OUI DEFENSE RESOURCES

MASSACHUSETTS LEGAL RESOURCES

BELOW YOU CAN FIND LEGAL RESOURCES RELATING TO THE DEFENSE OF OUI MATTERS:

Online, Print, and Audio Resources

• Drunk driving defense (Mass. Practice v.50), Co-Authored by Joseph D. Bernard, West, annual softcover.

• Handling OUI cases, with presented Joseph D. Bernard, MCLE audio, 2018

• Trying OUI cases in Massachusetts, with Co-Authors Joseph D. Bernard and Erica M. Bruno MCLE, loose-leaf

• Understanding Breath Testing, Co-Authored by Joseph D. Bernard, MCLE, 2018

• Massachusetts OUI law, Lexis annual.

• Massachusetts practice v. 12 (Motor vehicle law and practice), ThomsonWest

• Representing the OUI Client, Mass. Bar Institute, 2011

• Massachusetts Prosecutors’ Guide, 39th edition, 2020

National Highway Traffic and Safety Administration Manuals

• 2018 DWI and Standardized Field Sobriety Testing Instructor Manual

• ARIDE Participant Manual (2018)

• 2018 NHSTA SFST Manual R2-18

• ARIDE Participant Manual (2015)

• 2015 NHSTA SFST Manual R10-15

• 2013 NHTSA SFST Manual 178 R5-13

• 2006 NHTSA SFST Manual HS 178 R2-06

• 2004 NHTSA SFST Manual HS 178 R9-04

• 2002 NHTSA SFST Manual HS 178 R1-02

• 2000 NHTSA SFST Manual HS 178 R2-00

• 1996 NHTSA SFST Manual HS 178 R10-95

• 1992 NHTSA SFST Manual HS 178 R6-92

• 1987 NHTSA SFST Manual HS 178 5-87

SELECTED OUI CASE LAW

Below you will find relevant case law with authority in Massachusetts courts relating to operating under the influence matters:

Reasonable Suspicion to Stop a Vehicle

• Commonwealth v. Lyons, 409 Mass. 16, 19 (1990): Requires reasonable suspicion to stop a motor vehicle, which was missing in this case. Stop was initiated on a tip from an anonymous caller, whose identity, credibility and source of information were unknown and could not support a claim of reasonable suspicion absent police observation or knowledge of wrongdoing.

• Commonwealth V. Deramo, 446 Mass. 40 (2002): An officer is justified in making a traffic stop if it is registered to a driver whose license has been suspended, as “in the absence of any contrary evidence, [it may be] reasonably conclude[d] that a vehicle is likely being driven by its registered owner.”

• Commonwealth v. Murphy 454 Mass. 318, 324-325 (2009): A roadblock bypasses reasonable suspicion requirements when all drivers are stopped for a minimally intense and lasting intrusion, and further holds that secondary inquiry is permissible following a finding of “reasonable suspicion based on articulable facts.”

Probable Cause to Stop a Vehicle

• Commonwealth v. Elysee, 77 Mass. App. Ct. 833 n.5 (2010): Caselaw suggests that the standard for the traffic stop is “probable cause that a traffic violation had been committed.” Stop in this matter was upheld where police observed that the operator failed to use a turn signal while making a right hand turn.

• Commonwealth v. Bacon, 381 Mass. 642, 644 (1980): “Where the police have observed a traffic violation, they are warranted in stopping a vehicle.”

• Commonwealth v. Torres, 433 Mass. 669, 673 (2001): Police were warranted in stopping a vehicle for a stop-sign violation.

• Commonwealth v. Figueroa, 18 Mass. App. Ct. 967 (1984): Police were warranted in stopping a vehicle for speeding.

• Commonwealth v. Rivas, 77 Mass. App. Ct. 210, 218 (2010): Police were warranted in stopping a vehicle with a safety violation rejection sticker.

Roadblocks

• Delaware v. Prouse, 440 U.S. 648, 663-664 (1979): The Supreme Court of the United States found that the privacy interests of travelers pursuant to their Fourth and Fourteenth Amendment rights outweighs the State’s interest in arbitrary and random roadside checks. In order for a roadblock to be upheld, the police must not have any discretion in determining which vehicles to stop.

• Commonwealth v. McGeoghegan, 389 Mass. 137, 139-144 (1983): The Court held that for a roadblock to be permissible, it appears that the selection of motor vehicles to be stopped must not be arbitrary, safety must be assured, motorists' inconvenience must be minimized and assurance must be given that the procedure is being conducted pursuant to a plan devised by law enforcement supervisory personnel. Because the police officers used their own discretion in deciding which vehicles to stop, among other things, the Court held that the roadblock was unconstitutional and suppressed the evidence obtained from the stop.

• Commonwealth v. Murphy, 454 Mass. 318, 326 (2009): Held that so long as the roadblock is conducted according to the McGeoghegan factors, it is lawful. The SJC further found that officer discretion whether to pull a driver aside for secondary observation, within the parameters of the written plan, is not inconsistent with other laws and statutes, so long as the evidence supports a “finding of reasonable articulable suspicion, not on whether the police officer had the discretion . . . to forgo or defer a ...stop.”

Search and Seizure

• Commonwealth v. Goncalves- Mendez, 4138 N.E.3d 1038 (Mass. 2020): The Court found that prior to impoundment, the police have an affirmative duty to offer that a legally capable passenger may assume custody of a vehicle. Further, if impoundment was not reasonably necessary, any inventory conducted in preparation to impound constitutes an unlawful search.

Failure to Issue Citation

• Commonwealth v. O’Leary, 780 Mass. 67, 69-70 (2018): Failure to issue a citation to a citizen at the place of violation is a violation of the “no fix” rule in Massachusetts. After issuing a citation for OUI nine days after the incident, the defendant sought to dismiss the charges. “A failure to give a copy of the citation to the violator at the time and place of the violation shall constitute a defense in any court proceeding for such violation”. Where the requirements have not been followed, “the complaint shall be dismissed regardless of whether the defendant was prejudiced by the failure.” Quoting Commonwealth v. Carapellucci, 429 Mass. 579, 581 (1999).

Suppression of Evidence from Wrongful Stop

• Commonwealth v. Bacon, 381 Mass. 642, 643-644 (1980): If the police were not justified in stopping a vehicle, any incriminating evidence discovered by the police must be suppressed. Any threshold inquiry requires first a reasonable suspicion of criminal activity, and not a mere “hunch.”

• Commonwealth v. Gomes, 408 Mass. 46 (1990): Evidence found to be the “fruit” of police officers’ unlawful actions is properly excluded as it serves to preserve the integrity of the law and deter misconduct in the future.

Public Way

• Commonwealth v. Callahan, 405 Mass. 200, 204 (1989): When “members of the public had access to the property only as trespassers, who enter land “without a privilege to do so, created by the possessor's consent or otherwise” they enter not a public way for the purpose of charging OUI, but a private way.

• Commonwealth v. George, 406 Mass. 635, 636 (1990): Found that a public school’s baseball field is not a public way for the purpose of charging a driver with OUI. A public way is “a way to which the public had a right of access, or a way to which the public had a right of access as invitees or licensees”. Per G. L. c. 90, §24 (1)(a)(1), operating a motor vehicle under the influence is only a crime if done so on a public way outside the reach of the statute.

Operation of a Motor Vehicle

• Commonwealth v. Uski, 263 Mass. 22, 24 (1928): Held that “[a] person operates a motor vehicle when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.”

• Commonwealth v. Plowman, 28 Mass. App. Ct. 230, 233-234, 548 N.E.2d 1278, 1280 (1990): Trial judge erred in instructing the jury in such a way that seemed to charge that “operation of a motor vehicle” includes, as a matter of law, the act of sleeping in a vehicle, with the keys in the ignition and the engine running. There must be more.

• Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 319-320, 640 N.E.2d 481, 482-483 (1994): An intoxicated defendant found asleep behind the wheel of a vehicle parked on a public way, with the key in the ignition and the engine on, may be found to have “operated” the vehicle; the Commonwealth need not prove that the vehicle was driven before being parked nor prove the defendant’s intention after occupying the driver’s seat.

Field Sobriety Testing

• Commonwealth v. McGrail, 419 Mass. 774 (1995): A defendant’s refusal to submit to field sobriety testing is testimonial, and is therefore protected by the Massachusetts Declaration of Rights. Evidence of a refusal to submit to testing is not admissible at trial.

• Vanhouton v. Commonwealth, 424 Mass. 327 (1997): Field Sobriety Tests are not testimonial in nature and therefore the police are generally not required to provide Miranda warnings prior to administering the roadside tests.

• Commonwealth v. Sands, 424 Mass. 184 (1997): Massachusetts mandates that the Horizontal Gaze Nystagmus test be excluded from evidence at trial unless and until the Commonwealth can prove that: (1) it meets the scientific standards as outlined by Commonwealth v. Lanigan, 419 Mass. 15 (1994); and (2) the police officer who administered the test is qualified as an expert.

Defendant’s Right to Obtain Their Own Evidence

• Commonwealth v. Andrade, 389 Mass 874 (1983): The police must inform a defendant of their statutory right to obtain their own evidence under G.L. c. 263, §5A in a language that they can understand.

• Commonwealth v. Hampe, 419 Mass. 514 (1994): A defendant arrested for OUI has a statutory right under G.L. c. 263, §5A to obtain their own evidence, including an evaluation by an independent physician or obtaining a blood test at their own expense. Because this evidence is “fleeting,” the defendant is entitled to a prompt bail hearing to effectuate their ability to obtain their own evidence. While the police are not required to assist a defendant in obtaining their own evidence, they must not obstruct the defendant’s right to do so.

Blood Testing

• Missouri v. McNeely, 569 U.S. 141 (2013): The Supreme Court of the United States found that the Fourth Amendment protects a citizen from a warrantless blood draw upon arrest for OUI. The Court found that in light of the natural metabolization of alcohol, there is no per se exigency exception to the Fourth Amendment prohibition on a warrantless blood draw. The determination if exigent circumstances exist is determined on a case-by-case basis.

• Birchfield v. North Dakota, 136 S.Ct. 2160 (2016): Building upon McNeely, the Supreme Court of the United States held that consent to submit to a blood test at the request of law enforcement upon arrest for OUI must be freely and voluntarily given in light of the totality of the circumstances. Moreover, a defendant cannot be criminally punished for a refusal to submit to a blood test.

• Mitchell v. Wisconsin, 139 S.Ct. 2525 (2019): The Supreme Court of the United States held that exigent circumstances exist for law enforcement to obtain a blood sample without a warrant where a motorist arrested for OUI is unconscious and there is not enough time for the police to obtain a warrant before the alcohol dissipates from the defendant’s blood. The Court further clarified that the implied consent that a motorist gives by operating a motor vehicle upon a public way does not meet the standard for actual consent to a blood test that is voluntary in light of the totality of the circumstances.

• Commonwealth v. Dennis, 96 Mass. App. 527, 528 (2019): Massachusetts Court of Appeals found that a blood draw requires a warrant or exigent circumstances, unless there is “actual, voluntary consent.” Probable cause to suspect the driver of operating under the influence is not sufficient for exigency. This protection stems from the Fourth Amendment. Additionally, under the Massachusetts implied consent law, the defendant still retains a right to refuse a blood test in exigent circumstances. In Dennis, there was no meaningful notice as to the type of alcohol test requested by the police, as the phrasing of a “chemical test” in the notice read to him was too ambiguous for him to understand that it meant blood test. Nor did the nurse’s drawing of his blood create any notice that it was for anything other than a medical purpose. The Court held that the defendant could not legally consent to a blood test in these ambiguous circumstances.

Breath Testing

• Commonwealth v. Ananias, 2019 WL 6719036: The Massachusetts District Court issued three decisions in the statewide litigation challenging the scientific reliability of the Draeger Alcotest 9510 breath machines. The Court initially found that breath test results obtained from breathalyzers last calibrated between June 2011 through September 14, 2014 were presumptively unreliable due to fact that the Office of Alcohol Testing failed to maintain a calibration protocol to ensure proper calibration of the machines. It was subsequently uncovered that the Office of Alcohol Testing had intentionally withheld court ordered and exculpatory evidence showing calibration failures. As a response to this intentional malfeasance, the Court expanded its initial order, and excluded additional breath test results until the Office of Alcohol Testing came into compliance with court ordered sanctions, which included applying for accreditation. The Court found that the Office of Alcohol Testing was in compliance with the court ordered sanctions on April 18, 2019. Thus, any breath test obtained from a breathalyzer that was last calibrated between June 2011 and April 18, 2019 is presumptively excluded from evidence.

• Commonwealth v. Colturi, 448 Mass. 809 (2007): A breath test must be administered within three hours of the motor vehicle stop in order to be admissible without expert testimony addressing retrograde extrapolation. If the prosecutor tries the OUI case on both the per se and impaired ability theories of criminal liability, the Court has found no prejudice in the admission of a breath test result without expert testimony establishing the significance of the test level to the degree of intoxication or impairment of the defendant. In such a case, the jury presumably would be instructed that if they find the defendant operated their motor vehicle with a blood alcohol content of .08 or greater, they are guilty of violating the OUI statute, and if they do not so find, they may still consider whether they violated the statute by operating while under the influence of intoxicating liquor. If the prosecutor chooses to move forward on the impaired theory only, they must present expert testimony establishing a relationship between the breath test result and intoxication as a foundational requirement of the admissibility of such results.

• Commonwealth v. Pierre, 72 Mass. App. 230 (2008): In order for a breath test to be properly administered, the officer administering the test must observe the defendant for a period of not less than fifteen minutes before the test begins to ensure that any mouth alcohol has dissipated.

Operating Under the Influence of Marijuana

• Commonwealth v. Gerhardt, 477 Mass. 775 (2017): Although there is no scientific consensus about the effects of marijuana and the application of standardized field sobriety testing to determine marijuana impairment, evidence relating to balance and ability to follow instructions is relevant to the prosecution of an OUI-marijuana case. However, because standardized field sobriety tests were not validated for marijuana, a police officer must only refer to these tests as “roadside assessments” and cannot provide any lay opinion as to whether these “assessments” indicate impairment. Further, a jury is permitted to use their common understanding and experience about the effects of marijuana when deliberating.

Statements of the Defendant

• Commonwealth v. Mahnke, 368 Mass. 662 (1975): The court held here that the absence of Miranda warnings by a group of citizens, acting beyond police power, scrutiny and agency, cannot be used as a defense to the admission of incriminating statements by the accused.

• Commonwealth v. Leonard, 401 Mass. 470 (1988): A defendant cannot be convicted solely on his or her uncorroborated confession that he or she was the operator of the motor vehicle where circumstantial evidence pointed equally to defendant and his wife as probable operator, but such corroboration can be furnished by circumstantial evidence.

• Commonwealth v. McNelley, 28 Mass. App. Ct. 985, 987 (1990): A Miranda warning is not required on the scene of an accident, prior to arrest and intoxication does not negate a voluntary admission.

• Commonwealth v. Woods, 419 Mass. 366, 372 (1995): Defendant was arrested for distribution of cocaine and convicted at trial. On appeal, the defendant sought to suppress testimony regarding a statement he made prior to receiving a Miranda warning. Routine booking questions do not require Miranda warning, as they are not “designed to elicit incriminatory statements.” The SJC held that “where an arrestee’s employment status may prove incriminatory, the police must give Miranda warnings before asking questions about employment.”

• United States v. Reyes, 225 F.3d 71, 76-77 (1st Cir. 2000): The booking questions exception to Miranda does not apply “where the law enforcement officer, in the guise of asking for background information, seeks to elicit information that may incriminate.” For example, “asking an individual's date of birth might be expected to elicit an incriminating response if the individual were in custody on charges of underage drinking; and questions about an individual's Social Security number might be likely to elicit an incriminating response where the person is charged with Social Security fraud.” “In such scenarios, the requested information is so clearly and directly linked to the suspected offense that we would expect a reasonable officer to foresee that his questions might elicit an incriminating response from the individual being questioned.”

Video Evidence

• Commonwealth v. Cameron, 25 Mass. App. Ct. 538, 548-49 (1988): The Court found that a video tape could have exculpatory value to the defendant. Negligent destruction may not always be grounds for dismissal, but the defense may offer the existence of a tape, and use it to question and answer in retrial without addressing its erasure.

• Commonwealth v. Holman, 27 Mass. App. Ct. 830, 831 (1989): Video tape evidence is compelling to prove sobriety and to impeach the testimony of the arresting officer.

Lost and Destroyed Evidence

• Commonwealth v. Olszewski, 401 Mass. 749, 757 (1988): Given the destruction of evidence (a belt in a murder trial built on otherwise circumstantial evidence), all other evidence pertaining to the object (photos and testimony) is unfairly prejudicial to the defendant in showing his ownership of it, and should be suppressed.

• Commonwealth v. Health, 89 Mass. App. Ct. 328, 339-340 (2016): Defendant is entitled to an instruction that the fact finder can make a “negative inference” against the government where the government was negligent in permitting evidence to be lost or destroyed.

• Commonwealth v. Holman, 27 Mass. App. Ct. 830, 831 (1989): Court found that lack of video evidence of the defendant at booking could have been prejudicial to the defendant’s case, as it could have impeached the process and the officer. However, short of willful misconduct, the negligent treatment of evidence did not support a dismissal of charges.

• Commonwealth v. Sasville, 35 Mass. App. Ct. 15, 29 (1993): In the case of an alleged rape, where fetal tissue was destroyed, indictment against defendant is properly dismissed and the verdict set aside. The Court follows the line of reasoning in the cases since Brady: to ignore destroyed, not suppressed, potentially exculpatory evidence is to circumvent the rule against suppression by way of destruction.

Exculpatory Evidence

• Brady v. Maryland, 373 U.S. 83 (1963): The Supreme Court of the United States found that it was a violation of the defendant’s due process rights for the state to suppress or withhold potentially exculpatory evidence from the defense.

• Commonwealth v. Martin, 427 Mass. 816, 824 (1998): The Court found that “the prosecution had a duty to inquire concerning the existence of scientific tests, at least those conducted by the Commonwealth's own crime laboratory.”

• Commonwealth v. Ananias, 2019 WL 6719036: The Massachusetts District Court ordered the Office of Alcohol Testing to adopt protocols surrounding the treatment of exculpatory evidence in light of the agency’s intentional malfeasance in withholding evidence of failed calibrations of breathalyzer machines in the prosecution of OUI cases.

Double Jeopardy

• Commonwealth v. Herb, 472 Mass. 535 (2015): Double jeopardy is not triggered when a party is not acquitted or convicted under one of two theories of liability that were tried. Here, the defendant was acquitted under the impaired ability theory of liability for OUI, but due to error, under the per se theory (BAC over .08%), his case was declared a mistrial. Therefore, since he was not subject to jeopardy under this second theory, he is not protected under double jeopardy prohibitions.

License Suspensions

• Mackey v. Montrym, 443 US 1 (1979): The Supreme Judicial Court of the United States has upheld the Massachusetts implied consent law as constitutional. The Court held that the immediate suspension of a defendant’s license due to their refusal to submit to a breath test did not violate due process. The Court acknowledged the Commonwealth’s concerns for public safety, highlighting that the very existence of the summary sanction of the statute serves as a deterrent to drunken driving by providing strong inducement to take the breath test.

• DiGregorio v. Registrar of Motor Vehicles, 78 Mass.App.Ct. 775 (2011): A license suspension for a conviction for OUI begins at the time of the conviction, not when the Registry of Motor Vehicles first learns of the conviction.

Commonwealth v. Richards, 480 Mass. 413 (2018): Pursuant to G. L. c. 90, § 24(1)(f)(1), a defendant who has refused to submit to a breath or blood test may immediately move the Court for reinstatement of their license upon dismissal or acquittal of all charges under G.L. c. 90, § 24. Any findings by the Court must be based on the defendant's circumstances at the time of dismissal or acquittal, and that the determination whether restoration would likely endanger the public safety be made on the basis of the facts as they exist at the time of the acquittal and in the context of the evidence that was then presented.