Being charged with Operating Under the Influence (OUI), also known as DUI, can be intimidating, but a charge is not the same as a conviction. Here in Massachusetts, there are several legal strategies that may be available to challenge the prosecution’s case.
It is important that your attorney, or an investigator hired by the attorney, go to the scene and take photos or video of the road conditions. Your attorney, as well as any jury who might eventually hear the case, will understand the facts better with visual evidence.
One common defense is to challenge the legality of the traffic stop. Police officers must have reasonable suspicion of a crime, or of a traffic violation, to pull a driver over. If the stop was unlawful, evidence obtained afterward may be suppressed and excluded from court.
Police often ask a driver suspected of being under the influence to perform roadside sobriety tests. A defendant who agrees to perform such tests (you do not have to) can challenge whether the test results prove anything. Tests such as walking nine steps and turning around, or standing on one leg, are not foolproof. Factors unrelated to alcohol consumption can affect the result. Such factors include poor weather conditions, uneven surfaces, improper footwear, injuries, or other medical conditions. The roadside sobriety test known as “Horizontal Gaze Nystagmus” (HGN), where a police officer asks the driver to watch as he or she moves their finger around, is not admissible in court unless the prosecutor brings in an expert to explain how HGN works. It is not often the prosecutor will go to that trouble.
Breathalyzer results are another frequent area of dispute. When the police administer a quickie breath test on the side of the road, using a portable device, that is not admissible in court. However, if a driver agrees to take a breath test at the police station, that could be admissible. A breathalyzer measures the percentage of alcohol in a person’s blood. A breath test reading above 0.08% does not automatically guarantee a conviction. It is sufficient to prove a defendant’s guilt, if it goes into the record at trial. However, it is not automatically admissible. The prosecutor has to prove that the driver knowingly and voluntarily agreed to take the breath test. An experienced defense attorney may examine whether the device was properly calibrated, and whether the officer was certified to administer the test.
One other point about breath tests: when police arrest a driver and take them to the police station, they will tell the driver (accurately) that if the driver takes the test and fails, their driver’s license will get suspended for thirty days, while if they refuse to take the test, their license will get suspended for six months. A driver might hear that and conclude that it is better to take the test. What the police are not obliged to tell the driver, and never do, is that if they take the test and fail, that is very strong evidence of driving under the influence. It’s no fun to have your driver’s license suspended, but you also need to think about whether taking the test will result in an OUI conviction on your record.
For many first-time OUI offenders, alternative resolutions may be available. A “Continuance Without a Finding” (CWOF) is where a defendant admits there are sufficient facts to prove them guilty, without actually pleading guilty. The judge will usually put the defendant on probation. During probation, the defendant has to pay fines and complete an alcohol-education program. The defendant will also have their driver’s license suspended from 45 to 90 days. The advantage of a CWOF is that, if the defendant completes probation successfully, the case gets dismissed. The defendant avoids a conviction and avoids jail time. However, the defendant who takes a CWOF cannot violate the terms of their probation. Any violation (including getting charged with a new crime) can lead to probation getting revoked, and the judge imposing a conviction for OUI. The last thing to remember about a CWOF is that it is up to the judge whether to agree to it or not. Even if you have never been charged with OUI before, if you have a lengthy criminal record, or if you once took a CWOF on some other charge and then violated probation, the judge might not let you take one this time around.
Leave a Reply