Articles Posted in 1st Offense OUI DUI

Know Your Rights

Protect Yourself in a Drunk Driving Investigation

Whether you are innocent or guilty, it is normal to be stressed during a DUI/DWI traffic stop. People are often afraid it will look bad if they don’t cooperate, so they tell police far more than they should. The truth is you don’t have to say a word. It is your constitutional right to stay silent, even if your Miranda rights are not read, which usually won’t happen until an officer intends to make an arrest. Before that time, the officer will do anything he can to get you to incriminate yourself. But without the evidence you give him, an officer will have no probable cause for arrest. Always stay calm and polite. Respectfully, tell the officer your name and address. Then, say “I will not give anymore information until my attorney is present.” This is just one of many ways to protect yourself in a drunk driving investigation.  Continue reading →

Drive Sober or Get Pulled Over

A national campaign called Drive Sober or Get Pulled Over has made its way to the Boston area.  The goal is to curb drunk driving during the holiday season, and federal grant money is being used to beef up local patrols on the road.  Here are a few things you should know to keep yourself safe and arrest-free. Continue reading →

The last time the Massachusetts OUI laws saw a significant modification the legislature had one thing in mind. They wanted to get accountability as soon as possible. The changes to the law made the prospect of immediately pleading guilty extremely attractive. The statue made provisions for the issuance of hardship licenses almost soon as your case gets resolved. Simply put, for first time offenders once you plead guilty you can, three days after registering for the alcohol awareness program apply for a hardship license. For all practical purposes you will be driving shortly after you plead out. Consequently, many of my clients now ask about their options when being arraigned for OUI in Massachusetts. This post discusses some of the pros and cons associated with expeditious drunk driving pleas.

Massachusetts OUI Defense Lawyer

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There are certain events that occur in court that tell experienced criminal defense attorneys that they are going to win the case. The most common is when cops testify at trial to facts that are not in their report, particularly at an OUI trial. During a typical drunk driving trial the prosecution witnesses are only cops. In large part criminal lawyers base their defense on the contents of the police report, as do the district attorneys. If, in preparation for trial the police tell the district attorney facts that were not recorded the district attorney must immediately advise the defense. In reality, this really happens. Rather, the cops improvise at trial. As discussed in this post, this is a good thing for the defense. When this happens you are probably going to win your case. Continue reading →

Time and time again I have commented that at least in Massachusetts the OUI police reports that I read are essentially boilerplate. From officer to officer, report to report, I can recite by memory, almost verbatim the content of those documents. I have always maintained that if criminal defense lawyers collaborate a database can be established where lawyers can access the reports of individual officers to show a pattern of repetition that demonstrates a lack of sincerity on their part. Police officers tend to be lazy in their report writing. The reports are prepared at the end of their shift. The officers don’t like doing this. They are tired and they want to go home. So what do they do? They take shortcuts. They cut and paste or reiterate the substance of other reports. They do not take the time to carefully draft reports relating to your case. This post shows what I mean by boilerplate police reports. Let me know if this sounds familiar to you? If you were arrested for OUI there is a good chance this is what your report looked like.

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Any lawyer will tell you that having good witnesses on your side can make the difference between winning and losing a trial. This is particularly true in the case of the OUI trial in Massachusetts. If the case is triable, and I have good witnesses I often get a pretty good sense that I am going to win the case. The reason for that is simple. Cops are usually not good witnesses in OUI cases. They are stiff and unlikable. They are usually relatively young as the more experienced police officers are more likely going to be in a more specialized unit and not on routine patrol. On the other hand, a good witness for the defense will simply answer the questions. No agenda here. Just good, honest testimony that will often result in an acquittal for the defendant.

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I get this question several times each week. Someone gets arrested for drunk driving in Massachusetts. This is their first OUI and usually their first time having to go to court. After the initial shock and embarrassment wears off they start thinking about defending the case and ultimately how much the case is going to cost them. In order for me to properly answer that question I have to go through several scenarios with them to make sure they understand how the process works and what they are facing. There are however some short answers I can give them right away. Here they are along with the questions.

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Here in Massachusetts, persons charged with first offense operating under the influence (OUI /DUI) and certain second time OUI offenders may have the option of what is called the alternative “24D” disposition, which includes participation in an alcohol education program as a condition of probation. Many different approved alcohol education programs, all of which are on their face secular in nature, are listed with the Bureau of Substance Abuse Services. However, when alleged offenses other than OUI are “alcohol-related” (such as domestic violence, assault and battery, property crimes, resisting arrest, etc.) it is not uncommon for Massachusetts prosecutors to request and for judges to impose participation in Alcoholics Anonymous, an organization that is very arguably religious, as a condition of probation. While the Supreme Court has yet to rule on whether A.A. is a religious organization, there is a fairly strong argument that imposition of A.A. as a probationary condition is unconstitutional.

Much of the law on whether A.A. is “religious” arose from cases where prisoners and probationers claimed free exercise and establishment clause violations after being forced to attend A.A. meetings. Courts in California, Tennessee, and New York have held that A.A. is religious, while courts in Kansas have said that it is not. The Second Circuit Court of Appeals has determined that an atheist drunk driver’s constitutional rights were violated when he was forced to participate in A.A., described by the court as “religion-tinged,” as a condition of probation.

While the A.A. preamble states that the program is not religiously affiliated, its practices and “12 Steps” indicate that it might well be. For instance, the “Twelve Steps” reference “God” and a “Higher Power,” though they don’t reference organized religion. The so-called “Third Step” instructs that one has “[m]ade a decision to turn our will and our lives over to the care of God, as we understood him,” according to A.A.’s “Big Book.” Furthermore, A.A. meetings conclude by reciting the Lord’s Prayer, according to A.A. literature.

Prosecutors who request, and courts that impose, mandatory A.A. meetings as probationary conditions also completely ignore the plight of voluntary A.A. participants. It would seem that voluntary participation in such a program loses its meaning when persons are forced to attend as a form of punishment. It would also seem that voluntary participants might be less than comfortable sharing with forced participants.
As a practical matter, A.A. is free, whereas more secular alcohol education programs are not. Often, A.A. attendance is imposed as a condition of pre-trial probation in alcohol-related cases, and in such circumstances, it could be wise to accept such a condition. You should speak with an experienced criminal defense attorney about your options.

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