Articles Posted in 1st Offense OUI DUI

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On May 24, 2011, the Court of Appeals decided Commonwealth v. Virgilio, holding that a paved driveway between two houses that neither contained nor led to businesses or public accommodations was, as a matter of law, not a way or place to which the public had access as invitees or licensees within the meaning of Massachusetts OUI statutory language.

In order to be convicted of operating under the influence, the government is required to prove that a defendant was operating on a public way, in a place where the public has a right of access, or in a place where members of the public have access as licensees or invitees. In Virgilio, the Appeals Court explained that in determining whether a private way is covered by the statute, the way’s physical characteristics and circumstances are to be assessed. The court is to determine whether members of the public would reasonably think that the way is open to invitees or licensees. The objective appearance of the way, and not the intent of the owner of the property, is controlling. Things like curbs and street lights are some characteristics that may indicate that a way is accessible to the public. However, the court acknowledged that these characteristics are not dispositive because public roads in rural areas often lack them.

The court decided that the private driveway in Virgilio was not a way or a place to which the public had access as licensees or invitees, even though it was not gated, because it only served two residential buildings and did not lead to any public businesses. To conclude otherwise, the court noted, would be to render the word “public” superfluous and depart from the legislative intent of the statute.

The dissent was of the opinion that the driveway did fall within the meaning of the statute, focusing the analysis on the probable and foreseeable “aggregation of persons.” The dissenting judge noted that a drunk driver could be expected to encounter both residents and visitors in the driveway, given its common character.

Read Full Text Of Opinion:

Commonwealth v. Virgilio

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On May 10, 2011, United States Senator Charles E. Schumer, a New York Democrat, pressed Google, Inc. and Apple, Inc. to remove smartphone applications that warn users of DUI checkpoints. Using GPS capabilities, these applications also alert users to red light cameras and speed traps.

Schumer questioned the companies’ executives at the inaugural hearing of the Privacy and Technology Subcommittee of the Senate Judiciary as to whether the apps facilitate illegal activity, thereby violating terms of service. The apps “endanger public safety by allowing drunk drivers to avoid police checkpoints,” Schumer said, according to PCWorld blog. “Apple and Google shouldn’t be in the business of selling apps that help drunk drivers evade the police, and they shouldn’t be selling apps that they themselves admit are ‘terrible,'” he said, according to a press release from schumer.senate.gov. Schumer used “Buzzed” and “Fuzz Alert” as examples of apps that should be removed from application stores. Executives from the companies will report to Congress within a month as to whether the apps violate the terms of service.

Research In Motion (RIM), Blackberry’s application maker, has removed the apps in response to a March letter from Schumer and Senators Harry Reid (D-NV), Frank Lautenberg (D-NJ), and Tom Udall (D-NM).

“If people are going to use those (apps), what other purpose are they going to use them for except to drink and drive?” one police officer said, according to a press release from schumer.senate.gov. In fact, however, these apps offer various services that may prevent drunk driving. For example, “Buzzed” offers a feature that allows users to call cabs based on users’ GPS locations. Another such app, Trapster, provides drunk driving “Frequently Asked Questions” that warn users against driving under the influence.

The wisdom of the policy behind this movement is questionable at best. Many, including many of those in law enforcement, believe that awareness of police presence deters drunk driving. Without that awareness, some may actually be more inclined to drink and drive. In line with this reasoning, many police departments across the country announce the locations of DUI checkpoints or announce checkpoint plans without disclosing the location. Additionally, it is doubtful that removing these apps will prevent information regarding DUI checkpoints from getting out to the public, given the fact that concerned persons can always check the Internet.

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It’s no secret that police often write OUI police reports generically, using a laundry list of common OUI symptoms relating to physical appearance, driving, and field sobriety testing. Sometimes these reports are essentially templates in which a select few facts are unique to the defendant. The fictional on-size-fits-all OUI suspect almost always has the same characteristics: “a strong odor of alcohol,” “red watery eyes,” “slurred speech,” an “unsteady gait,” etc.

Obviously then, it is not unusual for these reports to contain false information and exaggerations. Because of this, booking videos and in-car cruiser camera videos can be an invaluable source of exculpatory evidence.

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Booking and cruiser videos can be extremely useful for a variety of reasons. They can reveal that you were not as drunk as the police said you were or otherwise undercut the officer’s version of the facts. They can expose flaws in your arrest experience and the administration of field sobriety tests and breathalyzers.

During the booking process, the booking officer asks a series of background questions. The suspect will be fingerprinted, and a photograph will be taken. As such, booking videos often reveal a respectful and perhaps frightened and confused person with whom a jury could readily sympathize.

As many Massachusetts police departments are now using video cameras and taping these events, it is critical for an attorney to determine whether video evidence is available and carefully review all video evidence. Under the Massachusetts Rules of Criminal Procedure, exculpatory videos must be automatically produced. Some prosecutors, however, may not realize their duty to produce booking tapes, so it is important to have an attorney who will ensure that these videos are preserved and produced.

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State Senator Robert Hedlund, a Weymouth Republican, has filed a bill designed to strengthen Melanie’s Law by requiring ignition interlock devices for six months after a first drunk driving offense. In an effort to close “loopholes,” his bill would also prohibit bundling (punishing two or more concurrent drunk driving offenses as one).

The National Transportation Safety Board (NTSB) has rated Massachusetts, which has adopted 4 of its 11 federal drunk driving recommendations, as being among the worst in the country when it comes to tough drunk driving policy. Some of the NTSB’s recommendations include a zero BAC limit for repeat offenders, impromptu alcohol screening for offenders, and a prohibition on plea bargaining. Even Senator Hedlund admitted to the Boston Herald that “some of the criteria that the NTSB looked at, might venture into areas related to civil liberties.”

It is well known that, time and again, lawmakers are influenced by the emotional pull surrounding strict OUI/DUI/drunk driving laws, and as a result, our constitutional protections are watered down. As Representative Eugene O’Flaherty, a Chelsea Democrat and House chairman on the judiciary committee, said to the Boston Globe, “The challenge is always how do you make sure that public safety is being enhanced while at the same time making sure that case law and constitutional safeguards are also protected.”
Of course, experienced Massachusetts OUI/DUI/drunk driving attorneys are always quickly alerted to any possible intrusions into these constitutional safeguards. Perhaps that is why Senator Hedlund blames the group of legislators who also work as criminal defense lawyers for rejecting measures to expand Melanie’s Law, which is already one of the most restrictive drunk driving laws in the country, in previous sessions.

To read more, see:

http://www.bostonherald.com/news/regional/view.bg?articleid=1315715&srvc=rss
http://www.boston.com/news/local/massachusetts/articles/2010/11/17/us_says_mass_lags_on_measures_to_deter_repeat_drunken_driving/?page=2

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In Massachusetts and many other states, individuals can be punished when, after realizing their inability to drive safely, they voluntarily pull over to sleep it off. Whether this is in the interest of public policy is highly debatable. The reasoning is that drivers who are questioning their own sobriety should not be encouraged to test their uncertainties on the roads. One the other hand, this rule is problematic and may actually encourage drunk driving.

Drivers who become aware that they are impaired might be more likely to keep driving, rather than pull over, in order to avoid potential legal consequences. They may prefer the risks of driving while impaired to the risk of law enforcement discovering them parked on the side of the road drunk or asleep.

The counter-argument is that people who have been drinking shouldn’t get behind the wheel in the first place, and that is what drunk-driving/OUI/DUI laws are designed to discourage. This is basically an all or nothing approach, and in that way it is overly idealistic. No matter what the drunk-driving laws may be, the reality is that some people will probably still continue to drive after drinking when they feel that they are sober enough to do so. It seems that if one determines at some point that he/she is not able to drive safely, there should be no question that pulling over is the best course of action, but this rule can cloud that in the minds of some individuals.

Under Massachusetts law, “operating” under the influence basically means setting the power of the vehicle in motion. You can be convicted even if you simply put the key in the ignition. In addition, when police approach a car that is pulled over on the side of the road or in a breakdown lane, the encounter may not even be considered a seizure for Fourth Amendment purposes as long as the “well-being check” is reasonable and there is an objective basis for the officer to believe that a person might be in trouble. As a Massachusetts drunk-driving attorney, I can protect your rights and combat these difficult charges.

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Back in August, I wrote about the arrest of former Big Dig chief Matthew Amorello for operating under the influence of alcohol. Amorello is a former chief of the Massachusetts Turnpike Authority, but best known for resigning his post after part of the Ted Williams Tunnel collapsed during the Big Dig, killing a woman. He reentered the news this summer when he was arrested for operating under the influence and leaving the scene of an accident. According to reports, Amorello crashed his SUV into two parked cars in Haverhill, then drove away even though he’d lost one wheel. Authorities found his Ford Explorer parked at a Mercedes dealership with him unconscious inside. Reports in following days noted that he missed a court date because he was hospitalized.

The Boston Globe reported Nov. 30 that Amorello has arranged a kind of plea deal with the Haverhill District Court. Amorello admitted to sufficient facts to prove the OUI and leaving the scene charges, which is not quite the same as a guilty plea. Rather, it means he admits that a jury would have the facts necessary to convict him if his case went to trial. The judge in the case continued his case without a finding for a year. If Amorello can stay out of trouble for that year, the case will be dismissed.

Read article: Ex-Mass. Pike chief admits drunken driving

I’d like to discuss Amorello’s sufficient facts plea, because it’s part of my set of tools as a Massachusetts drunk driving criminal defense lawyer. Admitting sufficient facts is a lot like a guilty plea, but it could be slightly better for someone in a public service position like Amorello used to hold. A plea of sufficient facts shows up on your Massachusetts driving record just like a conviction would. However, it does not show up on a background check by any agency other than a law enforcement agency. This would allow Amorello to plead guilty and serve the sorts of penalties that a guilty plea creates, but maintain his ability to truthfully answer “no” when asked if he was ever convicted of a crime. The incident will not show up when potential employers, landlords and other non-police organizations check for a criminal background.

Often, people who admit to sufficient facts are first OUI offenders who end up sentenced to alternative disposition. As a Massachusetts OUI criminal defense attorney, I prefer this for all of my clients who are not fighting the charges, because the penalties are better for the client. Alternative disposition calls for up to two years of probation, not jail; loss of your driver’s license for 45 days, not 90 days to a year; and lower fines. That isn’t to say that alternative disposition is a light penalty or fun for the driver. For one thing, any mistake that violates probation could cancel the deal and force a guilty plea. But for drivers whose best strategy is a guilty plea, admitting sufficient facts and serving probation successfully can help them admit their mistakes and pay the penalties without allowing those mistakes to haunt them for the rest of their lives.

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455719902_f0c868b3c0_mA recent article in the Boston Globe got my attention as a Massachusetts OUI criminal defense attorney. Massachusetts legislators are reportedly considering several changes to Melanie’s Law, the 2005 law that was intended to toughen penalties for drunk drivers. Legislators have proposed several ways to toughen those penalties even further, including a proposal to add ignition interlock devices to the vehicles of people convicted of one intoxicated driving offense. Ignition interlock devices are essentially breathalyzer tests attached to the vehicle’s ignition, which require drivers to pass a breath test before the car will start. Currently they are required by Melanie’s Law when drivers have their licenses reinstated after two or more OUI convictions. The bill was introduced by state Sen. Robert Hedlund, R-Weymouth, who also suggested eliminating concurrent sentences and “bundling” of charges for repeat offenders.

Read article: Bill targets Melanie’s Law loophole

It’s not at all clear whether the bill will eventually pass; the Globe noted elsewhere that it won’t pass during this session. But as a Massachusetts drunk driving criminal defense lawyer, I hope lawmakers who do eventually consider it will think carefully about whether it’s a good idea to require breath tests for anyone convicted of drunk driving. Even drivers with clean records may feel uncomfortable about how invasive the devices are. But even if that’s not an issue for most people, there are also serious concerns about their safety and effectiveness. Conventional breathalyzers require drivers to retest every 20 minutes, which means retesting while driving. That requires drivers to either pull over or take the breath test while their eyes are supposed to be on the road. If the device decides the driver is drunk while the car is already moving, the car could come to a halt with little warning. If drivers don’t take the test quickly enough, the car will also stop in the middle of the road.

Perhaps more importantly, there is also controversy over whether ignition interlock devices do the job they’re intended to do: keep drunk drivers off the road. It’s illegal to take the breath test in someone else’s vehicle, but the technology can’t actually stop this. Nor can it stop people without the devices from simply lending the driver their vehicles (also a crime). And ignition interlock devices have many of the same problems facing police breathalyzers and alcohol-detecting ankle bracelets such as the one famously worn by Lindsay Lohan. These devices detect alcohol in the mouth rather than the bloodstream, including alcohol-containing products like mouthwash. In some cases, they have even been triggered by yeast-raised bread! There may also be problems with how sensitive they are. For example, would a legal and, for many people, harmless 0.02 BAC shut the car down, or would the device consistently detect BACs over the legal limit? As a Massachusetts intoxicated driving criminal defense attorney, I would prefer that lawmakers address these issues before mandating the devices.

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5104522725_6b0d954f80_mProspective employers, dates, coworkers and friends can find information about most of us online. Unfortunately, that can include news reports about our misdeeds and mistakes. A number of candidates who ran for office this year have learned this the hard way, from Delaware Senate candidate Christine O’Donnell’s claims to have been involved with witchcraft to Massachusetts Republican Jon Golnik’s OUI arrest in 2001. As a Massachusetts OUI defense lawyer, I think it’s important for everyone to realize that any admissions they make if they ever face a drunk driving charge can follow them for a long time. That’s why it’s important to know your rights, including what you are and are not required to say or do when you interact with the police.

Jon Golnik was arrested for OUI drugs and alcohol in 2001, and he continued to have to answer questions about it nearly a decade later, since he ran for the Massachusetts Fifth Congressional District seat in the U.S. House of Representatives. Golnik, now 45, had attended an AC/DC concert at the FleetCenter in Boston, and police found him shirtless and slurring his speech. The police report from this incident says Golnik told the police he had four beers, and admitted that this impeded his ability to drive safely. He was also driving on a flat tire. He has denied smoking marijuana, which he was charged with, but he admitted to having drunk alcohol before driving. While the marijuana charge was dismissed, his license was suspended.

Read article: Step carefully, dirty laundry defining candidates

As I’ve written here before, if the police pull you over on suspicion of drunk driving, they already think you’re guilty. During the traffic stop, they are looking for evidence to include in the police report, which can be used against you at trial. That’s why it’s important to politely refuse to answer police officers’ questions about whether you have been drinking — and never, ever volunteer that kind of information. Instead, consider saying that you need to speak to your attorney, and then actually speak to an attorney as soon as you can. If you can keep incriminating statements like the one Golnik made out of the police report and out of public record, your attorney stands a much better chance of helping you get the charges dismissed or a not-guilty verdict.

As a Massachusetts drunk driving defense attorney, I can tell you that avoiding an OUI conviction is important for a lot of reasons. Obviously, you don’t have to worry about jail time or the steep fines and fees that go with a conviction, but you also don’t have to worry about your auto insurance rates skyrocketing or having to disclose a conviction on job applications. Unfortunately, since most police reports are public records, information about an OUI arrest could still become public even if the charges are dismissed or if you’re found not guilty. But if you have avoided incriminating yourself by admitting to drinking and driving, you can much more persuasively explain your drunk driving arrest to anyone who asks as a simple mistake by the police.

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A series of articles and videos in the Quincy Patriot-Ledger about a rise in the number of women being convicted of drunk driving caught my eye recently. The videos describe the struggles of two women to put their lives back together after their drunk driving arrests. As a Massachusetts drunk driving criminal defense attorney, it’s my view that these women’s stories demonstrate how important it is for all drivers to use good judgment before getting behind the wheel — and also, how important it is to make sure that you have expert legal counsel if you get into trouble. It’s hard enough to handle the psychological and physical consequences of alcohol abuse without adding legal troubles to the mix.

It’s not clear why, but the Patriot-Ledger reported that as nationwide drunk driving arrests for men fell over 8 percent from 1999 to 2009, they shot up by nearly 42 percent for women. In Massachusetts, over 30 percent more women were arrested for OUI in 2009 than in 1999. Sarah Allen Benton, a mental health counselor, suggests that it may have to do with police having decided not to go easy on women drivers. In the past, police may have felt more sympathetic toward and protective of women drivers, she suggests — but not anymore.Two women profiled in the Quincy Patriot-Ledger’s articles and videos said that their OUI arrests forced them to get help for their alcohol problems and get their lives together.

One in 12 American adults abuses alcohol or is alcohol-dependent, according to the National Institute on Alcohol Abuse and Alcoholism. Alcohol problems can develop over the course of decades, starting in adolescence, before anything serious enough to involve legal consequences happens. By that point, a chronic alcoholic may need serious medical and psychological treatment to manage the damage that has been done. Unfortunately, the legal penalties for drunk driving don’t necessarily mandate such treatment, even though it would go a long way toward making sure that such dangerous behavior doesn’t happen again. For a first-offense OUI, the alternative “24D” disposition sentence includes an alcohol education program. But otherwise, the offenders are on their own to solve any problems they have with alcohol.

Anyone charged with OUI should immediately contact a Massachusetts OUI defense attorney to help them maintain all their personal and legal options. If you have been charged with OUI, with the help of a Massachusetts intoxicated driving defense lawyer, your case is much more likely to win a dismissal of charges or a not-guilty verdict. Then, if you are dealing with the psychological and physical effects of alcohol dependence, you can get help for it without also losing your freedom, your job, and your driver’s license.

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60444366_5a37e5396b_mThose of us who followed the progress of the Big Dig remember well the name Matthew Amorello, the former chair of the Massachusetts Turnpike Authority who oversaw the massive construction project for four years. Amorello resigned from that post after a woman was killed when part of the roof of the Ted Williams Tunnel collapsed on her car. Now, Amorello faces charges for OUI and leaving the scene of an accident with property damage. Many Massachusetts residents don’t think fondly of Amorello, since he’s been associated in the public mind with the sky-high cost overruns, scandal, and tragedy of the Big Dig. But as a Massachusetts drunk driving defense attorney, I think it’s important to point out that like anyone else facing charges, Amorello is innocent until proven guilty, and he’s entitled to defend himself against the charges just like anyone else.

Amorello, 52, of Wenham, was arrested after allegedly hitting a 1999 Saab and a 2005 Dodge Magnum with his 1999 Ford Explorer. Haverhill police found Amorello in his Explorer, minus one wheel, in the parking lot of a Mercedes dealership. A Haverhill police officer said, “He was really out of it, and he didn’t know where he was.” Additional details about the arrest, like how the police determined that Amorello was intoxicated, were not available. Leanor Santos saw Amorello’s car hit hers. “All you could see was flames from the car as he was driving away,” she said. Amorello posted $40 bail and was scheduled to be arraigned at Haverhill District Court on August 9. However, he missed the court date because he was hospitalized at UMass Memorial Medical Center, his attorney told the judge. The article did not say why Amorello was hospitalized, but the attorney noted that Amorello was apparently unconscious when arrested.

Read article: Amorello arrested for OUI, property damage

It’s always a challenge for people charged with OUI to ensure that their rights are respected as they go through the legal process. It can be even more challenging for public figures who are associated with controversial issues unrelated to their OUI charges. As the Boston Herald reported, not only was Amorello in charge of the Mass Turnpike Authority during the fatal tunnel collapse, but prior to his resignation, he changed his department’s policy on sick leave so that when he left, he could receive $75,000 as compensation for his accrued but unused sick time. For that, he was fined $2,000 by the state ethics department. There’s no question that this raises serious ethical questions, but it’s important for the law to deal with Amorello’s alleged drunk driving and leaving the scene charges on their own, not in the context of unrelated accusations against him.

In my experience as a Massachusetts OUI criminal defense lawyer, people in Amorello’s position fare best when they work with a well-trained attorney who can ensure that their public image is kept separate from the charges that they actually face. There has already been some particularly nasty commentary about Amorello in the press, and his family has said that public criticism stemming from the Big Dig controversies has led to his personal struggles. Under these circumstances, it would not be a surprise if Amorello is feeling even more upset and unsettled than another person charged with OUI would be. That’s exactly why it’s best to hire a Massachusetts intoxicated driving defense attorney who can handle the case carefully. This can mean making sure that the arresting officer followed the law to the letter, that all the defendant’s rights are preserved, and that the outcome of the defense is as favorable as possible — either a dismissal of charges or a not guilty verdict.

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