Massachusetts DUI Law

The RMV Board of Appeal is on the Move

Brian E. Simoneau — Sun, 14 Mar 2010 18:27:05 -0500

As of March 22, 2010, the Board of Appeal of the Division of Insurance of Consumer Affairs and Business Administration will be moving from its South Station location to the 8th floor of 1000 Washington Street, the former Teradyne Building in Boston’s South End.

The RMV Board of Appeal hears Massachusetts license suspension and reinstatement appeals, as well as ignition interlock violation appeals, and hardship license requests.

At the new location, the Board of Appeal will join other state agencies such as the Division of Banks, Division of Professional Licensure, and the Mass. Dept. of Telecommunications and Cable.

As a Massachusetts DUI Lawyer and hardship license specialist, I appear before the Board of Appeal at least on a weekly basis.

The Board’s new mailing address will be: 1000 Washington Street, 8th floor, Boston MA 02118-2218. However, hardship license and accident surcharge appeal forms will still be mailed to the post office box addresses appearing on the forms. In addition to holding hearings at its new Boston location, the Board will continue to hold hardship license, ignition interlock, and license suspension hearings at its other off-site locations such as the Marlborough District Court.

This move represents and effort on the part of the state to consolidate offices, increase efficiency, and save money on rent. The state executed a 10 year lease for the office space.

Mass. Appeals Court Upholds Breathalyzer Refusal Suspension

Brian E. Simoneau — Fri, 12 Mar 2010 00:37:50 -0500

In the case of Commonwealth v. Brian McCormack, which was decided on March 8, 2010, the Massachusetts Appeals Court upheld a district court judge’s decision not to return McCormack’s license after the judge found him not guilty of a 3rd offense OUI.

This case shows that where a license has been suspended because of a breathalyzer refusal, its reinstatement is not automatic. Even when a Massachusetts DUI defendant is found not guilty of the criminal charge, his or her license may still remain suspended in cases where the driver refused to take the breathalyzer.

I have found that many Massachusetts DUI lawyers fail to tell their clients about the license return procedures in cases where there is a breathalyzer refusal.

In the McCormick case, the judge refused to overrule the breathalyzer refusal suspension, in part, because of McCormick’s two prior convictions of operating under the influence, a prior conviction of operating so as to endanger, and convictions of other alcohol related offenses, including a recent conviction of assault and battery by means of a dangerous weapon.

The Massachusetts Appeals Court ruled that it was proper for the judge to considaer McCormick’s prior DUI convictions when deciding whether or not he would present a risk to public safety.

A positive aspect in this case for Massachusetts DUI lawyers and their clients is that the Court ruled that McCormick’s motion was not untimely because he did not attempt to get his license reinstated immediately after his DUI trial.

Don't Try to Bypass the Ignition Interlock Device

Brian E. Simoneau — Wed, 17 Feb 2010 11:11:53 -0500

I’ve noticed that there are a large number of people who are searching the internet for ways to bypass the ignition interlock device. Attempting to do this in Massachusetts is extremely dangerous and it will likely result in a 10 year license suspension or even jail time. The Massachusetts Ignition Interlock Device Law states that those who interfere with or tamper with an interlock device, with the intent to bypass or disable the IID, shall be punished a minimum mandatory sentence of 6 months in jail, and they may be sentenced to up to 5 years in state prison. This means that ignition interlock disabling, bypassing, or tampering is a felony in Massachusetts. Also, the Registry’s interlock regulations provide for a 10 year mandatory license suspension trying to bypass the interlock device.

Given the frustration and inconvenience associated with the ignition interlock device, it may be tempting to try to bypass it. There are even videos on the internet that show how to do so. However, the interlock devices used in Massachusetts employ sophisticated anti-tampering mechanisms which will resist or record tampering or circumvention attempts. If the Mass. RMV discovers that user tired to bypass the ignition interlock device, the interlock user will definitely be called in for a registry hearing and he or she may be charged criminally. Please do not let this happen to you.

Bus Driver Claimed to be Driving Under the Influence

Brian E. Simoneau — Mon, 15 Feb 2010 11:32:20 -0500

The Worcester Telegram recently reported of a school bus driver who had his license suspended as a result of an immediate threat complaint filed by the Worcester Police Department. Apparently, the bus driver was involved in a “road rage” incident with a motorist who was following the school bus. The motorist reported that the bus driver was “exhibiting odd behavior” and the police stopped the bus as a result thereof.

When the bus driver, who apparently has a clean driving record, told the police that he had been prescribed Oxycontin, the police officer filed, with the Mass. RMV, an immediate threat report wherein he wrote “OUI,” suggesting that the driver had been operating under the influence. Immediately after the incident, the bus driver took drug and alcohol tests which were negative.

The bus driver has filed an internal affairs complaint against the Worcester Police Officer who stopped him and filed the immediate threat complaint. When the RMV receives immediate threat notices, it immediately suspends the driver’s license and schedules a hearing at the RMV Driver Control Unit in Boston. The Worcester Police claimed that the officer “erred on the side of caution” when he filed the report with the Registry.

Certainly, a school bus driver who is driving a busload of students while under the influence of Oxycontin is a serious issue. Here, however, it seems that the driver was no doing so. Instead, he was the victim of an angry motorist who reported him to the police, who “erred on the side of caution” when they filed the report which resulted in the immediate suspension of the driver’s license. The Worcester Telegram article was the most commented on Today, and it had received 94 comments at the time of this post.

DWAI Convictions are the same as Mass. DUI Convictions

Brian E. Simoneau — Thu, 11 Feb 2010 13:29:45 -0500

The Massachusetts License Suspension Law requires that whenever a Massachusetts resident or license holder is convicted of a crime in another jurisdiction, the Registry must treat the offense as if it had been committed here in Massachusetts, for license suspension purposes.

One issue which often arises because of the above-cited law is whether or not lesser forms of operating under the influence of intoxicating liquor such as Driving While Alcohol Impaired (DWAI) is similar enough to the Massachusetts offense of OUI to be treated as such by the Mass. RMV and Board of Appeal. This situation comes up where Massachusetts residents and/or license holders are cited in New York and Colorado, both states which often allow DUI charges to be reduced to DWAI.

In the case of Brestien v. Board of Appeal, which was published today, the Massachusetts Appeals Court ruled that the Colorado offense of DWAI is sufficiently similar to the Massachusetts offense of DUI so that it should be treated as such for license suspension purposes. The Mass. Appeals Court reached this conclusion because both the Massachusetts and Colorado statues require proof that a driver’s ability to drive is impaired by alcohol.

Mass. Appeals Court Upholds Lifetime DUI Revocation

Brian E. Simoneau — Sat, 30 Jan 2010 00:28:50 -0500

In the case of Kelly v. Board of Appeal on Motor Vehicle Liability Policies and Bonds & the Registry of Motor Vehicles, 2010 WL 290502, January 27, 2010, No. 09-P-305, the Massachusetts Appeals court upheld the lifetime DUI revocation of Kelly's Massachusetts Driver's License.

Kelly had 5 DUI convictions. However, at his trial for the 5th DUI offense, the court only found him "guilty to so much of the complaint as alleges a 1st [OUI] offense." In his appeal, Kelly claimed that that the lifetime 5th offense DUI suspension of his driver's license by the Registry of Motor Vehicles was improper because the judge found him guilty of a first offense DUI, not a fifth offense as charged.

The Mass. Appeals Court summarily dismissed Kelly’s argument. The court agreed with the reasons cited by the superior court judge who upheld the lifetime loss of license. The law on 5th offenders states clearly that if a person has been convicted of or assigned to an alcohol or drug treatment program 5 or more times, “such person's license or right to operate a motor vehicle shall be revoked for the life of such person…” Thus, whether or not the court treated the DUI as a first or 5th offense does not matter at all. If the official records of the Registry show 4 prior offenses, the DUI defendant’s license will automatically be revoked for life. It may, however, be possible to obtain a hardship license.

In lifetime DUI license revocation cases, no hardship license application should be made unless and until the applicant has serve at least 5 years of the lifetime revocation.

Mass. DUI Checkpoint Death: More Details

Brian E. Simoneau — Tue, 26 Jan 2010 17:20:47 -0500

In a civil rights complaint (PDF) filed regarding the death of Kenneth Howe, who died as a result of injuries sustained at a Massachusetts DUI sobriety checkpoint in North Andover, Howe’s estate claims that Howe was “physically removed out of the vehicle, forced to the ground, beaten, handcuffed and placed in leg irons, and dragged to the police cruiser. As a result of the physical beatings and/or the delayed calling for medical services, Kenneth died in North Andover Police and/or Massachusetts State Police custody on or about November 26, 2009. The Office of the Chief Medical Examiner has ruled that Kenneth’s death is a homicide, caused by a ‘blunt impact of head and torso with compression of chest.’”

The complaint (PDF) also admits that Howe, who was riding in his friend’s pick-up truck, was smoking a marijuana cigarette as it approached the DUI checkpoint. The complaint further states that Trooper Gerardi forcefully removed Kenneth from the truck and screamed, “He assaulted me!” It seems that the police smelled marijuana, were investigating further, and Howe became combative, resistant, and physically assaulted Trooper Gerardi. The complaint denies that Howe struck Trooper Gerardi. However, Howe’s attorney would not know if he did or not. Also, it is highly unlikely that Gerardi spontaneously exclaimed that she was assaulted without a reason.

The complaint states that there was a pit bull riding in the vehicle and it goes on to describe the pit bull as a “docile family dog.” A newspaper photographer from the Eagle-Tribune newspaper took 43 photogrpahs of the incident, according to the complaint.

The case is still being investigated.

DUI Checkpoint Death Ruled Homicide, Lawsuit to be Filed

Brian E. Simoneau — Tue, 26 Jan 2010 11:55:55 -0500

What should have been a routine interaction between a motorist and police at a North Andover, Massachusetts DUI checkpoint resulted in the 45 year old man’s death. Today, the man’s family IS slated to file a wrongful death suit in U.S. District Court in Boston.

The day before Thanksgiving, Kenneth Howe was a passenger who was riding in a motor vehicle which was stopped by police at a DUI “roadblock.” The medical examiner ruled the death a homicide, which simply means that it was death at the hands of another. The ruling does not indicate whether the homicide was justifiable or not. The Essex County District Attorney’s Office is investigating the death and no criminal charges have been filed. The officers involved have not been placed on administrative leave or restricted duty.

What exactly happened at the DUI checkpoint is unclear. However, it appears that Howe had been smoking marijuana on the night of the incident and he fled from the vehicle which was stopped at the DWI checkpoint. New England Cable News (NECN) displayed some photographs of Howe’s arrest in a recent story. The lawyer for Howe’s family is claiming that police beat Howe and used excessive force. Attorney Lenny Kesten, who was recently named one of the most influential lawyers in Massachusetts, is representing the police officers. Attorney Kesten is an outstanding lawyer and a good friend. In a news interview with Channel 5 last night, he declined comment because he had not been served with the complaint, which names approximately 30 Massachusetts Police Officers and State Troopers as defendants. More information on this case will be posted as it becomes available.

How the Mass. RMV & Board of Appeal treat NY DWAI Convictions

Brian E. Simoneau — Sun, 24 Jan 2010 22:24:47 -0500

I routinely get questions and inquiries from Massachusetts residents who were arrested in for DUI New York and convicted the lesser offense of DWAI, which stands for driving while alcohol impaired. In New York, this is the least serious of DUI offenses and it is considered a non-criminal traffic violation, which does not result in a criminal record. In New York, a first offense DWAI results in mandatory 90 day suspension of the driver’s license or right to operate.

Numerous Massachusetts driver’s license holders have asked me how the Mass. RMV will treat a New York DWAI. This article will hopefully answer that question.

First, an out of state license suspension will generally trigger an automatic license suspension in Massachusetts under reciprocity. This means that when the Massachusetts Registry of Motor Vehicles gets notified via the National Driver Registry of an out of state suspension, a mandatory NDR suspension will be imposed. To clear this suspension you must bring 3 items to the Mass. RMV: (1) a clearance letter from the other state evidencing that you have served your time and are clear to drive in that state, (2) a certified copy of the out of state driving record, and (3) a certified copy of the out of state driving record. This will clear the indefinite NDR suspension.

However, the Massachusetts Registry of Motor Vehicles will treat the NY offense of DWAI just like a Massachusetts DUI. This is because the Massachusetts License Suspension law states that “if the registrar receives official notice...that a resident of the commonwealth or any person licensed to operate a motor vehicle under the provisions of this chapter has been convicted in another state, country or jurisdiction of a motor vehicle violation, the registrar shall give the same effect to said conviction for the purposes of suspension, revocation, limitation or reinstatement of the right to operate a motor vehicle, as if said violation had occurred in the commonwealth.” The Registry of Motor Vehicles and the RMV Board of Appeal have determined that a NY DWAI is to be treated like a Mass. DUI.

Further, the Mass. DUI law states that “like violations” committed in other jurisdictions count as Massachusetts DUI offenses for license suspension purposes. Therefore, in summary, the Registry of Motor Vehicles and the Board of Appeal will treat driving while alcohol impaired convictions just like convictions for operating under the influence of alcohol, OUI / DUI.

Not Guilty of OUI & Still Suspended?

Brian E. Simoneau — Wed, 20 Jan 2010 22:18:34 -0500

A Not Guilty Does Not Automatically Restore Your License on a Mass. Breathalzyer Refusal Suspension

Mass. Drivers who refused the breathalyzer in and were found not guilty of a Massachusetts DUI offense do not automatically get their licenses reinstated. Instead, in cases were all alcohol related charges were resolved in the Mass. DUI defendant’s favor, the defendant can petition the court for a restoration of the driver’s license.

There is a legal presumption that the license should be restored and, to block the license restoration, the prosecution must establish that it is more likely than not that returning the DUI defendant’s license would endanger public safety. The judge hearing the breathalyzer refusal case is required to make written findings of facts regarding his or her decision.

The ability to try to get a breathalyzer refusal suspension vacated may encourage Massachusetts DUI defendants to take the case to trial. A dismissal or not guilty verdict on the OUI charges, at least, gives the driver a chance to get his or her license returned.

Massachusetts DUI lawyers should approach these license reinstatement hearings very carefully. In cases involving repeat DUI offenders, it is important not to apply for license reinstatement too early and it is critical to have a plan. There should be some mechanism in place to insure the judge that the OUI defendant has his or her alcohol issues under control such that he or she is not likely to reoffend. No judge want to learn of a tragedy caused by someone he or she put back on the road. Sometimes a judge will initially deny a DUI license reinstatement motion and allow the DUI lawyer to apply for reconsideration after additional time has elapsed.

In summary, it may be possible to vacate a breathalyzer refusal suspension in Massachusetts DUI cases where the alcohol related charges are resolved by a dismissal or not guilty verdict. It may be also possible to challenge the breathalyzer refusal through other legal means.

Article Tries to Spark Controversy Regarding Mass. DUI First Offender Program

Brian E. Simoneau — Sun, 17 Jan 2010 09:06:23 -0500

In an article entitled “Drunken driving arrest doesn’t keep Milton school official off road,” the Patriot Ledger Newspaper makes a veiled attempt to criticize the Massachusetts Drunk Driving Law, because it allowed Christopher Huban, a member of the Milton School Committee, to obtain a hardship license, after he admitted that there were sufficient facts to convict him of operating under the influence, first offense.

Like most everyone else who is arrested for 1st offense DUI in Massachusetts, Huban was entitled to participate in the Massachusetts 24D Alcohol Program, which reduced his DUI license suspension from 1 year to 45 days. He will be required to complete a 16 week alcohol program and be on probation for 1 year.

The article seems to be written to spark controversy regarding the practice of allowing those arrested for a first offense DUI to get back on the road with a hardship license, so they can continue to work and support their families. In previous articles, the Patriot Ledger has been critical of hardship licensing. The paper fails to recognize the general lack of public transportation in Massachusetts and the resultant need to drive. The loss of a driver’s license can be an extreme punishment which often results in the loss of employment.

In Massachusetts, a hardship license is valid for a pre-determined 12 hour period each day. The article notes that residents were calling the Milton Police Department, when they saw Huban behind the wheel. The police checked his license and determined that he was legally able to drive. Incidentally, being caught driving on a license that is suspended for DUI will result in mandatory jail time.

The Patriot Leger article also mentions that Massachusetts DUI First Offenders may soon be required to use the ignition interlock device, if Mass. Senate Bill 1925, which is sponsored by Sen. Robert Hedlund, (R) Weymouth passes. Currently, under Melanie's Law, the Massachusetts Registry of Motor Vehicles requires second and subsequent DUI offenders to use Ignition Interlock devices, which sometimes register false positive alcohol readings and trigger 10 year or lifetime license suspensions. The devices prevent a vehicle from starting if the driver’s blood alcohol content is above .02, a very low threshold. If enacted, the new Massachusetts Ignition Interlock Law would require OUI first offenders to use the interlock device during the term of any hardship license and for a 6 month period after getting a full license reinstatement. Interlock-required drivers must pay for installation, inspection, and monitoring.

Independent Medical Exams in Mass. DUI Cases

Brian E. Simoneau — Sat, 16 Jan 2010 17:10:48 -0500

Massachusetts DUI Law provides an important right to those arrested for operating a motor vehicle while under the influence of intoxicating liquor, the right to an independent medical examination. The law, G.L. c. 263, § 5A, requires police to inform Massachusetts DUI defendants of this important right “immediately upon being booked” and it requires that the police give those arrested for DUI in Massachusetts a “reasonable opportunity” to exercise this right. Of course, because blood alcohol evidence is “extremely fleeting,” time is of the essence in obtaining a comparison blood test.

In order to exercise the right to an independent medical examination, which may yield exculpatory evidence, the police must notify the person arrested and provide him or her with use of a telephone. The police have no duty to affirmatively assist a DUI defendant with the exercise of his or her right to an examination, but the police cannot prevent or hinder the DUI defendant's reasonable and timely attempt to obtain such an examination.

For example, in DUI cases, the police must promptly contact a bail commissioner to arrange for the defendant’s release on bail, so that he or she can get an independent examination. The law requires that Massachusetts bail commissioners respond promptly to requests for bail hearings.

If the police fail to afford a Massachusetts DUI defendant the right to an independent medical examination, or prevent the defendant from exercising that right, it may be possible to have evidence excluded or the DUI charges dismissed.

The Massachusetts RMV vs. the Courts

Brian E. Simoneau — Thu, 14 Jan 2010 19:04:28 -0500

There is a great deal of confusion and misinformation surrounding Massachusetts license suspensions which are triggered by convictions for DUI and other motor vehicle law violations such as negligent operation, operating to endanger, driving an uninsured motor vehicle, leaving the scene of an accident, and operating after suspension or revocation.

The unknowing may wrongly decide to plead out a DUI or other criminal case based on a mistaken belief that the Mass. RMV will treat the offense in the same way as the court does. For example, if someone has 3 prior OUI convictions or program assignments from anywhere in the world, at anytime in his or her life, the Registry will revoke the person’s license for 10 years upon conviction of the 4th offense DUI. It does not matter whether or not the court reduced the charge to a first offense or the prosecution was unable to prove the prior offenses. So long as the individual has prior convictions or alcohol program assignments, which are the same as convictions, the license will be automatically revoked by operation of law.

Some people understand that Registry action is separate from the court’s treatment of a DUI conviction, but they believe that “the Registry can do whatever it wants.” This is also not true. The Registry has absolutely no discretion and it must follow the law. DUI license suspensions are, for the most part, statutory, mandatory, and automatic. In most cases, the Registry has little to no discretion and it must follow the law. Of course, there are legal disputes regarding what the law says and how it applies to a particular situation.

While some people plead not when they should not, because they do not understand the consequences of their plea, others may take a Massachusetts criminal case to trial when they could plead and avoid a conviction which would trigger an automatic license suspension. For example, agreeing to a continuance without a finding for the charge of operating to endanger or leaving the scene of an accident, will avoid a mandatory license suspension as well as a possible 4 year revocation under the Massachusetts habitual traffic offender law.

Decisions in DUI or other criminal cases should be made after consulting with a qualified and skilled Massachusetts DUI Lawyer or suspended license attorney who thoroughly understands the laws and procedures. A careful review and analysis of your driving and criminal records is imperative to making the right decision and avoiding an unpleasant surprise in the form of an unanticipated license revocation.

Many clients who tried to “represent themselves” or have relied on the advice of incompetent lawyers are now serving long license suspensions, which they did not predict or bargain for. These suspensions could have been avoided, in most cases, by good lawyering and proper handling of the case.

Certificate Excluded in Massachusetts Drug Case

Brian E. Simoneau — Tue, 05 Jan 2010 11:01:28 -0500

In another Melendez-Diaz v. Massachusetts scenario, (Commonwealth v. Kevin Johnson) the Massachusetts Appeals Court reversed a drug conviction where a drug certificate was introduced without the testimony of the analyst who produced it testifying. In Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), the U.S. Supreme Court ruled that such certificates are considered 'testimonial statements' and, subject to a narrow exception, criminal defendants have the right to confront and cross-examine the person making them.

In the case of Commonwealth v. Parmenter, the SJC will decide whether the above-cited principle applies in a Massachusetts OUI case where blood was drawn and a laboratory report regarding alcohol content was excluded, because the prosecution failed to produce the witness(s) who prepared the report.

The principles established by Melendez-Diaz might also be used to exclude breathalyzer test results in Masschusetts OUI cases. In order to be admissible, both the breathalyzer and the simulator unit, which is attached to the breathalyzer, must be inspected and certified by the Office of Alcohol Testing of the Massachusetts State Police. Absent an up to date certification, Massachusetts DUI law renders breathalyzer results inadmissible. Challenges could me made regarding the attempted admission of breathalyzer records without the testimony of the state police analyst who certified the device.

The Mass. RMV Board of Appeal: 2 Common Mistakes in Hardship License Cases

Brian E. Simoneau — Mon, 04 Jan 2010 03:22:08 -0500

The Board of Appeal of the Massachusetts Division of Insurance has the authority to grant hardship licenses, even when the Mass. RMV has refused to do so. The majority of appeals which the Board hears are Massachusetts DUI License suspensions. A large number of appellants have contacted me for assistance after they made the mistake of trying to represent themselves before the Board of Appeal and lost. Once this happens, for all practical purposes, the only recourse is to seek reconsideration or permission to file a new appeal with the Board. Although it is technically possible to appeal further to superior court, these appeals almost always fail. Under Massachusetts law, the Board is vested with a wide latitude and discretion in DUI hardship license cases. When it comes to the issuance of a hardship license to a DUI offender, the Board of Appeal is extremely circumspect and judicious. The Board denies more hardship license applicants than it approves.

The two biggest mistakes that people make when trying to get a hardship license at the Board of Appeals is appealing too early and appearing before the Board unprepared, without a lawyer. Massachusetts DUI license suspensions are statutory and the law specifies when someone can be considered for a hardship license. DUI second offenders must serve 1 year of the 2 year license suspensions, 3rd offenders must serve 2 years of the 8 year loss of license, and OUI 4th offenders must serve 5 years of the 10 year DUI license revocation. Appearing before the Board too soon is generally not a good idea and the Board generally requires appellants to serve the minimum suspension periods listed above.

Secondly, trying to represent yourself before the Board can result in a denial of hardship license relief. Many who come before the Board without a lawyer do not know what to expect at their Board of Appeal hearing and they have not adequately prepared their cases. Most are exceptionally nervous and they cannot convey, to the Board of Appeal, the key points that will put them back on the road. They are unable to adequately document and present a significant hardship or they cannot convince the Board that their problems have been brought under control, such that they do not present a risk to public safety.

Both of these problems can be avoided by hiring a lawyer who specializes in Massachusetts Board of Appeal cases before filing your appeal. It is a misconception that a hardship license applicant has “nothing to lose” by going before the Board of Appeal too early, unprepared, or unrepresented. In speaking with desperate clients who contact me after they represented themselves and lost their cases, I have seen firsthand the outcome of many of these cases.

2010: The Year of the Ignition Interlock Device

Brian E. Simoneau — Fri, 01 Jan 2010 14:07:54 -0500

Numerous states are considering or have enacted tough DUI laws requiring all those convicted of DUI to use the ignition interlock device.

In California, for example, AB 91, the New "Ignition Interlock Device" Law requires first-time DUI offenders to install a device in their vehicles in a test program in Alameda, Los Angeles, Sacramento and Tulare counties. For DUI first offenses not involving personal injury, this device must be used for 5 months. In DUI cases involving injuries, the device must be used for a full year.

On Dec. 21, 2009, United States Senator Frank Lautenberg (D-NJ) introduced S. 2920 (Drunk Driving Repeat Offender Prevention Act of 2009), to require all states to pass laws requiring mandatory use of ignition interlock devices for anyone convicted of DUI, whether a first or repeat offense. Using a familiar “carrot and stick approach,” the bill would penalize states which do not enact the mandatory ignition interlock law by reducing their federal highway funding. The bill was just referred to the Senate Environment and Public Works Committee.

Here in Massachusetts, this federal proposed legislation would likely be used as support for Massachusetts Senate Bill 1925, which would require all Mass. DUI first offenders to use the ignition interlock device. The Massachusetts interlock law currently requires all second and subsequent Mass. OUI offenders to use the device.

Wisconsin’s new Ignition Interlock Device Law requires all repeat drunk driving offenders and first-time DUI offenders who registered a breathalyzer reading of.15 percent or greater to use the ignition interlock devices. The new Wisconsin law provides for fines of up to $600 and jail time of up to six months for those who “fail” interlock breath tests or tamper with the device.

Beginning in August of 2010, a bill entitled Leandra’s Law will require all those convicted of any DUI in New York, whether felony or misdemeanor, to have ignition interlock devices installed in their vehicles. The ignition interlock devices to be used in New York will prevent a DUI offender from starting his or her vehicle if the devices registers a blood alcohol level in excess of.045. This is more than double the limit in Massachusetts, which is .020. The New York interlock devices will require rolling re-tests and they are supposedly capable of sending a photograph of the driver and the driver’s local authorities, in the event of a rolling re-test violation. Leandra’s Law also will result in mandatory reports being filed with the Center of Child Abuse and Maltreatment against those who have been convicted of DUI with a child in the vehicle.

In Massachusetts, the mandatory ignition interlock device requirement for DUI first offenders may encourage drivers to take their first offense OUI cases to trial, instead of pleading out. Those who are found not guilty of OUI would, of course, be able to avoid the expense, inconvenience, and risk of false positive alcohol readings which is associated with the controversial devices.

Proof of Prior Offenses in Massachusetts DUI Cases

Brian E. Simoneau — Sat, 26 Dec 2009 06:53:23 -0500

Each Massachusetts DUI 2nd or subsequent offense case essentially contains two cases, with each tried separately. First, the prosecution must prove beyond a reasonable doubt that the defendant operated a motor vehicle under the influence of intoxicating liquor on a public way or a road where the public had a right of access.

The second part of a second or subsequent offense Massachusetts OUI case requires the prosecution to prove that the OUI defendant had been previously convicted of OUI. The prosecution must prove each prior OUI offense. Thus, if the prosecution can prove only the current OUI case, and not the prior convictions, a 2nd or subsequent offender may only be found guilty of a first offense.
It should be noted that even in cases where a second or subsequent offender is only found guilty of a first offense DUI, due to lack of proof of prior convictions, the Massachusetts Registry of Motor Vehicles may still treat the individual as a 2nd or subsequent offender. The sufficiency of evidence proving prior DUI convictions can be challenged by filing for a hearing before the RMV Board of Appeal. The Board has the power to review prior OUI convictions and determine the proper length of DUI license suspensions.

When counting prior DUI offenses, those committed anywhere in the world can legally be counted against a Massachusetts DUI defendant. This includes similar offenses such as Driving While Alcohol Impaired (DWAI), a common charge in New York and Colorado.

In Massachusetts DUI trials, the prosecution can prove prior offenses by introducing originals or certified attested copies of court papers, probation records, and records from correctional facilities. Under Melanie’s Law, the documents are self-authenticating and no live witness testimony is required. It is sometimes possible to avoid a DUI second or subsequent offender conviction in cases where the documents contain insufficient biographical information for the court to determine that the individual named in the documents is the same individual who is on trial for DUI 2nd or subsequent offense. Biographical information which is customarily considered includes: name, date of birth, social security number, address, gender, and race.

DUI defense lawyers should raise lack of identification as an issue in 2nd or subsequent offense DUI cases if it appears that the information identifying the defendant in the prior cases is insufficient. This DUI defense tactic may save the Massachusetts DUI defendant from enhanced penalties.

Firearms Decision May Impact Massachusetts DUI Cases

Brian E. Simoneau — Thu, 24 Dec 2009 14:58:55 -0500

A firearm possession case which was decided yesterday may have implications in Massachusetts DUI cases. In Commonwealth v. Ware, firearms possession convictions were reversed on appeal because the admission of a certificate from a Massachusetts State Police Ballistician, without the ballistician’s live testimony, violated the confrontation clause contained in the 6th Amendment to the U.S. Constitution, as recently outlined in Melendez-Diaz v. Massachusetts.

In Melendez-Diaz v. Massachusetts, the U.S. Supreme Court held that criminal defendants have the constitutional right to confront an cross-examine witnesses who perform scientific and laboratory testing in connection with a criminal case. Reliance on a laboratory certificate without the production of the live witness was held to be improper.

The legal principle clearly established by Melendez-Diaz was recently used to suppress blood alcohol evidence in Commonwealth v. Parmenter, where blood was drawn by medical personnel in connection with the treatment of a DUI suspect. This case is currently under appeal and will be deiced by the Massachusetts Supreme Judicial Court. More information will follow as it becomes available.

The Melendez-Diaz decision might also be used in Massachusetts DUI cases with respect to certificates relied upon to prove the accuracy of breathalyzer instruments and simulator solutions used in Massachusetts DUI cases.

Bill Would Close "Loophole" in Massachusetts DUI Law

Brian E. Simoneau — Wed, 23 Dec 2009 00:02:51 -0500

After a man avoided a drunk driving conviction when he was alleged to have operated under the influence on the campus of Assumption College in Worcester, Massachusetts, State Representative Lew Evangelidis filed legislation today to close what he called a “loophole” in the Massachusetts DUI law.

The plain language of the Massachusetts OUI Law, G.L. c. 90 § 24, limits OUI prosecutions to intoxicated operation on “any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees.” This is not a “loophole.” It is the clear language of the statute. If the Legislature wanted OUI cases to be prosecutable no matter where the offense occurred, it would have said so. The inclusion of this limiting language was obviously purposeful.

In contrast to the crime of DUI, the crime of driving on a suspended license is prosecutable no matter where the operation occurs. This shows that the Legislature included the aforementioned limiting language in the statute for a reason. There is no “loophole” or “technicality.”

The new DUI bill would expand the coverage of the Massachusetts OUI law to Massachusetts college campuses, both public and private. Currently, a public or semi-public way is required for a successful Massachusetts OUI prosecution.

View the news story on this issue.

Court's Power to Review DUI Breathalyzer Refusal Suspensions Upheld

Brian E. Simoneau — Mon, 21 Dec 2009 11:39:36 -0500

In the case of Commonwealth v. Dennis Bauer, the Massachusetts Supreme Judicial Court decided today that the practice of allowing judges to review, and potentially vacate, breathalyzer refusal suspensions in Massachusetts DUI cases is proper and constitutional.

After being arrested for operating under the influence of intoxicating liquor (OUI), Bauer refused to submit to a breathalyzer test. Because he had 3 prior OUI convictions, his license was revoked for life pursuant to G. L. c. 90, § 24 (1) (f) (1). After a jury trial, Bauer was found not guilty and his DUI lawyer filed a motion to have his license returned. The judge denied Bauer’s motion.

Bauer challenged the judge’s authority to uphold the license revocation on the grounds that the judge’s order violated the separation of legislative, executive, and judicial powers mandated by art. 30 of the Massachusetts Declaration of Rights. Bauer claimed that the authority to suspend and restore a driver’s license or right to drive lies only within the exclusive purview of the executive branch of government.

In deciding Bauer’s case, the highest court in Massachusetts declared that, “[t]here is nothing unconstitutional about the legislative allocation of authority over restoration decisions described in G. L. c. 90, § 24 (1) (f) (1).” A judge’s power to review and possibly reverse a chemical test refusal suspension has been judicially affirmed.