts of DUI-Mansalughter; one count for each deceased person he is now suing. Under Florida law, a person is guilty of DUI-Manslaughter if while driving under the influence of alcohol he causes the death of another as a result of said driving under the influence. Thus, he admitted, under oath, that he caused the three deaths. End of discussion. This is called issue preclusion. He admitted that his operation while under the influence directly caused the three deaths, and the court determined beyond a reasonable doubt that to be the case, so he is now precluded from arguing in a civil hearing that the deceased more likely than not (the civil standard of proof) was in fact the cause, rather than him. Even if he wanted to argue that the other driver's negligence was a contributing factor, his admission that he caused 3 deaths because of his drunk driving cannot be re-litigated.

Even if Belniak could argue that one of the deceased caused the accident, the damages that he is suing for are superfluous, weak, and desperate. In order to collect for his "injuries," Belniak must show that a reasonable person should have foreseen that his/her negligent driving would lead to a car accident, the result of which would leave him/her dead, law enforecement would then find evidence that Belniak was drunk so as to charge him with DUI-Manslaughter, the result of which would land him a lengthy jail sentence, causing him "injuries" such as pain and suffering, mental anguish, and loss of capacity to enjoy life. Belniak must show that all of these claimed damages were reasonably foreseeable consequences of the dead person's traffic violation. Good luck.

If you were charged with any criminal offense or motor vehicle violation in Massachusetts, contact my office 24 hours a day, 7 days a week, for your free initial phone consultation:

Law Offices of Benjamin P. Urbelis, LLC
60 State St., Suite 700
Boston, MA 02109
(617) 878- 2089

Push to Revoke Driving Privileges for Massachusetts Teens Caught With Marijuana, Alcohol

Fri, 03 Feb 2012 01:27:24 -0500

Since 2009, possession of less than one ounce of marijuana is no longer a crime in Massachusetts. The penalty is a $100 civil citation, and unlike with traffic tickets, there are no collateral consequences from the Massachusetts Registry of Motor Vehicles.

Principal Antonelli of Westford Academy is leading the charge on a proposed Massachusetts bill that would revoke the driving privileges for any teen under 18 years of age caught with marijuana, alcohol, or any other controlled substance. Under this bill, the driving privileges would not be restored until the teen completes a mandatory 3 month substance abuse program and pay a $1,000 fine. Principal Antonelli cites the growing trend of students not only bringing these substances to school, but also coming to class under the influence after having driven to school, as the primary reason to impose the tougher laws.

Principal Antonelli references the civil penalty of only $100 as being an insufficient deterrent to the marijuana problem in his school. However, there are a few other deterrents outlined in the law if the person cited is under 18. First, the teen's parents are notified of the citation, and there is a drug awareness program that the teen must complete within one year of the citation. If he or she fails to do so, the fine increases to $1,000, and the parents of that teen are held jointly and severally liable for that amount. That means that if the teen cannot come up with the payment, the parents are on the hook for the full $1,000 fine.

In response to Principal Antonelli's concerns that teens are driving while impaired, nothing in the decriminalization of marijuana lessens the penalties for operating under the influence of drugs. The penalties are the same for operating under the influence of marijuana as they are for operating under the influence of alcohol. And for operators under 18, the penalties under Massachusetts law for Operating Under the Influence are much tougher than those for adults.

If you or your teen has been charged with Operating Under the Influence of Drugs or any other Massachusetts criminal offense, contact my office for your free phone consultation:

24 hours a day, 7 days a week
(617) 878-2089

Police Presence at Methuen Superintendent's Home Sparks Confusion on Massachusetts' Minor in Possession of Alcohol Law

Thu, 26 Jan 2012 01:35:48 -0500

On the front page of today's Eagle Tribune, the paper reports that while Methuen School Superintendent Judith Scannell was in New York over the weekend, police were dispatched to her home. There, they discovered a party of youths (under 21), with several beer bottles and cups inside the kitchen and in the backyard. None of the youths was found to be directly in possession of alcohol, and no arrests were made. Based on the online comments to this article, the town of Methuen seems to be completely divided on whether the police acted appropriately, and they seem even more misguided on the law regarding minors in possession of alcohol. I hope that this blog covers some basic facts and fiction regarding this area of criminal law in Massachusetts.

Under MGL c. 138 s. 34C, "Whoever, being under twenty-one years of age and not accompanied by a parent or legal guardian, knowingly possesses, transports or carries on his person, any alcohol or alcoholic beverages" is considered to have violated this statute (with the exception of performing job-related duties). In house parties such as this one, the critical question becomes "What constitutes possession?"

In dealing with a controlled substance, there are two types of possession- active and constructive. If a police officer saw one of the youths with a beer in his/ her hand, that would be active possession. According to police, that did not happen. The only question is now whether any of these kids was in constructive possession of alcohol. This is often a last-ditch effort to make an arrest where one probably isn't warranted, because constructive possession of alcohol in this situation is almost impossible to prove.

Constructive possession means that the person had knowledge that the substance (alcohol) was there, and the person also had the ability and intention to exercise dominion and control over that substance. Just the knowledge that alcohol is present, without evidence of intent to actually possess it, is not enough. A clear example of such intent would be if the officer saw a youth reach into a cooler filled with nothing but beer, demonstrating an intent to actively possess that beer. But a youth who is merely in the presence of alcohol at one of these unsupervised parties is not guilty of this crime, without other incriminating evidence. Of course, there are still police who often make weak arrests under these circumstances. I actually love taking on these cases as a defense attorney, because I am able to either have them dismissed, or I take them to trial and win. To suggest that the Methuen police selectively chose not to arrest anyone because it was Superintendent Scannell's home, or that they "ignored the law" as has been posted by many bloggers, is unfounded and incorrect. I praise the Methuen police for knowing, understanding, and following the law in this situation, despite the risk of misguided accusations against them.

If you have been charged with Minor in Possession of Alcohol, or any other criminal offense in Massachusetts, contact:

Law Offices of Benjamin P. Urbelis, P.C.
1211 Commonwealth Avenue
Boston, MA 02134
Ben@urbelislaw.com
www.urbelislaw.com

Andover's "Wet Biscuit" Scandal

Tue, 10 Jan 2012 02:32:00 -0500

In November 2011, the Andover High School Boys' Basketball team made national news for a hazing incident of a sexual nature that allegedly occurred at a private summer basketball camp, not sponsored by or affiliated with Andover High School. Initial reports indicated that two upperclassmen, who were eventually expelled from school, were the ringleaders who pressured at least two younger players to engage in a contest, the loser of which was forced to eat a semen-soaked cookie. While the incident did not occur during school hours, nor was it at a school-sponsored event, Massachusetts' new anti-bullying laws likely guided the private administrative proceedings that led to the expulsions, and will also serve as the governing law for any criminal charges that may follow; the Bristol County District Attorney's Office has already convened a grand jury to investigate the matter.

While the media and general public has expressed outrage over the alleged hazing perpetrated by the now-expelled seniors, it is the suspensions handed out to two freshman players that has sparked a civil law suit against the Andover school district seeking an injunction to squash the suspensions and protect their otherwise clean school records. The complaint discloses detailed findings from the school's administrative proceedings that were not previously made public. The semen-soaked cookie, also dubbed "wet biscuit", was just one of three options that the team's newcomers were given as their initiation task- the other two choices included grinding on each other naked, or fondling each other's nude genitals. The report also highlights ongoing bullying, the likes of which include forcing players to walk through hallways naked, placing bowel movements on their beds, and pouring chewing tobacco spit on the face of one boy.

Under M.G.L. c. 269 sec. 17, "hazing" is defined as any conduct or method of initiation into any student organization, whether on public or private property, which wilfully or recklessly endangers the physical or mental health of any student or other person. Conviction under this statute carries up to one year in prison and a $3,000 fine.

Based on the school administration's findings, there is certainly prima facie evidence to charge the perpetrators criminally under this statute. The boys were being initiated into Andover High School's basketball program by the upperclassmen who willfully engaged in specific conduct likely to endanger BOTH the physical and mental health (either one would suffice to convict) of the younger victims.

If charges are brought, and depending on how the Bristol County District Attorney's Office chooses to proceed, the perpetrators may face more significant sentences under other state statutes. For example, under M. G. L. c. 265 sec. 43(A), the criminal harassment statute, "Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment and shall be punished by imprisonment in a house of correction for not more than 2 ½ years or by a fine of not more than $1,000, or by both such fine and imprisonment."

Were these acts so egregious that they might cause a reasonable person (or in this case, a reasonable 14 year old) to suffer substantial emotional distress? I think that most people would say yes, especially after the public outrage already showcased in the local media. So if these boys are charged with criminal harassment, and if the school's findings are expected to be proved at trial, as their attorney I would likely seek alternative ways of resolving the matter short of putting my clients' fate in the hands of an emotionally-charged jury looking to convict.

Turning to the suspension of the two freshman who had just barely finished eighth grade at the time of the alleged incident,

High Acquittal Rate for Jury-waived OUI Trials in Massachusetts is Not a Result of Judicial Leniency

Mon, 31 Oct 2011 21:40:57 -0500

It has been a while since I've posted a blog, but I believe that today's article in the Boston Globe about the Supreme Judicial Court's formal inquiry into the acquittal rate of jury-waived drunk-driving trials in Massachusetts is extremely misleading. The high acquittal rate is based on several factors that are not mentioned, all of which I believe are far more significant than the charge of judicial leniency.

My first experience presiding over a criminal trial as lead prosecutor for the Commonwealth of Massachusetts was in 2007. I was in my final year of studies at Suffolk University Law School, working as a student-prosecutor. My supervisor handed me the file and said "Here, take a look at this case, you're trying it tomorrow." (I quickly learned that prosecutors were often lucky to have the case even THAT far in advance, as first contact with a case in the morning, taking a look at it over lunch, and then arguing in front of a jury by the afternoon was commonplace). When I got home and looked at the file, I realized why my supervisor handed me this particular case as my first trial- it was a loser.

The defendant had been stopped for a broken taillight (in other words, no "erratic operation" to suggest that he was impaired), there was no breathalyzer taken, and when asked, the defendant stated that he had consumed one beer. The strongest evidence of impairment against this defendant was that he failed two out of three field sobriety tests that were administered to him. While he was able to recite the alphabet without any issue, he failed both the one-legged stand and the nine-step walk and turn. The problem was that the officer never asked the defendant if he had any medical problems that might prevent him from doing such tests. As it turns out, 71 year old defendant had undergone a total of 5 surgeries on his legs and back over the past 10 years, and he had significant arthritis, all of which was documented in his medical records. The jury-waived trial took all of 45 minutes, and the judge did not say a single word at the close of the evidence other than "Not Guilty."

Police Chief Misinterprets OUI conviction rate

Tue, 26 Jul 2011 12:10:02 -0500

According to the Massachusetts Registry of Motor Vehicles Merit Rating Board, the conviction rate for Operating Under the Influence from 2006- 2009 was 49%. To the average person who learns this statistic, and apparently to Northboro Police Chief Mark Leahy, this might suggest that the Commonwealth has been unsuccessful in prosecuting drunk driving cases. However, this number indicates that the vast majority of people who are arrested for drunk driving eventually face significant penalties, even for a first offense. The 49% conviction rate does not include thousands of defendants whose attorneys were able to work out a deal with the prosecution to avoid the uncertainty of a trial. For most first-offenders, experienced defense attorneys are able to negotiate a Continuance Without a Finding, where the defendant admits that if the case went to trial there would be enough evidence for him/her to be found guilty, and in exchange for such an an admission, the case will be dismissed without a "Guilty" finding after the period of one year, so long as the defendant successfully completes the terms of probation. While the defendant's record is spared a criminal conviction, he/she is far from being let off the hook. The terms of probation generally include $600 in statutory court fines and fees, $65/month probation supervision fee ($780 for the year), a 16 class alcohol education program at the cost of $567.22, a 45-90 day license loss with $500 reinstatement fee, and travel restrictions which prohibit the defendant from leaving the state for the entire year of probation (although a skilled defense attorney may be able to limit this restriction). Additionally, the dismissal is a misnomer. While successful completion of probation might technically result in a "dismissal", it still counts as the defendant's first-offense in both the criminal justice system AND with the Registry of Motor Vehicles. In other words, if the person is ever arrested again for an OUI, they will be charged with a second offense, facing much more severe criminal penalties and license loss consequences. Finally, a Continuance Without a Finding for a first-offense operating under the influence charge will also add five points to the driver's insurance rate, likely increasing the annual premium by thousands of dollars. A defendant who is found "Guilty" of a first-offense generally faces these exact same consequences and penalties. Practically speaking, the only difference between a "Guilty" verdict and dismissal after a successful plea negotiation is the wording, and the defendant's ability to truthfully say on any job/school/financing or other application that he/she has never been "convicted" of a crime, although a Continuance Without a Finding will still show up on any full background check. So while people such as Mark Leahy may feel "frustrated" that most people arrested for operating under the influence avoid conviction, the truth is that most do face significant penalties and life-altering consequences that serve as a deterrent to drunk driving.

Massachusetts DUI Arrests Down; Public Safety Threatened

Mon, 25 Jul 2011 23:26:52 -0500

If I told you that OUI/DUI/DWI arrests dropped nearly 17% from 2008 to 2010, you would probably think that tighter law enforcement, sobriety checkpoints, and increased public awareness has yielded positive results. Well, the total number of drunk-driving arrests has decreased by 17% over that two-year period, but the most significant reason for the drop is an unfortunate one. Since 2006, the number for State Troopers patrolling our Massachusetts highways has decreased by 20%. Prior to these budget cuts, studies showed that less than 0.2% of impaired drivers are apprehended on any given night. So while the number DUI/DWI/OUI arrests in Massachusetts suggests a positive turnaround, the slashed police budget has left our highways, where most OUI investigations are initiated, with even more impaired drivers who will not be apprehended.

Massachusetts Defense Bar Comes to Judge's Defense

Tue, 26 Apr 2011 00:23:50 -0500

Last week, the Boston Globe published an article about Suffolk County District Attorney Dan Conley's attack on Boston Municipal Court presiding Judge, Raymond Dougan. The article portrayed Dougan as overly defense-friendly and in the words of Conley, "a clearly biased judge who ignores the law and threatens public safety." Conley mounted an unprecedented attack on the judge, having each of his Assistant District Attorneys who stands before the judge in a criminal case ask his honor to recuse himself on the grounds that he cannot be fair. (As a former prosecutor, I can say that this puts the young ADA in an extremely uncomfortable and difficult position). Conley took his cause even further when he asked the Judicial Conduct Commission and the Supreme Judicial Court to prevent Dougan from hearing criminal cases altogether.

Within days, the Massachusetts Defense Bar appropriately fired back, outraged by DA Conley's recent actions, which they call an attempt to intimidate judges.

Some judges are prosecutor-friendly, some judges are defense-friendly. That's the nature of our criminal justice system. Judges are expected to use their legal education, life experience, legal experience, and judicial experience to apply the law and ensure justice. Judges are human and will differ in the manner in which they handle and rule on cases. Case law is created when judges issue "Opinions." The extreme position that Judge Dougan is biased and a threat to our public safety could also be said of several judges that Massachusetts defense attorneys would love to remove from the bench; but we understand that it is not our job, nor our right, to do so.

Drunk Driving Technology Threatens Personal Liberty

Thu, 27 Jan 2011 18:30:39 -0500

As a Massachusetts criminal defense attorney specializing in drunk driving defense, I am well-aware of the need for strong enforcement of our OUI laws. Melanie's Law was a monumental step in tightening the laws for repeat offenders, and I generally agree with most of what was passed within that legislation.

I recently read a Boston Globe article, and then watched a similar segment on "World News Tonight", on new technology that will be able to detect alcohol on the operator's breath, or even on his or her skin. The concept of this technology would be remarkable. It would, in effect, operate the same way as the interlock ignition device that repeat drunk driving offenders are now required to install in their vehicles, but it would avoid the blatant "breath test" that may cause inconvenience and embarrassment.

While the concept is well-intentioned, its implementation would be a nightmare.

When "Right to Remain Silent" Should be Invoked

Mon, 17 Jan 2011 23:41:04 -0500

As a Massachusetts OUI/DUI defense attorney, I cannot stress enough the importance of one's right to remain silent. If you have been ordered out of your car by a police officer for suspicion of operating under the influence of alcohol, usually this is the time to invoke your right to remain silent. You are not required to answer any questions, and you are NOT required to perform any "Field Sobriety Tests." While the Massachusetts Registry of Motor Vehicles may suspend your license if you refuse to submit to a post-arrest breathalyzer, there is absolutely no criminal penalty or RMV consequences for declining the Field Sobriety Tests. In most cases, the less information you provide to police during an initial investigation, the less potentially incriminating evidence they can gather before you have the opportunity to speak with an experienced OUI attorney.

In keeping up with Massachusetts OUI news, I read about a case last week in which a 40 year old Weymouth man was pulled over after leaving the scene of an accident. In addition to being charged with Operating Under the Influence of Alcohol, he was also charged with child endangerment while operating under the influence of alcohol, a separate charge that carries a mandatory minimum sentence of 3 months and up to 2 1/2 years in jail, after it was discovered that his 6 year old daughter was in the car at the time of the accident.

And now comes the time to "remain silent"......

When police stopped him, he allegedly stumbled out of the car. When asked about his daughter, Tompkins said that it wasn't his 6-year-old daughter in the car, it was his 17-year-old girlfriend.....Police called Tompkins' wife who picked up the child.