Articles Posted in 1st Offense OUI DUI

Just a few days ago the Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Smeaton, SJC-11208 a matter occurring in the vicinity of the Smith College Campus in Northampton, Massachusetts. The Court found that in October of 2010 the defendant was driving on a public way. A Smith College police officer saw him operating recklessly on a road that intersects the campus. The officer effectuated a stop of the car. Local police arrived and arrested the defendant. He was charged criminally with OUI and Reckless Operation of a Motor Vehicle. The defense succeeded in getting the case dismissed prior to trial on a Motion to Suppress. It claimed that the campus police officer lacked the authority to make a stop off campus property. In allowing the motion the lower court judge found that the officer making the stop acted beyond the powers extended to special police (campus police) pursuant to Massachusetts General Laws Chapter 22C section 63. That law empowers campus police “to make arrests as regular police officers for any criminal offense committed in or upon lands or structures owned, used or occupied by such college, university, or other institution or hospital”. The prosecution appealed the decision.

Embracing established case law the Supreme Judicial Court stated that the authority of the campus police may in some instances extend “to the environs surrounding the campus when the ‘special vigilance of an officer might be required to keep the peace and preserve order amongst those frequenting [the campus and] those carrying persons to and from it.’ “. The Court interpreted the word “used…by [the] college” in G.L. c. 22C Sec. 63 not to be exclusive. Rather, if the school used a road as it did in this case, such use would sufficiently satisfy the statute. The Court also held that even if the road failed to satisfy the term “used” the stop was lawful as the criminal activity occurred “within the environs” of Smith College. Accordingly, the Supreme Judicial Court reversed the order suppressing the stop and remanded the case to the district court.

This decision goes on to state that the word “environs” will vary from school to school. As a Massachusetts Criminal Defense Lawyer that suggests that it remains potentially beneficial to litigate this issue in all Massachusetts Criminal Cases. There are other issues to scrutinize when campus police makes stops as well. Does the school “use” the property where the stop was made in the legal sense? Was “special vigilance” required in the context of this case. The issue of extraterritorial stops does come up frequently in criminal matters in Massachusetts. It is something that lawyers often neglect to litigate, usually because they do not know the law. This is another reason why your selection of a criminal defense attorney is extremely important. Cases can be won on this issue.

Continue reading →

According to reports in several media outlets New England Patriots starting defensive back Alfonzo Dennard was arrested earlier today. He is being charged with Drunk Driving or OUI as it is known in Massachusetts. The Motor Vehicle stop occurred just prior to 2:00 a.m. The police making the stop observed Dennard’s car “straddling lane lines”. He further reported that Dennard “emitted an odor of alcohol and displayed signs of impairment”. Dennard then took Field Sobriety Tests and refused a Breathalyzer Test.

This incident is not Dennard’s first brush with the law. He was convicted of Assault and Battery on a Police Officer stemming from a 2012 incident outside of a bar. Dennard is on two years probation for that case and has a thirty day jail sentence stayed until March of 2014 at which time it may be reconsidered.

Read Article:

Massachusetts OUI defense law firm

Probation Violation Defense Attorney in Massachusetts

Not knowing much about Nebraska state law, the jurisdiction in which this case is pending I can tell you what could happen to Dennard were he in Massachusetts. First is the OUI case. The excerpts from this police report are no different from the vast majority of reports we see in Massachusetts. The substance of these reports is as follows: The officer will report some sort of erratic driving. He will claim to have followed the car for a certain distance while observing several Motor Vehicle violations. He was then stop the driver. Upon his approach to the vehicle he will detect a strong odor of an alcoholic beverage coming from the interior of the car. He will then comment to the driver on the reason he pulled him or her over. The driver will respond with thick, slurred speech. The officer will ask the operator for a license and registration. The suspect will fumble with papers in the glove box and wallet prior to producing the license and registration. The officer will then ask if the operator had been drinking. The response will be “I had a couple of beers”. The officer will then ask the operator to get out of the vehicle and to perform some Field Sobriety Tests. There will be three tests. The alphabet test, starting in the middle of the alphabet. The driver will mess up a few of the letters. Next will be the heel to toe test. The subject will not follow the instructions properly. He or she will use arms for balance and turn around at nine steps rather than ten. Last will be the one legged stand test. The defendant will be able to hold it for a count of 6 only. The officer will then form the opinion that the suspect is under the influence and he will be arrested.

I have read hundreds of these reports. They are virtually identical. I have wondered why local public defender’s offices do not keep files of these reports catalogued by officer’s last name. I can assure you that if officer “Jones” has made one hundred OUI arrests ninety five of these reports will be troublingly similar. At least on the surface Mr. Dennard’s arrest report seems to follow this pattern. His bigger problem might be the Probation Violation matter. In Massachusetts someone can be found in violation of probation without a conviction on the new case. He can then be sentenced to the maximum sentence allowed by statute on that case.

Continue reading →

Lon Fuller, a legal philosopher and law professor, was known for, among other things, his careful analyses of legal fictions, which are basically assumptions in the law that something false is true. Fuller once identified the following three legal fictions surrounding the crime of drunk driving: (1) the assumption about risk that allows attribution of blameworthiness to drunk drivers; (2) use of a fixed BAC to prove drunk driving; and (3) the potential fiction that alcohol use is the cause of death or injuries in alcohol-related car accidents. As a Massachusetts drunk driving attorney, Fuller’s insights are interesting to consider, as they undermine the logical basis of drunk driving legislation and the justice of OUI prosecutions and convictions. It is also important to consider these legal fictions from a policy perspective, as government resources are wasted on prosecution and punishment when drunk-driving laws are based on fallacy.

First, Fuller explored the fiction of risk. Under this idea, a drunk driver is culpable because he engaged in very risky behavior and violated his duty of care to other people. Fuller notes that the concept of “duty” is so indefinite that we don’t have any way to test the reality of a “duty” besides looking to courts to define its existence. In that way, because there is no way to test the reality of a duty, a duty in itself cannot be a fiction. However, according to Fuller, legal relations become fictions when they are linked to extra-legal inaccuracies. In the context of drunk driving, the risk is linked to group statistics about drunk driving in the aggregate as opposed to any information relative to the risk created by the individual OUI defendant. Using a collective group to assess the risk created by an individual is a fallacy and is at odds with criminal theories of culpability. This fiction relieves the government from proving something that might not exist at all: an ignored and substantial risk.

Next, Fuller addressed the fiction of per se BAC. Statutes that define operating under the influence in BAC terms are conclusive presumptions, which Fuller said are necessarily fictions. Certainty is attached to something that does not deserve certainty, and the government evades having to prove that a person was actually drunk. Per se BACs also assume another thing that is false: that people are able to self-monitor their blood alcohol concentration. While per se BACs are constitutional, that does not cure the fact that they are not quite logical.

Finally, Fuller addressed the product of the first two fictions, the fictitious imputation of legal cause. If the first two fictions are accepted, that a person with a certain BAC is drunk and that the person’s drunk driving created a serious risk, then deaths or injuries in drunk-driving accidents can be viewed as foreseeable. Using this fiction, two persons involved in accidents, one with a BAC under the limit and one with a BAC over the limit, can be treated very differently despite the fact that they exhibited identical driving behavior.

Use of these fictions in the context of OUI / DUI / DWI, largely for the sake of efficiency, does not serve anyone. It prevents the government from addressing the real social problem. It also results in individual OUI defendants being treated as one-dimensional and forces them to share responsibility with a collective group.

Continue reading →

The New York Police Department is going to start using the word “collision” instead of the word “accident” to describe drunk-driving crashes, a move which the New York Times described as a “symbolic semantic change” that has long been requested by OUI victims. A police commissioner explained that the term “accident” inaccurately suggests that there is no fault associated with the event. The department has changed the name of its “Accident Investigation Squad” to the “Collision Investigation Squad.” An anti-DUI group tweeted on March 12, “NYPD agrees that drunk driving crashes aren’t accidents.”

I’m not sure that the difference between “collision” and “accident” is as significant as the Times and the NYPD seem to think, though it does raise an interesting issue of police use of language, including euphemisms and reverse euphemisms, in the context of operating under the influence and other Massachusetts criminal offenses. Euphemisms are a form of “doublespeak.” “Doublespeak” is language that doesn’t really communicate anything, even though it pretends to. Euphemisms, nice words used to hide an unpleasant reality, are “doublespeak” when used to deceive.

In the context of law enforcement, one common example would be use of the word “pacify.” An officer might report that he “pacified” an unruly drunk driver. What that officer might really mean is that he used force, possibly excessive force, against the suspect. The phrase “gained access” is also an example. Police might say that they “gained access” to a residence or a vehicle. One is left to wonder the manner in which they “gained” such “access.” Did they jimmy a lock? Did the police break down the door to “gain access”? Another example is the word “removed.” “Removing” a defendant from a car might be a nice way of saying “pulled him out of the car and threw him on the ground.” It is no secret that police sometimes use this kind of language to obscure arguably unlawful tactics.

While police tend to use nice words to describe or disguise their own conduct in reports, the opposite is true in their description of OUI defendants. When police report that a defendant “stumbled,” it might really mean that the defendant tripped over a crack in the pavement while it was dark outside. When police say that a defendant was “lethargic,” that might mean that it took the defendant a minute or two to locate his registration. When police report that a defendant “failed to follow directions,” it might mean that the defendant simply asked the officer a legitimate question. Police generally use these and other terms, including “unsteadiness on feet,” “slurred speech,” and “watery or bloodshot eyes” in providing canned descriptions of those accused of driving under the influence in Massachusetts and elsewhere.

Continue reading →

An Irish council passed a motion in January to permit rural drinkers to drive home on certain isolated backroads and at a restricted speed. The County Kerry Council voted 5-3, with seven members abstaining and 12 absent, to issue permits allowing those who have “two or three” drinks at pubs to drive home. This is a proposal, not a law, and the council will have to petition Justice Minister Alan Shatter before issuing the permits.

While many have criticized the motion, one councilor explained that it is designed to curb depression and suicide, particularly among the elderly, resulting from deprivation of the sense of community enjoyed in the local pubs. “A lot of these people are living in isolated rural areas where there’s no public transport of any kind, and they end up at home looking at the four walls, night in and night out, because they don’t want to take the risk of losing their license…The only outlet they have then is to take home a bottle of whiskey, and they’re falling into depression, and suicide for some of them is the sad way out,” the councilor said.

Those who have been quick to judge and those who have resorted to “Irish-as-drunks” stereotyping fail to take this into proper perspective. The legal BAC in Ireland is 0.05, according to drinkdriving.org, as compared to the 0.08 limit in Massachusetts and every other state. Obviously, the number of drinks it takes to exceed the legal limit is variable, depending on many factors including body weight, the type of drink consumed, timing, diet, and more. Still, many here in Massachusetts and elsewhere in the United States readily get behind the wheel, whether in poor judgment or not, after having “two or three drinks,” thinking that they are not legally drunk by our 0.08 standard. This rural Irish county’s move to make driving after “two or three drinks” permissible is essentially just an attempt to codify what many or most in our country assume, mistakenly or not, to be okay.

This story also raises the issue of public transportation as it relates to operating under the influence. Efforts against drunk driving have focused almost entirely on increasing drunk-driving penalties, and this approach has not been effective. Legislators and organizations that lobby against drunk driving have failed to consider that increased access to public transportation and cab services in suburban and rural communities would likely decrease drunk driving, perhaps significantly. These groups have also failed to consider that less restrictive zoning might decrease Massachusetts OUI. It seems that there would probably be less drunk driving if residents of suburban and rural communities could walk to a neighborhood bar. Maybe it’s time to think outside the box and evolve from the tired and unsuccessful focus on harsher penalties.

Continue reading →

“Controversial New Group: Drunk Drivers Against Mothers,” an article by Tom McCaffrey published in the Huffington Post comedy section, is about a fictional group of 6th-year college fraternity brothers establishing DDAM while playing beer pong and watching Cinemax pornography. The group, enraged by their mothers’ concerns with their drunk-driving habits, holds nightly meetings to drink and complain about their mothers and mothers in general.

“Moms are total buzz kills these days. All they do is bitch and whine about dudes who like to party. It’s always, ‘Don’t drive drunk or you shouldn’t fight the police or you got my daughter pregnant!’ It’s like chill out,” one of McCaffrey’s fictional DDAM leaders said. “My mom is always like ‘I can’t believe you got drunk and then drove our new car into a lake again!’ I’m like f*** you! I like to party! You’re just mad because you can’t party as hard as me!,”
While the DDAM story is satire, it’s interesting that real life anti-drunk driving campaign advertisements, designed to be serious, regularly feature these same stereotypes of a stupid, immature male drunk driver and a “buzz kill,” motherly female. Some examples these public service announcements can be viewed here:

https://www.youtube.com/watch?v=P-b7rYgzzpM&feature=player_embedded

One might wonder about the extent to which these stereotypes shape the views of the public, and therefore the views of jurors, judges and prosecutors in OUI cases. For instance, which way could the fact that males are generally portrayed as infantile in PSAs cut? On one hand, it might make male, particularly young male, defendants more sympathetic to some based on the idea that they “just don’t know any better.” The reverse could be true where an accused is female, the sex commonly depicted in PSAs as being more responsible and “knowing better” than to drive drunk or to let others do so. On the other hand, the portrayal of males in PSAs as reckless might cause some to think them more culpable.

It could be that these campaigns are using the female mother figure as the voice of reason discouraging OUI because people tend to respect their mothers and listen to their advice. According to the Oct. 10 CNN article “What sways teens not to drink, drive?,” parents are (not surprisingly) among the most powerful influences affecting teenage drunk-driving and drinking .

While not reflected in most anti-drunk driving PSAs, persons from all walks of life, from soccer moms to frat guys and everyone outside and in between, find themselves charged with OUI/DUI/DWI. While very few drunk-driving PSAs feature a female drunk-driver, the number of female OUI arrests has increased dramatically since the 1980s. In the past decade, female drunk-driving arrests have increased by almost 30 percent. Male drunk-driving arrests have decreased in recent years.

Continue reading →