Articles Posted in 1st Offense OUI DUI

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UPI reported that Courtney Frances Stewart, the twenty year old who was driving Los Angeles Angels pitcher Nick Adenhart had a blood alcohol level of .06 the night she, Adenhart and another individual were killed in a DUI related accident. These results were determined by the coroner who examined the bodies of the decedents and conducted toxicology tests. While some might think the reading is low, California Vehicle Code § 23136 makes it a crime for anyone who is under the age of twenty one to operate a motor vehicle with a blood alcohol level of .01 or more. Andrew Thomas Gallo, who had a 2006 DUI conviction has been charged with murder for the deaths of the three back on April 9th of this year.

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Woman Driving Angels Pitcher May Have Been DUI Herself

There is no doubt that if this case goes to trial Gallo’s defense attorney will try to use the issue of Stewart’s intoxication as part of his defense. The focus of the trial would then be not whether Gallo was impaired at the time of the accident. Rather, the defense will try to show that Stewart’s actions were the cause of the accident and the her alcohol ingestion impaired her ability to operate in a safe manner. All of this of course assumes that the physical evidence at the scene and any eyewitness observations supports this defense. It is important to keep in mind that someone’s blood alcohol level at the time of death does not necessarily reflect accurately that person’s blood alcohol at the time of operation. Factors that defense lawyers always like to know is how many drinks the person had, over what time period were the drinks ingested, how much food did the person eat that day, the person’s height and weight and whether proper procedures were followed when taking the blood sample. Expect to see the defense engage a toxicologist and an accident reconstructionist to assist in trial preparations.

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For Easton, Massachusetts Police Sergeant James McAvoy last Saturday morning was a first. He observed two motor vehicles both operating at a high rate of speed around 2:00 a.m. He stopped both vehicles. One was driven by Silvano Dossantos of Quincy, Massachusetts and the other by Christina Conway of Easton, Massachusetts. According to McAvoy, both were operating under the influence of alcohol (OUI), driving recklessly and speeding. It was reported that McEvoy was on patrol when he noticed the cars speeding and driving close to one another. He estimated the speed to be around seventy miles per hour. Charges are now pending in the Taunton District Court.

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Massachusetts Woman And Friend Following Each Other Home Both Arrested For DUI

Aside from the speeding this article offers nothing relative to evidence of impairment due to the effects of alcohol. There is no mention of either of these women taking a breathalyzer test or field sobriety tests. Reading this report would be interesting. Most DUI defense lawyers in Massachusetts and other states will tell you the same thing. DUI police reports appear to be boilerplate. You can often tell which officer wrote the report just by reading the first paragraph in the narrative. I have said on numerous occasions that keeping a record of police officer DUI reports would be the best cross-examination tool for defense lawyers. The reports typically contain the following information: 1) that the operator was either operating at a high rate of speed or weaving over the marked lanes, 2) that after the stop the officer approached the vehicle and immediately detected a strong odor of an alcoholic beverage, 3) that the suspect had difficulty producing his license and registration, 4) that he asked the operator to get out of the vehicle and when doing so the operator was unsteady on his feet and 5) that the individual had bloodshot and glassy eyes. Police officers also have another group of facts in their reports that pertain to the defendant’s performance taking the field sobriety tests. These too are seemingly boilerplate. I will share these in another blog post. I expect and hope that there will be a day in the not too distant future when Massachusetts DUI Defense Lawyers will collect and share these police reports and expose the routine and often questionable nature of police officer testimony in OUI cases.

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Former Buffalo Bills defensive lineman Bruce Smith had a charmed NFL career. He played in four Super Bowls, was selected to the Pro Bowl eleven times, was a first team All Pro nine times, owned the NFL career sack title for a while and will be enshrined in the National Football League Hall of Fame this summer. Smith has also been charmed when it comes to DUI cases. He had one dismissed in 1997 and beat another in 2003. Now however Smith has been charged again. According to reports several weeks ago Smith was stopped for speeding at 1:42 a.m. He refused to take a breathalyzer test but nevertheless was charged with DUI. Smith has also been charged with refusing the breathalyzer.

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Former NFL Great Charged With DUI Again

In Virginia the law is clear that a refusal to take a breathalyzer test is admissible as evidence at trial. If the defendant has prior convictions then a refusal to take the test can result in a misdemeanor charge. Neither is the case in Massachusetts. If you refuse to take the breathalyzer test in Massachusetts there can be no mention of the refusal by the district attorney to the jury. As a matter of fact, Massachusetts has a jury instruction that covers the issue of refusals. In essence, if the defendant chooses, the judge will instruct a jury that it cannot consider the absence of a breathalyzer in its deliberation process. The instruction goes on to say that there are many reasons why breathalyzer tests may not have been employed, including the unavailability of a properly functioning breathalyzer machine. Additionally, no matter what offense OUI you are charged with in Massachusetts the refusal to take the breathalyzer test cannot result in a separate criminal charge issuing against you.

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Peter Madge must have breathed a huge sigh of relief last week when a judge in Plymouth County Massachusetts dismissed a fifth offense DUI case against him on constitutional grounds. Last July a 911 caller reported seeing a car being operated erratically. When officers located the vehicle they found Madge sitting in a car that was partially in a driveway. There was an open can of beer in the console and the engine was running. Madge denied the erratic operation of the vehicle. Police reported that Madge smelled of alcohol, was unsteady on his feet and had red glassy eyes. Madge also failed the field sobriety tests. Once Madge was arrested a quantity of marijuana was found in his possession as well. Following a motion to suppress, a judge ruled that the police had no reason to stop Madge since they never witnessed his erratic operation of the vehicle. The case now stands dismissed.

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5th Offense DUI Charges Dismissed Against Marshfield Massachusetts Man

One of the best ways to get a case dismissed is by filing a motion to suppress an unlawful stop, search and seizure. Police are obligated to honor a suspect’s constitutional rights at all times. When they do not lawyers usually file motions to suppress. These motions challenge the legality of the police actions. When these motions are successful the evidence that the police have obtained through the unlawful search and seizure is suppressed, meaning that the district attorney cannot use it in court. Many times, without this evidence the prosecution cannot go forward with the prosecution of the case and the charges get dismissed. That is in fact what happened in this case. Madge was smart enough to hire a good lawyer who filed a motion to suppress. An intelligent judge who understands and readily applied the law allowed that motion. The prosecution now cannot proceed with its case.

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Sometimes the best way to get a perspective on Massachusetts laws is to take a look outside the state to see how other jurisdictions handle certain DUI issues. Take for example the breathalyzer test laws in Illinois. If a person with no prior DUI convictions refuses to take the breathalyzer test there will be a one year loss of license. In Illinois, unlike Massachusetts, a hardship license can be granted to anyone who refuses the breathalyzer after thirty days. Massachusetts makes no such provision. Rather, unless the case is resolved favorably prior to the expiration of the 180 day suspension the restriction remains in place.

In Illinois, 2007 statistics show that over fifty eight of people stopped for DUI take the breathalyzer test. In Massachusetts, 2004 figures stated that only forty percent of the people stopped for OUI would take the breathalyzer test. That changed after the Massachusetts legislature passed Melanie’s Law, a modification of OUI laws that provides rewards in the form of shorter suspensions or earlier hardship license eligibility for people who take the test, and fail. In Illinois the percentage of people who now refuse the test has increased whereas in Massachusetts more people are inclined to take the test. In Illinois there is also a suggestion that refusing these tests results in more acquittals.

A prominent Illinois drunk driving lawyer makes a great point when he says “No one should participate in an investigation of themselves for a crime. Why risk your freedom and innocence by submitting to a test done by a machine that is controlled by the police? That’s what a Breathalyzer is.” Some lawyers in Massachusetts might make the same statement. Keep in mind that your refusal to take the breathalyzer test in Massachusetts cannot be used as evidence against you at trial. However, any properly administered breathalyzer test can be used as evidence and a result of a .08 or higher in Massachusetts creates a presumption of impairment. This is far more difficult to overcome before a jury than are cases where the breathalyzer was not taken.

Also in Illinois there are times when drivers cannot refuse chemical tests. If you are involved in a serious crash where people are hurt or killed you must submit to a chemical test. There is the suggestion in Illinois that you can be forced to take a blood test in certain situations. Not so in Massachusetts. Illinois also recently established a law that punishes people who refuse to take breath tests at sobriety checkpoints. Here is how that works. Police set up sobriety checkpoints. A judge will be present at the checkpoints. If someone stopped refuses to take the breathalyzer test the judge on hand can issue a search warrant permitting the police to take blood from the suspect. Fortunately, Massachusetts has no such law.

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Refusing The Breathalyzer In Massachusetts Not A Bad Alternative

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Last Saturday night Beverly, Massachusetts police pulled over twenty seven cars through the authority of a sobriety checkpoint. Ultimately twelve people were arrested and charged with OUI. The roadblock operated from eleven Saturday night to three in the morning. All have been charged with OUI. Their cases are pending in the Salem District Court.

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Twelve Charged After Massachusetts Sobriety Checkpoint Stops

So what exactly is a sobriety checkpoint? Sobriety checkpoints are temporary roadblocks designed and used by law enforcement to catch people who are operating under the influence of alcohol. Officers stop a specific number of vehicles at these checkpoints to see if drivers are impaired. There are certain constitutional restrictions on the use and implementation of sobriety checkpoints. If these regulations are violated or altered the result could be a dismissal of your OUI case. The United States Supreme Court has held that sobriety checkpoints do not violate the Fourth Amendment because of the public interest in keeping drunk drivers off the roads. Massachusetts Courts agree with this general proposition. In Massachusetts the Secretary of Public Safety promulgates guidelines that dictate how the checkpoints must be conducted. Assuming these meet with constitutional muster the police must adhere to the guidelines when engaging in a sobriety checkpoint operation. Many OUI cases in Massachusetts are won by the defense when it is shown that these procedures were not properly applied.

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Last week Stacie Desper, an Attleboro, Massachusetts resident supposedly drove her car into another lane of travel and struck a tree head on. This happened at 11:45 in the morning. Along for the ride were her children, ages three and ten months. Luckily, everyone was okay. Police responded to the scene. Desper assented to taking a breathalyzer test. She blew a .26, over three times the legal limit in Massachusetts. She has been charged with OUI and OUI Child Endangerment in the Attleboro District Court. Bail was set at two thousand five hundred dollars.

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Child Endangerment, DUI Charges For Massachusetts Mother

Apparently this is a first offense DUI for Desper. As such, even though the Child Endangerment OUI statute is implicated it is unlikely that Desper will have to serve a jail sentence. Massachusetts General Laws Chapter 90 Section 24V makes operating with a blood alcohol level of .08 or higher with a child ages fourteen or younger in the car a misdemeanor punishable by up to two and one half years jail for first time offenders. If convicted of a second offense the punishment is a minimum mandatory six months in the house of correction. Second offenses are also felonies.

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Just the other night Andrew Caron was with his friend Carl Fuller. Fuller was driving his father’s car. Apparently Fuller had loaned Caron the keys this past Saturday night. Supposedly Caron was sober at the time. Caron returned with a couple of girls, picked up Fuller and continued to drive the car. Fuller became concerned about Caron’s state of sobriety and tried to get him to pull over. Caron pulled the car over at which time he and Fuller struggled over the keys. A Salem, Massachusetts police officer witnessed the event and investigated. He asked Caron if he had been drinking. Caron told the officer that he had not been drinking. Fuller told the cop otherwise. Caron and Fuller continued their struggle and Caron was arrested. He now stands charged with OUI in the Salem District Court. A district court set bail at one thousand dollars cash.

Drunk Driving Charges For Salem Massachusetts Man

There are a few things defense lawyers would like to know about this case. For instance, did Caron take any field sobriety tests? Did he take a breathalzyer test? How was he operating at the time of the stop and who if anybody witnessed the driving? What did Caron do from the time he went to pick up the girls until he got back to pick up Fuller? How much time laspsed? All of these questions needs to be answered before anyone can effectively evaluate Caron’s case. The job of criminal defense lawyers is to do just that. Evaluate the strengths and weaknesses of a defendant’s case and recommend how to best defend or resolve the case.

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On March 29, 2009 at 2:20 a.m. Stephen Lucas was found passed out behind the wheel of his minivan. His nine year old son was asleep in the seat beside him. When the police awakened him Lucas told them “he was just having some fun with his kid”. A half empty whiskey bottle was found inside the car also. Lucas was charged with OUI Child Endangerment, Driving to Endanger and OUI Second Offense. He pleaded guilty and received a two year suspended jail sentence on the child endangerment and driving to endanger. The second offense DUI was continued without a finding. The first offense OUI was twenty four years old.

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No Jail Time For Massachusetts Man Convicted of Child Endangerment, Second Offense OUI

The penalties for second offense OUI in Massachusetts are sixty days in jail, thirty of which are mandatory. There are fines, court costs and a loss of license associated with a conviction for this crime also. The sentence imposed cannot be under the minimum mandatory thus tying a judge’s hands in the event he or she does not feel that a jail sentence is appropriate. There is an exception to this rule that the judge in this case embraced. If the first conviction is ten years old or older the second offense can be treated as a first offense and the case can be continued without a finding along with the imposition of the alternative “24D” disposition. Child endangerment requires the imposition of a ninety day house of correction sentence. Even though the sentence can be suspended the person will have a misdemeanor record if convicted of this crime.

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Jose Correia was charged with OUI in the Stoughton District Court after he struck another vehicle and left the scene. He was arrested shortly thereafter and charged with OUI, leaving the scene of an accident, possession of cocaine, driving to endanger and driving without a license. The accident occurred shortly after 7:00 p.m. on Sunday night. Correia is thirty five years old and from Norwood, Massachusetts.

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OUI And Related Motor Vehicle Charges For Norwood Massachusetts Man

The OUI charge, if it is Correia’s first, would not be nearly as serious had he remained at the scene of the accident, made his identity known and waited for the police to arrive. The fact that he fled inflates the gravity of the situation and can in many instances be the catalyst for a higher sentence if Correia is convicted. Massachusetts General Laws Chapter 90 Section 24 states that anyone who leaves the scene of an accident shall be punished for not less than two weeks nor more than two years in the house of correction. The minimum sentence is not mandatory however where there are additional charges as in this case such as OUI and drug possession sentences tend to be higher than the typical “24D” program. I would be interested to know how Correia was apprehended, whether or not he took field sobriety tests or a breathalyzer test and who if anyone witnessed Correia driving.

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