Felony Motor Vehicle Homicide (Causing Death While Under the Influence of Alcohol or Drugs)

A driver who is under the influence of alcohol or drugs, and whose reckless or negligent operation causes an accident that kills another person, will be charged with felony motor vehicle homicide. A conviction for this crime carries a minimum mandatory one-year jail sentence (although defendants often receive much longer sentences after trial) and a mandatory 15-year license loss.

Elements of Felony Motor Vehicle Homicide

The Commonwealth must prove five elements beyond a reasonable doubt to convict a defendant of felony motor vehicle homicide. The Commonwealth must establish that the defendant:

1. Operated (drove or otherwise controlled) a motor vehicle;
2. On a public way (any road maintained by the government);
3. While under the influence of alcohol, marijuana, stimulants, narcotics, depressants, or glue vapors;
4. Recklessly or negligently so as to endanger the lives or safety of the public; and
5. By such operation, caused the death of another person. The defendant caused the death if his or her actions directly and substantially set in motion the entire chain of events that produced the death. The defendant is the cause of the death if his or her actions produced it in a natural and continuous sequence, and the death would not have occurred without the defendant’s actions.

In most motor vehicle homicide cases, defendants don’t challenge the first two elements. Because the majority of motor vehicle homicide cases result from police officers responding to fatal accidents, it’s usually obvious that the defendant was driving on a public road. It is the third, fourth, and fifth elements that are most often disputed in court. Even if the Commonwealth proves that the defendant was under the influence of alcohol or drugs, the driver still must be found not guilty unless it is proven that he or she operated recklessly or negligently, and the reckless or negligent operation caused the accident. This is different than operating under the influence cases, where the Commonwealth does not need to prove there was reckless or negligent operation to obtain a conviction.

Under the Influence of Alcohol and Under the Influence of Drugs are legal terms. They do not mean “drunk,” “unconscious,” or “severely impaired.” They mean that somebody drank enough alcohol, smoked enough marijuana, or ingested enough drugs to impair his or her ability to safely drive. What is the evidence that officers use to conclude someone is under the influence? The first piece of evidence is typically the officers’ allegation that the defendant was speeding, weaving, crossing the fog line or double yellow line, or otherwise driving in an erratic fashion. If the officers observed that the driver smells like marijuana or alcohol, is speaking with slurred speech, has bloodshot eyes, or is unsteady on his or her feet, the officers will ask the driver to perform field sobriety tests. The most common tests include:

• One-Legged Stand Test – the driver is ordered to stand in place and lift one leg several inches in the air while counting aloud;
• Nine Step Walk and Turn Test – the driver is ordered to march nine steps in a straight line, touching the heel of the foot to the toe on each step, without using his or her arms for balance. At the end of the nine steps, the driver is ordered to return in the same manner;
• Alphabet Test – the driver is ordered to recite (not sing) the alphabet; and
• Backward Counting Test – the driver is ordered to count backward, starting and ending at specific numbers provided by the officers.

If the police officers believe the driver failed one or more of the field sobriety tests, the driver will ordinarily be arrested and charged with operating under the influence. If the driver is allegedly under the influence of drugs instead of alcohol, he or she will often be examined by a drug recognition expert, who is a police officer with specialized training to determine whether someone has taken drugs.

How to Defend the “Under the Influence of Alcohol” Element

The police officers’ observations will sound persuasive when they are being questioned by the assistant district attorney. However, Attorney Spring will attack the officers’ conclusions that the defendant was under the influence with the following arguments.

• Motorists drive erratically for a limitless number of reasons, and the majority of those reasons have nothing to do with drinking alcohol or using drugs. Temporary distractions caused by the weather, other drivers, children in the car, or a cell phone’s ring can cause weaving, speeding, or other traffic infractions.
• In Massachusetts, it is legal to drink alcohol and then drive, as long as the driver does not drink so much that his or her ability to safely operate the motor vehicle is impaired. The smell of alcohol on someone’s breath can be caused by drinking only a few alcoholic beverages and does not necessarily indicate guilt.
• Bloodshot eyes can be the result of an illness, allergies, or fatigue. Dry and bloodshot eyes can also result from the heat being blasted in the car.
• Field sobriety tests are almost never administered at the police station – instead, they are given on the roadside, usually in the dark and often in bad weather. The police will not close the road, so cars will be driving close to where the field sobriety tests are being given. Lighting is usually provided by the bright headlights or spotlights of the police cruisers. The street will probably be littered with debris. The person taking the tests will be scared and under pressure. This environment does not allow for an accurate evaluation of the motorist’s level of sobriety.

Attorney Chris Spring has used these exact arguments to successfully defend OUI-Alcohol cases.

Breathalyzer Issues in OUI-Alcohol cases

The Breathalyzer Machine analyzes the percentage of alcohol in the defendant’s bloodstream by examining the air contained in the deepest part of the defendant’s lungs. The defendant is ordered to blow into the machine for a lengthy period of time until a valid sample is registered. Before Melanie’s Law became the law in Massachusetts, a Breathalyzer reading of .08 or higher was only one piece of evidence to suggest the defendant was under the influence of alcohol. However, the enactment of Melanie’s Law made a Breathalyzer result of .08 or higher a “per se” violation, which means that if a jury believes the Breathalyzer reading is accurate, the defendant can be found guilty of OUI on the Breathalyzer result alone.

Common Defenses to the Breathalyzer

If you blow a .08 or higher on the Breathalyzer, should you always plead guilty? Not necessarily. Spring & Spring’s first defense, sometimes supported by expert testimony, addresses the machine’s built-in margin for error. A defendant who is subject to Breathalyzer analysis is ordered to blow into the machine twice. The two results are not required to be identical in order to be introduced at trial – in fact, the results can be as far apart as .02. Therefore, if you blow a .13 followed by a .15, the prosecutor can tell the jury that you failed the Breathalyzer test. Also, between the two results taken from the defendant, the police officer “checks” the Breathalyzer machine by testing the alcohol content of a sample solution that has a blood alcohol content of .15. The machine is deemed to be working if the sample solution registers a .14, a .15, or a .16. The regulations regarding the Breathalyzer Machine make it clear that the machine does not provide an exact measurement. It provides only an approximation of the defendant’s blood alcohol content.

There are additional defenses in a Breathalyzer case, including the following:

• The police officer who is operating the Breathalyzer machine is required to follow a specific set of rules and guidelines in order to ensure an accurate reading. There are always questions regarding whether the operator allowed the machine to warm up properly, whether the operator watched the defendant for 15 minutes prior to the test (as required by law), and whether the operator had the proper certification.
• There are often questions regarding whether there were outside influences, such as the defendant vomiting or burping, that could have impaired the accuracy of the result.
• The result is not accurate if the defendant puts any object, such as gum, mouthwash, or food, into his or her mouth prior to the test’s administration.
• Just as the police officer must be certified to administer the test, the machine itself needs to undergo certain maintenance procedures in order to be properly certified.

Attorney Spring has experience defending cases charging operating under the influence of alcohol, even where there is a Breathalyzer result of .08 or higher.

Issues related to OUI-Drugs cases

Drug Recognition Expert

When a defendant is charged with OUI–Drugs, a drug recognition expert often testifies at trial. Most jurors are familiar with the signs of an individual who has been drinking alcohol, so there is no need for expert testimony. However, many jurors do not understand the signs that suggest someone has recently used drugs. Therefore, a drug recognition expert will testify and create a link between the arresting officer’s observations (for example, that the defendant had pinpoint pupils) and the defendant’s likely drug use.

Additional Defenses to OUI-Drugs

• Involuntary Intoxication – If a motorist becomes involuntarily intoxicated by taking prescribed medication, he or she cannot be found guilty. This situation occurs when the driver: took medication without being warned about its side effects; had no reason to check with his or her doctor about potential side effects; and had no reason to believe that he or she would become intoxicated from taking the medication.
• United States Attorney General Designation – When the defendant is alleged to have driven after taking prescription medication, the Commonwealth is required to prove that the United States Attorney General has designated the drug as being potentially abusive. Attorney Spring recently won an OUI-Drugs trial after the assistant district attorney was unable to establish this element before the jury.

Recklessness or Negligence is one of the elements in felony motor vehicle homicide cases. The prosecutor is obligated to prove that the defendant was driving recklessly (defined as a lack of regard for the fact that the operation of the car is likely to cause serious injury or death) or negligently (a failure to use “due care”) and that the reckless or negligent operation caused the accident.

When there is a fatal car accident, specially-trained troopers assigned to the Massachusetts State Police Crash and Reconstruction Unit investigate. The troopers take photographs and careful measurements of the accident scene and then write a detailed accident reconstruction report. The report typically contains complicated physics formulas that attempt to calculate the speed of the cars involved in the accident, the direction the cars were traveling immediately before impact, and the precise location of the decedent at impact. The troopers almost always conclude that the defendant was driving recklessly or negligently.

To rebut the prosecutor’s accident reconstruction expert, defendants who are charged with motor vehicle homicide usually need to hire their own experts. The defense expert will view the accident scene, review the troopers’ accident reconstruction report, and form his or her own opinion about what caused the accident. If the defendant’s expert concludes that the defendant was not negligent or reckless, he or she will testify for the defendant at the trial.

Cause of Death is usually not disputed in felony motor vehicle homicide cases because it is normally clear that the accident caused the death of the victim. However, in some cases where the victim is treated in the hospital for days or weeks before ultimately dying, the defendant can argue that an “intervening cause” killed the victim, rather than the accident. In such a case, the defendant usually hires a medical expert to offer an opinion about the victim’s cause of death.