Articles Posted in Breathalyzer Test

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This past Saturday Nicko Castaneda was driving a Saturn in Framingham, Massachusetts. Just after 3:00 p.m. Castaneda rear ended a man on a motorcycle on School Street. Apparently the man was attempting to take a turn into the Walgreen’s parking lot on that street. The impact of the crash sent the victim about seventy two feet before it and the Saturn stopped. The motorcycle was found partially underneath Castaneda’s car. When the police arrived at the accident scene they noticed that Castaneda had trouble standing. He admitted to drinking eight beers. A breathalyzer test was administered. The result showed that Castaneda had a blood alcohol content of .21, more than two and one half times the legal limit. The victim suffered serious injuries. Castaneda was charged with OUI Second Offense, OUI Serious Bodily Injury and Operating to Endanger. The case is pending in the Framingham District Court. Bail was set at one thousand dollars.

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Framingham Man Charged With Second Offense DUI

Castaneda is in a lot of trouble. Just this past February he was convicted of his First Offense OUI in the Dedham District Court. For that case the best scenario would have been a “24D” disposition wherein the case was continued without a finding for one year and certain statutorily mandated probationary conditions. Now however the probation department in Dedham will likely move to surrender Castaneda. A judge can convert the continuance without a finding to a guilty and impose a two and one half year jail sentence. On the new case the defendant is looking at a second offender disposition or a mandatory thirty day jail sentence and a potential two and one half year jail sentence.

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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.

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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.

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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.

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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.

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Law enforcement authorities allege that David Dibenedetto of Carver, Massachusetts was involved in a car crash in Hanson yesterday. Apparently the police received a call about the crash and were able to locate Dibenedetto a short distance away in the town of Pembroke. Dibenedetto was arrested and charged with OUI, Second Offense, Leaving the Scene of an Accident, driving with a revoked license and negligent operation of a motor vehicle. He is being held at the Plymouth County Jail on a two thousand dollar cash bail.

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Second Offense DUI For Southeastern Massachusetts Man Involved In An Accident

A two thousand dollar cash bail is considered high for a second offense OUI in general. However, usually when an accident occurs bail will increase. If you leave the scene after an accident and are charged with DUI in Massachusetts then you can bet the bail will be even higher. Given the circumstances of this case this bail is quite reasonable. For the second offense Dibenedetto is looking at a thirty day minimum mandatory jail sentence. If he is convicted of the leaving the scene as well as the OUI it would not surprise me to see some additional time added to the sentence. Here are some factors that will no doubt come into play when deciding whether or not to take this case to trial. Was there a breathalyzer test taken and what was the result? Did Dibenedetto take any field sobriety tests? What did the civilian witnesses see? How did the accident occur?

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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.

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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.

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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.

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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.

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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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Last week Robert Meserve was held without bail after being charged with his fourth OUI offense and leaving the scene of an accident. The case is being prosecuted in the Taunton District Court. According to reports, last Tuesday around 11:00 p.m. police responded to a report of a car chase near the Taunton Green rotary. A 911 caller reported being in his car when it was struck by another car that took off. The caller followed the subject and updated police with his location. The suspect, Meserve was stopped. Officers detected an odor of alcohol on his breath, glassy and bloodshot eyes and unsteadiness on his feet. Meserve was given field sobriety tests which he failed. He refused the breathalyzer test.

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Massachusetts Man Picks Up 4th Offense DUI

Fourth offense OUI cases in Massachusetts have severe consequences. In addition to steep court costs, fines and fees there is a mandatory one year jail sentence that you must serve. Fourth offense DUI cases are felonies in Massachusetts. There is a potential five year state prison sentence associated with this charge. Meserve’s biggest problem stems from leaving the scene. This is one of those exacerbating factors that can lead to a judge imposing a sentence higher than the minimum mandatory. This action might also result in the district attorney prosecuting this case in the Superior Court. Had Meserve stayed and exchanged insurance information with the person he hit the police might not have been called and these charges might not have issued.

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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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