OUI Repeat Offender Defense

February 27, 2012

Your defense of L on Friday was absolutely brilliant.  We are so fortunate to have you on our defense team as our lawyer.  You are truly one of a kind!  Thank you again….

OUI Drugs Not Guilty

February 27, 2012

We are extremely grateful for your efforts in handling B’s defense in this case.  I hope if we ever meet or talk again it will be on good news with regard to B’s personal successes.  Thanks again for your help.

DUI Not Guilty

February 27, 2012

I want to thank you again for all the help you gave me over these past months.  I really feel your fee should be more.  I appreciate your consideration.  You are an asset to your profession and I am grateful for meeting you.

Underage DUI Defense

February 27, 2012

We are so grateful for your excellent representation of our son.  If we can ever offer a reference for you we would certainly be delighted to do so.  Thanks again.

Brockton DWI Defense Testimonial

February 27, 2012

I  just wanted to let you know personally how I greatly appreciated the way you represented me on my cases out of Brockton District Court.  I feel like you gave me a 2nd chance at really getting my life back in order.  From my past experiences, this time I’ll make sure I don’t take it for granted.  Thank you for your troubles and hard work.

Child Endangerment While OUI

February 27, 2012

In Massachusetts it is an additional offense to operate a motor vehicle while under the influence of alcohol with a child under the age of 14 in the car. While this offense could result in a sentence to the house of correction, it will also result in a one year license suspension. Furthermore, although you may be eligible for a hardship license for the OUI conviction and suspension, you are not eligible for a hardship license during this one year suspension. Therefore, when a person is charged with a first offense OUI, the stakes are increased when child endangerment is alleged.

Your Boston DUI Lawyer must have the experience to prevent the government from proving the child endangerment charge.  This requires significant knowledge of the rules and laws of evidence and what is admissible and what should be excluded from evidence at your trial.  Always remember, the government has the burden of proof and must find some way to prove the age of the child.  In most cases, it is not permissible for a witness to give an opinion of a child’s age or for a jury to determine age based on physical descriptions.  Moreover, the government can not rely upon hearsay evidence (what someone else told the witness) to prove the age.  This is just another way an aggressive defense attorney can protect your rights by compelling the government to prove its case.

Ignition Interlock Devices for Repeat OUI Offenders

February 27, 2012

The Massachusetts Registry of Motor Vehicles (RMV) requires anyone who has been convicted, made an admission or been assigned to a Driver Alcohol Education Program more than once in their lifetime to install an iginition interlock device in their car before they will reinstate driving privileges.  This requirement is imposed even if the court characterizes your case as a first offense.

An Ignition Interlock Device is a handheld breath alcohol testing device that is connected to the car’s ignition.  The car will not start with an initial test of greater than .02.  In addition, the car will require random “rolling retests” which tests your breath alcohol level periodically.  The driver is required to have the device installed and calibrated every 30 days.  A calibration includes a data upload which reports any infractions to the RMV.

Possible violations of the Ignition Interlock requirement include failed intitial tests or missed rolling retests as well as failed rolling retests, missed monthly calibration and device tampering.  The penalties for any of these infractions range from a lockout (the car will remain disabled) to a 10 year license loss.  With such extreme penalties it is critical that drivers who require an ignition interlock device remain vigilant about following the guidelines and protect themselves from device malfunctions.

Specifically, if your device indicates a failed test and you have not been drinking, immediately report to a medical office for a blood test or to the police department to prove your sobriety.  It may be months later that the RMV questions the violation and it is the driver’s burden to prove innocence.

Be warned, these devices are not accurate as there are endless cases of erratic breath test results being recorded within minutes.  If accused of a violation, contact an experienced DUI attorney and protect yourself.

Halloween Roadblocks

February 27, 2012

I heard on the news today that arrests for Operating Under the Influence had increased 20% from last year in Massachusetts.  I have not been able to confirm 2008 statistics as of yet, but to the surprise of many, the number of arrests in Massachusetts is nearly 17,000 each year.

The increase is the result of heightened furor over drinking and driving and the increased incidences of sobriety checkpoints set up by the state police.  The increased furor means the scrutiny of local officers upon stopping a citizen and investigating for impairment is lessened.  Throw the net wider and more people get caught.  The real question is whether the conviction rate has increased as well.

Anyway, be on the lookout this weekend as the state police have announced roadblocks inMiddlesex and Hampden Counties on Halloween.  As always, the best defense against be arrested for OUI is to never drive after drinking.

MADD Trooper Under Fire

February 27, 2012

Every day I question police officers in courtrooms around the Commonwealth and I believe that most are honest and professional while on the road and on the witness stand.  However, there are always a few bad apples and one in particular is finally becoming exposed.  Trooper Kathleen Carney has long been a “player” in the business of Operating Under the Influenceenforcement as she makes no bones about the fact that she works as many road shifts and sobriety checkpoints as possible resulting in substantial arrests and court time.

As an attorney specializing in Massachusetts drunk driving defense, many of Trooper Carney’s arrests end up on my desk and her pattern of conduct reported by my clients is clear and unequivocal.  Now it looks like others are noticing.  For reasons that are not yet clear, Trooper Carney has been taken off the road and stripped of her weapon. Just days before her “modified duty” was released, I questioned Trooper Carney under oath regarding any suspensions, disciplinary action or internal investigations to which she offered a denial on all suggestions.

Admittedly, I can not prove whether she commited perjury in her denials….yet. But as reported in the Patriot Ledger, it may be that the State Police and/or the Norfolk County District Attorney are looking into that possibility. It seems that the day after her testimony in my case, the Norfolk County District Attorney reported that she would not be permitted to testify in future cases and in fact a case in Quincy District Court in which she was present to testify was dismissed for reasons not discussed even with the defense attorney.

I have always been an advocate for the videotaping of OUI investigations on the road and in the booking rooms as the Commonwealth’s reliance on officers’ opinions as the sole basis for convicting a citizen of Operating Under the Influence is inherently problematic.  As we all know, opinions are subjective and vulnerable to influence and bias on many levels.  In addition, while most officers are as honest as possible while testifying about their observations, they view the world through a partial lense (at least while on duty).

Let’s not overlook the fact that OUI enforcement can be big business for law enforcement. While I do not know the details of Trooper Carney’s source of income as a state trooper, I do know that she claims to be in court as a witness nearly five days a week. Her court time, coupled with her road shifts, leaves her little time for details which tells me that when theBoston Herald reports her base salary of $70,000 exploded to $187,152 in 2007, she is making a killing by making arrests.

Remember this….her subjective opinion regarding a citizen’s ability to drive is clearly influenced by her ability to make money. She gets paid for appearing in court whether the citizen is convicted or acquitted. This fact is also ignored by MADD when they recognize her and other officers for their relentless pursuit of drunk drivers. We continue to read the statistics issued by MADD and the State Police regarding the increased number of OUIarrests every year, yet the statistics regarding conviction rates are no where to be found. Perhaps if the local and state police, along with MADD, took a look at the merits of the arrests, Troopers like Kathleen Carney would have been discovered long ago and our justice system would not have been infected by this virus.

RMV FAIRNESS ??

February 27, 2012

I represented a client this morning at the Registry of Motor Vehicles (RMV) as he was called in for a hearing to determine whether he had violated the terms of his ignition interlock device (IID).  The notice he received informed him that he had missed a service visit in July 2008 and as a result we prepared a defense to that allegation.  After all, the purpose of providing notice is so the accused can prepare a defense, right?

Well, not surprisingly, upon walking into the hearing we were sandbagged.  The RMV representative handed me a notice for 5 other alleged violations.  When questioned as to why the original notice did not contain these additional allegations, the Board gratiously offered to allow me to take my client in the hall and discuss the issues.  Lets imagine that conversation…

“Mr. J, do you remember if you had your IID serviced on this particular date 8 months age and if not why not?”

“Well Mr. Lawyer, can you believe I have no memory of that particular date and did not bring my 2008 calendar with me.  In fact, I left my file cabinet at home also so I can’t look for any documents that may refresh my memory.  By the way, why is the RMV raising these allegations so many months later when my memory is exhausted and any witnesses or documents I may have had to prove my innocence are no longer available?”

“Please Mr. J, I know I am your lawyer and you hired me to ensure that you are treated fairly and that justice prevails, but now is not the time to get crazy.  We are at the RMV.”

Although I am making light of this experience in my blog, my frustration is overwhelming.  Be clear, this is no inconsequential hearing.  If the RMV finds that a violation has occured, the penalty is a 10 year license loss.  You would think that with the stakes so high, the RMV would at least pretend to treat the accused fairly.

Now, I know what most of you are thinking, “If he had the device in his car, he must be a drunk driver and he shouldn’t have violated any terms of his IID.”  Truth be told, there are many circumstances that rebut the various allegations made by the RMV.  False positive tests are known to be caused by hand sanitizers, certain foods and drinks.  Mechanical malfunctions or power failures have been caused by drained car batteries and other installation issues.  In this instance my client was out of town for work many weeks each month.  There was ample evidence to prove that he had not been in Massachusetts to either drive his car or have it serviced as required.

I am optimistic (cautiously) that the RMV will accept this explanation and refrain from taking my client’s license.  However, I write to inform and warn that if you are subject to IID restrictions and you have any problems with the device, service provider or otherwise, document the problem, save your evidence and prepare to be brought before the RMV even if you resolve the problem without hearing from them.  I assure you, as RMV fairness will have it, the allegation will reamerge when you least expect it and are least prepared to defend against it.