Articles Posted in OUI Offenses

As a Boston, Massachusetts Criminal Defense Attorney, I will tell you one thing. File this post under “You always need to be careful – especially if you are rich and famous.”

I’m referring to the recent arrest of Boston Red Sox reliever Bobby Jenks. Mr. Jenks was arrested last week on charges of driving under the influence of alcohol (DUI) and leaving the scene of a crash. His arrest occurred outside a Florida strip club in Ft. Myers, near the team’s spring training facility.

Mr. Jenks, who signed a two-year, $12 Million deal with the Red Sox, was arrested on Friday, March 23 at 3:43 AM in the parking lot of Babes, a strip club in Ft. Myers. Mr. Jenks apparently said that he had swallowed “too many muscle relaxers.” He also told the deputy at the scene that he hit another car at the strip club. The Lee County Sheriff’s Office says that Babe’s bouncer saw Mr. Jenks drive into a pickup truck in the parking lot, and then drive away.

Having connections into the White House won’t necessarily spare someone from spending time in the Big House.

President Barack Obama’s uncle was brought before Framingham District Court earlier this week, where he appeared for a pre-trial conference hearing, after being arrested on August 24 on a charge of Massachusetts DUI/OUI, as well as other charges. At the time of his arrest, authorities learned that Onyango Obama, 67, who is the half-brother of President Obama’s late father, was also in violation of an almost 20 year-old immigration order to return to his native Kenya (apparently, he has been living in Framingham for quite some time.) As a result of that violation, Obama was taken into custody by U.S. Immigration and Customs Enforcement (ICE) authorities, but was released on September 9 by ICE officials without public comment. At the time, an ICE spokesman would only say that federal privacy laws prohibit agency officials from commenting on individual cases. True. I’ll leave that alone.

At Obama’s court hearing earlier this week, his lawyer and prosecutors for the Middlesex County District Attorney’s office agree to continue the case until November 17 2011. This is not uncommon for many criminal charges, including OUI/DUI. At his earlier arraignment, Obama had pleaded not guilty to the formal Massachusetts charge of operating under the influence of alcohol. At the time of his arrest, it was reported that Obama told police, “I think I will call the White House” in order to arrange bail. Not a bad decision.

As anyone who has visited my Massachusetts OUI/DUI website pages knows, Massachusetts law currently requires Ignition Interlock Devices for anyone convicted of a 2nd or greater OUI/DUI offense in Massachusetts. Currently, 1st offenders are not required to obtain such a system.

Required by Melanie’s Law since 2006 for anyone convicted or pleading guilty to a second OUI offense or higher, Ignition Interlock Devices require a driver to blow into a dash-mounted device that analyzes the driver’s Blood Alcohol Content (BAC.) If the test register above a .02, the engine will not start. When ordered by a court for multiple OUI/DUI offenders, the defendant must pay for the device and its installation. The devices are only available from a list of state-approved vendors, and they are quite expensive. Further, the driver is required, every month, to download the data stored in the device’s hard drive, to the Massachusetts Registry of Motor Vehicles. The RMV will analyze the data, which will reflect all activity related to the operation of the unit, and critically, all BAC readings each time the operator attempted to start the car.

Recently, an effort has begun in the Massachusetts Legislature to amend the current law, to require the Ignition Interlock Device Program for first-time OUI/DUI convictions. State senator Robert Hedlund (R – Weymouth,) together with the support of Mothers Against Drunk Driving and 7 other state legislators, has sponsored the legislation. The measure, Senate Bill 1746, “An Act Relative to Ignition Interlock Devices,” is currently being debated before the Transportation Committee. The bill’s sponsors point out that presently, 27 states require ignition interlock for first time OUI/DUI offenders, and they argue that statistics have proven that these devices can reduce drunk driving recidivism by a figure as high as 64 percent.

Very recently, the Massachusetts Supreme Judicial Court (SJC) announced a ruling that will make it more difficult for defendants who are accused of a Massachusetts drunk driving/OUI offense to challenge the accuracy of Breathalyzer test results.

In a case that began in Greenfield District Court, a woman was convicted of operating under the influence in Massachusetts. When she was stopped by police, she agreed to take a Breathalyzer test, which produced a result higher than the maximum allowed in Massachusetts – an .08. Massachusetts is a “Per Se” state, meaning that breathalyzer or blood test results of higher than .08 for drivers over the age of 21, or higher than.02 for drivers under the age of 21, constitute prima facie evidence of driving under the influence in Massachusetts. At this woman’s trial, the Massachusetts breathalyzer test results were admitted into evidence, and the prosecution introduced records demonstrating that the particular breathalyzer machine had received an annual certification and was maintained and calibrated regularly as required under relevant Massachusetts regulations. The woman was convicted of driving under the influence.

She appealed her conviction, arguing that the maintenance and certification records introduced by the prosecution constituted witness testimony against her, and that under the Sixth Amendment to the U.S. Constitution, her lawyer should have been given the right to cross-examine the technician who had prepared the reports. The Sixth Amendment is often referred to as the “Confrontation Clause” of the Constitution , as it guarantees the rights of a defendant in a criminal trial to face his accuser and cross-examine that person in court.

In June 2009, the U.S. Supreme Court (SCOTUS, among the legal profession,) issued a landmark decision in the area of testimonial evidence in drug prosecutions, Melendez-Diaz v. Massachusetts. The ruling in that case essentially held that certificates of drug content analyses produced by a laboratory at the request of the prosecution, and introduced into evidence by the prosecution to prove what that substance is, are inadmissible without the in-court testimony of the laboratory technician who conducted the testing. Such drug analysis certificates are attached to an affidavit, signed by the chemist or laboratory technician who conducted the testing, stating that the analysis report is accurate.

Up until this ruling, prosecutors in Massachusetts who were trying Massachusetts drug offense charges, would simply introduce the lab results along with the affidavit of the technician who conducted the test, and the results would be admitted into evidence as conclusive as to what the substance actually is.

This ruling changed that procedure, and was a considerable blow to prosecutors trying drug cases, because it meant that each and every time the prosecution intended to introduce a drug analysis certificate into evidence to prove that the substance was an illegal drug, they henceforth had to bring in the actual chemist or technician who conducted the test, to testify as to the details of the testing. The court ruled this way, because it determined that the absence in court of the actual person who conducted the drug testing, violated the Sixth Amendment’s “Confrontation Clause” guarantee. This provision of the U.S. Constitution safeguards the right of a defendant to confront the witnesses against him, in person. The question that the court grappled with was whether the affidavits that accompany such drug analysis certificates are “testimonial,” thus rendering the affiants “witnesses” who would be subject to the defendant’s right of confrontation under the Sixth Amendment . The court answered “yes” to both questions. Now, in prosecutions involving Massachusetts drug offenses, prosecutors must bring the lab technicians who conducted drug analyses, into court for cross-examination by the defendant’s attorney. As a Dedham, Massachusetts drug offenses lawyer, I think this is extremely important, because through the cross-examination process, information can be brought before the jury as to such important items as: The technician’s education, training and experience; The method and technique that was used to test the substance; Prior testing errors that the technician may have previously been involved in; How many tests had he or she conducted on the day that the contested sample was tested; as well as several other areas.

I have a very interesting case development to report today in the area of drunk driving in Massachusetts. As a Dedham, Massachusetts OUI/DWI defense lawyer, I’m often asked “What happens if a person is found by a police officer to be drunk and sitting in the driver’s seat of a car, but the car is parked and the engine is turned off? Can you be charged with drunk driving in Massachusetts under those circumstances?”

I’ll get to this in a moment, but first, it’s important to understand that a person can always be charged with OUI/DWI – or with any crime: Whether those charges will stand up in court, is an entirely different question, and that’s why you should always have an experienced and talented OUI defense attorney represent you if you’re ever charged with this crime.

Now, to answer the question: Prior to this past week, the correct legal answer to this question was always as follows: If the engine was not running, then the “Operation” element of the charge could not be sustained, and hence the case would almost certainly have to be dismissed. That is, one of the requisite elements of this crime, articulated in Massachusetts General Laws. Chapter 90 Sec. 24, is that the defendant must have been “Operating” the vehicle at the time he was arrested. “Operation” always meant a number of different things under both statutory and case law, but central to the prosecution satisfying that element, was that the driver’s key had to be in the ignition, in the “Engine On” position, and the engine had to be running. Hence, if a police officer found someone parked on the side of a public way and suspected the driver was operating under the influence of alcohol or other drugs, and the driver’s key was in the ignition but the engine was not running, then that person could not be convicted of OUI/DWI, because the statutory requirement of “Operating” the vehicle would not have been satisfied. As long as the engine was not engaged or running, a defendant could not be successfully convicted of OUI/DWI.

It’s ironic that a considerable number of drivers charged with Massachusetts DWI/OUI/Drunk Driving offenses so far this year, have hit city or state police cruisers. Just this past Monday, the commander of the Massachusetts State Police, Colonel Marian J. McGovern, was struck by an alleged drunk driver while driving her cruiser in Shrewsbury. Tragically, on June 18 of this year, State Police Sergeant Douglas Weddleton, of Brockton was struck and killed by an alleged drunk driver. The veteran state trooper, 52 years old, was struck when he was working a construction detail in Attleboro. Cases like this are awful.

Just two days ago, another such incident with a state trooper and an alleged drunk driver played out, closer to my town of Westwood. State trooper Jonathan Nickles suffered minor injuries Thursday night when an alleged drunk driver smashed into his cruiser while fleeing from Milford Massachusetts police, according to state police authorities. This was the seventh time this year that an on-duty state trooper has been struck by an alleged drunk driver. Trooper Nickles was driving to work in his marked cruiser when he noticed local police cruisers with their emergency lights on, heading in his direction. Trying to assist, he turned on his own emergency lights and positioned his cruiser on Route 109 in Medway, directly in the path of a pickup truck that was fleeing from Milford police. The driver of the truck smashed into one car, then hit Nickles’s cruiser before coming to a stop the parking lot of an adjacent bar.

Milford police immediately took the driver, Dana J. Scovil, 36, of Webster, into custody. According to a Milford Police Department report, Scovil was charged with operating under the influence (second offense), reckless operation of a motor vehicle, marked lanes violation, possession of alcohol in a car, and failure to stop. Scovil reportedly refused to take a chemical breath test and he was charged with drunken driving based on a strong odor of alcohol, and because he was unsteady on his feet and had glassy eyes – all of which would be standard operating practice for police making an arrest for OUI/DWI. Scovil also allegedly tossed a half-full can of beer out of the truck during the pursuit, according to police. Scovil pleaded not guilty in Milford District Court, where District Court Judge Robert B. Calagione set his bail at $10,000 cash for the new charges and revoked bail in an open case in Dudley District Court. Scovil’s attorney can expect that of these violations are going to be prosecuted very aggressively.

A recent fatality stemming from drinking and driving underscores the dual criminal law and civil liability dangers associated with mixing alcohol and driving.

An 18 year-old youth, Max Haberman, was killed in a Sudbury Massachusetts car crash last month. He had reportedly been drinking prior to the accident at the home of a 19 year-old, a Timothy Jarrett of Sudbury. According to the Sudbury, Massachusetts Police Department, Jarrett had hosted an under-age drinking party, where Haberman was identified as being present and consuming alcohol. As a result, Jarrett was charged with violating what is known as the Massachusetts Social Host Law. This law provides for criminal penalties against someone under 21 years of age to possess alcohol on his property. Legally, this means that in addition to facing criminal charges, Jarrett and/or his parents (presumably the owners of the property where the party was held,) will be exposed to civil liability in connection with Haberman’s death. Haberman was killed when the Mercedes SUV he was driving slammed into trees in the woods off Dutton Road in Sudbury.

This is all very tragic, and it underscores the continuing message: 1) Do not drive if you have been drinking; and 2) If you serve alcohol at a social function in your home, and someone attending that function becomes intoxicated and later injures (or kills) someone when driving after the function, you can be held civilly liable for a victim’s Massachusetts personal injuries resulting from that guest’s drunk driving. Always be aware: A guest need not be “falling down drunk”, or even visibly impaired, in order to be legally drunk when leaving your function. If you wish to hold a social event at your home and intend to serve alcohol, always call an experienced Massachusetts drunk driving lawyer before you hold such an event. Important legal issues and precautions must be taken to safeguard not only the lives of persons who might be injured by and guests that leave your function legally impaired, but extremely important proactive legal measures must be taken to protect your legal and financial interests.

Today’s post is a real story about limits – in life, professionally and personally. Before I say anything else, let me emphasize the obvious: I’m a criminal defense lawyer. I make my living, in part, by powerfully and aggressively defending clients who are accused of crimes. I fight to the end for my clients. Philosophically, I’ve always cherished the constitutional presumption of innocence in our country, and I believe that presumption should never be diminished in any way. All that being said, there are also times when I believe that if a defendant has committed multiple offenses for a specific act (such as drunk driving,) and has received multiple convictions or other findings tantamount to a guilty plea on those offenses, then he or she is arrested yet again for the same offense, the time comes when that person must own up to their problem, and pay the price that the courts have decreed is appropriate for that offense. As a Boston criminal defense lawyer, I can tell you that this type of situation is most often witnessed in OUI/alcohol and sex offenses.

Which brings us to today’s topic. Within the state senate in Massachusetts (a body not known for the sterling reputations of all who have been elected to it,) there is a certain state senator by the name of Anthony D. Galluccio, who stands out as a poster boy for the “Enough Is Enough” doctrine I referred to above. Galluccio, a Cambridge Democrat, has previous to today’s date been convicted twice of Massachusetts drunk driving/OUI charges. Subsequent to those convictions, in December 2005 he also caused a four-car accident in downtown Boston at 2:00 AM. Following that incident, a clerk-magistrate ruled that he had been drinking, but could not find sufficient evidence to legally support a charge of driving under the influence of alcohol. File that under “lucky break.”

Predictably, it gets worse: Just two months ago, in October, Gallucio was charged with leaving the scene of a car accident, in which he rear-ended a minivan carrying a family of four, resulting in a 13-year-old boy and his father suffering minor injuries. Just prior to that accident, a bartender in Cambridge, where Galluccio had been drinking, called Cambridge police to request that Galluccio be driven home, as the caller felt Galluccio was was too inebriated to drive. Notwithstanding, Galluccio refused to comment on whether he had been drinking before the October crash, telling reporters only that, “I cannot overstate how regretful I am,” and that, “I made a firm decision that there will be no alcohol in my life.” As a result of that incident, this past Friday, Galluccio, 42, was sentenced to six months of home confinement and to two years of supervised probation. He was required to avoid all alcohol use, and required to submit to random testing for alcohol use.

What I’m going to write about today will be of interest to not only Massachusetts OUI lawyers such as myself, but to anyone who drives in Massachusetts. Previously, on July 1 of this year, I blogged about a case that was handed down by the United States Supreme Court earlier this year. While I didn’t cite that case by name in that blog, it was Commonwealth v. Melendez-Diaz. In that ruling, the U.S. Supreme Court held that lab reports offered as evidence by prosecutors to prove the chemical composition of substances that it (the prosecution) claimed were illegal drugs, would in the future require the in-person testimony at trial, of the lab technician(s) who actually tested the substance. This ruling was substantial for persons accused of Massachusetts drug crimes, as prior to this ruling, the prosecution needed to introduce only a certificate from the State Police Crime Laboratory, showing that the substance tested was a certain drug.

From that ruling forward, prosecutors would have to bring the specific lab technician who tested the substance into court, to allow the defense to cross-examine him or her as to various aspects of the testing, of their own qualifications and experience, the testing equipment used, etc., etc. The core of the U.S. Supreme Court’s reasoning in this case, was that “Confrontation Clause” of the U.S. Constitution, which requires the appearance of live witnesses who are testifying against a defendant, would be violated without the in-court testimony of the actual lab technician who conducted the drug testing. The decision was widely criticized by prosecutors not only in Massachusetts, but across the nation. (Notably, it was Massachusetts Attorney General Martha Coakley who argued – and lost – the case for the state of Massachusetts.) From the day the decision was handed down, prosecutors have argued that the requirement of personally producing state lab technicians to testify in person about these types of illegal drug possession and drug trafficking cases, would grind prosecutions to a halt: The argument was that District Attorneys’ offices across the state simply prosecute too many of these cases to be saddled with this “burden”.

Recently, things just got a lot more interesting in the Massachusetts criminal court system – and may get even more so in the next few months You see, the ruling on lab technicians in Melendez-Diaz, had been limited to cases where drug samples had been tested by state lab officials, in cases specifically involving Massachusetts illegal drug possession and distribution charges. But last month, in a Marlborough District Court case involving Massachusetts OUI charges, things took an interesting turn. First, some background: The case name is Commonwealth v. Parmenter ,and the defendant, one Brian Parmenter, had been in a motorcycle accident that resulted in severe injuries to him and his passenger. Though Parmenter appeared dead at the scene, a nurse who happened to live near the accident was able to revive him. Parmenter was taken to a hospital, and during his emergency room treatment, blood was drawn by hospital personnel and tested for alcohol for medical reasons.

Importantly, his blood was not tested for alcohol at the request of police or law enforcement authorities. Parmenter was eventually charged with Massachusetts drunk driving/OUI offenses, and prosecutors obtained a warrant for his medical records and test results. Prosecutors obtained these medical records, for the purpose of introducing those records at trial to prove that his blood alcohol level at the time of the accident was .09 or higher (the state limit is .08 – any higher than that, and there is a “per se” presumption in Massachusetts, that an operator was legally impaired.) In what was no surprise to me as a Norfolk County Massachusetts OUI attorney, the prosecution did not intend to call the phlebotomist who conducted the blood test. (No surprise, because prosecutors usually don’t call technicians to the stand in Massachusetts OUI cases. Normally, they just have the arresting police officer testify as to Breathalyzer test results .)

This is where things get interesting: Parmenter’s lawyer filed what is called a “Motion in Limine” (which is a motion made at the start of a trial requesting that the judge rule that certain evidence may not be introduced in trial,) in which he argued that, per the Supreme Court’s ruling in Melendez-Diaz, the hospital blood test could not be admitted without live testimony from the medical technician who either drew the blood or tested it.

In my next post, I’ll explain what happened from there, and what these developments may mean for persons arrested for Massachusetts OUI offenses.
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