Aggressive Defense of All DUI Matters
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As a Massachusetts OUI defense attorney, I was interested in a story recently reported by several different news outlets in the Boston area. A grandmother arrested for drunk driving while taking her nine-year-old grandson to school last month was found in violation of her pre-trial probation conditions after she failed to remain alcohol-free. On March 18, Sharon Faulkner, 63, of Marblehead, was arrested at the Glover School after she dropped her grandson off. Faulkner’s grandson had endured a wild ride to get to school that day: Faulkner’s 2001 Toyota Camry jumped a curb and smashed into a tree hard enough to cause both airbags to deploy. Faulkner and her grandson were still 1.3 miles away from his school, so they began walking to it, and then she hitched a ride for them. An off-duty police officer discovered Faulkner’s abandoned car and had the police search for its operator.

Marblehead Police Department Chief Robert Picariello said that the police received a call tipping them off that the car belonged to Faulkner and she was at the school. When police caught up with her at the school, Faulkner failed field sobriety tests, and a Breathalyzer test showed her blood-alcohol concentration at 0.141, almost twice the legal limit of 0.08. She explained that the accident occurred when a gold SUV passed her, “causing me to go off the road,” even though she said she was driving only 20 miles per hour. Police interacted with the grandson and noticed a bump on his forehead, and the boy complained of minor chest pain. He was taken to North Shore Children’s Hospital for medical attention and was later released. Faulkner pleaded not guilty to third-offense OUI, negligent operation of a motor vehicle, leaving the scene of a personal injury accident, wanton and reckless child endangerment, child endangerment while operating under the influence of liquor, and leaving the scene of a property damage accident.

After her release on bail, on March 25, a Breathalyzer test showed that she had violated the terms of her pre-trial probation by consuming alcohol. Consequently, in Lynn District Court, she was ordered held without bail for the duration of her court case.

Read article: Marblehead grandmom violates probation

Judging from the account of her crash in the press, Faulkner is going to need the help of a Massachusetts DUI criminal defense lawyer to ensure that she is treated fairly by the legal system. This will be a complex and serious case to defend, particularly since it involves a child and a third offense DUI charge. If Faulkner’s defense isn’t done with the utmost precision, she could wind up spending a lot more time in jail. A third-offense DUI is a felony carrying at least 150 mandatory days in jail, and the sentence can go as long as five years in state prison. You will also lose your license for eight years, with a hardship license available no sooner than four years, and face up to $15,000 in fines. Someone who is already unemployed and near retirement age, like Faulkner, could be financially devastated by having fines like this levied against her, and personally devastated by an extended stay in a correctional institution. Conviction on the child endangerment charges would add steeper penalties to the ones she already faces. A defendant like this should get help from an aggressive, experienced Massachusetts drunk driving defense lawyer right away.

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539w-300x205As a Massachusetts intoxicated driving criminal defense attorney, I was saddened to read about an accident in Lynn that took a young woman’s life. Julie Gauthier, 19 and of Salem, died March 21 while her allegedly drunk boyfriend was driving her home from a party. Christopher Maxson of Marblehead, also 19, is accused of drinking before he ran two stop signs, hit another vehicle and collided with three parked cars before overturning and hitting a fourth. Gauthier was ejected from the vehicle’s sunroof and died at the scene, while Maxson and two other passengers sustained only minor injuries. The Boston Globe reported March 23 that Maxson has pleaded not guilty to motor vehicle homicide while operating under the influence.

Lynn police and school authorities highlighted the fatal accident when they began speaking to parents about the importance of safety during the school district’s upcoming proms. The Daily Item of Lynn reported March 31 that authorities held the first of three Parent Prom Safety Information Nights at Lynn Classical on March 25. Just four days after the crash, police officers emphasized that it could have happened to anyone — even kids who weren’t drinking or doing drugs. Police officers who spoke said prom is a time for students to make wise decisions, and emphasized the dangers of drinking and driving.

But a local prosecutor also emphasized the Commonwealth’s “social host” laws. Enacted in 1998 after a fatal OUI accident, social host laws penalize people who provide alcohol to minors. In fact, the prosecutor said, parents don’t need to have bought the alcohol themselves, or even be home, to be criminally prosecuted for knowingly allowing kids to drink alcohol under their roofs. If convicted of furnishing alcohol to a minor, parents and others face up to a year in jail, a fine of up to $2,000 or both. And regardless of whether they are convicted, the presentation said, they can also be sued in civil court, an expensive and emotionally difficult prospect even if they win the case.

As a Massachusetts OUI criminal defense lawyer, I’d like to discuss this law further, because it allows criminal prosecution in several situations that most people would not consider criminal. Parents are allowed to serve their own minor children alcohol in Massachusetts, but under the social host law, they may not furnish alcohol to other minors. Nor may they knowingly allow their minor children to furnish alcohol to other minors. The definition of “furnish” includes intentionally allowing someone under 21 to have alcohol on property under your control. An overzealous prosecutor could interpret this as allowing criminal charges for parents whose teenagers get into alcohol left in plain view, even when they didn’t expect or give permission for their kids to drink it. In cases where the parent can prove they didn’t provide the alcohol themselves, teenagers can still be criminally charged for giving alcohol to their friends.

The social host law can be used even when there was no car crash or other harm from the drinking. That means parents can be criminally penalized for doing something that’s no big deal in most other Western nations — allowing a young adult to have a drink with dinner. As a Massachusetts drunk driving criminal defense attorney, I know very well that drinking and driving can have life-altering or even fatal consequences. As prom season approaches, teenagers and parents should remember that. But the social host law applies to any situation in which a minor under 21 is given alcohol — not just dangerous drunk-driving situations. Safe, responsible drinking by someone who just happens to be under 21 shouldn’t expose a teenager — or a parent — to a criminal record.

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A woman was sentenced to six months in jail for a crash that took a man’s leg, even as the victim publicly forgave her. Marybeth Frisoli, a 33-year-old former juvenile probation officer, was sentenced to 2 1/2 years in jail for the crash, with all but six months suspended. After she leaves jail, she will attend Alcoholics Anonymous meetings, and serve three years of probation with random testing to ensure that she stays away from alcohol for the entire period. Victim Mark Cronin embraced Frisoli before she was led away to begin the sentence, saying “I know you’re sorry. I really do.” He asked the judge to be lenient with Frisoli, which may have influenced the judge’s decision to give her six months in jail rather than the year prosecutors were seeking.

NECN had the story on video:

The crash happened early in the morning of Aug. 23. Frisoli had just left a bar and was driving the wrong way on a divided road approaching the Neponset Bridge in Quincy. She collided with Cronin, who was driving the correct way on a motorcycle. The accident severed Cronin’s leg, and doctors later said he might have died if another motorcyclist hadn’t stopped to help. That man, Iraq war veteran and Massachusetts National Guardsman John Melson, used Cronin’s own belt as a tourniquet. Cronin can no longer do the same job and moved his family to a new house that’s better suited to a wheelchair. But he told the newspaper that he couldn’t live a bitter life, especially in front his three children, ages six through 12.

Read article: Crash victim forgives driver who cost him his leg

Frisoli’s Massachusetts drunk driving criminal defense attorney said Cronin is “a special man.” I believe he’s right — and that Cronin’s intervention may have made a difference in Frisoli’s defense. Operating under the influence with serious bodily injury can be a felony or a misdemeanor in Massachusetts. The article said Frisoli faced up to 10 years in prison, which suggests she was charged with the felony. The six months she will actually serve is the mandatory minimum sentence — the best possible outcome after a conviction for felony OUI with serious bodily injury, and half of the time the prosecution asked for.

When an OUI with serious bodily injury is charged as a misdemeanor, it carries no mandatory minimum and up to 2 1/2 years in the house of correction. As a Massachusetts OUI criminal defense lawyer, I prefer to negotiate with prosecutors whenever possible to reduce a felony OUI with bodily injury charge to the misdemeanor version. This eliminates the mandatory minimum sentencing requirement, giving the judge discretion to sentence the client to no time at all, if appropriate. It also allows the client, if convicted, to avoid having a felony on his or her record, which preserves civil rights like voting and helps in job hunts. However, this isn’t to say that a guilty plea is necessary or even typical with either type of OUI with serious bodily injury charge. When the facts are right, I can and will fight this charge in a court of law.

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A man was charged with driving drunk for a third time after witnesses saw his car get stuck on train tracks, then drive off on the wrong side of the road. Tests showed that Donald K. Seiffert, 40, had a blood-alcohol concentration of 0.30 or 0.29 shortly after he was pulled over on suspicion of OUI. A witness told police that Seiffert, an editor at The Enterprise of Brockton, drove onto train tracks in his home town of Braintree with a young child in the back. (Police later found that this was his six-year-old son.) As the witness watched, Seiffert shifted from drive to reverse for about five minutes before freeing the vehicle.

He proceeded down the wrong side of the road and was stopped by an officer, who said the car weaved into oncoming traffic several times before stopping. Seiffert claimed he had not been drinking, but didn’t know where he was. He looked in several places, including his mobile phone, when asked for his driver’s license, and produced an emissions test result when asked for his registration. The officer found a half-empty liter vodka bottle in the front seat. Seiffert has pleaded not guilty to charges of third-offense OUI, child endangerment and leaving a marked lane. The boy was released to his mother.

Read article: Police: Man arraigned for drunk driving with child in car

I hope this man gets help from a Massachusetts OUI criminal defense attorney as early as possible, because the charges he’s facing are very serious. A third drunk driving offense is a felony in Massachusetts, and it comes with a mandatory sentence of at least 150 days (five months) in jail, up to a maximum of five years in prison. Drivers convicted will also lose their licenses for eight years, with no hardship license available for four years. The fact that his son was in the car means Seiffert also faces a sentence enhancement for OUI with child endangerment. When a minor age 14 or younger was in the vehicle, drivers charged with OUI face an additional year of license suspension and a mandatory 90 days in jail. A conviction can also seriously damage the driver’s case in any child custody dispute. With so much at stake, drivers need the help of a Massachusetts intoxicated driving defense lawyer to minimize the negative effects on their families, jobs and lives.

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One young man from Norwell is dead and another faces prison after a bad drunk driving accident, the Quincy Patriot Ledger reported March 9. Ryan O’Donnell, 18, was killed in a rollover crash in Norwell March 7. He was a passenger in a vehicle driven by a friend and former classmate, William Ecclestone, also 18 and from Norwell. Ecclestone is accused of being intoxicated when he drove his car into a tree, causing it to roll over. Ecclestone suffered minor injuries and was able to leave the vehicle on his own, but O’Donnell died at the hospital of his injuries. Police say Ecclestone showed signs of intoxication and failed a sobriety test. He is charged with motor vehicle manslaughter, vehicular homicide by negligent driving, OUI, reckless driving, speeding and leaving a marked lane.

This terrible accident caught my attention, as a Massachusetts intoxicated driving defense attorney, because the crash was very serious, but also because the young men were friends who had graduated from the same small, close-knit high school. I was interested to see a related opinion piece written by another 2009 graduate of Norwell High School, Nicholas Russo, who is now at Lyndon State College in Vermont. Russo said the high school had staged a mock crash when they were seniors, which was “a carbon copy” of the one that took O’Donnell’s life. The students watched as firefighters worked to free students from the mock crash and took one away in a body bag, while the student’s father watched. Afterward, he said, students swore to an adviser that they couldn’t imagine driving drunk after seeing that.

Russo suspected at the time that this was not true — and less than a year later, he has some evidence that he was right. Too many people think it can’t happen to them, he wrote. He ended the article by asking readers to remember that there are permanent consequences to driving drunk.

As a Massachusetts OUI criminal defense lawyer, I’m afraid Russo is probably right. It doesn’t take a scientist to realize that people won’t stop doing something just because they know it’s not safe — for example, smoking. But there’s a second side to these mock crashes that students don’t see much of, and that’s the fact that drunk driving is a crime. Police officers may “arrest” the driver in the mock crash at the scene, but it’s difficult to drive home the seriousness of the consequences that driver would face. To do that, you have to think about the driver’s experience as he or she moves through the criminal justice system.

In the crash that killed O’Donnell, Ecclestone is facing multiple charges. A charge of felony motor vehicle homicide carries up to 15 years in prison, with a mandatory minimum of 1 year. A charge of vehicular manslaughter with OUI, which is less common, carries a mandatory minimum of five years and up to 20. A conviction may also mean driver’s license revocation for life. His future plans may grind to a halt at the age of 18. All of this is on top of living with the knowledge that his actions are responsible for his friend’s death. If you’re facing charges this serious, you need to speak to an experienced Massachusetts drunk driving defense lawyer right away.

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1391010417_4be1dff008A man from Charlton was sent to prison Feb. 24 after receiving his seventh conviction for operating under the influence. Jason Wetteland, 40, was arrested most recently on Aug. 1, 2009, after an Amesbury police officer witnessed him nearly causing a crash on Route 110. The officer immediately pulled him over, and Wetteland allegedly admitted he was drunk. He was holding a bottle of blackberry brandy between his legs and had at least eight cans out of a 12-pack of beer in the vehicle. Nonetheless, Wetteland refused to take a blood-alcohol concentration test. He pleaded guilty to a fifth or subsequent OUI; driving after license suspension, subsequent offense; and negligent driving.

For the OUI conviction, Wetteland was sentenced to up to five years in prison and eight years of probation, plus fines. He also lost his license to drive and was sentenced to time served for driving with a suspended license. As conditions of his probation, he will be required to attend alcohol classes; stay away from drugs and alcohol; submit to random tests; and will not be allowed to drive. His prior convictions for operating under the influence took place in 1988, 1990, 1991, 1991 again, 1999 and 2001, in Dudley, Worcester and East Brookfield courts.

Read article: Chronic DUI offender heads to state prison

Drivers like this do not represent the bulk of my clients as a Massachusetts OUI criminal defense attorney. Studies show that the majority of first-time drunk driving defendants do not commit another drunk driving offense — they learn from their mistake and move on. However, a minority are chronic drunk drivers, who may have a problem with alcohol that can’t be solved by a 12-month license suspension. The harsh penalties they face are not aimed at first-time drunk drivers, but a look at those penalties shows how important it is to defend yourself from a first OUI, so that subsequent-offense penalties are not available to prosecutors.

A first offender in Massachusetts is likely to get probation rather than jail time (although jail time is an option), fines and fees and a license suspension of one year, with a hardship license available after three months. Alternative disposition (the 24D program) is also available for first offenders, which allows them lower fines, a shorter license suspension and no possibility of jail. These penalties get harsher with each subsequent offense. A fifth or subsequent offense like Wetteland’s carries mandatory prison time of at least two years, and up to five; steep fees; and the lifetime loss of a driver’s license. This is why people charged with a first OUI should, whenever possible, get help from an experienced Massachusetts drunk driving defense lawyer — so they can keep that first OUI off their records. In the best cases, this allows them to learn from their mistakes without the need for life-altering penalties.

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A driver from Everett faces criminal charges after crashing his van into a Red Line train in Cambridge early on Feb. 19. Jefferson Mondesir, 30, is accused of being intoxicated when he drove through a metal fence and into a commuter train around 12:30 a.m. Authorities say Mondesir was probably coming from Memorial Drive in Cambridge onto the Longfellow Bridge, which connects Boston and Cambridge over the Charles River. However, the Boston Globe reported, Mondesir lost control and went from the road part of the bridge into the railroad’s right-of-way.

No one was hurt, but all 50 passengers on the train were evacuated and escorted to the Charles/MGH train station. There, they and three other trains’ worth of passengers had to take buses, because the crash took out the rail’s electrical systems. MBTA crews worked steadily until 4:45 a.m. Feb. 19 to restore power in time for the trains’ daily start at 5 a.m. Mondesir was arraigned the same day on charges of operating under the influence, reckless operation, failure to yield or stop and failure to drive in marked lanes.

Read article: Man crashes vehicle into Red Line train

As a Massachusetts drunk driving criminal defense attorney, I’d like to know what evidence there is against Mondesir. The article doesn’t mention a test of his blood-alcohol concentration, but this is an essential piece of evidence in any OUI case. If there is no test, prosecutors can still charge him with operating under the influence, but they will have to prove that he was under the influence of alcohol or drugs at the time — which may not be easy to do. If there is a BAC test, any attorney Mondesir hires should scrutinize it carefully for technical problems or police mistakes with testing procedure and civil rights. In many cases, a mistake by officers administering the test can taint the evidence so badly that it can’t hold up in court. If that happens, an experienced Massachusetts OUI defense lawyer should immediately ask to have the tainted evidence thrown out of court, weakening the case against the driver. This may be especially important in this case, which may be locally famous because of the Red Line’s involvement.

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Guardian_Interlock_AMS2000_1Last month, I wrote about the use of ignition interlock devices in Massachusetts drunk driving cases. Under Melanie’s Law, courts may order repeat OUI offenders to install these mobile breathalyzers in their vehicles, at their own expense. The devices were originally hailed as an effective way to stop drunk driving, but as I wrote in January, citizens and Massachusetts OUI defense attorneys have raised significant questions about their effectiveness, reliability and safety.

Now, a report from the Record of Waterloo, Ontario, Canada suggests that ignition interlock devices may someday be outmoded by a new technology. The Feb. 12 article says Sober Steering Sensors Canada Inc. is developing a type of chemical sensor that can detect what it calls the gas byproducts of alcohol though a person’s skin. The company is developing a steering wheel that incorporates the sensors. As with IIDs, the system would not allow the vehicle to start if it detects a high BAC. The Record said the company is already testing the technology in “fleet” vehicles, including buses and large trucks. Both MADD and the auto insurance industry have expressed interest, and the company’s founder was slated to talk to Florida’s state legislature about the technology Feb. 15.

The article said Sober Steering’s product may improve on IIDs for several reasons. IIDs require a “clean” breath test before they allow the vehicle to start. Drivers can get around this by having another person take the test. For this reason, IIDs also require a “rolling retest,” which means retaking the breath test while the vehicle is in motion. Critics believe this is not safe, especially since the car can shut down in traffic if the driver can’t find a safe place to pull over and take the test. The Sober Steering technology can take rolling retests without the driver having to do anything but keep his or her hands on the wheel. Sober Steering claims its technology can tell the difference between alcohol consumption and alcohol from hand sanitizer, mouthwash or other products, a common criticism of breathalyzers. And the cost of installing it is a sixth to a tenth of the cost of an IID, the article said.

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A young man was arraigned for Feb. 8 driving drunk in an accident that killed another man, WCVB Boston reported. Prosecutors say David Diaz, 23, was drunk and asleep at the wheel when he hit Lay Bou, 56, on Route 110 in Methuen. Bou was jogging facing oncoming traffic, as was his habit, when Diaz hit him around 8:30 a.m. Bou was taken to the hospital, where he was pronounced dead. Diaz also suffered minor injuries and was taken to the hospital. There, a blood test showed he had a BAC of 0.16, twice the legal limit. Prosecutors say Diaz told police he doesn’t remember the crash, and accuse him of falling asleep at the wheel. According to the article, Diaz said he had left work around 3 a.m. and drank several beers at a friend’s house.

At the arraignment, Diaz was charged with operating under the influence, felony motor vehicle homicide and failure to stay in his lane. He pleaded not guilty to all of the charges. The judge in the case ordered $10,000 bail, but said that if Diaz posts bail, conditions of his release include submitting to breathalyzer tests and giving up his passport.

Read article: Prosecutor: Drunken Driver Asleep At Wheel

If he has not already done so Diaz must retain the services of a Massachusetts OUI defense attorney, because these are serious allegations. If convicted, he faces up to 15 years in prison on the felony motor vehicle homicide charge, plus potential jail time for the OUI charge as well. Importantly, however, the prosecution cannot convict on this charge simply by showing that the defendant was driving drunk when the fatal accident happened. In order to obtain a felony conviction, prosecutors must also show that the defendant was operating recklessly or negligently. This can be tough, because a lot depends on the circumstances of the crash and how well they are documented. If prosecutors can’t prove recklessness or negligence, they would have to reduce the charge down to misdemeanor motor vehicle homicide, which doesn’t require a recklessness showing. That charge carries up to two and a half years in prison, substantially less than the maximum of 15 for the felony charge. An experienced Massachusetts drunk driving criminal defense lawyer may also be able to challenge the blood test in court, if its validity, accuracy or chain of custody are suspect.

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Last fall, the Massachusetts Supreme Judicial Court made a ruling with important implications for Massachusetts drunk driving criminal defense attorneys and their clients. johnadamscourthouse248In the case of Commonwealth v. Dennis P. Steele, the court was asked to decide whether prosecutors may introduce both blood-alcohol content test readings at OUI trials, or only the lower of the two readings. This was a challenge to the existing rules, which explicitly say that prosecutors and police may use only the lower of the two readings. Fortunately for Massachusetts drivers, the court rejected the challenge and affirmed the rule as it currently exists.

State regulations say law enforcement must take two BAC tests when looking for evidence of drunk driving. The idea is to make sure the breath readings are accurate. If they’re off by more than 0.02, they may not be admissible in court. Under rules written by the state Secretary of Public Safety, police and prosecutors may use only the lower of the two readings. Prosecutors challenged that rule in the case of driver Dennis Steele, a western Massachusetts man who was arrested in February of 2009 for operating under the influence and driving with a suspended license. As MassLive.com reported Oct. 17, Steele’s two BAC readings measured 0.09 and 0.10, slightly above the legal limit of 0.08.

Steele decided to defend the OUI charge. At trial, prosecutors argued that they should be able to introduce the higher reading as evidence because the rule against this is not exactly state law — the Secretary of Public Safety rather than the Legislature made the rule. They agreed that the lower reading was the official BAC, but said the higher one was still valuable evidence that should be admitted by courts. The trial court disagreed, but the prosecution appealed the issue to county court and got it reversed. Steele’s appeal to the Massachusetts Supreme Judicial Court followed.

In its ruling, the SJC sided with Steele. Massachusetts law says regulations are valid as long as they relate to, and don’t conflict with, the controlling statute. In this case, the court said, the Legislature explicitly gave the Secretary of Public Safety the authority to make this decision, and didn’t make its own rule on how to handle different BAC rulings. Thus, the Secretary’s decision was perfectly valid. Furthermore, the court wrote, the two-part BAC test was intended to validate the test itself, not provide further evidence. Indeed, introducing two different breath test samples could unnecessarily confuse the jury, it wrote. It also invites jurors who don’t understand BAC tests well to incorrectly believe that the lower sample was inaccurate.

This decision upholds the status quo, but it’s still an important victory for Massachusetts OUI defense lawyers like me. As the SJC pointed out, jurors don’t always have a good understanding of BAC tests. These tests can be finicky and often result in slightly different readings, which can be caused by anything from the timing of the driver’s last drink to his or her health. Furthermore, the public is generally biased against drunk drivers, which means jurors may assume a higher test result is the correct one. By allowing only one test result to be admitted, the court has ensured that OUI defendants get a fair change in court. And by throwing out results that differ by more than 0.02, the state ensures that defendants can’t cherry-pick from wildly different results.

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