Aggressive Defense of All DUI Matters
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Joyce Whitman of Whitman, Massachusetts was involved in a one car crash last Friday shortly after midnight. Police found her car on its roof where it had come to rest after hitting a dumpster and a telephone pole. When the police arrived the car was on fire and the defendant still inside. It took approximately twenty minutes to extricate her from the wreckage. The defendant is facing charges of Negligent Operation of a Motor Vehicle and OUI in the Brockton District Court. The defendant sustained injuries requiring hospitalization.

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Massachusetts Woman Involved In Rollover Charged With DUI, Other Motor Vehicle Offenses

Cases like this one are usually proved by evidence that the defendant’s blood alcohol level exceeded the legally permissible level. Without this evidence the case would be extremely difficult to prove. The article makes clear that there have been several accidents at this location over the years. This fact makes it difficult to prove impairment based on the crash alone. Rather, the blood sample taken and tested at the hospital will determine the viability of this prosecution. If the blood sample was properly taken and there is no issue of contamination this case might be difficult to defend. If on the other hand the blood was not processed properly defense lawyers will look to exclude the blood test results. If the defendant’s criminal defense lawyer is successful getting the blood results excluded this case might be very difficult to prosecute.

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Last Friday Peter Koshivas of Holliston, Massachusetts crashed his Honda Civic into a tree just after 1:00 in the morning. His passenger, Benjamin Snow was injured in the crash and taken to the hospital by helicopter. Police stated that both Koshivas and Snow are luck to be alive. Koshivas will be charged with OUI Serious Bodily Injury, Reckless Driving and related Motor Vehicle Charges. The case will be prosecuted in the Framingham District Court. The article was not specific on the details of the crash.

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Holliston, Massachusetts Man Who Injured Friend In Crash To Be Prosecuted For DUI, Other Motor Vehicle Crimes

The article reported that Koshivas was also injured in the crash. Thus, it is reasonable to assume that he never took the field sobriety tests nor did he take a breathalyzer test. I would imagine that blood was taken from him at the hospital and that it has been tested for the presence of alcohol. As I have mentioned in prior posts the blood must be taken and tested in certain ways to avoid the possibility of a false positive result. Absent any eyewitness testimony the prosecution will probably base its case on Koshivas’ blood test results and an accident reconstruction. The accident reconstruction simply buttresses the district attorney’s case provided they have an alcohol sample that reads a .08 or higher. If not, the OUI aspect of this case is harder to prove.

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Today is probably not one of Tracey Francia’s better days. Just after midnight he was returning to his home in Chelmsford, Massachusetts when his car struck Methuen Police Officer John Earnshaw’s cruiser. Fortunately Earnshaw was not injured however it was reported that Francia was admitted to the Holy Family Hospital. The accident occurred in the area of routes 495 South and 213 in a construction zone. Reports indicate that Francia failed a field sobriety test. Francia has been charge with OUI Second Offense, Driving with a Suspended License and other crimes. The case will be prosecuted in the Lawrence District Court.

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Massachusetts Drunk Driver Hits Cop Car On Route 495 Southbound

One thing that strikes me as concerning about this article is how the police were able to properly administer field sobriety tests to someone who was injured to the point where hospitalization was necessary. What exactly were Francia’s injuries? If they involved his head or legs the results of the field sobriety tests were likely compromised. Typically field sobriety tests check physical or cognitive skills, or both. Certain injuries, particularly those that require a hospital visit might well effect one’s ability to adequately perform those tests. The admissibility of these tests will be an interesting issue in this case.

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The Gloucester Daily Times reported that two days ago Mark Hargrave, 55 of Hamilton, Massachusetts was arrested and charged with Second Offense OUI after being pulled over on Route 128 Southbound. Hargrave was also charged with failing to stay within marked lanes and Failure to Stop for a Police Officer. The case is now pending in the Salem District Court.

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Second Offense Operating Under The Influence Charged Against Hamilton, Massachusetts Man

While there is a tremendous amount of detail missing from this article there may be a silver lining for Hargrave’s case. If he refused to take the Field Sobriety Tests and if he refused to take the Breathalyzer Test then the only case against him is likely the police officer’s observations. Experienced Criminal Defense Lawyers are able to quickly educate jurors about the commonality of police officers’ testimonies in cases like this one. The officer will offer the following at trial: 1) that he observed the defendant operating his vehicle in an erratic manner; 2) that when he made the stop of the driver he smelled the odor of alcohol on his breath; 3) the he did not properly respond to the officer’s commands; 4) that he appeared unsteady on his feet; 5) that his speech was slurred and 6) that his eyes were red and bloodshot. The defense attorney will show the jury how these subjective observations are common to all officer stops. Almost every OUI police report that I have seen reports this same pattern of detail for the “run of the mill” drunk driving case. This testimony is impeachable and jurors immediately see the doubt in the prosecutor’s case. If Hargrave was not impaired he will produce witnesses with whom he was with prior to the arrest and whom he contacted after the arrest to vouch for his sobriety. Cases like this one are usually very triable.

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Last weekend just before 1:00 a.m. Jacqueline Boutin was driving her husband Michael and Peter Colangelo off of Route 140 when she noticed a car rapidly approaching her from behind. The trailing car that was being operated by Colleen Imgemanson ended up hitting Boutin’s car and knocking it on its side. Michael Boutin was temporarily trapped but was quickly extricated by the Taunton, Massachusetts Fire Department. It took longer to free Colangelo who was airlifted to the Boston Medical Center where he ultimately died. Boutin and her husband sustained injuries requiring a brief hospitalization at the Morton Hospital. A Taunton police officer responded to the scene after receiving reports that a woman had fled the crash on foot. He then observed Ingemanson walking unsteadily not far from the crash site. Ingemanson admitted to having driven the car. The officer reported that she smelled of alcohol and that she could not pass the field sobriety tests that were administered. Her eyes were bloodshot and her speech was slurred. She refused to take the breathalyzer test. Ingemanson has been charged with Motor Vehicle Homicide While OUI, OUI Second Offense. Leaving the Scene of an Accident with Death Resulting, Negligent Operation of a Motor Vehicle and Leaving the Scene with Personal Injury. Charges are now pending in the Taunton District Court.

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Massachusetts Woman Looking At Motor Vehicle Charges, OUI After Fatal Accident

Cases like this one are very difficult to defend. Even if the defendant has a valid defense to the OUI Charge the charge of Leaving the Scene of An Accident With Personal Injury or Death will result in a one year minimum mandatory jail sentence. It is probable that the district attorney in this case will be indicting this case and prosecuting it in the Superior Court. There, if convicted the judge can sentence the defendant to a state prison sentence. The district attorney’s office will undoubtedly be looking for a state prison sentence after a conviction. Even if the defendant wants to plead guilty a state prison sentence will be strongly considered by the judge.

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

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Framingham Man Charged With Second Offense DUI

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

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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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Recent studies have shown that driving while texting, DWT, makes the chance of getting into an accident fifty percent greater. By many this act is considered more dangerous than OUI. California has now passed a law that bans cell phone use by drivers. New York maintains that position as does Connecticut, New Jersey and Washington. Fourteen states have now banned texting while driving. Some states ban cell phone use for novice drivers or school bus drivers, For many of these states all the police need to do is see the driver on his phone while he is driving to issue the citation. Others need another reason to stop the driver such as speeding or other infractions. There is now a device available that jams cell phone signals in cars once the ignition is turned on. Many people who have been drinking are pulled over due to erratic motor vehicle operation that is caused by texting while driving. It is only a matter of time before Massachusetts will implement one of these laws.

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States Other Than Massachusetts Believe That Driving While Texting (DWT) Might Be More Dangerous Than DUI

Once Massachusetts passes a ban on DWT a violation of the law will probably be considered a civil infraction. This could result in fines, license suspensions or revocations and surcharges on your insurance. It will be interesting to see how this law comes into existence in this state.

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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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