F R E Q U E N T Y A S K E D Q U E S T I O N S
1) What is OUI?
OUI is an abbreviation for Operating Under the Influence. A person is guilty of OUI if he or she drives or is in actual physical control of a motor vehicle and is under the influence of alcoholic beverages or any chemical or controlled substance to the extent that his or her mental faculties are impaired or when his or her blood alcohol level (BAC) is above the legal limit for the state. (Presently .08%)
2) How can a OUI attorney help?
An experienced attorney can do many things to challenge and disprove the evidence of the accused. This includes reviewing the calibration and maintenance records of the machine used to test blood alcohol level. It is falsely believed that these machines are infallible. To believe that they always work is like believing your car will never break down. Machines do not always work properly.
An experienced attorney will always file pretrial motions to suppress the evidence. These motions, when argued successfully, may result in the OUI case being dismissed. It is very important to effectively cross-examine the officer to expose mistakes and inaccuracies in the gathering of evidence.
An experienced attorney will always retest the blood by a private lab, and possibly hire an analyst to determine if the blood alcohol concentration (BAC) was rising. This defense may prove that that the driver's blood was actually less than Massachusetts's legal limit at the time of driving.
It is very important to photograph the scene of the arrest and view police videotape of the arrest if available. This may be helpful in showing that the ground was not level when the driver was performing the field sobriety tests. Any inaccuracies in the officer's report and testimony could be challenged with the videotape.
3) Does the car have to be moving for me to be guilty of OUI?
No. You can be arrested for OUI by driving while over the legal BAC limit or while impaired. But, you need not actually operate the car in order to be arrested. You can still be found guilty if you had the capability and power to dominate, direct, or regulate the vehicle, regardless of whether you were exercising that capability or power at the time of the arrest. In other words, simply sitting behind the wheel with the keys in the ignition can lead to your arrest for OUI by being in actual physical control of the car.
4) What do police officers look for when searching for drunk drivers on the highways?
Most OUI arrests occur at night and on week-ends. The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated while driving at night. The list is based upon research conducted by the National Highway Traffic Administration (NHTSA):
1. Turning with a wide radius
2. Straddling center of lane marker
3. "Appearing to be drunk"
4. Almost striking object or vehicle
6. Driving on other than designated highway
8. Speed more than 10 mph below limit
9. Stopping without cause in traffic lane
10. Following too closely
12. Tires on center or lane marker
13. Braking erratically
14. Driving into opposing or crossing traffic
15. Signaling inconsistent with driving actions
16. Slow response to traffic signals
17. Stopping inappropriately (other than in lane)
18. Turning abruptly or illegally
19. Accelerating or decelerating rapidly
20. Headlights off
Interestingly, Speeding has not been identified by NHTSA as an indicator of impairment. However, it is a common prosecution tactic to argue that speeding is "risk taking" behavior suggestive of diminished judgment occasioned by alcohol consumption. In reality, most police officers will admit that totally sober persons drive 10 miles over the posted speed limit late at night when the traffic is light.
5) If the police officer asks me if I have been drinking, how should I respond?
If the officer asks you "Have you been drinking?", your answer will be a significant factor in the officer's decision to arrest you, and in the prosecution's case against you if you are charged and tried for drunk driving. I believe such questions are "accusatory" in nature and you should respectfully decline to respond in a polite and courteous manner. I would suggest you respond, "I would like to speak with an attorney before I answer any questions".
It must be remembered that the officer does have a right to certain information which the courts appear to look upon as routine questions. For example, what is your name, what is your address, what is your date of birth, etc. When the officer inquires into drinking, however, ask for an attorney as set forth above. The officer will them probably say you do not have a right to an attorney and ask you to answer the question. At this point, I think your best course of action would be to "respectfully" decline to answer. A good OUI attorney will give the jury some reason for your respectfully declining to answer the question.
6) Do I have the constitutional right to speak to an attorney before I have to take a field sobriety test?
In the state of Massachusetts, and in the vast majority of the states, your right to an attorney or to advice of counsel does not attach until you are formally arrested or placed in "custody". Other states vary from the position that you have the right to consult an attorney upon being arrested to you have the right to presence of counsel to assist you to decide wither or not to submit to a chemical test. If at any time during the officer's stop, you believe you need an attorney, I believe it is always good policy to ask for an attorney. Listen to what the officer says in response to your request for an attorney, this response could be very important if he misrepresents what the law is to you. This information could go to reflect upon the officer's credibility and could be used to impeach the officer at trial.
7) Should I refuse to submit to the field sobriety tests?
You are not legally required to take a field sobriety test. This is unlike the chemical tests to determine your blood alcohol concentration [BAC]. When asked to take a chemical test, by a police officer who has already arrested you, if you refuse there are serious consequences, i.e., loss of drivers license for a year. I would recommend that you respectfully decline to take the field sobriety test. Remember, always be polite and courteous to the officer. If you are rude or become abusive or obstructive, the only person who is going to lose is you, not the police officer. You can certainly refuse the field sobriety tests in a polite and courteous manner.
8) What is the officer looking for during the initial detention at the scene?
Police officers are trained to note the following "symptoms of intoxication" on their report:
9) What happens if I did not submit to a breath, blood, or urine test?
Refusing such tests is generally not a good idea. The laws of most states permit the motor vehicle department to suspend your privilege to drive for a chemical test refusal. In addition, your refusal to submit to a test upon the request of a law enforcement officer is admissible in any criminal proceeding against you as evidence of you consciousness of guilt.
By accepting the privilege extended by the laws of most states to drive, the courts have determined that you have given your consent to submit to an approved chemical or physical test of your breath for the purposes of determining your BAC, this is called Implied Consent. Therefore, when you sign your name on your license, you are saying that if stopped for a possible OUI, you will accept to take the test. The arresting officer's belief for chemical test is "Reasonable Belief".
A person may ask to have a separate chemical test completed by an independent laboratory or hospital.
10) Can I fight my loss of license?
Massachusetts's civil license suspension for a OUI is incorporated in the criminal process and does not go into effect until after a person is convicted, or pleads guilty. The only time a separate Department of Motor Vehicles Hearing is available is for a chemical test refusal. This raises a separate civil issue that must be addressed through an appeal, directly to the Massachusetts Department of Transportation . (Mass. RMV)
11) The officer never gave me a Miranda warning: Can I get my case dismissed?
No. The officer is supposed to give a Miranda warning after he arrests you. From a practical standpoint, the police will delay the arrest decision long enough to allow you to make numerous inculpatory statements. The only consequence of a Miranda violation is that the prosecution may not use any of your answers to questions asked by the police after the arrest. Even this limitation has been eroded because statements made in violation of Miranda can be used for impeachment purposes should you testify in your own behalf at trial. Again, the wisest course of action is to say nothing regardless of whether or not you have been formally placed under arrest.
Of more consequence in most cases is the officer’s failure to advise you of the state's "implied consent" law. That is your legal obligation to take a chemical test and the consequences if you refuse. This can affect the suspension of your license.
12) Potential Defenses to a charge of OUI
There are many potential defenses in a OUI case because of the complexity of the offense. The majority can be broken down in the following areas:
Driving. Intoxication is not enough. The Prosecution must prove that the Defendant was driving. This may be difficult if, as in the case of some accidents, there are no witnesses to his being the driver of the vehicle.
Probable cause. Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain and (c) arrest. Sobriety roadblocks present particularly complex issues.
Miranda Warnings. Incriminating statements may be suppressed if warnings were not given at the appropriate time.
Under the Influence. The officer's observations and opinions as to intoxication can be questioned. An attorney should attack the circumstances of the field sobriety tests and the predisposed nature of what the officer considers "failing". Other witnesses can also testify that you appeared to be sober.
Blood-alcohol concentration (BAC). There exists a wide range of potential problems with blood, breath or urine testing. Most breath machines will register many chemical compounds found on the human breath as alcohol which can be referred to as a "non-specific" analysis. Also, breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood which varies greatly from person to person (and within a person from moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state's expert witness, and/or the defense can hire its own forensic chemist.
Testing during the absorption phase. The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption). This can be delayed if food is present in the stomach. Thus, having one last quick drink at the bar can cause inaccurate test results.
Retrograde extrapolation. This refers to the requirement that the BAC be "related back” in time from the test to the driving. A number of complex physiological problems are involved here.
Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with Massachusetts's requirements as to calibration and maintenance.
13) CRIMINAL COURT PROCESS
This is the date set after your preliminary hearing. If you have an attorney, he will advise you exactly what to do. He will speak for you at this hearing. This is the hearing wherein the judge advises what charges are filed against you and requests a plea to be entered on your behalf.
We will copy and forward to you all documents for your review. The judge, in concluding the arraignment, will decide whether any conditions should be imposed on you while the case is pending. Usually, in Massachusetts, first time offenders with no enhancements, accidents and non-lethal blood alcohol levels would not have any conditions other than no drinking and driving. For those more serious cases such as multiple offenders, accident cases, injury cases, the judge could order you to attend alcoholics anonymous meetings, a higher bail, a treatment program, or place an ignition interlock on your car. These are some of the possibilities.
(B) Preliminary Hearing:
This is absolutely the most crucial hearing in your case. The preliminary hearing is not a trial. The principal function of a preliminary hearing is to protect an individual's right against an unlawful arrest and detention. At this hearing the Commonwealth bears the burden of establishing at least a prima facie case that a crime was committed and you are probably the one who committed it. It is not necessary for the Commonwealth to establish at this stage that you are guilty beyond a reasonable doubt. To meet its burden at this preliminary hearing, the Commonwealth is required to present evidence regarding each of the material elements of the charge and to establish enough probable cause to show that you committed the offense.
(C) Pre-trial Conference:
We will then schedule a future court appearance known as a pretrial conference. A pretrial conference
is a conference prior to trial wherein a number of issues will be resolved such as evidence being requested and provided, negotiation of strengths and weakness of the case, scheduling of future court appearances, etc. Your attorney will discuss your case with the District Attorney and negotiate the best possible plea bargain. It will happen about 6 weeks after arraignment. The date is set by the Court and your attorney. In between the first and second court appearance, we will be making a discovery request on the law enforcement agencies, crime labs and prosecution offices involved in your case. This discovery request is the method attorneys utilize to obtain the evidence pertaining to you! r case. This process may take several appearances and a number of months before we secure all the significant items of evidence so that we may be able to give an informed opinion regarding the strength of your case. We will be exploring resolution of your case at these pretrial conferences. In terms of the number of pretrial conferences, there may be one or more depending on a variety of factors.
(D) Suppression Hearing:
Before trial we may want to file some pretrial motions that may or may not require your attendance to challenge the admissibility of the prosecutors’ evidence. A ruling in your favor can result in evidence being excluded from your trial, including evidence of a blood or breath test, the results of some or all of the field sobriety tests, or adverse statements you may have made. Successful pre-trial motions often compel the prosecutor to make an advantageous plea bargain offer, or can result in the dismissal of the charge based on an unconstitutional stop. The Court may suppress some or all of the evidence against you if your constitutional rights have been violated. Your attorney will file various motions to suppress the evidence against you. It occurs anywhere from 6 weeks to 3 months after the pre-trial conference.
Massachusetts allows the accused to decide if they want a trial by jury or waive that right and proceed with a trial that is decided by a judge.
The Court imposes a sentence after a conviction at trial or after a plea bargain is accepted and a plea entered. Sentences may include jail time, in-home detention, public service, alcohol classes and/or fines. The period of time for which a county is required to incarcerate and/or supervise most OUI cases would be capped at a maximum of six months.
Additionally, for repeat offenders in need of treatment, the maximum penalty required would be five years. Thus, county judges will have the option of letting the Commonwealth supervise these individuals and, in such cases, the county will not bear any of the associated costs. In the overwhelming majority of cases, the offender will be required to pay for treatment.
All repeat offenders will be required to have their cars equipped with an ignition-interlock restriction system for one year prior to obtaining an unrestricted license. Also, a new offense is created for driving without a required ignition-interlock system when alcohol is present in driver’s system
FOR FURTHER QUESTIONS AND REPRESENTATION PLEASE CONTACT:
Joseph F. Hennessey, Esq.
30 Main Street, Suite 16
Ashland, MA 01721
Tel: 508 881-9500
It's not whether you get knocked down; it's whether you get up.
Do not get down just because you have been arrested for drunk driving. You need an attorney that is going to fight for you, help you back up.
Law Offices of Joseph Hennessey
30 Main Street, Suite 16
Ashland, MA 01721
Tel: 508 881-9500
Fax: 508 881-9500
Cell: 508 400-1664
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