Operating Under the Influence of Alcohol OUI

Operating under the influence of alcohol (OUI) is a crime that is charged every day in virtually every district court in Massachusetts. A conviction for OUI will result in serious, long-lasting penalties.

Elements of OUI

The Commonwealth must prove three elements beyond a reasonable doubt to convict someone of operating under the influence of alcohol. 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 or while his or her blood alcohol content (BAC) was .08 or higher.

In most OUI cases, defendants don’t challenge the first two elements. Because the majority of OUI cases result from police officers pulling over motorists, it’s usually obvious that the defendant was driving on a public road. It is the third element – whether the defendant was under the influence of alcohol or blew a .08 on the Breathalyzer – that is most often disputed in court. If someone is arrested for OUI in Massachusetts and he or she refuses the breath test, the assistant district attorney is not permitted to share that information with the jury.

Under the Influence of Alcohol does not mean “drunk.” It means that someone drank enough alcohol to impair his or her ability to safely drive. If it’s a close call, police officers are trained to make the arrest and get the driver off the road. What is the evidence that officers use to conclude someone is under the influence? Typically a police officer will allege that the defendant was driving “erratically” by weaving, speeding, or crossing onto the other side of the road. If the driver has bloodshot eyes, or has an odor of alcohol coming from his mouth, or speaks with slurred speech, the police officer will request that the driver perform field sobriety tests. The most common tests include:

  • One-Legged Stand Test – the driver is instructed to stand still and raise one leg six inches off of the ground while counting aloud to a certain number;
  • Nine Step Walk and Turn Test – the driver is instructed to walk in a straight line for nine steps while touching heel to toe on each step and not raising his or her arms. After nine steps, the driver is instructed to turn around without losing his or her balance and walk back in the same manner;
  • Alphabet Test – the driver is instructed to say the alphabet without singing it; and
  • Backwards Counting Test – the driver is instructed to count backwards from a certain beginning number to a certain ending number.

If the police officer thinks that the driver failed one or more of the field sobriety tests, the driver will likely be arrested for operating under the influence of alcohol.

How to Defend the “Under the Influence” Element

The police officers’ observations will sound convincing when he is being questioned by the prosecutor. However, on cross-examination, Attorney Spring will attack his conclusions with the following arguments.

  • Drivers operate erratically for a lot of different reasons, most of which have nothing to do with drinking alcohol. Momentary distractions caused by other drivers, the weather, or the ringing of a cell phone can lead to swerving, speeding, or other minor traffic infractions.
  • It is legal in Massachusetts to drink alcohol before driving, as long as the alcohol doesn’t affect the driver’s ability to safely operate the motor vehicle. An odor of alcohol can be caused by drinking just a few alcoholic beverages and is not indicative of guilt.
  • A driver might have bloodshot eyes for a lot of different reasons, including fatigue, allergies, or illness. Dry and bloodshot eyes can be caused if the heat is on in the car.
  • Field sobriety tests are administered on the side of the road, often in the dark and in bad weather. The road will not be shut down, so cars will be whizzing by just a few feet away. Lighting is generally bad. There will be debris on the street where the tests are being performed. The driver will be understandably nervous. There is no possible way that field sobriety tests can yield an accurate result in this type of environment.

Attorney Chris Spring has successfully defended OUI cases with these exact arguments.

How to Attack the Breathalyzer

The Breathalyzer Machine determines the percentage of alcohol in an individual’s blood stream by analyzing the air found deep in the individual’s lungs. The individual is required to blow into the machine for several seconds until a valid sample is obtained by the machine. Before Melanie’s Law was enacted in Massachusetts, a Breathalyzer reading of .08 or higher was simply a piece evidence that the defendant was under the influence of alcohol. However, the passage of Melanie’s Law made a reading of .08 or higher a “per se” violation, which means that if the jury accepts the Breathalyzer reading as accurate, the defendant can be convicted of OUI on the Breathalyzer reading alone.

Should you plead guilty if you register a .08 or higher on the Breathalyzer? Not necessarily. Attorney Spring’s first line of attack, often aided by an expert, involves the machine’s built-in margin for error. An individual who submits to Breathalyzer analysis is required to blow into the machine twice. The two readings do not need to be identical in order to be introduced to the jury – in fact, the readings can be as far apart as .02. Therefore, if you submit to Breathalyzer analysis and you blow a .12 followed by a .14, the prosecutor can tell the jury that you failed the Breathalyzer. Additionally, in between the two samples taken from the defendant, the Breathalyzer operator “checks” the machine by testing the alcohol content of a sample solution that has a BAC of .15. However, the machine is deemed to be in good working order if the sample solution registers a .14, a .15, or a .16. The rules regarding the Breathalyzer Machine establish that the machine itself is only an approximation of blood alcohol content, not an exact measurement.

Other common defenses involving a Breathalyzer reading include the following:

  • There are very specific guidelines that a Breathalyzer operator must follow in order to obtain an accurate reading. Is the operator properly certified? Did the operator allow the machine time to warm up? Did the operator observe the defendant for 15 straight minutes before administering the test as required?
  • Were there outside factors that could have contaminated the reading, such as the defendant belching or vomiting?
  • Did the defendant put mouthwash, gum, or some other object in his or her mouth before the administration of the test?
  • Did the machine itself undergo maintenance as required by Massachusetts law?
  • Attorney Spring is experienced in defending cases charging OUI, even when there is a Breathalyzer reading of .08 or higher.
Melanie’s Law

The Massachusetts Legislature enacted Melanie’s Law in 2005 to toughen Massachusetts drunk driving laws that were perceived to be among the most lenient in the country. Melanie’s Law established new offenses and increased penalties related to OUI (for example, an enhanced penalty for driving under the influence of alcohol while the defendant’s license was suspended for a prior OUI; and a new child endangerment law for defendants who drive under the influence of alcohol while a child is in the vehicle). However, perhaps the most significant section of Melanie’s Law involves prior OUI offenses.

  • Prior OUI Convictions dramatically enhance penalties for any new OUI conviction. For example, a conviction for OUI-Second Offense requires either a mandatory 90-day jail sentence or a 14-day alcohol inpatient program. A conviction for OUI-Third Offense requires a mandatory six-month jail sentence. A conviction for OUI-Fourth Offense requires a mandatory one-year jail sentence, and a conviction for OUI-Fifth Offense requires a mandatory two-year jail sentence. If a defendant is arrested for OUI and has three prior convictions, the Commonwealth will generally consider indicting the case to prosecute the defendant in Superior Court where a state prison sentence is available.
  • Before Melanie’s Law, only a defendant’s prior convictions within the past 10 years could be considered. Therefore, if a defendant was arrested for OUI in 2014 and he had prior OUI convictions in 1990 and 1985, he could only be charged with an OUI-First Offense. However, Melanie’s Law eliminated the 10 year look-back rule. The defendant arrested for OUI in 2014 with priors in 1990 and 1985 will now be charged with an OUI-Third Offense. The new rule has made litigating the validity of prior offenses extremely important.
Common Defenses to Prior Convictions

The Commonwealth generally attempts to prove prior convictions as follows. The booking officer for the most recent OUI arrest will testify that the defendant provided his or her name, date of birth, social security number, and address during the booking procedure. The Commonwealth will then introduce the defendant’s prior certified convictions which the prosecutor hopes contain the same identifying information that was provided by the defendant at booking. Attorney Spring will attack prior convictions in the following manner:

  • Do the prior convictions indicate that the defendant was represented by counsel? If not, they are inadmissible.
  • Do the prior convictions indicate that the defendant was living at the same address? If not, we can argue that the prior convictions do not belong to our client.
  • Is any of the identifying information (date of birth, social security number,height, weight, etc.) inconsistent with the information provided by the defendant during booking? If so, we can argue that the prior convictions do not belong to our client.

Attorney Spring has successfully attacked prior convictions using these arguments. Given the serious penalty enhancements for prior convictions, you need an attorney who is experienced in attacking not only the new offense, but the allegation of prior convictions.

Roadblock Arrests

State and local police departments will often set up “roadblocks” to try to identify drunk drivers. The roadblocks typically occur around midnight on heavily traveled roads. There are very specific rules and regulations that the police must follow in order to arrest someone for OUI based on a roadblock stop. For example, only certain cars may be stopped, the police are not permitted to ask questions about alcohol consumption at the preliminary screening area, and a detailed written log must be maintained to document all of the drivers who were ordered to exit their cars. Police officers often make mistakes in administering roadblocks, and Attorney Spring has won numerous motions to suppress in these cases that have led to the dismissal of his clients’ cases.

Any OUI conviction will result in a license suspension, expensive fines and fees, and participation in alcohol education classes. With such serious collateral consequences, you need to be represented by an attorney with extensive experience in litigating such cases. Attorney Spring has the necessary experience to aggressively and effectively represent you.

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