Aggressive Defense of All DUI Matters
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A road repaving project in Framingham was interrupted by an apparently drunk driver, the MetroWest Daily News reported Oct. 27. Police say Rodrigo Dos Santos, 31, drove through traffic cones and onto freshly poured asphalt around 2 a.m. on the night of Oct. 24. Workers were repaving a section of Union Avenue near Wood Terrace in Framingham at the time, and the cones were set up to redirect traffic away from the project. A police officer present waved his arms at Dos Santos to indicate that he should stop, but Dos Santos continued through the work area, forcing workers to jump into vehicles in order to avoid being hit.

Dos Santos then proceeded through the hot asphalt, stopped and tried to make a three-point turn. When he came to a stop, the officer said, he smelled of liquor, had trouble standing and collapsed on his way to the police cruiser, forcing the officer to support him. He insisted that the officer call his wife to pick him up and claimed that he only had three beers. Nonetheless, he was charged with OUI, driving without a license, speeding, driving to endanger and leaving a marked lane. He pleaded not guilty Oct. 26.

Read article: Framingham man charged with drunken driving

The facts in the article may seem grim for Dos Santos. But as a Massachusetts drunk driving defense attorney, I would like to remind readers that the only evidence of drunk driving reported here is circumstantial evidence. In fact, if the article is a complete record of the arrest, the only evidence of drunken driving may be subjective observations by the officer on the scene. In order to prove an OUI charge in Massachusetts, prosecutors must provide a chemical test showing the driver had a BAC of 0.08 or greater, or was driving under the influence of intoxicating liquor. If there is no BAC reading, prosecutors may have to show that intoxication was the best explanation for the incident. In a case like this, an experienced Massachusetts OUI defense lawyer may be able to raise reasonable doubts among jurors if the case goes to trial.

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A young woman is charged with DUI in a crash that police say froze the car’s speedometer at 85 mph, in a 30-mph zone. According to an Oct. 21 article in the Winchester Star, police say 18-year-old Diamond Mason and her passenger, an unnamed 22-year-old woman, are lucky to be alive after they crashed into a stone wall and a tree. The police report said Mason and her passenger were returning from a party at around 12:22 a.m., traveling at very high speeds, when Mason failed to make a turn on Winchester’s Main Street. Instead, her car jumped the curb, crossed the sidewalk and hit a stone-capped cement wall in the front yard of a private home. The crash didn’t stop the car, but sent it 18 feet into another section of wall, knocking the wall out of the ground. The car then hit a tree before coming to a stop.

In addition to the damage to the wall and the lawn, the crash caused severe damage to the car, littering the yard with car parts and contents and splitting the front end in half. The crash also knocked out the engine block and transmission, which were on fire when police arrived. The airbags in the car had deployed and were splattered with blood. Both occupants were knocked out of the vehicle. The 22-year-old passenger appeared to have a broken or dislocated leg; Mason said later that she had a possibly broken ankle, a cut to her head and a knee injury. The passenger said she had been drinking at the party and had passed out in the car, but Mason denied having had more than a sip of alcohol. Nonetheless, she was charged with OUI causing serious bodily injury; driving to endanger; failing to stay within her lane and speeding.

Read article: Speedometer freezes at 85 mph after Winchester OUI crash

I am glad to read that both of these young women seem to be all right after this serious accident. It’s not clear from the article what evidence the police might have for the OUI charge against Mason. If there is no breath or blood test or other reliable evidence, a Massachusetts drunk driving defense attorney may be able to successfully defend the charge. But even if that’s not possible, I suspect, given Mason’s age and probable lack of prior offenses, that she would be a strong candidate for the alternative disposition/24D program for first-time DUI defendants. Instead of possible jail time and thousands in fines, participants are sentenced to a mandatory alcohol education program that they must pay for; up to two years of probation; $600-plus in fines and fees; and a license suspension of 210 days (45 to 90 days for drivers over 21). Defendants who get their cases continued without a finding will not have a criminal record but they will still have a court record showing that they “got a break” earlier in life. However, with help from a Massachusetts DUI defense attorney, they can avoid some of the inappropriately harsh consequences of conventional conviction.

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A man from Attleboro is charged with OUI, motor vehicle homicide, OUI with serious bodily injury, speeding and negligent operation of a motor vehicle after a serious one-car crash in Bourne, the Boston Globe reported Oct. 19. Shawn Potrzuski, 32, is accused of killing his stepfather, 46-year-old Robert Coffey, and seriously injuring his mother, Karen Coffey, when he lost control of his Dodge Durango in a rotary, causing him to run off the road and into a tree. Potrzuski was treated at the scene for minor injuries. The family was reportedly coming home from a wedding. Police said both alcohol and speed were factors; Richard Coffey was not wearing a seat belt, but Karen Coffey was.

Read article: North Attleborough man dies, stepson faces charges in crash

The article doesn’t note whether Potrzuski’s breath or blood was tested or what other evidence law enforcement may have to support the OUI charge, making it difficult to speculate on how a Massachusetts OUI defense lawyer might defend him. But under the circumstances, the criminal charges may not be the most important thing on Potrzuski’s mind. This crash killed Potrzuski’s stepfather and seriously injured his mother, something that would greatly upset most people. While criminal charges may be legally appropriate, the outcome of the crash may be punishment enough in itself for many drivers.

If the evidence that Potrzuski was driving drunk is weak, incomplete or tainted, he may be able to fight the OUI-related charges on those grounds. (Of course, that is also true of the other charges.) But even if that evidence is strong, an experienced Massachusetts drunk driving defense attorney may be able to show a judge or jury enough doubt in the district attorney’s case to get an acquittal for his client.

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A Marshfield man faces his fifth drunk driving charge as well as a felony kidnapping charge after a woman accused him of holding her in his van against her will. According to an Oct. 13 article in the Marshfield Mariner, Tilden Davis, 66, is accused of those crimes in addition to driving with an open container of alcohol and illegal possession of prescription drugs. The arrest came after an unnamed woman fled the van Davis was driving, which was flooded when it drove into a rising tide near Trouants Island at around 4:15 in the morning. The unnamed woman, described as middle-aged, said she had been “partying all night” with a man calling himself “Butch,” but that he wouldn’t let her get out of the van. When the van became stuck, she jumped out and called 911.

When police arrived, they observed signs of intoxication in Davis, including slurred speech and trouble standing. In the van, they found an open can of beer as well as a bottle of blackberry brandy and miscellaneous prescription drugs. The drugs included medications for high blood pressure and high cholesterol as well as Cilostazol, which relieves muscle pain. The arrest was the fifth OUI charge for Davis, although a police spokesman said his last OUI conviction was 20 years ago. He was held overnight in jail and released on personal recognizance.

As a Massachusetts DUI defense attorney, I believe this case calls attention to the important but overlooked fact that prior OUI convictions never come off your record in Massachusetts. In other states, a previous drunk driving charge may “expire” five or ten years later, but here, it doesn’t matter whether the last conviction was this year or 30 years ago. This situation could, in many instances be considered unfair to defendants whose last conviction was so long ago that many children born afterward are now college students. If convicted of this newest OUI, Davis faces a mandatory two-year prison sentence, the lifetime loss of his driver’s license and thousands of dollars in fines. This doesn’t count the penalties he may face from the other charges. An experienced Massachusetts drunk driving defense lawyer can sometimes successfully challenge prior convictions. That, and mounting a strong defense, might be the best option for Davis .

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Massachusetts state senator Anthony Galluccio, D-Cambridge, made headlines last week after he admitted to leaving the scene of a minor accident he apparently caused. According to the Boston Globe, Galluccio hit another vehicle Oct. 4, causing minor injuries to someone in that vehicle, and left the scene. Police searched unsuccessfully for him that night, but Galluccio turned himself in the next day. He told the police and media that he left the scene of the accident because he panicked, believing that his history of DUI convictions would hurt him in this case, and not realizing that anyone was hurt. Galluccio’s past, which includes drunk driving convictions in 1984 (later pardoned) and 1997, has led to speculation that he may have been driving under the influence of alcohol in the most recent case; Galluccio himself has declined to comment on the matter.

In an Oct. 13 editorial, the Globe focused on a larger question: Why has Massachusetts made it better for drunk drivers to leave the scene than to stay and take a breathalyzer? The newspaper pointed out that drunk drivers who cause accidents can avoid taking a breath or blood test, which provides strong evidence of drunk driving, by illegally leaving the scene. If caught, the editorial said, these drivers face fines of $20 to $200, a jail sentence of no time to two years, and a driver’s license suspension of just 60 days. By contrast, a first DUI carries fines and fees ranging from the hundreds to more than $5,000, a one-year license suspension and up to 2 1/2 years in prison. For a repeat offender like Galluccio, those penalties would be harsher and include mandatory jail time. This creates a perverse incentive for drunk drivers, the newspaper said. It called for the Legislature to strengthen hit-and-run penalties.

Read article: Driving: It shouldn’t pay to hit and run

As a Massachusetts drunk driving defense attorney, I would like to start by noting that Galluccio, like all criminal defendants, has the right to be presumed innocent until proven guilty. People are understandably upset when high-profile people like politicians and athletes appear to be above the law, but Galluccio is entitled to due process to establish facts rather than speculation. There are many reasons other than being intoxicated why people might leave the scene of an accident.

But regardless of whether Galluccio was driving drunk, this editorial exposes the unfairness of establishing harsher penalties for OUI than for leaving the scene of an accident. Accidents, almost by definition, involve property damage, injuries or death. When the driver responsible for the accident hits and runs, it throws the victims into uncertainty and could stick them with the bill for damage and injuries they did not cause, if the driver is never caught. By contrast, many drunk driving arrests involve no crash at all, no damage and no injuries. In many of the cases I have defended as a Massachusetts DUI defense lawyer, the defendant was charged after a simple traffic stop, sometimes on a pretext that I could successfully challenge. This situation seems contrary to good public policy and suggests that political popularity, rather than common sense, may be behind the harsher penalties for drunk drivers.

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A man from Taunton was arrested in that town for driving drunk and flying into a rage after his arrest, the Taunton Gazette reported Oct. 7. The article does not specify the circumstances behind the DUI charge against Raymond Butler, 45. But after his arrest and placement in the back of a police car, the article says, the arresting officer said Butler began screaming, banging his head against the window. The officer also said Butler used profanity and crude sexual references, and threatened to claim that the officer assaulted him.

He later complained that his pacemaker was bothering him, so police called an ambulance. When EMTs arrived, Butler allegedly screamed at them and flailed so much that he struck one of them. When he arrived at the hospital, he allegedly screamed vulgarities at hospital staff, threatened a nurse and pulled an IV out of his arm. He was charged with operating a motor vehicle under the influence of alcohol; having an open container in his vehicle; threatening to commit a crime; disturbing the peace; assault and battery on ambulance personnel; and disorderly conduct.

Read article: Taunton man flies into rage after OUI arrest

The evidence of Butler’s disruptive behavior could make this case difficult for a Massachusetts DUI defense attorney, but not necessarily because he was guilty of driving while intoxicated. It is not clear from the article whether the police have solid evidence against Butler, and what that evidence might be. (If the description in the article is accurate, Butler may have refused the breathalyzer test, making it more difficult to prove intoxication.) But even a strong defense may not impress a jury when evidence suggests the defendant was hostile. Even though the charges stemming from that behavior are separate from the DUI charge, juries may incorrectly believe they support the idea that the defendant was driving drunk. Depending on the other evidence in the case, an experienced Massachusetts OUI defense lawyer may consider suggesting a guilty plea in exchange for a 24D sentence (alternative disposition) that lowers the penalties considerably.

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A driver pulled over in Natick, Massachusetts was driving while intoxicated and going more than twice the speed limit, MetroWest Daily News reported Oct. 6. Jason Michael Harvey, 29, was stopped for excessive speed around 2 a.m. on Route 9. The speed limit in the area is 45 mph; an officer using speed radar clocked Harvey at 91 mph. Harvey, of Framingham, admitted that he had been drinking alcohol, and an officer found an open bottle of vodka in his large, 12- to 15-passenger van. A Breathalyzer test at the scene found Harvey had a blood-alcohol concentration of 0.21, more than twice the 0.08 legal limit in Massachusetts. Harvey was charged with OUI, driving to endanger, driving with an open container of alcohol, driving on a suspended license, speeding and failure to wear a seat belt. He pleaded not guilty at an Oct. 5 arraignment.

Read article: Framingham man charged with driving twice the speed limit in Natick

As a Massachusetts DUI defense attorney, I frequently hear from clients in situations like Harvey’s who feel that their cases are hopeless. If the police have a BAC reading, the logic goes, there must be no way they can fight the charge. While it’s true that failing a breathalyzer test can be strong evidence in a drunk driving case, failing a breathalyzer is not proof that the accused was truly operating under the influence of liquor. As I explain on my Web site’s breathalyzer page, test results may be inadmissible at trial if the police did not follow certain procedures designed to keep the evidence from being tainted. In fact, the law says police must watch the accused for fifteen minutes before administering a breathalyzer, because certain digestive problems and eating or drinking certain things can throw off the test results.

Among the foods and drinks that can throw off test results is alcohol itself. Breathalyzers estimate BAC by calculating the amount of alcohol on a person’s breath. When the person being tested has drunk some alcohol moments before, he or she likely still has alcohol in the mouth — which can give off fumes. Those fumes can disrupt the breathalyzer reading, giving it a falsely high test result. The report notes that Harvey had an open bottle of vodka in his van, suggesting that he may have been drinking right before he was pulled over. If that’s the case, and the officer did not wait 15 minutes to administer the test, the breathalyzer results may be inadmissible in court — weakening the DUI case considerably. This doesn’t affect the other charges in Harvey’s case, of course, but an experienced Massachusetts drunk driving defense lawyer can substantially reduce the penalties he faces with defenses like these.

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A woman from Watertown, Massachusetts was arrested for driving drunk last week, the Watertown Tab & Press reported Sept. 28. Jessie Witherspoon, 57, was arrested outside a 7-Eleven store at 12:46 a.m. The article says police responded after a caller reported an intoxicated person at the store. When officers arrived, they found Witherspoon trying to get into her car, which was parked across two spots. Under questioning, she admitted that she had driven to the 7-Eleven earlier. Law enforcement also gave her field sobriety tests, which she reportedly failed.

Read article:
Watertown woman allegedly admitted driving drunk to 7-Eleven

This article does not say whether officers gave Witherspoon a blood or breath test. If they did not, I believe an experienced Massachusetts drunk driving defense attorney could mount a strong defense in this case. In order to convict a driver without a blood-alcohol concentration reading, prosecutors must show that the driver had operated a vehicle under the influence of intoxicating liquor. As I have written here before, admitting to police that you had been drinking before you drove is not the same as admitting to operating under the influence. Prosecutors will have to use circumstantial evidence to make their case, and such evidence is far from foolproof.

The article also mentions that Witherspoon failed field sobriety tests. Law enforcement routinely uses these tests, but as I explain on my DUI defense Web page, they are often not admissible as evidence. For one thing, some of these tests are difficult for even sober people to perform, making them useless as evidence of intoxication. For another, thanks to a Massachusetts Supreme Court ruling, the horizontal gaze nystagmus (follow the finger) test is rarely admissible. And the National Highway Traffic Safety Administration, the federal agency that tracks traffic safety issues, has endorsed only two others: the walk-and-turn test and the one-legged stand. An experienced Massachusetts OUI defense lawyer should be able to exclude the inadmissible tests at trial and make a case to the jury that not every test is valid proof of intoxication.

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A man faces a charge of second-offense drunk driving after leading Weymouth, Massachusetts police on a chase that reached speeds of 110 miles per hour, the Boston Globe reported Sept. 28. Oscar Hernandez was reportedly spotted speeding by Weymouth police around 2:30 in the morning of Sept. 27. Officers followed his speeding black Mercedes down Route 18 until Hernandez suddenly stopped near Park Avenue and refused to get out of his car. Officers said they couldn’t perform field sobriety tests — “It was more of a wrestling match,” said a police captain — but charged him with a second drunk driving offense based on their observations that he smelled of alcohol and had glassy eyes. Hernandez works at the Boston office for U.S. Citizen and Immigration Services, a branch of the Department of Homeland Security that handles non-criminal immigration matters, but is not a law enforcement officer.

Read article: Federal immigration official charged with second OUI

As a Massachusetts drunk driving defense attorney, I can’t help but notice that this article doesn’t mention police testing Hernandez’s blood or breath. If officers did not do any such chemical test, their DUI case may rest solely on the observations of the officers at the scene. Law enforcement observations are important — but law enforcement officers, like all human beings, can make mistakes. And a smell of alcohol and glassy eyes are not in themselves proof that a driver was intoxicated. In order to obtain a conviction for OUI liquor, prosecutors must show that the driver had a blood-alcohol concentration of 0.08 or higher, or was under the influence of intoxicating liquor. In a case like this, an experienced Massachusetts OUI defense lawyer may be able to show that the accused was not under the influence of liquor, even if he or she had been drinking — allowing the driver to avoid a conviction.

A second DUI is a serious charge in Massachusetts. If convicted, Hernandez would face a mandatory minimum of 30 days in jail, up to 2 1/2 years; fines and fees ranging from more than $600 to more than $10,000; loss of his driver’s license for two years, including at least one year without eligibility for a hardship license; and negative consequences for his work, his family and his auto insurance rates. With this much to lose, it’s very important for drivers facing a second drunk driving charge to contact a Massachusetts DUI defense attorney before making any decision on their pleas, to discuss all possible avenues of defense.

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A 26-year-old Groveland, Massachusetts man was arrested on multiple charges after leading police agencies on a car chase in northeastern Massachusetts, the Georgetown Record reported Sept. 22. Scott Berube already had two outstanding warrants for operating under the influence of liquor, which the newspaper said were second and third offenses. Earlier on the day of the chase, he was also allegedly involved in a hit-and-run accident. Around 10 p.m., a police officer spotted Berube at a Haverhill, Massachusetts gas station, gave chase and called for backup.

Once backup arrived, the officers tried to stop Berube by positioning their vehicles on either side of his. However, Berube drove directly at both officers, forcing them to jump out of the way. All in all, he drove through at least four towns before Georgetown, Massachusetts police were able to stop his vehicle with a device that punctured his tires. Berube fled on foot, leaving a passenger behind, but was caught with the help of a helicopter and K-9 unit. Police found several controlled substances in the crashed vehicle, including marijuana, Xanax, Percocet and acetaminophen with codeine. Both Berube and his passenger were charged with possession of those substances, with intent to distribute the marijuana and Xanax. Berube was also charged with DUI drugs, failure to stop for police, driving without a license and assaulting a police officer, among other charges, and the two outstanding warrants.

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Police arrest man after multi-town chase that ends in Georgetown

Second and third OUI charges may sound scary, but a smart, experienced Massachusetts DUI defense lawyer can find multiple avenues of defense, depending on the circumstances of the case. For example, a charge of OUI drugs may be dropped if the defendant can show that he was not actually impaired, regardless of whether he took any drugs. But because Berube did not handle the earlier charges against him, he ended up fleeing the police and receiving a significant number of new charges. Now he will almost certainly need a good Massachusetts intoxicated driving lawyer to help sort through this tangle of charges and minimize the damage to his life and his family.

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