Fighting a OUI / DUI in Massachusetts

4th Amendment Issues

The Fourth Amendment to the United States Constitution prohibits unreasonable search and seizure. The act of being stopped by the police is a seizure of yourself and your property. As such one of the most important elements in any case is reviewing the justification for the stop, and any video that memorializes the justification. Most people who are ultimately charged with DUI are stopped for some other reason, normally a violation of some lesser traffic offense, such as speeding or failing to maintain lane. I review the evidence in the case to make sure the Officer actually had just cause to stop your vehicle. If there is a question as to whether the stop was justified, I file what is known as a Motion to Suppress. This is asking the judge to Suppress all the evidence that was collected as a result of the officer's unconstitutional behavior. Since all the evidence gathered in any DUI case occurs after the stop, the Judge granting this motion almost universally leads to the charges being dismissed.

Excluding The Breathalyzer

The Breathalyzer is a complex, and somewhat dubious piece of technology. As with any piece of technology, it is subject to error, either as a result of maintenance issues, or more commonly operation issues. The Officers who employ the Breathalyzers need to follow a strict series of guidelines to render a result that is admissible in court. Part of my job is to obtain those records, go over them carefully, and look for evidence of mistakes. Such mistakes can be something as simple as instructing you to breath to long into the device or not observing you long enough before testing your breath. If we can exclude the breathalyzer, it doesn't instantaneously lead to dismissal, but it does eliminate the prosecution's best piece of evidence.

Roadside Exercises

Officers typically ask drivers they suspect of operating under the influence to perform a series of divided attention tests in order to look for signs of intoxication. Officers will typically administer at least 3 of the following tests:

One Leg Stand
Horizontal Gaze Nystagmus Test
Walk and Turn Test
Walk in a Straight line
Reciting the Alphabet
Touching Finger to Nose

In evaluating these exercises I always want to see if a video is available. Specifically I'm looking to see:

Did the Officer clearly give the instructions?
Did you actually fail the test?
Do you have any physical limitations, such as injury, obesity or age that prevents you from doing the physical tests properly?
Were the whether conditions conducive to taking any of the physical tests? Were they done on a flat, dry surface?
Does the Defendant understand English sufficiently well to understand the instructions?

This is a very individualized analysis. Having watched, probably a few hundred videos of Roadside Tests, I can tell you some people are just awful and others look very sober. Most are somewhere in-between. The only way we can really know is by examining the evidence.

Intoxication After Driving aka "Glovebox Defense"

Most OUI cases start the same way: the Officer sees a driver breaking some other law, such as speeding or failure to maintain lane and after initiating the stop observes signs of intoxication. There are cases that offer a different set of facts: specifically this is where an Officer arrives to find someone who has operated a motor vehicle, but is not currently operating the motor vehicle. The most common example of this are accidents, but sometimes it results in a car having broken down. Upon approaching the Driver, the officer then notices the driver appears to be intoxicated. The immediate question that comes to mind: was the driver intoxicated while he was driving, or has he subsequently ingested alcohol? More importantly: can the prosecution prove that the ingestion, happened before the car stopped and not afterwards?
The answer to that question depends on a great number of questions: Was there an open or empty bottle found in the car or near the car? Did the driver make a claim of having disposed of the bottle since being stopped? When did the driver say he was last drinking? Are there any witnesses who saw the driver drink afterwards.
As you can see this is very fact specific, but when there is evidence the driver was drinking AFTER operating a motor vehicle, this evidence effectively nullifies the prosecution's evidence. It no longer matters if the driver is over a .08 because it could have been through subsequent ingestion of alcohol. It no longer matters that the driver failed the roadside exercises because there was subsequent ingestion of alcohol.
Cases like these are exceedingly rare, but they are among my favorite cases.