Five reasons to hire a drunk driving attorney for your DUI/OUI/DWI

Photo by adrian825/iStock / Getty Images
Photo by adrian825/iStock / Getty Images

1.

A drunk driving defense attorney can see things you can’t. No, it’s not that we have a better vision than you. Instead, a drunk driving defense attorney knows what to look for in a case. A drunk driving defense attorney in Massachusetts knows to check and make sure that you were observed for 15 minutes before taking the breath test. He also knows to check the so-called “test ticket” and make sure the machine is in calibration. These are not just technicalities. Issues with even these small things can mean that the breath machine is not functioning properly. For you, this could mean that the breath test result could not be used against you in court.

2.

A criminal defense attorney can tell you not just what the law says, but what the law means and what a judge is likely to do with the law. Just because the drunk driving statute, G.L.c. 90 section 24 says that you could go to jail for up to 2 1/2 years, does not mean you will. Indeed, the vast majority of first offense OUI convictions result in a “24D” program. This, for most clients, is vastly preferable to the much lengthier loss of license under the standard statute.

3.

A drunk driving defense attorney can tell you if your constitutional rights have been violated. In Massachusetts, we are lucky to be protected by both the Constitution of the United States of America, as well as the Massachusetts Declaration of Rights. The Massachusetts Declaration of Rights actually protects citizens rights more fiercely than the Constitution. A defense attorney can look at your case and tell you if the police violated your rights under the Constitution or the Declaration of Rights. If so, evidence could be suppressed, meaning that prosecutors could not introduce it at trial.

4.

It’s been said that a good lawyer knows the law, while a great lawyer knows the judge. No, this doesn’t mean that you need a lawyer who plays golf with the judge. Indeed, judges are rightfully very careful about being too close to attorneys who appear before them. But in many ways, the saying is right: a good criminal defense attorney does his research. But a better defense attorney researches the other players. Particularly if you look for an attorney who practices in your area, that attorney should know something about the Judge and prosecutor. This is important to know to be able to craft an argument to its audience.

5.

A drunk driving defense attorney should give you peace of mind. You have enough to worry about already. You have to deal with getting around without your license, and the effect just being charged has on your life and the life of your loved ones. You should not have to worry about keeping up with the latest laws and cases on drunk driving. An attorney can take that off your plate. A good drunk driving defense attorney can do some of your worrying for you. If you can offload just some of that worrying, you can worry about the right things, like getting your life back to normal.

Frankly, there are a lot more than just five reasons to hire a drunk driving defense attorney. In any case, you should meet an attorney face-to-face to figure out if it’s a good fit. If you don’t feel comfortable, meeting with him, that’s probably a good indication that it’s not the right fit. Ask around (you’d be amazed at how many people you know have had a similar charge), and don’t be afraid to ask for a free initial consultation to make sure he (or she) is the right attorney for you.


Harrison Barrow is a criminal defense attorney focusing on winning OUI/DUI/DWI cases for his clients. His office is in West Dennis, and he practices in courts throughout Cape Cod and Southeastern Massachusetts. You can call his office toll-free at 844–945–1400 and speak to a human any time of the day or night.

Texting and Driving - More Dangerous than an OUI

No less than the National Highway Traffic Safety Administration (NHTSA - the same organization that created the DWI Detection & Standardized Field Sobriety Testing Manuals) has come out saying distracted driving is actually more dangerous than drunken driving:

In 2014, 3,179 people were killed and an additional 431,000 were injured in collisions involving distracted drivers.... NHTSA.gov

Be careful out there folks. April is Distracted Driving Awareness Month. 

Wayward Prosecutors Go Unpunished - NE Center for Investigatorial Reporting

http://features.necir.org/prosecutorial-misconduct-1

A sobering look at some worrying statistics on the lack of accountability for prosecutorial misconduct. This article also shows some terrifying individual instances of wrongdoing by those sworn to uphold the law. 

Here's hoping that the most recent updates to the Massachusetts Rules of Professional Conduct keep this in the Commonwealth's mind!

The Most Recent Problems with the Breathalyzer

UPDATED April 6, 2016:

Still no word on the consolidated cases out of Concord, to which we've joined. The most recent word is that our next pretrial date is in June, when we will finally have a hearing on the machines.

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News of this had been making its way around the courthouses, but the news has finally gotten a hold of it. Local prosecutors' offices are not using breathalyzer results to prosecute cases:

http://boston.cbslocal.com/2015/04/24/3-more-district-attorneys-suspend-breathalyzer-test-evidence/

It's hard to tell right now how long this voluntary moratorium will go on for, but it definitely highlights the problems with these machines. These machines are sold, and tests are given, with the promise that they are accurate and can precisely determine the amount of alcohol in a person's blood stream. This is simply not the case. 

These machines attempt to measure the amount of alcohol in a person's breath, and then use that amount to figure out how much is in the blood. This is not exact science, it's approximation. 

What this means for you, should you be charged with OUI, is that the prosecution has one less arrow in their quiver at trial.

Resources

This post is a compilation of helpful resources. It's really geared more toward practicing attorneys, but that is not to discourage anyone from reading it. Just remember that a little bit of knowledge can be a dangerous thing. Also, I apologize, as I've also had to remove many of the paid resources I use for copyright reasons. Except for where I say otherwise, I am not the copyright holder for these works.

Bail

Probation Violations

Evidence

Crimes

Miscellaneous

Should I stay or should I blow? Breath Test Refusals in Massachusetts.

One of the most commonly asked questions I hear is “should I take the breathalyzer?” This question comes up everywhere - from parties to lock-up. Some people tell me, “my lawyer told me to never take the test.” Well, that’s one way to do it, but that advice has been around since before “Melanie’s Law.” “Melanie’s Law” increased the penalties for refusing to take a breathalyzer. Just refusing to provide a breath sample can expose you at a minimum to 180 days of license loss, and a hefty reinstatement fee (typically $500 at this writing). 

If you’re here looking for a quick answer, here’s a rule of thumb: 

If you’re wondering if you should take the breath test or not, you probably shouldn’t.

Fact is, if you’re debating whether to take the test or not, chances are you’ve had a couple drinks. As you probably know, the legal limit in Massachusetts is 0.08% Blood Alcohol Content. If your blood is above this level, the law considers you per se intoxicated. If you provide a breath sample over this amount, you automatically lose your license for 30 days after your arrest. Even if you are below 0.08%, the Commonwealth can still prosecute you. Between 0.05% and 0.079%, there is no inference to be made about your intoxication, and below 0.05%, you’re presumed to be not intoxicated. 

What is a refusal?

The only refusal that really matters when it comes to breath tests is a refusal on the official breathalyzer back at the station. In Massachusetts, just about every town has a machine called an Alcotest 9510, which claims to accurately measure the amount of alcohol in your bloodstream (it doesn’t). A few towns may still have the old Alcotest 7000 series machines, but which of these machines isn’t important to you right now. What matters is that these are the machines that matter. Explaining why these matter requires getting into a little bit of Massachusetts Evidence. 

Portable Breath Tests Are Not Admissible

Portable breath tests, the little hand-held machines officers use at the side of the road, are not admissible at trial in Massachusetts. If I see a portable breath test mentioned in a police report, I usually put a slash through it, because they probably don’t matter to me. If there’s a big discrepancy between the portable reading and the calibrated machines, then maybe we have an issue, but otherwise, I really don’t care about a portable. 

What does that mean for you? Why not take the portable if it’s offered? Well, you’d might as well. Remember, this only applies to the portable breath test. These portable tests are only supposed to help an officer screen you to see if you should be arrested or not. The results of these tests cannot come in at trial. 

For a breath test to come in at trial, it needs to comply with Title 501 of the Code of Massachusetts Regulations. The regulation is very clear: “501 CMR 2.00 does not apply to portable breath test devices used to conduct pre-arrest screening.” The larger machines are supposed to be subject to a host of tests and certifications. Portable machines are not monitored so stringently. Therefore, tests taken on a portable machine can’t be used against you. They can really only help you to give you an idea if you’re intoxicated. 

What Penalties Do I Face for Refusing?

If you refuse to provide a breath sample, you will lose your license for at least 180 days. If you’ve previously been convicted of operating under the influence, depending on how many times, you could lose your license for life. 

Suspensions for refusal are:

180 days - if you’ve never been convicted before. There remains some confusion by the Registry if a “continued without finding” (or a CWOF) should be considered a conviction for these purposes. 

3 years - if you’ve ever previously been convicted for OUI, or if you are under 21 years old at the time of refusal. 

5 years - if you’ve received 2 previous convictions for OUI. 

Lifetime - if you’ve previously been convicted 3 times for OUI. 

10 years - if you’ve previously been convicted of OUI with serious bodily injury. 

Please note, though, that individual circumstances differ. Your suspension could possibly be longer or shorter, depending on the specific facts of your situation. All of this is nothing to say about the possible loss of license if you are convicted of OUI on top of this.

New Marijuana Odor Case: Commonwealth v. Overmeyer

Answering a previously open question in Massachusetts (after Cruz), the SJC ruled in Commonwealth v. Overmeyer that the smell of unburnt marijuana would not be sufficient to search a vehicle in the search of criminal amounts of marijuana. As the Court ruled, “In sum, we are not confident, at least on this record, that a human nose can discern reliably the presence of a criminal amount of marijuana, as distinct from an amount subject only to a civil fine." Overmeyer, 2014 WL 3117191.

In another ruling released the same day, the Court further ruled that the Commonwealth could not justify such a search in an effort to enforce federal laws against marijuana possession: “[G]iven the clear preference expressed in the 2008 initiative that police focus their attention elsewhere, Federal law does not supply an alternative basis for investigating possession of one ounce or less of marijuana, especially where the Federal government has signaled a lessened interest in prosecuting such conduct . . . ." Commonwealth v. Craan 2014 WL 3118700.