Aggressive Defense of All DUI Matters
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On July 4, 2009 eighteen year old Dana Barczewski, a Newton, Massachusetts resident rear ended a woman while driving in Burlington. Apparently two witnesses reported that Barczewski cut them off and almost hit a utility pole. She continued driving, striking the victim’s car. She was then seen searching her car and throwing an object into the bushes near the accident. The responding officer located a bottle of Patrone Tequilla. Barczewski was given four field sobriety tests which officers claim she failed. She was then arrested and at the Burlington Police station she blew a .10 and a .12 on the Breathalyzer Test. The case charging Barczewski with OUI is now pending in the Woburn District Court.

Newton, Massachusetts Woman Charged With OUI

This is one of those cases that is very difficult to successfully try. Anytime you have the combination of independent witnesses observing erratic driving, an accident, an attempt to conceal partially consumed alcohol, failed field sobriety tests and a breathalyzer reading of .08 or higher you are going to have problems convincing a judge or a jury to acquit your client. While these factors sitting alone are often subject to a successful challenge, collectively they create an enormous hurdle for the defense to jump. If this is the defendant’s first offense she will likely receive the “24D” alternative disposition and her operating privileges might be restored shortly if a hardship license is granted.

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About a week ago police in Newton, Massachusetts flagged down a police cruiser. He was with a woman who he claims hit his car with hers and fled the scene shortly after midnight on July 3, 2009. The man told the police that he witnessed the woman’s vehicle hit a mirror on his car after which the woman took off. The man followed her and managed to get her to stop. The two exchanged information about the accident. The woman claimed that she did not know that she struck his car. When the police arrived they detected signs of intoxication. The woman, Joanne Emerly admitted to drinking three glasses of wine. The police arrested her and charged her with OUI.

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DUI Charges For Newton, Massachusetts Woman Who Fled Accident Scene

If the defendant in this case truly did have only three glasses of wine then she may have a triable case. A “typical” glass of wine is four ounces. The “typical alcohol percentage” of wines is 8% to 10%. Calculating blood alcohol can be done using a tool known as the Widmark Formula. There are several webistes that use this formula and provide a blood alcohol calculator. Here is an example of how the formula works. You enter the weight of the subject into the calculator along with the amount of drinks consumed, the time period over which they were consumed, the size of the drink consumed and the percentage of alcohol in the drink. So, according to this formula, if the defendant in this case had three glasses of wine (four ounces each) over a two hour period and she weighed one hundred thirty pounds her blood alcohol level would be a .068. This is under the legal limit. This also assumes that the wine she drank had the maximum percentage of alcohol allowed by law which is fourteen percent. Knowing these factors is critical to preparing a strong defense to an OUI case.

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Jonathan Muir is just twenty one years old and he has a tremendous legal battle ahead of him. Just over a week ago Muir was driving a 1984 sports car at around 1:30 a.m. Muir apparently lost control of the car and struck a tree. One of his three passengers was killed while two others were injured. Muir now stands charged with Motor Vehicle Homicide while OUI. Muir has also been charged with two counts of causing serious bodily injury while under the influence of alcohol and operating negligently so as to endanger.

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21 Year Old Massachusetts Man Charged With Motor Vehicle Homicide While OUI

The article failed to report whether a blood alcohol reading was obtained from Muir. An article in Cape Cod Times reported that Muir too was injured and was taken to a hospital for treatment. It is probable that the hospital took a blood sample from Muir which is protocol for treating patients who are admitted. A toxicology work up would disclose Muir’s blood alcohol level, if any. The blood tests are the most accurate however they are fallible. I have blogged on this in the past. In scrutinizing blood tests criminal defense lawyers look for possible blood sample contamination. If contamination is demonstrated then we try to get a judge to exclude evidence of the defendant’s blood alcohol level. The issue of impairment can also be challenged if the blood readings are not consistent with the amount of alcohol consumed.

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Former NFL defensive lineman Bruce Smith was convicted of DUI and the charge of refusing to take a breathalyzer test by a Virginia Beach judge. As a result Smith was given a ninety day suspended sentence. He will also lose his license for twelve months. During the trial Smith claimed that he had difficulty taking and adequately performing the field sobriety tests due to a list of injuries he suffered during his NFL career. The judge believed that Smith’s level of intoxication prevented him from following the police officer’s instructions on how to take the field sobriety tests. The arresting officer testified that Smith was speeding and that when he pulled him over he smelled a strong odor of alcohol on his breath. Smith’s eyes were bloodshot and glassy.

There is an interesting twist to this case. The officer who arrested Smith was subsequently arrested and charged with DUI as well. The officer crashed his car and failed three out of four field sobriety tests that were administered. Evidence of the pending DUI charges was not admissible against the officer.

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Bruce Smith Convicted Of DUI On Testimony Of Officer Also Charged With DUI

Here is a question. Why was the fact that the arresting officer had a pending DUI charge inadmissible at Smith’s trial? The prosecutor claimed that the crime of DUI does not affect a witness’ credibility. While that might be true in most cases it should not be in this DUI case. We know that the arresting officer failed three out of four of his field sobriety tests on his case. That officer has pleaded not guilty, thus maintaining his innocence. Suppose the officer believes that he adequately performed his field sobriety tests notwithstanding a subjective opinion to the contrary. If that is the case then it seems to me that a judge should have allowed questioning of the officer on this issue. This would enable Smith to show that when this officer behaved in the same manner the officer believed that he was not impaired. Consequently, Smith could argue that similar behavior manifested on his part does not amount to a credible opinion that he was impaired. In other words, the arresting officer’s opinion that he passed the field sobriety tests and Smith failed is a matter of credibility that Smith should have been able to make known to a jury.

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Jeffrey Daluz is no stranger to operating vehicles under the influence of alcohol. Last Saturday he did it again, this time in his boat. The fifty three year old Cape Cod man has five OUI convictions in Massachusetts and seven arrests for alcohol related crimes. On the Fourth of July he drove his boat into a fireworks security zone in Yarmouth and was arrested and charged with DUI boating.

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Boating DUI Charges On The Rise As Summer Gets Going In Massachusetts

OUI boating in Massachusetts is governed by Massachusetts General Laws Chapter 90B Section 8. The law states that anyone who operates a boat under the influence of alcohol is guilty of a misdemeanor. The punishment for first time offenders is a fine of one hundred dollars and a possible two and one half year jail sentence. Second time offenders are subject to a minimum mandatory fourteen day jail sentence and third time offenders face a mandatory minimum six month jail sentence. Much like OUI refusal cases, a refusal to take a breathalyzer test subjects the defendant to a one hundred twenty day driver’s license suspension. It is important to understand that boating OUI cases impact a person’s right to drive a car in much the same way as OUI cases. Boaters are often given field sobriety tests when brought to shore. Daluz has already lost his driver’s license for life. If he gets convicted of this crime he will no doubt be serving a jail sentence.

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Over the holiday weekend Jason Spurlin was driving with his girlfriend, Amanda Murray and two others, Anna Dubois and Nick Kelly. According to the police he was drunk and speeding. He lost control of his car around 1:15 in the morning, left the road and struck a tree. Spurlin survived but all passengers were killed. Apparently Murray and Spurlin have a five week old child together. Spurlin will now likely have to face three counts of Motor Vehicle Homicide. At least for now the case will be prosecuted in the Wrentham District Court.

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Three Killed In Massachusetts Drunk Driving Accident, Driver To Face OUI Motor Vehicle Homicide Charges

The biggest question raised by this article is how did the police determine that Spurlin was drunk at the time of the accident. There is no mention of a breathalyzer test or field sobriety tests nor is there any indication that there exist any witnesses to the accident. It is likely that if Spurlin was injured during the crash he was taken to the hospital. There, his blood might have been taken as is often the case when people get admitted to the hospital. While these tests are the most reliable forms of evaluating a person’s blood alcohol level they certainly are not infallible. Not all technicians are properly trained in taking the blood sample particularly in the case where they might be looking to test for alcohol. For instance, if yeast in introduced into the blood sample it might yield an inaccurate high false positive reading. Contaminated tubing can effect the reading. Improper labeling of the sample can be problematic. Swabbing with alcohol will often result in a high reading that lacks accuracy. If blood is the determining factor in Spurlin’s case there is no doubt that his attorney will scrutinize the process by which the blood was taken and analyzed.

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Law enforcement authorities allege that David Dibenedetto of Carver, Massachusetts was involved in a car crash in Hanson yesterday. Apparently the police received a call about the crash and were able to locate Dibenedetto a short distance away in the town of Pembroke. Dibenedetto was arrested and charged with OUI, Second Offense, Leaving the Scene of an Accident, driving with a revoked license and negligent operation of a motor vehicle. He is being held at the Plymouth County Jail on a two thousand dollar cash bail.

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Second Offense DUI For Southeastern Massachusetts Man Involved In An Accident

A two thousand dollar cash bail is considered high for a second offense OUI in general. However, usually when an accident occurs bail will increase. If you leave the scene after an accident and are charged with DUI in Massachusetts then you can bet the bail will be even higher. Given the circumstances of this case this bail is quite reasonable. For the second offense Dibenedetto is looking at a thirty day minimum mandatory jail sentence. If he is convicted of the leaving the scene as well as the OUI it would not surprise me to see some additional time added to the sentence. Here are some factors that will no doubt come into play when deciding whether or not to take this case to trial. Was there a breathalyzer test taken and what was the result? Did Dibenedetto take any field sobriety tests? What did the civilian witnesses see? How did the accident occur?

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Pamela Balsamo was arraigned yesterday in the Berkshire Superior Court in Pittsfield, Massachusetts. She has been charged with Motor Vehicle Homicide. Police allege that Balsamo was driving south in the northbound lane of a rural road in Berkshire County when she struck a car being driven by Erin Dufour, another Massachusetts resident. Dufour died at the scene. The accident occurred on March 18, 2009 shortly after 8:00 in the evening. At that time Dufour was driving a Honda. Balsamo was driving a 2002 Mercedes. Balsamo was hospitalized as a result of this accident.

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Motor Vehicle Homicide Charges Filed In Massachusetts Against Connecticut Woman

Motor Vehicle Homicide OUI Being Prosecuted In Massachusetts Superior Court

Motor Vehicle Homicide in Massachusetts can be charged either as a felony or a misdemeanor. In this case it was charged as a felony. The defendant faces a maximum state prison sentence of fifteen years. She also faces a minimum mandatory one year sentence in this case. There are very few articles online that discuss this case. Nowhere is Balsamo’s blood alcohol level disclosed. This is somewhat odd in that she was taken to the hospital where it is likely that blood was drawn and toxicological tests conducted. There are no articles or press releases that show the results of the accident reconstruction conducted by the police. Often times the strength of the district attorney’s case in motor vehicle homicide prosecutions rests on the strength of the accident reconstruction. Naturally, eyewitness accounts will factor heavily into this equation. I would be interested in learning more about the facts that support the district attorney’s theory of this case.

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Law enforcement in Florida uses a breath alcohol testing machine called the Intoxilyzer. The machine is developed by a company known as CMI Inc. Recently lawyers in Florida have asked judges to order the prosecution to disclose the software source code of the machines so that they can assess whether these machines are providing results that are accurate. While several judges in Florida and other states have ordered the disclosure of the proprietary coding CMI has refused to provide the requested information. The company has complained that such disclosure would give up “trade secrets”. The judges ordering disclosure however have stated that a defendant has the right to examine evidence in order to properly prepare for trial. The result has been a backlog of OUI cases in those counties where there has not been compliance with the judicial orders.

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Breathalyzer Manufacturer’s Refusal To Comply With Court Orders Likely To Compromise OUI Cases

Massachusetts uses the Alcotest 7110 Mark III-C breathalyzer test. The machine consists of a breath tube, a deep lung air monitor, a sample chamber and an infrared sensor. In 2007 the Alcotest 7110 was tested by Base One Technologies, Inc. after a court case involving the Alcotest manufacturer required it provide its code. The study revealed that the code contained several errors. Read about the study here. In Massachusetts however you rarely see challenges to breathalyzer machine results. The reason for this is simple. The cost of retaining an expert to examine and evaluate the machine and provide testimony to a jury is extreme. Very few people can afford this and they look to the alternative of pleading guilty or trying the case by relying on their lawyer’s cross-examination skills to attack the accuracy of the test. It is far easier to succeed in persuading a jury that a test is inaccurate with an expert than without one. I would expect to see a scientific challenge in Massachusetts to the Alcotest at some point in the future.

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Owen Schmitt is slated to be the Seattle Seahawks starting fullback this season. He is a fifth round draft pick from West Virginia going into his second season in the National Football League. Last weekend Schmitt was arrested and charged with drunk driving or OUI as it is called in Massachusetts. Officers observed Schmitt’s vehicle weaving and following other cars too closely. He was pulled over at which time the police noted the smell of alcohol. Schmitt submitted to performing field sobriety tests. He failed those tests and took the breathalyzer test. The results exceeded a .08.

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NFL Player Arrested And Charged With OUI

The consequences of a first offense OUI in Washington are much more severe than in Massachusetts. There is a mandatory sentence of at least one day for a conviction of this crime. There is no mandatory minimum period of incarceration in Massachusetts for the same offense. Washington has a mandatory ninety day loss of license. Massachusetts’ is half that long. You must install an ignition interlock device after a first offense conviction in Washington. This is not the case in Massachusetts. One aspect of Washington law that is more favorable than in Massachusetts is the look back provision for prior offenses. Washington has a seven year look back whereas Massachusetts considers any prior conviction in calculating what offense is being charged.

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