Aggressive Defense of All DUI Matters
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Police say a 52-year-old man caused an injury accident Jan. 16 by driving under the influence of powerful painkillers. Joseph Kaizer is accused of hitting a mother and her 14-year-old son, who were crossing the street after leaving a relative’s funeral mass. 45592005_3e961c86be_mThe young man was treated for two broken wrist bones and a knee injury and released, but his mother was hospitalized overnight with unspecified injuries. Kaizer, who had his 11-year-old daughter in the vehicle, admitted to crushing and injecting methadone in the past, but denied having done it that day. Nonetheless, police observed track marks on his arms and legs. Police searching his car found two empty bottles of methadone and 23 pills of clonazepam, a muscle relaxant, along with 23 needles and two spoons with residue.

Kaizer was arrested for OUI drugs, OUI with serious bodily injury, failure to slow for pedestrians, negligent driving and child endangerment, for OUI with his daughter in the car. She was picked up at the scene by her mother. Police also asked the RMV to immediately revoke Kaizer’s license as an “immediate threat.”

Read article: Driver allegedly high on painkillers hits mother, son

Kaizer is not accused of drinking alcohol, a fact that could actually help a Massachusetts OUI criminal defense attorney defend his case. In cases of operating under the influence of alcohol, police can make a case based on the results of a BAC, regardless of other circumstances. Any amount of a drug in your blood is enough for an OUI drugs charge — but only if Massachusetts law makes it illegal to take the drugs in question before driving. The law specifically lists which drugs are illegal, but not every sedative, sleep aid or other drug police might frown on is on that list. If the drugs Kaizer is accused of taking are not on the list, an experienced Massachusetts intoxicated driving defense lawyer can make a strong case that the charges must be dropped. This is assuming that police even took a blood test showing Kaizer had the drugs in his system, something the article didn’t mention. You must remember that the prosecutor must still prove impairment caused by the drug, not just the existence of the drug in your system.

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One of the biggest issues on Beacon Hill’s agenda for 2010 is a proposed ban on texting while driving. As Boston Globe columnist Derrick Jackson wrote Jan. 12, the state Legislature is debating the details of a proposed ban, including whether police should be able to pull over drivers they see texting. Similar bills have already died in the Legislature for six years straight, the columnist wrote, despite the fact that nineteen other states, and the city of Boston, have their own bans. And, Jackson wrote, despite the fact that multiple studies have shown that texting while driving is “the hi-tech equivalent of driving drunk.”

As a Massachusetts OUI criminal defense attorney, I’ve seen studies suggesting that Jackson is wrong — because texting while driving is actually more dangerous than driving drunk. in_the_carIn fact, one study, done in Britain, also found that texting while driving was more dangerous than driving under the influence of marijuana. The Royal Automobile Club Foundation, part of the British version of AAA, commissioned a study comparing the driving skills of drivers who were sending or receiving text messages; drunk; or high. Reaction times for the texters in the study dropped by 35%, while legally drunk drivers saw a 12% drop and drugged drivers saw a 21% drop. In addition, texters were a staggering 91% more likely to drift out of their lanes, as compared to 35% for the cannabis smokers.

Plenty of U.S. research has demonstrated that texting and driving is dangerous, but no formal study in the United States has compared texting and driving to drunk driving. However, Car and Driver magazine conducted its own informal study in 2009. On a closed course, the magazine measured reaction times at 35 and 70 mph for reporters who were sober, then texting, then above the 0.08 legal limit. The conclusion: Sending or receiving text messages increased reaction times significantly more than drinking. In fact, the older reporter’s reaction time of 0.57 seconds nearly tripled to 1.44 seconds when he was reading text messages and 1.36 seconds when sending them. At 35 mph, that meant traveling an extra 45 and 41 feet before the vehicle was stopped. By comparison, drinking gave him a reaction time of 0.64 seconds and seven feet of extra travel.

Given these results, it’s alarming that Massachusetts law penalizes drinking and driving so much more harshly than texting and driving. Reaching the 0.08 legal limit does not leave everyone intoxicated, but the law says you’re a drunk driver if you blow that number. And that means you face jail time, a license suspension, thousands of dollars in fines and a social stigma — even if there was no accident, no injury and no property damage. By contrast, Massachusetts law currently provides no penalties whatsoever for texting and driving, despite the evidence that it’s even more dangerous. As a Massachusetts drunk driving criminal defense attorney, I hope the Legislature addresses this issue decisively in 2010, in a way that puts operating under the influence in a proper, fair perspective.

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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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Since 2006, Massachusetts law has required an ignition interlock device for anyone convicted of a second or subsequent drunk driving offense. This provision, which is part of Melanie’s Law, was intended to keep repeat drunk drivers off the road. Massachusetts drunk driving criminal defense attorneys like me always had doubts about the program’s effectiveness — but popular support for anti-DUI measures helped sweep it into law anyway. Now, the Boston Globe reported Jan. 8, the Massachusetts registrar of motor vehicles, Rachel Kaprielian, says two years of data show that the devices have successfully deterred drunk driving.

An IID is essentially a breathalyzer attached to the car’s ignition. If one is installed, it is impossible to turn on the car until the driver passes a breathalyzer test, with “failure” defined as a BAC of 0.02 or greater — not 0.08. The driver must then breathe into the device every 20 minutes (even if the car is in motion). Drivers convicted of OUI twice or more must install IIDs at their own expense whenever they are granted a hardship license, and for two years thereafter. No technology stops other people from taking the test for the driver, but Melanie’s Law also includes criminal penalties for people who do this, or who lend cars to drivers with an IID in their own vehicles.

According to the article, Kaprielian based her statement on new statistics released by the state. Those statistics say that more than 4,000 drivers altogether have been required to use the ignition interlock devices since Melanie’s Law took effect. Of these, it says, hundreds have completed the two-year period. And of those who completed the period, the state said only 30 drivers have been charged with a third OUI. This is a recidivism rate of less than 2%, the Globe reported.

I don’t doubt that the state’s numbers are accurate — but I think they’re being used in a misleading way. The article says more than 4,000 drivers have gotten the device, but only hundreds have completed the two-year program successfully. Even assuming “hundreds” is close to 1,000, that means three-fourths of the drivers did not complete the period. The typical reasons for not completing it are not good — essentially, breaking some condition of probation, including failing the test even once. Thus, the recidivism rate among all drivers with the device installed, whether or not they completed the two-year period, must be substantially higher than 2%. This is probably not the wild success claimed by the state.

Massachusetts OUI defense lawyers like me doubted the effectiveness, safety and legality of IIDs from the beginning. For one thing, IIDs are used under conditions that make them even less reliable than police breathalyzer tests. They can easily be contaminated by substances from inside and outside the car. Furthermore, there’s nothing but state law stopping drivers from having friends take the tests for them, or borrowing a different car. And finally, a study of IIDs in California (PDF) has found that IIDs not only did not bring down subsequent convictions, but actually increased the risk of a crash.

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A member of the Milton School Committee was sentenced this week after an arrest for operating his truck under the influence of alcohol. The Taunton Daily Gazette reported Jan. 4 that Christopher Huban and his Massachusetts OUI defense lawyer struck a deal with prosecutors in connection with a drunk-driving arrest New Year’s Day. A concerned driver called the police that day to report a possible intoxicated driver, and an off-duty police officer spotted Huban’s truck weaving into oncoming traffic and toward pedestrians. After being pulled over by an on-duty officer, Huban blew a blood-alcohol reading of .25, more than three times the legal limit of 0.08. At the hearing, Huban admitted that the facts were sufficient to convict him of drunk driving. His driver’s license was suspended for 45 days and he was placed on supervised probation, for which he will pay $65 a month. As part of the deal, the judge dismissed a negligent driving charge but let stand a citation for failure to stay within lanes.

Read article: Drunk-driving case against Milton official continued without a finding

The article mentions that this sentence is standard for first-offense OUIs. The article doesn’t specify this, but as a Massachusetts drunk driving criminal defense attorney, I strongly suspect that Huban was sentenced under the 24D/alternative disposition program. This program is indeed available for first offenses, along with some second offenses, as long as they are not responsible for any serious injury or death. Defendants who enter the 24D program typically serve up to one year of probation, a license suspension of 45 days, alcohol classes and several fines. This is in contrast to a one-year suspension and possible jail time for a first OUI conviction. And while a 24D plea doesn’t keep a prior offense off the driver’s record, an experienced Massachusetts OUI defense lawyer can often win a continuance without a finding, as in this case, that allows drivers to truthfully say they have never been convicted of a crime.

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State Senator Anthony Galluccio is headed to jail, the Boston Herald reported Jan. 4. Galluccio, a Democrat elected to represent Cambridge will serve a year in jail in connection with an Oct. 4 hit-and-run accident he admits to causing. That crash caused only minor injuries to a father and teenaged son, but Galluccio left the scene. He did not turn himself in until the next day, making it impossible to test him for alcohol, but he has two past OUIs (one pardoned) and a past accident. When Galluccio was sentenced for the hit-and-run, Judge Matthew Nestor gave him six months of home confinement with exceptions for Senate votes and church, on the condition that he not drink and submit to random alcohol testing. His driver’s license was also revoked for five years.

That sentence was handed down Dec. 18. On Dec. 21, a probation department employee came to install an alcohol-testing device called a Sobrietor in Galluccio’s home. Right after installation, the device detected alcohol on Galluccio’s breath. The senator said he hadn’t had any alcohol and suggested that sorbitol, an artificial sweeter in toothpaste, may have been the culprit. Despite testimony from an expert witness, Nestor said he believed Galluccio had been drinking. He revoked Galluccio’s probation and sent him to jail for a year. Senate President Therese Murray issued a statement suggesting that Galluccio will lose his job if he does not resign.

Read article: Embattled Galluccio gets 1 year in jail

Galluccio’s suggestion that toothpaste may have set off the Sobrietor is attracting ridicule in some circles. The Boston Herald even went so far as to test the theory, using a home breathalyzer kit. But Massachusetts OUI criminal defense lawyers already know that toothpaste, mouthwash and other alcohol-containing substances can give a false positive on a breathalyzer test, even though the person may in fact be sober. As the Herald’s test shows, taking a reading directly after brushing your teeth, sipping a beer, belching or more can produce high readings, which fall off dramatically in a few minutes. This is because of residual alcohol in the mouth. Breathalyzers are supposed to work by testing the alcohol in the air expelled from the person’s lungs, then using an equation to calculate BAC. Using the same equation for the much higher amount of mouth alcohol can produce a very high but temporary reading.

This is why law enforcement officers are supposed to observe the driver for 15 minutes before administering a breathalyzer — to ensure that enough time has passed since the last drink to avoid a false positive. Failure to do this, or to follow several other procedures, can make the evidence tainted or suspect. When this is the case, an experienced Massachusetts drunk driving defense attorney will ask the judge to leave that evidence out of the case entirely. In effect, this substantially weakens the prosecution’s case, because without a BAC reading, it is much more difficult to prove that the defendant operated a motor vehicle while intoxicated.

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A North Reading man was arrested for operating under the influence on the day after his driver’s license was returned to him, the Salem News reported Dec. 8. James Malone had lost his license for six months because of a previous OUI conviction from Woburn. He was driving from Peabody into Salem Dec. 4 when another driver called the police to report erratic driving. Responding officers saw Malone run a stop sign and pulled him over. According to police, he tried 20 times to open the door but failed, and instead rolled down the window. Officers noticed several other signs of intoxication, and Malone failed field sobriety tests. While attempting to perform them, he reportedly urinated on himself. Two breath tests registered 0.20 and 0.21 BAC readings, far over the legal limit of 0.08. Officers seized and destroyed his license at the station and charged him with a third-offense OUI as well as failure to stop for the stop sign.

Read article: Suspect back on road for one day

Under these circumstances, I’m glad that Malone already has a Massachusetts drunk driving defense lawyer. In fact, the article suggests charges from Malone’s previous offense in Woburn are still pending. This means a third OUI charge may not be legally appropriate, although the previous charge is likely to be resolved before Malone faces trial on the most recent charge. A third drunk driving offense is a serious crime charged as a felony in Massachusetts, not a misdemeanor like earlier OUIs, so Malone would be facing a felony conviction if he loses his case. Third offenses also carry mandatory jail or prison time, an eight-year driver’s license suspension and fines of up to $15,000. And under Melanie’s Law, Malone would be eligible for an ignition interlock device if he gets a hardship license, for which he would be eligible after four years.

Because these penalties are so serious, it’s important for people facing them to make sure they have the best possible defenses ready. Even drivers who feel a guilty plea is more appropriate can benefit from the help of an experienced Massachusetts OUI criminal defense attorney, who can negotiate for the fairest possible penalties in exchange for the plea.

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Two women from Beverly suffered minor injuries after a crash with a drunk driver, the Boston Globe’s Metro Desk blog reported Dec. 15. The crash happened around 6:45 a.m. on that same day, on Route 128 near the Route 1A exit. According to the Globe, 19-year-old James Dexter of Danvers was driving under the influence in a stolen pickup truck when he slammed into an SUV driven by Kathleen Olivero, 57, of Beverly and occupied by passenger Tracy Olivero, 34 and also of Beverly. The women’s vehicle was pushed into an exit sign and rolled over into the grass. They went to the hospital with minor injuries. The pickup also rolled over, but Dexter and his passenger, 19-year-old Eric Banks of Danvers, were not injured. Dexter was arrested at the scene and charged with OUI and unauthorized use of a motor vehicle.

Read article: Alleged drunk driver injures two women in Beverly accident

As a Massachusetts drunk driving criminal defense attorney, I would like to know more about what signs of intoxication led to Dexter’s arrest. Massachusetts law sets a lower legal limit for drivers under the age of 21 — just 0.02 instead of the ordinary 0.08 limit. That means it takes very little alcohol to put an underage driver over the legal limit — sometimes so little that the driver shows no signs of intoxication. There are also many factors that provide false positive results to the breathalyzer test. Experienced Massachusetts OUI Defense Lawyers should be able to demonstrate this to a jury. Sometimes these machines register low readings even if no alcohol has been consumed. In that case, it might be a good to try your case. If his blood-alcohol reading was low, and this is Dexter’s first OUI, he may be a good candidate for the 24D/alternative disposition program, which offers reduced penalties for first-time offenders. If he did not consume any alcohol, he should consider going to trial on this case.

In many cases, law enforcement does not or cannot perform breath tests before an arrest. This requires prosecutors to rely on observations and field sobriety tests alone to support the OUI charge, a risky move because police observations are highly subjective and field sobriety tests are notably unreliable. If these are the only foundations of the OUI part of the case, an experienced Massachusetts OUI defense lawyer should be able to challenge them in court, potentially defeating the charge outright.

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A West Yarmouth woman was charged with operating her minivan under the influence of drugs last week after she allegedly caused a crash. According to a Dec. 12 article from the Cape Cod Times, Adrienne Musgrave, 34, was driving in the wrong lane before the crash. Annemarie Jones, 41, was driving her own minivan correctly in that lane when she saw Musgrave’s vehicle coming and swerved into the oncoming lane to avoid it. Musgrave swerved back into her lane and the two vehicles collided head-on. Jones, and a five-year-old child passenger in her minivan, were hospitalized in Boston in serious condition. The child reportedly sustained a head injury. Musgrave was listed in stable condition at a Hyannis hospital. She is charged with OUI with drugs, negligent operation of a motor vehicle and failure to stay in her lane.

Read article: Yarmouth head-on crash driver charged with OUI

Depending on the circumstances, a drug-related charge may offer multiple avenues of defense for an experienced Massachusetts intoxicated driving defense attorney. Despite what many people assume, you absolutely can be charged with OUI for taking a medication that was legally prescribed to you, if that drug is illegal to take before driving. Massachusetts law specifically lists many drugs that fall into this category. However, the law doesn’t include every prescription drug that might lead to an intoxicated driving charge, even powerful painkillers and sedatives. If the prosecution cannot establish that it’s illegal in our state to take the drug at issue and then drive, it has no case. The defendant may still face charges related to illegal possession, but a good Massachusetts OUI defense lawyer should be able to get the OUI portion of the case dropped or dismissed.

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A young man from Weston was charged with operating under the influence with serious bodily injury, leaving the scene of an accident and reckless driving after hitting a Boston College senior and driving away. The Boston Globe reported Dec. 8 that Benjamin Knott, 18, is accused of striking 21-year-old Bethany Pfalzgraf of Londonderry, NH as she crossed a street on campus at around 12:30 a.m. Dec. 6. Pfalzgraf was initially hospitalized in serious condition, but had her condition upgraded to good Dec. 7. Knott reportedly drove away from the crash and stopped in a parking lot, where campus police found him examining the damage to his vehicle. He told the Massachusetts State Police that he had a few drinks while visiting a friend on campus, and provided two breath samples that measured his blood-alcohol concentration at 0.18 and 0.2, more than twice the legal limit of 0.08.

Read article: Teenager charged with DUI after BC student is hit

Knott faces unrelated negligent boating charges from New Hampshire, stemming from an August incident in which alcohol was reportedly not a factor. Nonetheless, media reports about this accident continue to mention those charges, which concerns me as a Massachusetts drunk driving criminal defense attorney. The two incidents together may show that Knott has made bad decisions while operating a vehicle, but they don’t show a history of intoxicated driving and boating. To imply otherwise is irresponsible and against the spirit of our criminal justice system’s presumption of innocence.

This is not to say that the charges against Knott aren’t serious. Even a first OUI in Massachusetts with serious bodily injury means a minimum of six months in jail and up to 10 years in prison; $500 to $5,000 in fines; and several hundred more in fees. Because Knott is under the age of 21, he also faces a three-year driver’s license suspension, instead of the two-year suspension for drivers over 21 accused of the same violation. And if he is convicted of this charge and then charged with OUI again later in life, his penalties will likely be more severe. Knott has pleaded not guilty and retained a Massachusetts OUI defense lawyer, so it seems that he intends to defend the charges. Under these circumstances, that seems like a wise decision.

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