Aggressive Defense of All DUI Matters
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An Irish council passed a motion in January to permit rural drinkers to drive home on certain isolated backroads and at a restricted speed. The County Kerry Council voted 5-3, with seven members abstaining and 12 absent, to issue permits allowing those who have “two or three” drinks at pubs to drive home. This is a proposal, not a law, and the council will have to petition Justice Minister Alan Shatter before issuing the permits.

While many have criticized the motion, one councilor explained that it is designed to curb depression and suicide, particularly among the elderly, resulting from deprivation of the sense of community enjoyed in the local pubs. “A lot of these people are living in isolated rural areas where there’s no public transport of any kind, and they end up at home looking at the four walls, night in and night out, because they don’t want to take the risk of losing their license…The only outlet they have then is to take home a bottle of whiskey, and they’re falling into depression, and suicide for some of them is the sad way out,” the councilor said.

Those who have been quick to judge and those who have resorted to “Irish-as-drunks” stereotyping fail to take this into proper perspective. The legal BAC in Ireland is 0.05, according to drinkdriving.org, as compared to the 0.08 limit in Massachusetts and every other state. Obviously, the number of drinks it takes to exceed the legal limit is variable, depending on many factors including body weight, the type of drink consumed, timing, diet, and more. Still, many here in Massachusetts and elsewhere in the United States readily get behind the wheel, whether in poor judgment or not, after having “two or three drinks,” thinking that they are not legally drunk by our 0.08 standard. This rural Irish county’s move to make driving after “two or three drinks” permissible is essentially just an attempt to codify what many or most in our country assume, mistakenly or not, to be okay.

This story also raises the issue of public transportation as it relates to operating under the influence. Efforts against drunk driving have focused almost entirely on increasing drunk-driving penalties, and this approach has not been effective. Legislators and organizations that lobby against drunk driving have failed to consider that increased access to public transportation and cab services in suburban and rural communities would likely decrease drunk driving, perhaps significantly. These groups have also failed to consider that less restrictive zoning might decrease Massachusetts OUI. It seems that there would probably be less drunk driving if residents of suburban and rural communities could walk to a neighborhood bar. Maybe it’s time to think outside the box and evolve from the tired and unsuccessful focus on harsher penalties.

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Our Supreme Judicial Court has recognized that the legislature could not have intended to make it a crime to drive after unknowingly being “slipped” drugs or alcohol. Where intoxication is an element of a crime, as it is in operating under the influence (OUI / DUI) cases, the government has the burden of proving voluntary intoxication, even where the degree of the intoxication isn’t enough to create a basis for inferring lack of criminal responsibility. As such, Massachusetts defendants in operating under the influence cases can, but rarely do, raise “involuntary intoxication” as a defense. One example of involuntary intoxication would be a situation in which a defendant was compelled against his or her will to ingest alcohol or drugs. Another example would be a situation in which a defendant took prescription medication as instructed but, nevertheless, ended up suffering intoxicating effects.

As a Massachusetts OUI defense attorney, I find the concept of involuntary intoxication interesting in the context of those who suffer from alcoholism. In other words, should alcoholism be a defense or an affirmative defense to drunk-driving charges because the disease renders alcohol consumption involuntary?

Steven S. Nemerson’s Cardozo Law Review article Alcoholism, Intoxication, and the Criminal Law raises several points worth considering. Nemerson asserts, and few would dispute, that alcoholism is a disease. The disease causes those afflicted to lose control when it comes to alcohol consumption. Because alcoholics suffer from an inability to abstain from drinking, drinking is not a voluntary action for those affected by the disease. Still, Nemerson concludes that protecting the safety of innocent persons, even from the morally blameless, is more important and desirable than protecting the rights of those who involuntarily commit crimes. He does, however, think that alcoholism should be an available affirmative defense.

Here in Massachusetts, the standard for lack of criminal responsibility due to a mental disease or defect is set forth in a case named Commonwealth v. McHoul. Our courts hold that neither alcoholism nor drug addiction count as a “disease of defect” which, alone, could trigger McHoul. However, the SJC has said that the government, in the context of OUI cases, has to prove both intoxication and that the intoxication was voluntary, regardless of whether there is a triggering basis for McHoul. This is because proof of intoxication is an express element in drunk-driving cases. Thus, even if alcoholism is not a “disease” for McHoul purposes, it could, presumably, still be something for a jury to consider in assessing whether the government has met its burden of proving that intoxication was voluntary. Such a defense strategy would, still, be very risky, since many might not consider an alcoholic’s consumption of alcohol “involuntary” within the usual sense of the word.

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Today, in the case of Commonwealth v. Gibson, 11-P-1107, the Massachusetts Appeals Court reversed an OUI conviction. The Court in Gibson reported the following facts:

In February of 2010, the defendant went to a couple of Super Bowl parties to watch the New Orleans play the Colts. In total Gibson drank four beers. Around 10:00 p.m. he started to drive home. He approached a red light. He waited for several seconds, became impatient, looked both ways and drove through the red light. He was pulled over. The investigating officer testified that he exhibited symptoms of alcohol impairment. Field Sobriety Tests were administered. Gibson failed each one of these tests. Consequently he was arrested. He never took the Breathalyzer Test. He was charged with OUI. During the deliberation process the jurors had a question about the absence of Breathalyzer Test evidence. Among other things, the judge told the jury that “a person does not have to take [the breathalyzer test]”. Gibson was convicted of OUI and appealed. In reversing the jury’s verdict, the Massachusetts Appeals Court ruled that those words in response to the jury’s question constitute improper on a defendant’s right against self-incrimination. The error being one of constitutional magnitude required reversal of the OUI conviction.

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Commonwealth v. Gibson, 11-P-1107
Massachusetts OUI Defense Law Firm

Drunk Driving Defense Attorney in Massachusetts

In Massachusetts the law is well settled that a person’s refusal to take a Breathalyzer Test and/or Field Sobriety Tests cannot be used against him at trial. Such evidence is inadmissible in that it violates a person’s right against self-incrimination. However, Massachusetts Courts have reasoned that since the general public is well aware of the existence of Breathalyzer Tests in OUI Cases there should be a limiting instruction addressing the issue, provided the defendant requests the instruction. That instruction prohibits reference to a defendant’s legal right to refuse the Breathalyzer Test. Here, the instruction given by the judge violated that prohibition.

Now usually a case will not be reversed where the defense attorney did not object to the error. The Massachusetts Appellate Courts often deem the attorney’s silence as strategic. Deference is given to a lawyers’ trial tactics unless his performance is deemed ineffective. The Court in Gibson did not find the lawyer’s actions to meet that standard. Rather, the Court found that the failure to object coupled with the improper instruction created a substantial risk of a miscarriage of justice warranting a reversal of the conviction. In more simplistic terms, the Court believed there is “a serious doubt whether the result of the trial might have been different had the error not been made”. Gibson’s Massachusetts Criminal Appeals Lawyer recognized this and by doing so was able to get his conviction reversed and to secure him a new trial.

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“Controversial New Group: Drunk Drivers Against Mothers,” an article by Tom McCaffrey published in the Huffington Post comedy section, is about a fictional group of 6th-year college fraternity brothers establishing DDAM while playing beer pong and watching Cinemax pornography. The group, enraged by their mothers’ concerns with their drunk-driving habits, holds nightly meetings to drink and complain about their mothers and mothers in general.

“Moms are total buzz kills these days. All they do is bitch and whine about dudes who like to party. It’s always, ‘Don’t drive drunk or you shouldn’t fight the police or you got my daughter pregnant!’ It’s like chill out,” one of McCaffrey’s fictional DDAM leaders said. “My mom is always like ‘I can’t believe you got drunk and then drove our new car into a lake again!’ I’m like f*** you! I like to party! You’re just mad because you can’t party as hard as me!,”
While the DDAM story is satire, it’s interesting that real life anti-drunk driving campaign advertisements, designed to be serious, regularly feature these same stereotypes of a stupid, immature male drunk driver and a “buzz kill,” motherly female. Some examples these public service announcements can be viewed here:

https://www.youtube.com/watch?v=P-b7rYgzzpM&feature=player_embedded

One might wonder about the extent to which these stereotypes shape the views of the public, and therefore the views of jurors, judges and prosecutors in OUI cases. For instance, which way could the fact that males are generally portrayed as infantile in PSAs cut? On one hand, it might make male, particularly young male, defendants more sympathetic to some based on the idea that they “just don’t know any better.” The reverse could be true where an accused is female, the sex commonly depicted in PSAs as being more responsible and “knowing better” than to drive drunk or to let others do so. On the other hand, the portrayal of males in PSAs as reckless might cause some to think them more culpable.

It could be that these campaigns are using the female mother figure as the voice of reason discouraging OUI because people tend to respect their mothers and listen to their advice. According to the Oct. 10 CNN article “What sways teens not to drink, drive?,” parents are (not surprisingly) among the most powerful influences affecting teenage drunk-driving and drinking .

While not reflected in most anti-drunk driving PSAs, persons from all walks of life, from soccer moms to frat guys and everyone outside and in between, find themselves charged with OUI/DUI/DWI. While very few drunk-driving PSAs feature a female drunk-driver, the number of female OUI arrests has increased dramatically since the 1980s. In the past decade, female drunk-driving arrests have increased by almost 30 percent. Male drunk-driving arrests have decreased in recent years.

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Orange County, California police made 843 drunk-driving arrests between August 17 and September 3, according to the Orange County Register. Police used checkpoints and heavy patrols over the period and expect that this year’s DUI arrest numbers will be higher than last year’s numbers. The police plan to use similar measures around both Halloween and Thanksgiving. Funding is provided by the California Office of Traffic Safety.

Here in Massachusetts, drunk-driving / OUI / DUI / DWI checkpoints or roadblocks constitute warrantless seizures. Thus, they must be reasonable, and the prosecution has the burden of proving that the roadblock in question was reasonable. In order to meet that burden, the prosecution must at least prove that police followed certain guidelines. The purpose of requiring that police stay in line with guidelines is to ensure that there are “neutral limitations” on the officers. The idea is that “neutral limitations” serve to limit officer discretion as it relates to individuals’ expectation of privacy and to minimize individuals’ fear and inconvenience. The prosecution is not required to prove that the checkpoint or roadblock was the least intrusive measure available.

One problem with these “neutral limitations” is that they do not do much in the way of curbing police discretion. The Supreme Judicial Court has held that the screening officer, the officer who first comes into contact with the drivers, is not required to send the drivers along to the second point. This is so even if the officer has reasonable suspicion that the driver may be drunk. The SJC reasoned that even though this might open the possibility of abuse of police discretion (i.e. singling out certain motorists based on race, sex, ethnicity, economic status, etc.), the risk is no different in roadblock cases than in normal street encounters.

The constitutionality of the roadblock seizures is measured by compliance with these “neutral” guidelines, and there does not need to be any individualized suspicion. According to Massachusetts courts, compliance with the guidelines must be “strict.” It is not enough that police “substantially” complied.

Massachusetts OUI checkpoints must be in “problem areas.” The area must be one in which police have previously made drunk-driving arrests. Courts consider the age of the previous OUI arrests in determining whether the site- selection requirement has been met. In one case, the Appeals Court decided that reliance on a 2-year-old report indicating that OUI arrests and accidents had occurred at the roadblock site was too old.

There were three Massachusetts roadblocks in August, according to DUIblock.com. The three took place in West Springfield, Hingham and Stoughton. There has been one roadblock in September so far, which took place on Thorndike Street in Lowell, according to that website. Statistics indicate that drunk-driving / DUI / OUI / DWI roadblocks and checkpoints are not uncommon in Massachusetts.

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drunk-boating.jpgA man was arrested in Alaska for operating under the influence Aug. 3, 2012 as he floated down a river on an inflatable raft. In Alaska, as in Massachusetts, the legal limit is 0.08. A wildlife trooper arrested William Modene, 32, after authorities received reports of a “heavily intoxicated” man floating along the Chena River. Modene’s alleged BAC was 0.313. “Modene had been floating on the river for the day and consuming alcoholic beverages the entire time,” according to the troopers’ website.

Alaska’s drunk-driving laws apply not only to vehicles but also to “water craft,” which is defined as “a vessel used or capable of being used as a means of transportation on water for recreational or commercial purposes…” In interpreting a law, such as the Alaska OUI law at issue here, courts do not consider the wording of the statute alone, but also try to determine the intent of the legislature in enacting the law. Courts generally consider the words used in connection with the causes of the law’s enactment and the goal to be accomplished.

Here, it would seem that by including the “water craft” language, the Alaska legislature likely intended to cover boats, jet skis, and other such motorized watercraft. Operating boats and jet skis while drunk has become a rising concern, and boating accidents have been the cause of thousands of injuries and deaths in recent years, according to Global Legal Resources. Typically, the primary goal of OUI laws like this Alaska law is to protect the lives and safety of the public. While it appears that a float would be included under the wording of this law, the legislature likely did not intend to criminalize drinking while on a float or inner tube, as such activities generally do not endanger the lives or safety of the public.

The reader “Comments” section on the Fairbanks Daily News website indicates that a majority of readers thinks that arresting this man for OUI was unreasonable. One reader wrote, “How can a guy in a non-motorized plastic blow up boat do any harm to anyone but himself?” Another reader wrote, “I don’t need someone to run my life and tell me what is safe or not safe as long as I’m not endangering others…Can I drink beer and go swimming in the ocean?” Yet another reader wrote, “I disagree with all of this. If he causes no harm to others, leave him be. If he dies, see you soon.” One reader who supported the arrest wrote of Modene’s “self endangerment” and the duty of the police protect “people who…are incapacitated to the point of self endangerment. ” This sampling of reader comments illustrates the topic of our last blog post, which involved the idea of potential harm to others v. potential harm to oneself.

To read the article upon which this post was based and the accompanying reader comments, see:

Massachusetts Drunk Driving Defense Law Firm

Operating under the influence laws throughout the country, including Massachusetts OUI / DUI / drunk-driving laws, are increasingly being applied to cover a broader range of conduct. This arrest for operating an inflatable float while drunk is just one example.

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Certain well-known anti-drunk driving organizations are widely accused of having neo-Prohibitionist agendas and fueling anti-alcohol hysteria. Regardless of whether such criticism is warranted, this blog post explores the concept of moral policing as it relates to operating under the influence (OUI), as well as other demonized social behaviors, such as smoking and consumption of fatty foods.

The “war on drunk driving” seems to appeal to the “harm principle.” Under the “harm principle,” no exercise of power over an individual is legitimate unless the purpose is to prevent harm to other people. A person should not be forced to act in a certain way simply because it’s for his own moral, physical or intellectual good.

Anti-drunk driving campaigns try to stay in line with that principle, with the basic message being: Drunk driving is bad because it can, and often does, hurt other people. Few would find that message to be offensive. These organizations draw criticism, however, when they appear to be against drinking generally, as opposed to drunk driving. For example, certain organizations have announced that fewer liquor stores will reduce crime, opposed sale of alcohol at fairs and cultural events, and argued that children should be raised in alcohol- free environments. Why the criticism? Likely, it is because they are now getting into an area of self-regarding conduct and imposing moral or personal preferences on other people. When the public becomes uneasy about the possibility of a modern- day temperance movement, such organizations tend to fly under the banner, “We are not an anti-alcohol organization.”

Anti-smoking campaigns follow the same blueprint, rallying around the dangers of second-hand smoke–harm to other people. Smoking bans were supposedly designed to protect non-smokers, particularly employees of bars or restaurants, from the harms associated with second-hand smoke. Anti-smoking campaigns refused to admit that the true purpose of smoking bans was to protect smokers from themselves–to marginalize or further de-normalize an otherwise legal activity.

The new battle is on obesity and trans-fat, but can it be justified under the same “harm principle” used in, what some would call, the anti-alcohol campaigns? Or, is it pure moral or health policing, an attempt to protect people from themselves? According to the New York Times and other sources, there are now studies that indicate a purported trend of “second-hand obesity.” Specifically, some doctors who have studied the issue say that exposure to obese people can make one become obese because one’s idea of acceptable body type comes from looking at others.

This Massachusetts OUI lawyer sincerely acknowledges that drunk- driving creates real dangers to other people. The point is that anti-drunk driving movements need to be careful to distinguish between two very distinct behaviors: being drunk, which, with some exceptions, only hurts oneself, and driving while drunk, which can and does hurt other people. As the “second-hand obesity” movement perhaps best illustrates, when society fails to make meaningful distinctions between conduct that only affects oneself and conduct that affects others, a very slippery slope is created.

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Recently, in Souza v. Registry of Motor Vehicles, the highest court in Massachusetts held that as used in the Massachusetts operating under the influence (OUI/DUI/DWI) statute, the word “convicted” refers only to guilty findings and that a “continuance without a finding” (CWOF) is no longer considered a first offense for RMV license suspension purposes.

In Souza, the plaintiff appealed an RMV decision suspending his license for a period of three years. He had previously admitted to sufficient facts in an OUI case, and his case was continued without a finding and later dismissed upon successful completion of his probation. Thereafter, he was arrested again for OUI and refused a breath test. The plaintiff argued that his license should only have been suspended for 180 days because there was never a guilty finding and he was therefore never previously “convicted” of OUI within the meaning of the statute. The RMV argued that, in light of the remedial purpose of Melanie’s Law, “to increase penalties for drunk drivers in the Commonwealth,” a CWOF is the equivalent of a guilty plea. The Supreme Judicial Court rejected the RMV’s purpose-based argument and interpreted the law based on its plain language. It reasoned that if the legislature had wanted to include an admission to sufficient facts in the definition of “conviction,” then it would have done so expressly. The court reasoned that the plain meaning of “convicted” or “convicted of” is confined to a guilty plea, a finding of guilty, a judgment of guilty, or a plea of nolo contendere. The SJC went on to state that even if it were to accept that the RMV’s interpretation would be more consistent with the purpose of Melanie’s Law, the court could not read the statute in a way to advance the purpose where such a reading would disregard the language that the legislature chose to use.

Since the SJC’s ruling in Souza, Attorney General Martha Coakley, state Senator Katherine Clark, a Melrose Democrat, and House Judiciary Chair Eugene O’Flaherty, a Chelsea Democrat, have come together to close the perceived “loophole” created by the decision. The three politicians are working towards amending the definition of “conviction” at issue in Souza to include CWOFs. “We must respond quickly to close this loophole and ensure that repeat drunk drivers are taken off the roads for significant periods of time,” Coakley said in a statement, according to the Boston Herald.

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The Boston City Council proposed an ordinance on March 15, 2012 that would require valets to deny keys to those suspected of being drunk. In response, insurance company representatives have expressed concern that such an ordinance would raise costs and place an unreasonable amount of responsibility on valet attendants, according to the Boston Globe. One valet company owner told the Globe that valet attendants do not interact with patrons for a long enough period of time, often only seconds, to determine whether the operator is too drunk to drive. Like these others who are concerned, this Massachusetts OUI / DUI / DWI attorney has questions about this proposal.

This proposed ordinance seems to be a hot potato game of pass the liability. Thus, valet attendants, who interact with patrons for a matter of seconds and who are untrained in detecting drunkenness, might be more inclined to notify police of “suspected” drunk-drivers. Could information relative to what is typically a 3-5 second interaction (according to a Globe source) be enough to provide a reasonable suspicion for police to stop a driver?

The next issue involves the distinction between drinking and operating under the influence. It is not a crime to have a drink and drive. It is presumptively a crime to drive while having a BAC of .08 or more. It is a crime to operate a motor vehicle under the influence of alcohol. The proposed ordinance blurs that distinction and would effectively deprive anyone who has had a drink, regardless of BAC, of having the keys to their own car.

All of this may lead to the issue of paternalism v. personal autonomy in the context of drinking and driving. Certainly, drunk-driving is a problem in society. However, can one not make an un-coerced decision not to drive after having a drink? Does one need a valet attendant, an acquaintance of 3-5 seconds, to tell one that driving isn’t an option? To what extent is it proper to use the instruments of law to force one into doing that which is “right” or “wise”?

In response to the last question above, our criminal law in Massachusetts is already designed to deter drinking and driving by imposing very severe, broad-brush penalties. If we need valet attendants to help enforce it, then perhaps those strict “deterrent” aspects are not working.

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As discussed in previous blog posts, the Boston Globe recently published a series of OUI-related articles in a spotlight series, the objectivity of which is questionable at best. In the wake of the spotlight series, the Supreme Judicial Court, the highest court in Massachusetts, announced that it would study the acquittal rate in Massachusetts drunk-driving bench trials, a rate which the Globe reported was more than 80 percent. Jack Cinquegrana, a former Suffolk County and federal prosecutor, is leading the inquiry.

The justices, in a prepared statement, said, “Public confidence in the judiciary depends on its belief in the integrity of the judicial process, judges, and their decisions…To preserve the public’s trust and confidence, the courts must be, and must appear to be, fair and impartial in all cases,” according to the Globe.

While this Massachusetts OUI/DUI/drunk-driving attorney fully respects the decisions of our Commonwealth’s highest court, the question that arises is: How can one have confidence in the integrity of our judicial process when an apparently politically-driven and editorialized newspaper article can potentially create an impact on the judiciary, which is supposed to be isolated from political influence and public opinion? As a Massachusetts district court judge has noted, according to the Globe, the low conviction rate in Massachusetts is due to the fact that prosecutors, sensitive to public opinion in our Commonwealth, are reluctant to dismiss OUI cases that lack evidence. While some have called for a judicial conduct board investigation, it seems that the high OUI acquittal rates in Massachusetts bench trials may well be attributable to the integrity of our judges, who are not susceptible to public prejudice or political pressures.

Cinquegrana has been asked to compare the rate of acquittals in Massachusetts jury-waived OUI trials to the United States average, according to the Globe. This is another troubling piece of information. Our Massachusetts judges should, and must, be free to make impartial decisions, case by case, without national statistics hanging over their heads. National averages have little to do with Massachusetts OUI cases, and nationwide acquittal statistics are meaningless without inquiry into police presence and tendencies, population, prosecutorial discretion, and many other factors. Here is something else to consider. OUI laws vary from state to state. Some jurisdictions mandate the taking of a breathalyzer test. Others permit the police to get a Search Warrant to take blood from an OUI suspect. In these states you might find criminal defense lawyers strongly advising their clients, those who want a trial, to go jury waived should they desire an exercise of their constitutional right to a trial. Why? Because some judges punish more severely when defendants “waste” judicial resources by electing a jury trial for cases that are strong for the prosecution. A state by state comparison of acquittal rates is meaningless absent an understanding of the differences in drunk driving laws from state to state.

The SJC has recognized the “delicate nature of this preliminary inquiry,” noting that “[o]ur system depends on judges being able to decide a case fairly but independently, without fear or favor,” according to the Globe. Time will tell whether the Massachusetts judiciary will yield to media bullying out of fear or hope for public favor. In the meantime, it is increasingly important to speak with an experienced Massachusetts OUI lawyer if you find yourself accused of drunk driving in our state. Our office has that expertise.

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