Articles Posted in 1st Offense OUI DUI

Published on:

By

Former NFL defensive lineman Bruce Smith was convicted of DUI and the charge of refusing to take a breathalyzer test by a Virginia Beach judge. As a result Smith was given a ninety day suspended sentence. He will also lose his license for twelve months. During the trial Smith claimed that he had difficulty taking and adequately performing the field sobriety tests due to a list of injuries he suffered during his NFL career. The judge believed that Smith’s level of intoxication prevented him from following the police officer’s instructions on how to take the field sobriety tests. The arresting officer testified that Smith was speeding and that when he pulled him over he smelled a strong odor of alcohol on his breath. Smith’s eyes were bloodshot and glassy.

There is an interesting twist to this case. The officer who arrested Smith was subsequently arrested and charged with DUI as well. The officer crashed his car and failed three out of four field sobriety tests that were administered. Evidence of the pending DUI charges was not admissible against the officer.

Read Article:

Bruce Smith Convicted Of DUI On Testimony Of Officer Also Charged With DUI

Here is a question. Why was the fact that the arresting officer had a pending DUI charge inadmissible at Smith’s trial? The prosecutor claimed that the crime of DUI does not affect a witness’ credibility. While that might be true in most cases it should not be in this DUI case. We know that the arresting officer failed three out of four of his field sobriety tests on his case. That officer has pleaded not guilty, thus maintaining his innocence. Suppose the officer believes that he adequately performed his field sobriety tests notwithstanding a subjective opinion to the contrary. If that is the case then it seems to me that a judge should have allowed questioning of the officer on this issue. This would enable Smith to show that when this officer behaved in the same manner the officer believed that he was not impaired. Consequently, Smith could argue that similar behavior manifested on his part does not amount to a credible opinion that he was impaired. In other words, the arresting officer’s opinion that he passed the field sobriety tests and Smith failed is a matter of credibility that Smith should have been able to make known to a jury.

Continue reading →

Published on:

By

Jeffrey Daluz is no stranger to operating vehicles under the influence of alcohol. Last Saturday he did it again, this time in his boat. The fifty three year old Cape Cod man has five OUI convictions in Massachusetts and seven arrests for alcohol related crimes. On the Fourth of July he drove his boat into a fireworks security zone in Yarmouth and was arrested and charged with DUI boating.

Read Article:

Boating DUI Charges On The Rise As Summer Gets Going In Massachusetts

OUI boating in Massachusetts is governed by Massachusetts General Laws Chapter 90B Section 8. The law states that anyone who operates a boat under the influence of alcohol is guilty of a misdemeanor. The punishment for first time offenders is a fine of one hundred dollars and a possible two and one half year jail sentence. Second time offenders are subject to a minimum mandatory fourteen day jail sentence and third time offenders face a mandatory minimum six month jail sentence. Much like OUI refusal cases, a refusal to take a breathalyzer test subjects the defendant to a one hundred twenty day driver’s license suspension. It is important to understand that boating OUI cases impact a person’s right to drive a car in much the same way as OUI cases. Boaters are often given field sobriety tests when brought to shore. Daluz has already lost his driver’s license for life. If he gets convicted of this crime he will no doubt be serving a jail sentence.

Continue reading →

Published on:

By

Over the holiday weekend Jason Spurlin was driving with his girlfriend, Amanda Murray and two others, Anna Dubois and Nick Kelly. According to the police he was drunk and speeding. He lost control of his car around 1:15 in the morning, left the road and struck a tree. Spurlin survived but all passengers were killed. Apparently Murray and Spurlin have a five week old child together. Spurlin will now likely have to face three counts of Motor Vehicle Homicide. At least for now the case will be prosecuted in the Wrentham District Court.

Read Article:

Three Killed In Massachusetts Drunk Driving Accident, Driver To Face OUI Motor Vehicle Homicide Charges

The biggest question raised by this article is how did the police determine that Spurlin was drunk at the time of the accident. There is no mention of a breathalyzer test or field sobriety tests nor is there any indication that there exist any witnesses to the accident. It is likely that if Spurlin was injured during the crash he was taken to the hospital. There, his blood might have been taken as is often the case when people get admitted to the hospital. While these tests are the most reliable forms of evaluating a person’s blood alcohol level they certainly are not infallible. Not all technicians are properly trained in taking the blood sample particularly in the case where they might be looking to test for alcohol. For instance, if yeast in introduced into the blood sample it might yield an inaccurate high false positive reading. Contaminated tubing can effect the reading. Improper labeling of the sample can be problematic. Swabbing with alcohol will often result in a high reading that lacks accuracy. If blood is the determining factor in Spurlin’s case there is no doubt that his attorney will scrutinize the process by which the blood was taken and analyzed.

Continue reading →

Published on:

By

Pamela Balsamo was arraigned yesterday in the Berkshire Superior Court in Pittsfield, Massachusetts. She has been charged with Motor Vehicle Homicide. Police allege that Balsamo was driving south in the northbound lane of a rural road in Berkshire County when she struck a car being driven by Erin Dufour, another Massachusetts resident. Dufour died at the scene. The accident occurred on March 18, 2009 shortly after 8:00 in the evening. At that time Dufour was driving a Honda. Balsamo was driving a 2002 Mercedes. Balsamo was hospitalized as a result of this accident.

Read Articles:

Motor Vehicle Homicide Charges Filed In Massachusetts Against Connecticut Woman

Motor Vehicle Homicide OUI Being Prosecuted In Massachusetts Superior Court

Motor Vehicle Homicide in Massachusetts can be charged either as a felony or a misdemeanor. In this case it was charged as a felony. The defendant faces a maximum state prison sentence of fifteen years. She also faces a minimum mandatory one year sentence in this case. There are very few articles online that discuss this case. Nowhere is Balsamo’s blood alcohol level disclosed. This is somewhat odd in that she was taken to the hospital where it is likely that blood was drawn and toxicological tests conducted. There are no articles or press releases that show the results of the accident reconstruction conducted by the police. Often times the strength of the district attorney’s case in motor vehicle homicide prosecutions rests on the strength of the accident reconstruction. Naturally, eyewitness accounts will factor heavily into this equation. I would be interested in learning more about the facts that support the district attorney’s theory of this case.

Continue reading →

Published on:

By

Law enforcement in Florida uses a breath alcohol testing machine called the Intoxilyzer. The machine is developed by a company known as CMI Inc. Recently lawyers in Florida have asked judges to order the prosecution to disclose the software source code of the machines so that they can assess whether these machines are providing results that are accurate. While several judges in Florida and other states have ordered the disclosure of the proprietary coding CMI has refused to provide the requested information. The company has complained that such disclosure would give up “trade secrets”. The judges ordering disclosure however have stated that a defendant has the right to examine evidence in order to properly prepare for trial. The result has been a backlog of OUI cases in those counties where there has not been compliance with the judicial orders.

Read Article:

Breathalyzer Manufacturer’s Refusal To Comply With Court Orders Likely To Compromise OUI Cases

Massachusetts uses the Alcotest 7110 Mark III-C breathalyzer test. The machine consists of a breath tube, a deep lung air monitor, a sample chamber and an infrared sensor. In 2007 the Alcotest 7110 was tested by Base One Technologies, Inc. after a court case involving the Alcotest manufacturer required it provide its code. The study revealed that the code contained several errors. Read about the study here. In Massachusetts however you rarely see challenges to breathalyzer machine results. The reason for this is simple. The cost of retaining an expert to examine and evaluate the machine and provide testimony to a jury is extreme. Very few people can afford this and they look to the alternative of pleading guilty or trying the case by relying on their lawyer’s cross-examination skills to attack the accuracy of the test. It is far easier to succeed in persuading a jury that a test is inaccurate with an expert than without one. I would expect to see a scientific challenge in Massachusetts to the Alcotest at some point in the future.

Continue reading →

Published on:

By

Owen Schmitt is slated to be the Seattle Seahawks starting fullback this season. He is a fifth round draft pick from West Virginia going into his second season in the National Football League. Last weekend Schmitt was arrested and charged with drunk driving or OUI as it is called in Massachusetts. Officers observed Schmitt’s vehicle weaving and following other cars too closely. He was pulled over at which time the police noted the smell of alcohol. Schmitt submitted to performing field sobriety tests. He failed those tests and took the breathalyzer test. The results exceeded a .08.

Read Article:

NFL Player Arrested And Charged With OUI

The consequences of a first offense OUI in Washington are much more severe than in Massachusetts. There is a mandatory sentence of at least one day for a conviction of this crime. There is no mandatory minimum period of incarceration in Massachusetts for the same offense. Washington has a mandatory ninety day loss of license. Massachusetts’ is half that long. You must install an ignition interlock device after a first offense conviction in Washington. This is not the case in Massachusetts. One aspect of Washington law that is more favorable than in Massachusetts is the look back provision for prior offenses. Washington has a seven year look back whereas Massachusetts considers any prior conviction in calculating what offense is being charged.

Continue reading →

Published on:

By

Just before 8:00 a.m. last Monday a cell phone caller reported seeing a woman was operating erratically. A Medfield, Massachusetts police officer spotted the car and attempted to pull it over. The officer succeeded in stopping the vehicle. He smelled alcohol on the driver and asked her to perform field sobriety tests. The woman became upset and started yelling and swearing at the officer. An eyewitness saw the officer open the suspect’s car door and attempt to get her out of the car. The woman pushed the officer’s hand away, slammed her car door and sped away quickly. The driver, a fifty one year old Brookline, Massachusetts woman then ran a couple of red lights and weaved in and out of cars before crashing into a utility pole. The driver was airlifted to a Boston hospital. As of the date of this article no charges had been filed against the woman. Possible charges could be failing to stop for a police officer, driving to endanger and DUI.

Read Article:

No DUI Charges For Massachusetts Woman Who Crashes After High Speed Chase

Whenever someone is taken to the hospital as a result of a motor vehicle accident there stands a good chance the medical personnel will take blood from the patient. A toxicology screen will likely follow and the blood sample will be tested for alcohol. I would guess that the district attorney and police are waiting for these results before finalizing the criminal charges they intend to file against this woman. If the results are negative or substantially below a .08 then no OUI charge will issue. The toxicology screen will also look into the presence of drugs, prescription or otherwise. If the test is positive for certain drugs then charges of OUI drugs might issue. Unlike alcohol however, the presence of drugs in blood samples as not as determinative a factor for establishing impairment. Many drugs remain in the system long after their effects have worn off. When we represent clients for OUI drug cases we usually engage a toxicologist to educate a judge or jury on the effects of the drug, whether it impairs motor vehicle operation and whether or not the effects of the drug might have worn off prior to our client’s operation of the motor vehicle.

Continue reading →

Published on:

By

Cleveland Brown wide receiver Donte Stallworth just hit the mother load of of plea deals by getting a thirty day jail sentence after being charged with DUI Manslaughter. It was alleged that on March 14, 2009 Mario Reyes was running across the street to catch a bus when he was struck and killed by a car being driven by Stallworth. According to reports the sentence was nine years and eleven months shorter than the average sentence in Florida for the same crime. Apparently Stallworth’s cooperation with authorities after the accident and an undisclosed settlement agreement with the victim’s family factored heavily into this decision. Stallworth apologized to the victim’s family at his sentencing at which he also received a lifetime loss of license. After his release from custody Stallworth will be on house arrest for two years and he will be on probation for eight years. He was ordered to pay fines of ten thousand dollars and he will have to perform one thousand hours of community service.

Read Story:

Donte Stallworth Gets Short Sentence In Plea Deal For OUI Manslaughter Charges

There are very few circumstances in which you would see a deal like this in Massachusetts. OUI Manslaughter is a relatively new crime in Massachusetts enacted a few years ago under Melanie’s Law. OUI Manslaughter in Massachusetts carries a minimum mandatory five year state prison sentence. Massachusetts Laws do provide for work release programs for people convicted under this statute however this cannot happen without the recommendation of the prison superintendent and under the supervision of an officer of the prison in which the defendant is incarcerated. See Massachusetts General Laws Chapter 265 Section 13 1/2. Motor Vehicle Homicide OUI violations can in some circumstances provide for a lighter sentence however rarely if ever will the sentence of incarceration be thirty days. The only time when this might happen is when the district attorney’s case in tenuous. For example, in this case if it could reasonably be argued that Reyes actions were the actual cause of the accident and the prosecution’s case was weakened due to that fact you might see a sentence imposed that undercuts the average for these cases. Again, thirty days is not likely. There is no doubt that Stallworth’s lawyer did a great job for him.

Continue reading →

Published on:

By

Last week police in West Tisbury, Massachusetts responded to a motor vehicle crash scene after receiving information that there was an accident with serious injuries. They arrived to find Jena Pothier pinned to the front passenger seat wearing a seatbelt. The suspected driver, Kelly McCarron was found lying in the road having been ejected from the car. Police stated that speed and alcohol were factors in the crash. Witnesses to the crash said that McCarron was operating at a high rate of speed and attempting to pass a car in front of her despite a car in the oncoming lane. Pothier had just completed her first year of college. McCarron had just graduated from Martha’s Vineyard High School. McCarron has been charged with several motor vehicle infractions and crimes, the most serious being DUI, Negligent Operation of a Motor Vehicle, Motor Vehicle Homicide OUI and OUI with Serious Bodily Injury. Police have not ruled other charges out of the realm of possibility.

Read Article:

Motor Vehicle Homicide, OUI Charges For Cape Cod Woman Who Killed Friend In Accident

Anytime there is a motor vehicle accident involving alcohol in Massachusetts and someone is killed you can bet that serious criminal charges will issue. In cases such as this one there are two important aspects to the district attorney’s investigation that will dictate how this case is prosecuted. The first is the manner of operation of the vehicle being driven by the defendant. The more egregious this activity the more severe the charges. Police in this case have left open the possibility of additional charges against McCarron. One of these could be OUI Manslaughter. That crime would require a minimum mandatory five year state prison sentence. The statute authorizes a twenty year state prison sentence. The second component guiding how this case will be charged is the defendant’s blood alcohol level at the time of operation. Whenever someone suspected of drunk driving is hospitalized as a result of injuries medical personnel will take a blood test. A toxicology screen will be performed determining the level of alcohol in the person’s system at the time of the test. This case be challenged depending on the time and manner of testing. This is discussed some of my in other blog posts dealing with the proper method of blood testing for the presence of alcohol and extrapolation of the reading. If the alcohol level was high and the manner of operation was extreme you might see additional charges issue.

Continue reading →

Published on:

By

Massachusetts State Representative Peter J. Koutoujian has publicly stated that texting while driving has taken on the form of OUI. Perhaps this is why there now stand over a dozen bills in the Massachusetts legislature limiting the use of cell phones while driving. State Senator Steven Baddour, the Senate chairman of the Transportation Committee stated that members of his committee have agreed that text messaging while driving should be banned in Massachusetts. Many of these bills have come at the heels of recent incidents involving accidents and even death. Take for example the story of Amanda Martin, a seventeen year old high school student who was killed in the fall of 2007 when her car went off the road as she was driving to school. Police believed that text messaging might have been the cause of that accident. Consider also the case of Aiden Quinn, the MBTA driver who was texting his girlfriend, missed a light and ended up hitting another trolley in the Government Center Station.

Read Article:

Is Texting And Driving A New Form Of OUI

OUI in Massachusetts mandates certain penalties that punish people for taking the risk of operating a motor vehicle while impaired. What would the punishment be for improper use of a cell phone while driving? Would a license suspension be in order? Possible jail time? An immediate loss of use and taking of the cell phone? Would the penalties be enhanced if someone were hurt or killed as the result of cell phone use while driving? Finally, how would law enforcement prove this crime? Accidents take a split second and the accuracy of cell phone records and logs is an issue that can easily be contested. It might be even more difficult to prove this crime in cases where there is no accident since most people would agree that in most cases no one outside of a vehicle can say for certain whether or not someone was texting.

Continue reading →

Contact Information
Boston Office
10 Tremont St #602
Boston, MA 02108
(617) 263-6800 (888) 266-1781
North Andover Office
200 Sutton St #231
North Andover, MA 01845

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2016 – 2024, Stephen Neyman, P.C.
JUSTIA Law Firm Blog Design