Articles Posted in 1st Offense OUI DUI

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82371497_4ca567f813_mAs a Massachusetts intoxicated driving defense lawyer, I’ve noticed a worrisome trend in law enforcement and government more broadly toward charging people with driving under the influence of alcohol when they haven’t even been driving. Here in Massachusetts, law enforcement considers it “operating the vehicle” when the keys are in the ignition, even if the “driver” hasn’t turned on the car, put it in gear or released the parking brake. More extreme examples include a case in Wisconsin, in which a woman was arrested for DUI when she wasn’t even driving, because a police officer who passed by her in a convenience store thought he noticed an “odor of intoxicants” coming from either her or her friend. In another example, Senator Chuck Schumer (D-NY) called for the widespread use of a technology that detects blood alcohol content and could alert law enforcement to arrest someone over the legal limit before they even drive.

Most people would agree that drunk driving is dangerous and prevention is a good idea. But from my perspective as a Massachusetts OUI criminal defense attorney, it’s also dangerous to arrest people on the assumption that they’re guilty until proven innocent. Yet that’s just what this trend of expanding the definition of drunk driving is moving toward. In doing so, it unfairly disrupts the lives of people who haven’t actually committed crimes.

In the Wisconsin example, Brittany Meye, 22, pulled into a gas station, where she and her passenger went into the convenience store. An officer watched her pull in, and when she and her friend passed by him, he said that he smelled intoxicants. He went to talk to Meye after she and her friend returned to their car, and arrested her for operating while intoxicated, second offense. Meye wisely moved to suppress evidence from the stop, since the officer had no reasonable suspicion for stopping her, and the Wisconsin Court of Appeals agreed, saying that no prior case involving drunk driving “has held that reasonable suspicion to seize a person on suspicion of drunk driving arises simply from smelling alcohol on a person who has alighted from a vehicle after it has stopped — and nothing else.”

Meanwhile, Senator Schumer is promoting a bill to fund research on alcohol detection devices that would use sensors in a vehicle’s steering wheel to measure blood alcohol content through a driver’s skin. I wrote about similar technology back in February. If the sensors determine that the driver was over the limit, the device will prevent the car from starting. Schumer said that it would be up to each state to decide whether to require the device in all new cars. As I noted in February, there would be a number of problems with widespread use of this device. For example, what if you’re the sober designated driver and your drunk passenger touches the steering wheel? Or, what if a driver is drunk but wears gloves when touching the steering wheel? Are all drivers going to be forbidden from wearing gloves so that their steering wheel sensors can be allowed to work? Would the sensors be set off if the driver had just used hand sanitizer or another grooming product made of alcohol? Worst, the sensors apparently could be used to inform law enforcement about the actions of people deemed over the limit if they touch the steering wheel but are prevented from driving.

As a Massachusetts drunk driving defense lawyer, I know all too well the terrible consequences that can ensue from accidents caused by drunk driving. I also know how disruptive it is to the life of an innocent person who has been charged unfairly with drunk driving. Being charged with a crime is embarrassing and stressful, but in addition, Massachusetts drivers can lose their driver’s licenses right away. This can cause very real problems at work and for meeting other obligations. That’s why, even though drunk driving is a serious problem, law enforcement owes drivers the courtesy of presuming they are innocent until proven guilty, just like any other criminal defendants.

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A Cambridge man, 47-year-old William J. Walker, faces OUI and other charges after allegedly nearly striking a police officer with his car just before Memorial Day weekend. Police said that Walker was driving his white 1997 Chevy Lumina up to the intersection of Brattle and Appleton streets in Cambridge, where a police officer was working a detail while wearing a bright green detail vest. The officer put up his hand to indicate that Walker should stop, but the Lumina didn’t stop until the officer yelled at him and jumped out of the way. Walker then allegedly slammed on the brakes and stopped.

The officer approached the car, asked Walker if he was okay and whether he was on any medications. Walker said he was not, and the officer noted that his face looked “droopy” and he had glassy, watery eyes. When a second officer arrived, he asked Walker to step out of the car, frisked him, and reportedly found many medications that Walker said belonged to his father. Walker later admitted to having taken a narcotic that day, and police had him perform field sobriety tests. They noted that his body trembled and swayed during the tests. Walker was charged with operating a motor vehicle while under the influence of alcohol, negligent operation of a motor vehicle, operating a motor vehicle with license restriction and possession of a Class B substance.

Read article: Cambridge man cuffed for almost running over cop

In my experience as a Massachusetts drunk driving defense attorney, police and prosecutors often don’t take kindly to a suspect who could have hurt one of their own. For that reason, I hope Walker gets experience representation to handle his OUI and other charges. The first police officer was undoubtedly shaken up by nearly being hit by Walker’s car, and it would not be surprising if his colleague who arrived later was also upset by the near-miss.

The article doesn’t note whether Walker was asked to take a breath or blood test. As a Massachusetts OUI defense lawyer, I would question the results of their field sobriety tests if these form the only basis for the intoxicated driving charge. These tests are notoriously subjective — they can be hard for some people to perform even if they aren’t intoxicated, and the results depend on the police officer’s personal interpretation of how the person being tested behaves. If Walker had any kind of medical or even emotional condition that could cause his body to tremble and sway when being questioned by the police, after nearly having an accident, that could have affected his performance in the field sobriety tests. As Walker’s case winds its way through the court system, his Massachusetts intoxicated driving defense attorney could argue persuasively for a dismissal of the charges or win a not-guilty verdict by challenging the field sobriety tests.

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Child_Car_SafetyAs a Massachusetts drunk driving defense attorney, I took note of a recent story about a Framingham man, Ronival Pires, charged with negligent endangerment of a child, driving under the influence of liquor and driving without a license. According to Boston’s Fox 25 News, someone at a Tedeschi’s convenience store in Framingham called police about a young child alone in a parked car. Police arrived and found the vehicle pulling out of the parking lot. They stopped the car and found Pires, age 30, driving with his two-year-old daughter in the back seat with no car seat, sitting next to a 30-pack of beer. Police administered several field sobriety tests to Pires, all of which he failed. He said he had not been drinking, but police noted a smell of alcohol on his breath. Pires was arrested and later was arraigned in Framingham District Court. He pled not guilty and was released without bail ahead of his scheduled July 9 pretrial conference. The daughter was released into her mother’s custody.

Read article: Framingham man charged with OUI, child endangerment.

From my experience as a Massachusetts intoxicated driving defense attorney, I know that people often get emotional when they are told that a child was endangered. This can cause problems for people who have been charged with OUI child endangerment, because juries may react to the child endangerment charge when deciding on the suspect’s guilt on other matters, like the OUI itself. This is why defendants like Pires should have an aggressive, experienced attorney to protect their rights in a court of law. An experienced attorney can move to exclude child endangerment charges and similar prejudicial matters from evidence.

In this case, a lawyer might also move to exclude any mention of the field sobriety tests, which are well known to be unreliable. In order to be admissible in court, field sobriety tests must be performed exactly according to the standards set out by Massachusetts case law and the National Highway Traffic Safety Administration. Even when they are, the tests are easy for stone-cold sober people to fail, making them an unfair basis for convicting someone of a crime. If these tests are the only charges against him, Pires may well be able to get the charges against him dismissed or to get a not-guilty verdict. But to get the best possible chance, he and others like him definitely need professional legal expertise to protect his rights.

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OperationSafeStreets3_lgIn my work as a Massachusetts drunk driving criminal defense attorney, I regularly counsel clients involved in DUI cases with multiple charges. A case involving an alleged illegal immigrant charged with drunkenly crashing his car into a state representative’s vehicle promises to be especially complex. The driver, Isaias Naranjo, 27, of Waltham, will not only have to defend himself against several serious charges stemming from the injury-causing accident, but will also have to deal with U.S. Immigration and Customs Enforcement (ICE).

The accident occurred at Birmingham Parkway and Lincoln Street in Brighton at 2:40 a.m. on May 20. Naranjo allegedly was driving around 60 mph when he rear-ended state Representative Michael Moran’s car and then got out of his car and ran away down Birmingham Parkway. A taxi driver witnessed the crash and chased after Naranjo in his cab, caught up with him and held him on the curb until police arrived. Naranjo was lying on the ground when police approached him, and they described his speech as “incoherent and slurred,” his eyes as extremely glassy and bloodshot, and his breath as smelling strongly of alcohol. He admitted to having consumed alcohol that evening, but said he didn’t know how much. He was unable to stand up for field sobriety tests, and blew a 0.25 BAC on a breathalyzer test. Boston EMS examined him and said he was fine.

Unfortunately, those in Rep. Moran’s car did not fare as well. State police escorted Rep. Moran to St. Elizabeth’s Medical Center, where he checked himself into the emergency room with unspecified injuries, and a passenger in Moran’s car went to Beth Israel Hospital in an ambulance because of abdominal and lower back pain. State police arrested Naranjo and charged him with leaving the scene of a motor vehicle accident with damage; a marked lanes violation; speeding; leaving the scene of a motor vehicle with personal injury; operating a motor vehicle while under the influence of alcohol causing serious injury; and unlicensed operation of a motor vehicle. In addition, ICE has filed a detainer on Naranjo, which means the agency believes he has violated an immigration law. The detainer allows ICE to pick him up to start deportation proceedings after he has served any sentence.

Read article: State rep’s car rear-ended by drunk driver

There have already been a lot of strong opinions expressed in the press about this incident because of the political figure involved and the immigration status of the defendant. In addition to an immigration attorney, I hope that Naranjo has an experienced Massachusetts OUI defense lawyer, because he is going to need all the help he can get to receive fair treatment under the law. Illegal immigration is a hot-button political issue, which could bias potential jurors against Naranjo, even though his OUI case is unrelated to his deportation case. An experienced attorney should move to keep that information from being admitted in the drunk driving case, giving Naranjo a better chance at a fair trial.

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2184957451_4749c220f0_mA Scituate teenager who crashed his car has been charged with driving under the influence, speeding, and other driving violations after attempting to escape from the police while they interviewed his passengers. The 17-year-old Scituate High School student’s name is being withheld because he is a minor. As a Massachusetts drunk driving defense lawyer, I am glad that no one was hurt in this incident,
Police said that the student’s 2006 Ford Focus totally blocked the intersection of Edith Holmes Drive and Tilden Road, although it was unclear what had led to the crash. Police arrived at the scene around 12:45 a.m. on April 29 and found four teenagers standing outside the car, each of them emitting “a strong odor of liquor.” A witness said that a fifth passenger had been involved and had fled the scene on foot, but police were unable to find him or her. The teens gave police “various names,” suggesting that they were lying about their identities initially, but police eventually ascertained their real names. Three of them had been listed as honor students in the local papers. A Breathalyzer test showed the driver’s blood alcohol content to be 0.16%, twice the legal limit for adults over 21 and eight times the limit for drivers under 21. That impairment measurement may help explain the driver’s unusual choice to get back in his car and try to drive away while police were questioning the three passengers. The driver told police, “I have to drive it home, there is something wrong with the front end,” according to the police report. The driver finally gave up and got out of the car “only after strong verbal language was used,” and the car was towed away. The driver is scheduled for a pre-trial conference in late May.

Read article: Scituate student faces drunk driving charge.

As a Massachusetts OUI criminal defense attorney, I’m sure the driver and his parents are dismayed at having to spend the spring and summer learning about how the Massachusetts court system works and the serious penalties for drunk driving. It would be wise for them to contact an experienced Massachusetts OUI defense lawyer to guide them through this difficult process. Massachusetts law treats minors differently from adults with respect to drunk driving charges, providing for a longer period of driver’s license suspension as well as a lower legal limit. The student and his parents may also be concerned about how this accident will affect his future. An attorney can help them work toward the best possible outcome for this student — a dismissal of the charges or a not guilty verdict, hopefully accompanied by a realization that drunk driving is a very serious charge.

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As a Boston drunk driving defense lawyer, I took note of a recent article in the MetroWest Daily News about an arrest warrant issued for a Framingham man charged with OUI. Elias Furtunato Dasilva, 29, did not show up for his arraignment on Tuesday, April 20, in connection with a hit-and-run car wreck that he allegedly caused the previous weekend.

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Dasilva was arrested on the night of Sunday, April 18, after police found him down the street from a three-car crash near Wildwood Steakhouse. According to a police report, Dasilva said that he had had three beers before getting behind the wheel of his car. He then allegedly crossed the double yellow line and hit an oncoming car. A third car was also involved in the crash. Dasilva said he ran away because he was scared, but when police found him he admitted to driving the errant car. He failed three sobriety tests, according to the police. A passenger in one of the cars was treated at Marlborough Hospital for serious injuries and released the next day. After posting $1,000 bail on Sunday night, Dasilva had been expected in Marlborough District Court on Tuesday to answer charges of driving without a license, leaving the scene of personal injury, operating under the influence and a marked lanes violation. Since he did not show up, the court issued an arrest warrant. A bail status hearing is scheduled for May 24.

Read article: Arrest warrant issued for Framingham man allegedly involved in hit-and-run.

As a Massachusetts OUI defense lawyer, I know that being involved in a car wreck and being charged with intoxicated driving is often frightening. But anyone charged with OUI is much better off engaging a Boston DUI defense attorney than leaving the scene of an accident and jumping bail. An experienced criminal defense lawyer can challenge the faulty field sobriety tests that police use as the basis for an OUI charge, for example, or challenge the validity of the original traffic stop and search. These and other defenses can lead to getting the case dismissed or winning a not-guilty verdict. The news report does not say whether the police used a breathalyzer as well as field sobriety tests, so it may be possible to call into question whether Dasilva was truly impaired. Three beers may or may not have rendered him legally impaired, with a 0.08% or higher blood-alcohol concentration.

By contrast, leaving the scene and skipping his bail puts Dasilva in a substantially worse position than he would otherwise have been in. If this was a first OUI, he could have been eligible for the 24D/alternative disposition program, which reduces the time when defendants lose a driver’s license and carries no possibility of jail. Leaving the scene and then failing to show up to court tells the court you are not responsible or remorseful, which substantially reduces your chances of getting alternative disposition or any other kind of lenient sentence. Of course, it also means more criminal charges. With jail time and hundreds of dollars in fees and fines on the line, it’s important to fight drunk driving charges the right way and with confidence, rather than compounding them with bad decisions made out of fear.

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According to the Quincy Patriot-Ledger, a Hull man has been sentenced to two years in Plymouth County jail and another four years of probation for a first OUI charge. Derrick D. Jones, 39, admitted that he was drunk when he drove his Chrysler 300 sedan at about 70 miles per hour the wrong way down Summer Street in Hingham on Feb. 19, 2009. Jones crashed head-on into the Toyota Sienna minivan of Courtney Palek, 30, of Hingham, and her three small children. The minivan ran off the road and Jones’s car rolled over onto its roof on the sidewalk. Luckily, everyone involved survived the crash with minimal injury, which police said was because they were all using seat belts or age-appropriate child car seats.

Read articles: Hull man gets 2 years for drunken driving crash in Hingham and Cops: Seat belts saved family in crash with alleged drunken driver

I took note of this article, as a Massachusetts drunk driving defense attorney, because a sentence of two years in jail and four years of probation seems quite harsh for a first-offense OUI, for which the maximum is 2.5 years. In fact, the article says that Jones was originally charged with second-offense OUI, but he agreed to a plea bargain in which he pleaded guilty to first offense drunken driving, driving negligently, speeding and failing to stay in marked lanes. Jones has a history of legal trouble in addition to the first OUI. He has served time in state prison for breaking and entering in the night and larceny, and he is currently awaiting disposition of similar charges in two recent incidents in Hull. In addition, he had been cited earlier on the day of the crash for failing to wear a seat belt while he was a passenger in someone else’s car.

The news reports do not say whether Jones was represented by a Massachusetts OUI defense attorney, but the stiff sentence Jones received in this case demonstrates how important it is to have expert legal representation if you’re in a situation like this. Of course, an experienced attorney can help clients like Jones defend themselves vigorously against the most recent charges, or if a plea bargain is offered, advise them on whether the bargain is fair and worthwhile. In addition, I suspect that Jones’s previous record played a part in the judge’s decision to hand down the unusually harsh sentence. If Jones had been able to defend himself successfully from his first OUI or the larceny and break-in charges, he may have been able to avoid having them on his record. That might have weighed in his favor during the sentencing for this incident.

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One young man from Norwell is dead and another faces prison after a bad drunk driving accident, the Quincy Patriot Ledger reported March 9. Ryan O’Donnell, 18, was killed in a rollover crash in Norwell March 7. He was a passenger in a vehicle driven by a friend and former classmate, William Ecclestone, also 18 and from Norwell. Ecclestone is accused of being intoxicated when he drove his car into a tree, causing it to roll over. Ecclestone suffered minor injuries and was able to leave the vehicle on his own, but O’Donnell died at the hospital of his injuries. Police say Ecclestone showed signs of intoxication and failed a sobriety test. He is charged with motor vehicle manslaughter, vehicular homicide by negligent driving, OUI, reckless driving, speeding and leaving a marked lane.

This terrible accident caught my attention, as a Massachusetts intoxicated driving defense attorney, because the crash was very serious, but also because the young men were friends who had graduated from the same small, close-knit high school. I was interested to see a related opinion piece written by another 2009 graduate of Norwell High School, Nicholas Russo, who is now at Lyndon State College in Vermont. Russo said the high school had staged a mock crash when they were seniors, which was “a carbon copy” of the one that took O’Donnell’s life. The students watched as firefighters worked to free students from the mock crash and took one away in a body bag, while the student’s father watched. Afterward, he said, students swore to an adviser that they couldn’t imagine driving drunk after seeing that.

Russo suspected at the time that this was not true — and less than a year later, he has some evidence that he was right. Too many people think it can’t happen to them, he wrote. He ended the article by asking readers to remember that there are permanent consequences to driving drunk.

As a Massachusetts OUI criminal defense lawyer, I’m afraid Russo is probably right. It doesn’t take a scientist to realize that people won’t stop doing something just because they know it’s not safe — for example, smoking. But there’s a second side to these mock crashes that students don’t see much of, and that’s the fact that drunk driving is a crime. Police officers may “arrest” the driver in the mock crash at the scene, but it’s difficult to drive home the seriousness of the consequences that driver would face. To do that, you have to think about the driver’s experience as he or she moves through the criminal justice system.

In the crash that killed O’Donnell, Ecclestone is facing multiple charges. A charge of felony motor vehicle homicide carries up to 15 years in prison, with a mandatory minimum of 1 year. A charge of vehicular manslaughter with OUI, which is less common, carries a mandatory minimum of five years and up to 20. A conviction may also mean driver’s license revocation for life. His future plans may grind to a halt at the age of 18. All of this is on top of living with the knowledge that his actions are responsible for his friend’s death. If you’re facing charges this serious, you need to speak to an experienced Massachusetts drunk driving defense lawyer right away.

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A driver from Everett faces criminal charges after crashing his van into a Red Line train in Cambridge early on Feb. 19. Jefferson Mondesir, 30, is accused of being intoxicated when he drove through a metal fence and into a commuter train around 12:30 a.m. Authorities say Mondesir was probably coming from Memorial Drive in Cambridge onto the Longfellow Bridge, which connects Boston and Cambridge over the Charles River. However, the Boston Globe reported, Mondesir lost control and went from the road part of the bridge into the railroad’s right-of-way.

No one was hurt, but all 50 passengers on the train were evacuated and escorted to the Charles/MGH train station. There, they and three other trains’ worth of passengers had to take buses, because the crash took out the rail’s electrical systems. MBTA crews worked steadily until 4:45 a.m. Feb. 19 to restore power in time for the trains’ daily start at 5 a.m. Mondesir was arraigned the same day on charges of operating under the influence, reckless operation, failure to yield or stop and failure to drive in marked lanes.

Read article: Man crashes vehicle into Red Line train

As a Massachusetts drunk driving criminal defense attorney, I’d like to know what evidence there is against Mondesir. The article doesn’t mention a test of his blood-alcohol concentration, but this is an essential piece of evidence in any OUI case. If there is no test, prosecutors can still charge him with operating under the influence, but they will have to prove that he was under the influence of alcohol or drugs at the time — which may not be easy to do. If there is a BAC test, any attorney Mondesir hires should scrutinize it carefully for technical problems or police mistakes with testing procedure and civil rights. In many cases, a mistake by officers administering the test can taint the evidence so badly that it can’t hold up in court. If that happens, an experienced Massachusetts OUI defense lawyer should immediately ask to have the tainted evidence thrown out of court, weakening the case against the driver. This may be especially important in this case, which may be locally famous because of the Red Line’s involvement.

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LeGrande.jpeg A Boston College Eagles player was arrested in New York for drunk driving and driving without a license. The Staten Island Advance reported Jan. 13 that Dominick LeGrande, 20, was arrested early on the morning of Jan. 10. LeGrande, a sophomore linebacker with the Eagles, was spotted by police at a bar in Stapleton, NY that police suspect serves underage patrons. After he got into his mother’s vehicle and drove away, police followed him and stopped him for a defective headlight. At the scene, officers noticed signs of intoxication from LeGrande. He admitted that he had been drinking, and a breath test showed a BAC of 0.164, just over twice the .08 legal limit. He was arraigned in the local criminal court for driving under the influence of alcohol and driving without a license, and released without bail until his April 1 court date. Neither BC nor LeGrande would comment.

Read article: Drunken, unlicensed driving rap for former star athlete at Island school

Because the incident took place in New York rather than Massachusetts, LeGrande will be tried under the laws of that state. But if a Massachusetts OUI criminal defense lawyer were handling a case like this, I believe he or she could mount a good defense. First, I would like to take a closer look at the legality of the original traffic stop. The article said police were staking out the bar where LeGrande was drinking because they suspect it serves minors. It also mentioned that LeGrande was driving his mother’s 2002-model vehicle. This suggests that the defective headlight that formed the basis of the traffic stop may have been an excuse rather than a serious concern. If the court finds the stop illegal, all of the evidence generated by that stop, including the breath test and LeGrande’s own statements, would have to be thrown out.

Even if this is not feasible, or the client prefers to plead guilty, that doesn’t mean he’d be harshly punished. In fact, I believe an experienced Massachusetts drunk driving criminal defense attorney could make a good case for the 24D program, were this a Massachusetts DUI case. LeGrande has no reported previous offenses, and there was no accident or injury in the case — not even property damage. Because of his status as a fairly high-profile athlete, he is likely to face a suspension for at least a game or two, regardless of what the courts do. He is also likely to be attacked in the press, making it tempting for authorities to “make an example” of him. However, too many criminal penalties could end his athletic career, even though a first drunk driving conviction is unfortunately a common mistake among college students. That makes it essential to avoid a first DUI conviction now, possibly by entering the 24D/alternative disposition program or pleading guilty to a lesser charge like reckless driving, if that state permits such a resolution.

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