Aggressive Defense of All DUI Matters
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A Sutton, Massachusetts woman was arraigned in Worcester County District Court Dec. 2 for multiple charges related to operating under the influence. The Worcester Telegram & Gazette reported Dec. 3 that Lisa Delorto, 43, was charged with OUI-drugs, negligent driving, leaving a marked lane and possession of two drugs without a prescription. The RMV also revoked her driver’s license that day.

The charges stem from a traffic stop Tuesday morning made while Delorto was working as a school bus driver, although there were no students on the bus. Witnesses said the bus was “all over the road” and crossed the center line several times. When law enforcement pulled Delorto over, officers said she was unsteady on her feet and failed field sobriety tests. Officers also found the prescription drugs hydromorphine (an opiate painkiller) and lorazepam (an anti-anxiety drug and sedative), for which Delorto did not have a prescription. At the arraignment, Delorto’s Massachusetts OUI defense attorney said she may have been very tired because she cares for a 22-year-old daughter who is frequently up all night with a chronic blood disorder called spherocytosis.

Read article: Bus driver loses license; faces drug, traffic charge

I am glad Delorto has legal representation, because I believe a good Massachusetts drunk driving criminal defense lawyer could mount a strong defense in this case. The article does not mention that Delorto took a blood test showing that she was taking the drugs; it says only that these drugs were on her person. Possessing prescription drugs without a valid prescription (or another reason to carry them, such as bringing prescriptions to her daughter) is certainly illegal, but it does not make a person guilty of operating under the influence of drugs. Nor do field sobriety tests, which are notoriously unreliable because they are frequently difficult even for people who are stone-cold sober.

However, driving while tired is unfortunately very common, especially among people who work odd or long hours. According to the federal Department of Transportation, drowsy driving causes 100,000 crashes and 1,550 fatalities every year. This could easily be the real reason for Deloro’s swerving — and if it is, a good Massachusetts OUI defense attorney should be able to prove that she is not guilty of intoxicated driving.

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A head-on accident hospitalized an elderly woman and left a former Weston police chief facing his third drunk driving charge. The MetroWest Daily News reported Dec. 1 that James McShane was charged with causing an accident Nov. 14 that left three members of the same family injured. John Aftandlian of Belmont said he was driving down Route 30 to visit family with his 82-year-old mother, Stella, and 13-year-old daughter, Lia, when McShane crossed the center line and hit their vehicle head-on. The crash left John and Lia Aftandlian with only minor injuries, but broke Stella Aftandlian’s arm, hand and tailbone and caused internal bleeding. She spent a week in the hospital.

McShane was arrested Nov. 14, arraigned and released without bail. The article did not mention his plea, but did say he will be back in court Dec. 28. The charge is his third OUI. He was chief of police in Weston between 1986 and 1996, but resigned from that post after crashing an unmarked police car into a pole in 1995. That crash, which took place off-duty, resulted in McShane’s first drunk driving charge.

Read article: Former Weston Police chief faces third OUI offense

As a Massachusetts drunk driving defense attorney, I hope McShane has already gotten the advice of an experienced criminal lawyer. In our state, a third OUI raises the stakes considerably, starting with the fact that a third OUI is a felony rather than a misdemeanor. Those convicted of a third intoxicated driving offense can expect at least five months in prison, and up to five years, along with an eight-year license suspension and steep fines. Nobody should face these life-altering penalties without support. Depending on the circumstances, an experienced attorney may be able to find many avenues of defense, including challenges to the evidence itself or its handling by law enforcement. Even if a guilty plea is truly the best option, an experienced Massachusetts OUI defense lawyer may still be able to negotiate lighter, fairer penalties that better reflect the circumstances behind the arrest.

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A Lowell, Massachusetts man was in court Nov. 23 to answer charges of drunk driving after he hit a mother and two toddlers in a crosswalk. The Boston Globe reported Nov. 24 that Chamroeun Theam, 60, pleaded not guilty to second-offense operating under the influence and OUI with serious bodily injury, among other charges. Theam is accused of hitting Nina Wilkin, 25; her daughter Katelyn Dickie, 2; and her son Jonathan Dickie Jr., 4. The family was near the end of a crosswalk on Fletcher Street in Lowell when the light changed and Theam accelerated through the intersection. The crash threw Jonathan out of their double stroller, leaving him with head injuries. His mother and sister sustained only minor injuries.

According to the police report, Theam’s blood-alcohol concentration tested at 0.26 — more than three times the legal limit of 0.08. Officers said he failed field sobriety tests and seemed to be talking to himself. The RMV revoked his license immediately. In court, Theam’s daughters and daughter-in-law said they would prefer him to stay off the road and get help for his depression, which they trace to his terrifying experiences living under the Khmer Rouge in his native Cambodia. Police said Theam’s driving record includes a DUI in Wisconsin from 1994 as well as two crashes and five other traffic citations.

Read article: Family on mend after close call

As an experienced Massachusetts drunk driving defense attorney, I doubt Theam makes a good candidate for a “second chance” 24D/alternative disposition sentence. The 24D program is generally not available to second offenders, but Massachusetts law allows an exception for cases where the first offense is more than 10 years old. Rather than facing the sentence for a second OUI, which includes mandatory jail time and steep fines, these offenders can be sentenced to two years of probation, alcohol classes and much lower fines. (However, the RMV will still suspend their licenses for two years, and install an ignition interlock device if any hardship license is granted.)

If his daughter-in-law was telling the truth, Theam survived a horrifying episode in his native country’s history, in which a totalitarian regime killed fifth of its population in four years through torture, execution, famine and disease. It is not surprising that Theam might be suffering from depression, as his family suggested. If that’s the case, this accident might provide the motivation he needs to get help. But in the hands of a good Massachusetts OUI defense attorney, he may be able to get that help without having his new life in the United States damaged by the harsh penalties for a second drunk driving conviction.

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A six-vehicle accident in Quincy triggered OUI charges against a 31-year-old woman in the evening of Nov. 18. Hayley Damp of Hingham is accused of reckless driving and operating under the influence of both alcohol and drugs in connection with the crash. According to the Patriot Ledger of Quincy, Damp rear-ended a Dodge while driving south on Washington Street. That crash triggered a chain reaction, with the Dodge hitting a Nissan Pathfinder that then hit a Honda Accord. Damp, meanwhile, turned across opposing traffic and into a parking lot, where she hit a parked and unoccupied car before driving into the front of a tire store. Damp had minor injuries; also hurt were 33-year-old Heather Gateley of Weymouth and 24-year-old Elizabeth Aiello of Quincy. Other victims’ names were not available. Officers said they found Damp carrying prescription drugs, as well as two bottles of wine, one mostly empty, in a cooler inside her vehicle.

Read article: Police: Drunken driver causes 6-car crash

As a Massachusetts OUI defense attorney, I’d like to know more about the prescription drug police found in Damp’s possession. Many people don’t realize this, but it’s perfectly possible to be charged with operating under the influence of drugs in Massachusetts, even if the prescription is legal, as long as you are impaired by the drug while operating a motor vehicle. Painkillers, sleep aids and sedatives can fall into this category — but the laws of Massachusetts do not specifically say that certain drugs are illegal to use while driving. That means prosecutors often have to find experts to testify at trial as to the effects of the drug and a person’s symptoms while under the influence of the drug. If they do not, they risk an acquittal or dropped charges.

I would also be interested in knowing more about the amount of alcohol in Damp’s blood. Many prescription drugs heighten the effects of alcohol. When drivers don’t realize this, they can drink what they believe is a safe amount, then find themselves more intoxicated than they expected when it’s time to go home. It’s not impossible for these drivers to end up with a blood-alcohol concentration below 0.08, the legal limit, and still feel the effects as if they had drunk more. Depending on the circumstances, this may offer another defense, at least in the hands of an experienced Massachusetts drunk driving defense lawyer.

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A newly released police report shows that state Senator Anthony Galluccio (D-Cambridge) may have been too drunk to drive in the early morning hours of the day he hit a family’s minivan and left the scene. The Boston Herald reported Nov. 17 that a gas station employee called the Cambridge police at around 4:40 a.m. on Oct. 4 to report a customer who was allegedly too drunk to drive. When police arrived, they found Galluccio with a friend who said he was trying to take Galluccio home, but couldn’t find his residence. Officers drove Galluccio home and helped him inside, but because there was no evidence that Galluccio was trying to drive, they did not charge him with any crime or file a police report.

In the evening of the same day, however, Galluccio hit a family’s vehicle and drove away without stopping. He came forward to take responsibility the next day, saying he panicked at the scene. He is not accused of drunk driving in that incident, but his two past OUIs and an accident in 2005 have led to speculation that he could have been intoxicated. As part of the investigation into the hit-and-run, the Cambridge police filed a report Oct. 29 on the escort they provided early on Oct. 4. Galluccio will be back in court Nov. 20 on the hit-and-run charge. The Cambridge police say the officers involved in the escort did nothing wrong, and that no police report is necessary in incidents resulting in no criminal charge. However, Massachusetts state Senate President Therese Murray has reportedly told Galluccio to get a driver.

Read articles: Cops: By the way, we gave Galluccio a lift; Galluccio, ‘too intoxicated to drive,’ driven home by Cambridge police day of hit-and-run

This new information has caused a small firestorm in Cambridge, creating speculation about Galluccio’s relationship with alcohol and second-guessing of the police department’s actions and policies. But as a Massachusetts drunk driving defense attorney, I’d like to point out that none of this new information implicates Galluccio for operating under the influence of alcohol. He may well have been drunk on the morning of Oct. 4, but as the Cambridge police pointed out, he was not observed trying to drive. The hit-and-run accident, in which he was clearly driving, happened about 13 hours later — more than enough time to sober up. As scientists say, correlation is not causation. If an investigation turns up new information showing that Galluccio was intoxicated at the time of the hit-and-run, OUI charges might be appropriate. But at the moment, any experienced Massachusetts OUI defense lawyer could defeat an OUI charge stemming from the events of Oct. 4.

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The holidays are upon us — and with them come a lot of parties and family gatherings that offer opportunities to drink. Police agencies are very aware of drunk driving during the holidays, and they tend to step up their enforcement efforts on the days they believe people are most likely to drive drunk. In fact, according to a Nov. 6 article in the Woburn Advocate, the Massachusetts state police have already started. In that article, they announced a sobriety roadblock in Middlesex County on Friday, Nov. 13 and Saturday, Nov. 14.

In my experience as a Massachusetts OUI defense attorney, drivers can expect to see more of these roadblocks, particularly on the nights before and after major holidays. That’s why I would like to take a moment to explain the rights of Massachusetts motorists caught in a sobriety checkpoint. A sobriety checkpoint is essentially a roadblock in which law enforcement stops motorists to check them for signs of impairment by alcohol or drugs. It is completely legal for law enforcement to stop every driver, regardless of whether there’s evidence of intoxication, and detain them briefly. However, roadblocks in Massachusetts must be conducted according to guidelines created by the Massachusetts Secretary of Public Safety and in accordance with Massachusetts case law and state and federal constitutional guidelines. If the police fail to adhere to those guidelines, the entire stop and all of the evidence it produced may be thrown out of court, ending any drunk driving prosecution.

It’s also important for drivers to realize that all of their civil rights still apply at a sobriety checkpoint. Drivers must provide license and registration, but they are under no obligation to answer extra questions about where they’ve been, where they’re going or whether they were drinking. They also have the right to decline to allow a search of the vehicle. Police cannot search a vehicle without your permission unless they have probable cause. Drivers can legally decline to perform field sobriety tests and may also decline a breath test, although they will face an automatic license suspension if they do so. However, it’s important to decline all of these things as politely as possible, because bad blood with law enforcement officers can result in being unreasonably verbally abused, detained or arrested. An experienced Massachusetts drunk driving defense lawyer can help clients have unreasonable, illegal charges dismissed — but not before an arrest, night in jail and other unpleasant personal and financial consequences.

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A Centerville man was arrested for operating a vehicle under the influence of alcohol Nov. 7 after an accident that left his front bumper inside a package store. A witness called the police after seeing Bernard Kilroy, 27, drive his car through some bushes across a rotary and into the Hyannis Package Store on Main Street in Hyannis. According to the police report, Kilroy broke the front window of the building and stopped when the car was completely inside the store, but reversed and left the scene. However, he left an important piece of evidence: his front bumper, which included a license plate. The crash was also caught on a surveillance camera. The owner of the store, Cory Fitzgerald, said Kilroy broke or damaged about 2,000 bottles of wine and ruined a carpet, requiring help with the cleanup from “disaster specialists.” Kilroy was arrested in Centerville shortly after the crash.

Read article: Driver hits liquor store, leaves license plate

This article doesn’t specify exactly what Kilroy was charged with, but it’s safe to assume that OUI is among the charges. As a Massachusetts OUI defense attorney, the defenses I might recommend depend a lot on what evidence law enforcement has for such a charge. It sounds from the article like the evidence shows that Kilroy was responsible for the crash. However, it doesn’t necessarily follow that he was driving under the influence of alcohol during the crash. Without a breath or blood test, an experienced Massachusetts drunk driving defense lawyer might be able to show a jury that Kilroy’s actions don’t meet the legal definition of OUI in Massachusetts. If there is such a test and it implicates the defendant, a better bet might be to consider a guilty plea in exchange for participation in the 24D/alternative disposition program, which keeps defendants out of jail and substantially reduces their time without a driver’s license.

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A Marblehead man was charged with his fifth OUI, among other things, and held without bail in Salem. The Daily Item of Lynn reported Nov. 5 that Melvin McKenzie, 50, was arraigned Nov. 4 for charges stemming from a traffic stop in July. Police said McKenzie was stopped in Marblehead for speeding and leaving a marked lane. After the stop, an officer noticed a smell of alcohol and found a pint of vodka in his lunch box. The officer also found that McKenzie was driving with a suspended license, and was on probation for a previous drunk driving conviction. He was charged with a fifth OUI, OUI after license suspension, negligent driving and reckless driving and pleaded not guilty to all charges. After a dangerousness hearing, the judge in the case found that McKenzie couldn’t safely be released and ordered him held 90 days without bail. His trial is set for Dec. 14.

Read article: Marblehead driver held on 5th DUI

As a Massachusetts OUI defense attorney, I am glad that this defendant has retained legal counsel to defend him from the very serious charges he faces. A fifth OUI carries mandatory prison time and the lifetime loss of the driver’s license, as well as very steep fines. That’s true even in cases like this one, where there was no accident and nobody was harmed by the alleged drunk driving. When the stakes are this high, defendants should take advantage of every defense they have — which is significantly easier with an attorney by their sides.

I would also like to take the opportunity to highlight the use of a dangerousness hearing in this case. A dangerousness hearing is essentially a hearing on whether the defendant should be granted any bail at all, or simply kept in jail. It can be used in any type of Massachusetts criminal case. Relative to OUI cases, this statute is used primarily for cases where the defendant has four or more previous convictions or where a subsequent offender has caused serious injury. As it relates to dangerousness hearings, in drunk driving cases, the prosecution’s goal is to prove that the defendant is likely to drive drunk again. If you’re facing a dangerousness hearing, you’re facing the loss of your freedom before any trial or conviction can take place. The importance of retaining an experienced Massachusetts drunk driving defense lawyer in this situation cannot be overstated.

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More than two years after a fatal accident, a Taunton man was acquitted of drunk driving but found guilty of vehicular homicide. According to a Nov. 2 article in the Taunton Daily Gazette, Edward Leonard, 36, faces up to 2 1/2 years in prison for his role in the accident that killed Jennifer Walker, 25, in March of 2007. Leonard was originally charged with operating under the influence of alcohol with serious bodily injury, OUI manslaughter and assault and battery with a dangerous weapon. However, after a five-day trial, the jury found him guilty only of vehicular homicide by negligence. That dropped his potential maximum sentence from about 15 years to 2 1/2 years. He will be sentenced Dec. 10.

Prosecutors said Leonard had been drinking on the night of the accident, and was driving behind a friend toward another bar when the accident happened. They were on Route 44 when Leonard’s truck collided with a 1990 Oldsmobile driven by Richard Gould. The crash killed Walker, a passenger in Gould’s car, and flipped over Leonard’s truck. The prosecution and defense disagreed on whether Gould, Leonard or both veered into oncoming traffic, and whether Leonard was speeding. However, it was not disputed that Gould himself had a blood-alcohol concentration of 0.10. Police at the scene and a bystander said Leonard appeared intoxicated, and police found open beers in the truck. However, Leonard disobeyed police directions to remain on the scene, traveling with his friend to another friend’s home in Providence. He turned himself in the next day.

Read article: Taunton man guilty of vehicular homicide, acquitted of manslaughter in 2007 fatal crash

As a Massachusetts OUI defense attorney, I believe this story is a great example of why drivers charged with OUI shouldn’t assume they’re guilty just because law enforcement says they are. It’s not hard to imagine that Leonard might have felt hopeless at the beginning of his case. Not only did a young woman lose her life, but police accused Leonard of drinking, speeding and swerving into oncoming traffic, charges that could have put him in prison for more than a decade. Those accusations might seem pretty damning — but as this case shows, more information can make a big difference in the outcome of a case. Leonard’s Massachusetts drunk driving defense lawyer successfully challenged the police accident reconstruction with an expert of their own. And the lack of firm evidence that Leonard was drunk at the time was apparently enough to raise reasonable doubts — the standard for a criminal conviction — in the minds of the jurors. Cases like this show why it’s so important to speak with an attorney before pleading guilty in any OUI case.

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A woman was arrested in Harvard Square for operating a vehicle under the influence of drugs, the Cambridge Chronicle reported Oct. 29. Judith Zackman, 54, of Waltham, was involved in at least one minor accident around 8 p.m. on Oct. 22. According to the article, police responding to an accident on Mount Auburn Street stopped Zackman on Massachusetts Avenue near Harvard Square after witnesses said her car was being driven erratically and had hit parked vehicles on Mount Auburn Street and Memorial Drive. An officer reported that Zackman had trouble parking her car and seemed confused. After a search, officers found no alcohol in the car, but several half-full water bottles full of pink liquid as well as several prescription and unmarked pills. They also observed that she had trouble walking straight and seemed confused. After she failed field sobriety tests, they arrested her on suspicion of driving under the influence of drugs, on the basis of observations and the test results.

Read article: Waltham woman arrested for operating under the influence in Harvard Square

As a Massachusetts OUI defense attorney, I wonder whether the police backed up their observations at the scene with a blood test. If not, the charges against Zackman could be very easy to challenge. As I note on my Web site, field sobriety tests are notoriously unreliable as an indicator of drunkenness. Some tests are so difficult for the average person that they can generate false positives in people who are completely sober. Furthermore, certain standard tests have been invalidated by court rulings or regulatory decisions, and those that remain must be administered properly in order to be valid.

A police officer’s observations are also subject to challenge in court, because of course they are subjective and do not amount to proof. And in cases like this, which involve prescription drugs, there may be mitigating circumstances related to the driver’s health or the unexpected effects of mixing prescription drugs. A good Massachusetts drunk driving defense lawyer should be able to raise all of these defenses at trial, or, if appropriate, use them as leverage to get clients a favorable and fair plea agreement.

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