Articles Posted in DUI/OUI

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Massachusetts police allege that a thirty seven year old man was under the influence when he lost control of the snowmobile he was driving causing it to crash into rocks, killing his passenger.  Chris Corriveau is now charged with operating under the influence of alcohol (OUI) and motor vehicle homicide.  The victim, a thirty six year old woman died at the scene. 

Read Article:  Massachusetts Authorities Charge Man With Drunk Driving and Motor Vehicle Homicide in Connection With Snowmobile Fatality

Massachusetts General Laws Chapter 90 Section 1 defines motor vehicles in Massachusetts.   The law states that any vehicle made for propulsion by power is a motor vehicle.  Motorized bicycles are not motor vehicles however in accordance with Massachusetts General Laws Chapter 90 Section 1B anyone operating a motorized bicycle is subject to the laws of the road and can be prosecuted for DUI.  In Massachusetts motorcycles are motor vehicles as are golf carts, mobile homes, tractors and mobile construction cranes.  While arguably a snowmobile may be considered a motor vehicle, in this case there is an issue as to whether the vehicle was operated on a public way.  Public way is an element that the district attorney must prove beyond a reasonable doubt before someone can be convicted of OUI or motor vehicle homicide. 

The issue of impairment can also be attacked in any alcohol related driving case.  Field sobriety tests are subjective and vulnerable to attack on cross-examination.  People would be amazed at how many times police officers demonstrating these tests in court stumble or inadequately perform the very tests that they administered in the field to the defendant.  Breathalyzer tests are subject to the same scrutiny as are any other machines.  Think about how many times you drove past one of those stationary police radar signs that tell you how fast you are driving.  Rarely do they reflect the same speed registered on your speedometer.  The speeds often vary by 5 or 6 miles per hour.  What does this tell you?  Either the police radar is inaccurate or your speedometer is inaccurate.  Why does this happen?  Because these are machines and they are fallible. 

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Juan Fernandez of Lynn, Massachusetts was arraigned in the Attleboro District Court after being charged with drunk driving (DUI), leaving the scene of an accident, possession with intent to distribute controlled substances and operating to endanger.  All of this stems from a collision last Saturday morning involving Fernandez and a Massachusetts Police Officer.  Apparently, at 4:50 in the morning Fernandez was driving the wrong way on Interstate 95 near Route 123.  His car struck a police cruiser who was attempting to stop him from operating in the wrong direction.  It was reported that Fernandez was so drunk that when questioned by police he did not know where he was. 

Read Article:  http://www.thesunchronicle.com/articles/2009/02/10/news/4390515.txt

Massachusetts district attorneys look at drunk driving in two contexts.  One is based on the police officer’s observations of the defendant at the time he or she is stopped.  The officer considers the manner of operation of the vehicle, the suspect’s physical appearance, the odor of alcohol, physical behavior and the performance of field sobriety tests.  These subjective criteria help the police form opinions as to sobriety or impairment.  The second context in which prosecutors look at drunk driving cases involves an “illegal per se” operation of a motor vehicle.  Massachusetts and all other states have adopted a rule that anyone operating with a blood alcohol of .08 percent or higher is guilty of drunk driving.  There is an overlap between an officer’s observations and the illegal per se view of this crime.

Many drunk driving cases are defensible.  Police officers’ subjective opinions are often countered by reasonable explanations for certain behavior.  For instance, officers typically use the expression “unsteady on his feet” to support their opinion that someone was intoxicated.  Many times however the defendant will have a physical defect or problem that causes a certain gait.  Another common phrase used by the police at trial is “slurred speech”.  This can be explained by certain impediments or accents particular to the suspect.  Unless the officer knows the person he has no way of knowing if the speech pattern is the effect of alcohol or the individual’s particular speech pattern. 

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A Beverly, Massachusetts man pleaded guilty to his 5fh drunk driving charge and will spend the next three to three and one half years in state prison.  Gary Lee was first convicted of OUI in Massachusetts back in 1975.  He picked up his second DUI in 1982 in Alaska.  Two more convictions in Massachusetts followed, one in 1985 and the other in 2004.  The plea took place in the Essex County Superior Court in Salem, Massachusetts. 

This case resulted from an incident in June of 2008.  Beverly Police responded to the scene of a motor vehicle crash where they found the defendant being treated by ambulance personnel.  The medical attendants detected alcohol on the man’s breath and alerted the police.  Once it was clear that the man had no injuries the police conducted field sobriety tests which the defendant failed.  A breathalyzer test was administered.  The defendant blew a .24, three times the legal limit. 

Massachusetts OUI laws require someone convicted of a 5th offense drunk driving charge to serve at least 2 years in jail.  There is also a fine of at least $2,000 associated with a conviction as well a lifetime loss of license.  The case can be prosecuted in either the district court or the superior court.  In this case the Essex County District Attorney’s Office chose to prosecute the defendant in the Superior Court.  Massachusetts District Courts can sentence to no more than 2 1/2 years in a county house of correction.  Judges in Massachusetts Superior Courts can sentence people to state prison.  The maximum sentence for a 5th offense OUI in Massachusetts is 5 years in prison.

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Earlier today, a jury in the Peabody District Court acquitted one of our clients of a second offense drunk driving charge.  The case was tried by Attorney Stephen Neyman, an experienced Massachusetts Drunk Driving Lawyer.  The facts of the case as reported by the arresting police officer are as follows:

On Sunday, March 16, 2008 shortly after 1:00 a.m. a Peabody Police Officer was

on patrol on Andover Street when he observed a pick-up truck being

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Earlier today, a jury in the Peabody District Court acquitted one of our clients of a second offense drunk driving charge.  The case was tried by Attorney Stephen Neyman, an experienced Massachusetts Drunk Driving Lawyer.  The facts of the case as reported by the arresting police officer are as follows:

On Sunday, March 16, 2008 shortly after 1:00 a.m. a Peabody Police Officer was

on patrol on Andover Street when he observed a pick-up truck being

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The Quincy Patriot Ledger reported that Paul Gillis, 55 of Rockland was arrested for the fourth time for drunk driving.  He was held without bail by a judge in the Hingham District Court.  According to police Gillis was drunk when he drove his car into a parked car, failed to stop and drove off to his home a short distance away.  He now faces charges of drunken driving, leaving the scene of an accident with property damage, and negligent operation of a motor vehicle.  The defendant admitted to hitting the parked car but claimed that he did not stop because there was nobody present at the scene.  Read full article, Quincy Patriot Ledger, September 23, 2008.

If this is in fact a 4th offense OUI Gillis is looking at a severe sentence if convicted.  Massachusetts establishes harsh penalties for fourth offense OUI convictions.  Gillis is looking at a fine of up to twenty five thousand dollars, up to 5 years in state prison and a 10 year loss of license.  This case has Superior Court jurisdiction in Massachusetts meaning that a conviction could result in the defendant having to serve his time in a state prison.  For more information on drunk driving in Massachusetts call Massachusetts Drunk Driving Defense Lawyer Stephen Neyman.  You should also look at Melanie’s Law enacted in October of 2005.  The express purpose in passing this law to” enhance the penalties and administrative sanctions for Operating Under the Influence (OUI) offenders in Massachusetts”.

Gillis is also looking at a prosecution for leaving the scene of an accident with property damage and negligent operation of a motor vehicle.  Massachusetts General Laws Chapter 90 Section 24 makes these acts a crime.  That law specifically states that anyone who operates a motor vehicle negligently on a public way so that the lives or safety of the public might be endangered can be imprisoned for two years if convicted.  The same applies to anyone who fails to stop and identify himself by name and residence after knowingly colliding with any other vehicle or property or causing injury to any other vehicle or property.  One Massachusetts case has held that in order to support a conviction on the charge of leaving the scene of an accident involving property damage the prosecution must present legally sufficient evidence for a judge or jury to conclude that the defendant operated the vehicle at the time of the accident resulting in property damage.  This is often difficult to prove in that people see the car involved in the collision but are rarely in a position to positively identify the driver. 

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The Boston Globe reported that on September 15, 2008 a Boston Firefighter was charged with OUI and other related charges.  Read Full article, Boston Globe, 9/15/2008.  According to the newspaper report, On Sunday, September 14, 2008 at around 2:30 a.m. the defendant, Vernon Tiger Allen, 43, was driving between 45 and 50 miles per hour on the VFW Parkway.  At the intersection of the VFW Parkway and Baker Street Allen broadsided a car being driving by a 27 year old Connecticut man.  The driver of that car was trapped in the car.  A rescue crew arrived to extricate the victim from the wreckage.  He was taken to Brigham and Women’s Hospital where he was reported to be in critical condition.  Allen took a breathalyzer test at the scene and blew a .14.  The legal limit in Massachusetts is a .08.  At the scene Allen told the police that he had only 2 beers and that he had finished his shift 2 hours earlier.  Boston Fire Department records showed that Allen had been off of work for 10 hours at that time.  The victim, Ryan Suprenant is also facing possible OUI charges and charges for running a red light.   

This is an interesting case.  Even though the victim might have caused the accident the defendant can still be prosecuted and convicted for OUI.  The victim faces the same plight as well.  Most likely the victim’s blood alcohol has already been determined.  When people are taken to the hospital blood is routinely taken.  A toxicology screen is likely given the statements made in the newspaper article.  The victim’s blood results might also be subject to suppression depending on the circumstances surrounding the taking of the blood.  Blood alcohol results can be tainted if hospital personnel used alcohol rather than iodine to clean the area around which they took the blood. 

As a Massachusetts OUI Defense Lawyer I have tried countless drunk driving cases.  While waiting around courthouses to get me cases called I have also had the privilege of watching scores of other drunk driving trials.  It am always amazed at how many people testify that they had “2 beers”.  For some reason this seems to be a number that people accused of OUI feel is believable yet will not result in a conviction.  This sort of “creativity” is completely unnecessary.  It can result in a jury disbelieving your testimony.  I remember years ago trying a case in the Dorchester District Court before a very reasonable and compassionate judge.  My client elected to have the case tried by the judge and not a jury.  He, like many other clients testified that he had 2 beers.  The judge interjected “I wish I got a dollar every time I heard a defendant admit to drinking a ‘2-pack'”.  Another judge in a similar situation wished he had invented the “2-pack” and commented that if everyone who testified before him had purchased one of his “2-packs” he would have been able to retire in his thirties.  For the reasons stated below relying on the “2 beer” testimony can be pointless.   

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On September 12, 2008 a 34 year old Ipswich man pleaded guilty to his 5th drunk driving charge in the Salem Superior Court.  He received a sentence of 2 1/2 to 3 years in state prison.  He will be on probation for 10 years after he is released from prison with 2 years home confinement.  His license has been revoked for life. 

Read Entire Article, Salem News, September 13, 2008. 

In 2003 the defendant’s license was suspended for 5 years after he was convicted of his 4th drunk driving offense.  Nevertheless, on September 19, 2007 the defendant again decided to drive.  Again he did so under the influence of alcohol.  The decision resulted in a head on collision in Hamilton The victim was an 80 year old woman.  According to the prosecution the defendant was driving down Asbury Street in Hamilton when he drove his car over the center lines and crashed head on into a pickup truck being driven by the victim.  The defendant continued driving, this time down the wrong side of the street and hit another car being driving by a 49 year old woman.  The pickup truck driver, her passenger and the other woman were all injured.  The second victim was hospitalized for four days and is now unable to driver herself around. 

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On Thursday, September 10, 2008 the Salem News reported that an Amesbury woman was charged with drunk driving in the Salem District CourtRead full article.  According to the report, the defendant, 52 year old Suzanne Sherman was seen driving her Mercedes northbound in the southbound lane of Route 1 in Danvers.  A state trooper responding to the scene found the defendant in her vehicle, stopped in the roadway.  The defendant subsequently drove her car into the parking lot of a nearby restaurant.  Sherman told the officer that she was going from Newburyport to Amesbury.  This made no sense geographically.  Sherman further admitted to having some drinks and making illegal U-Turns on Route 1.  At booking Sherman asked to call the Salisbury, Massachusetts Police Chief whom she claimed to be a good friend.  She was charged with OUI, a second offense and possession of a class E substance.  Sherman also refused the breathalyzer test.

In Massachusetts a drunk driving case is commonly referred to as an OUI (operating under the influence).  Penalties for convictions of OUI vary depending on several factors.  If you have prior OUI convictions your penalties can be severe.  If someone is injured or if there is an accident as a result of you operating under the influence judges will often increase your sentence if you are convicted. 

The current drunk driving statute in Massachusetts is commonly known as Melanie’s Law.  It was passed in 2005 and its purpose was to increase the penalties for OUI offenders in Massachusetts.  The law itself has some interesting components that were designed to get first time offenders to plead guilty rather than try to win the case at trial.  For example, if you fail to take a breathalyzer test the law mandates a 180 day loss of license.  Many Massachusetts court calendars do not permit you to get your case tried within 180 days due to volume and backlog.  However, if this is your first offense and you plead guilty you will be eligible for a “hardship” license almost immediately.  Nowadays, many police officers who stop suspected drunk drivers tell them about this aspect of the law in hopes that they will take the breathalyzer test.  The police will tell you that if you pass the test; i.e. blow less than a .08 you will be free to go.  If you fail the test you face an immediate 30 day loss of license rather than the 180 day loss of license imposed if you refuse the test.  Keep in mind that even blowing less than a .08 can subject you to prosecution for OUI in some cases.