Articles Posted in Field Sobriety Tests

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Last Wednesday night Carlos Catala struck a sheriff’s vehicle with his car sometime around 10:00 p.m. in Dedham, Massachusetts. The car was parked at a construction site on Route 1. When police arrived Catala was sitting in the front seat of his car. It was reported that he smelled of alcohol. He was given field sobriety tests which officers claim he failed. Catala was charged with OUI. He pleaded not guilty in the Dedham District Court.

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West Roxbury, Massachusetts Man Crashes Into Sheriff’s Car And Gets Arrested For DUI

Absent a legitimate excuse for the accident, the odor of alcohol and the failed field sobriety tests Catala is going to have a hard time successfully defending against these charges. Traffic is typically lighter in the evening and the cause of accidents is more apt to be the fault of the defendant, not another person. Trying to explain otherwise to a jury or judge is difficult particularly where the smell of booze is present and the field sobriety results are unfavorable. These cases are usually resolved through plea bargaining. The result is usually a continuance without a finding with a “24D” disposition. Catala will have to enroll and complete the alcohol education program, pay fines, report to probation for a year and have his license suspended for forty five days. He will be eligible to apply for a hardship license. I would suspect restitution for the damage caused to the sheriff’s vehicle will also be a condition of his probation.

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Did you know that actor Jeffrey Donovan is from Amesbury, Massachusetts? Well his is and just recently he was arrested and charged with OUI in Miami. Apparently Donovan almost hit a police car. To avoid doing so he swerved and screeched his tires. Donovan admitted to “not seeing the red light”. Nor for that matter did he see the police car. Donovan failed the field sobriety tests but admitted to having only three glasses of wine, and of course some Benadryl. He admitted to being “borderline drunk”.

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Massachusetts Man Charged With OUI In Miami

Here is the problem with admitting to being “borderline drunk” in Massachusetts. Drunk Driving Laws in Massachusetts do not require the suspect to be drunk to get convicted. The legal standard operates on the phrase “under the influence”. The model jury instruction in Massachusetts states that you do not have to be drunk to be under the influence of alcohol. Rather, a person is under the influence of alcohol if he has consumed enough alcohol to reduce his ability to operate a motor vehicle safely. That determination is for the jury to make. So, three glasses of wine and erratic operation are not necessarily indicative of operating under the influence. The other factors such as failed field sobriety tests and smelling of alcohol help the prosecution. However, most damaging is Donovan’s admission that he was borderline drunk.

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On June 27th of this year Roger Kerkmann was driving his 1999 car in Littleton, Massachusetts. At around 11:30 p.m. he went through a stop sign, right in front of a police officer. The officer pulled him over. The officer asked Kerkmann to role down his window or open his door. He did not claiming that he could not. The officer went to the passenger side, opened the door and immediately smelled a strong odor of alcohol. Kerkmann supposedly failed certain field sobriety tests, had glassy eyes and slurred speech. He was charged with OUI. When officers learned that Kerkmann had been convicted of OUI in 1986 and 1999 charges of OUI, 3rd offense issued. The case is now pending in the Ayer District Court.

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3rd Offense OUI Charges Brought Against Massachusetts Man In Ayer District Court

If you get convicted of a 3rd Offense OUI in Massachusetts you will be sentenced to a minimum one hundred fifty days in the house of correction. You are facing steep fines and an eight year loss of license. A hardship license can be granted after four years. The strengths of the prosecution’s case here are as follows: running the stop sign, the strong odor of alcohol, glassy eyes, the slurred speech and the failed field sobriety tests. The weaknesses are the absence of a breathalyzer test, arguably the only objective measuring device in OUI cases. Subjective findings such as those referenced in this article are easy to attack. For instance, how does the officer know what the defendant’s eyes are like normally or how he speaks, with or without alcohol. Field sobriety tests are not easy to take in pressured situations such as this, i.e. at night with the officer’s lights in your face, on the side of a road with passing traffic and after essentially being accused of operating while impaired. A good criminal defense laywer will be able to convince a jury of this fact and get it to understand that the officer’s observations might not be indicative in OUI. Trying OUI cases in Massachusetts are much easier in cases where there is no breathalyzer reading.

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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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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.

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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.

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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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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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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.

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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.

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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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