What Are Some Options When Being Arraigned For OUI In Massachusetts?

The last time the Massachusetts OUI laws saw a significant modification the legislature had one thing in mind. They wanted to get accountability as soon as possible. The changes to the law made the prospect of immediately pleading guilty extremely attractive. The statue made provisions for the issuance of hardship licenses almost soon as your case gets resolved. Simply put, for first time offenders once you plead guilty you can, three days after registering for the alcohol awareness program apply for a hardship license. For all practical purposes you will be driving shortly after you plead out. Consequently, many of my clients now ask about their options when being arraigned for OUI in Massachusetts. This post discusses some of the pros and cons associated with expeditious drunk driving pleas.

Massachusetts OUI Defense Lawyer

The Benefits to Pleading Guilty at Your Arraignment

Oftentimes when people get arrested for OUI the bail commissioner sets a bail. This is usually forty dollars. Once bail is paid you will be released. Because run of the mill drunk driving cases are not the most serious offenses your arraignment might not be scheduled for a couple of days. If this happens your lawyer will be able to bet a copy of the complaint and police report before the arraignment. This will permit time to evaluate the case prior to arraignment. If the arraignment is the day after your arrest you will get these documents at that proceeding. Regardless, you should have some time to discuss your options with your lawyer. A good DUI lawyer can quickly evaluate the likelihood of success in fighting your case.

So what should you do? If the case is one that you will not likely win pleading guilty at arraignment might make the most sense. You will get your driver’s license back rather quickly. You can get into the alcohol awareness program right away and get this behind you. Most judges will continue your case without a finding and impose the 24D program. Upon a successful completion of your probation you will not have a criminal record. No perspective employer will know that you had an OUI case. It is usually less expensive to plead guilty at arraignment most lawyers will charge you somewhere between one thousand and two thousand dollars to plead you out at arraignment. The additional court appearances associated with litigating your case will increase the cost of your defense. Trial first offense DUI cases in Massachusetts cost between three thousand five hundred dollars and ten thousand dollars.

When You Should Not Plead Guilty At Arraignment

If the motor vehicle stop violated your constitutional rights you will want to file a motion to suppress. If you win the case will be over. If you did not take a breathalyzer test and there was no accident you might want to try your case. If the breathalyzer test was administered improperly your lawyer will try to get the results excluded. If you took a breathalyzer test and the result was under a .08 you might want to refrain from pleading guilty at your arraignment. Basically, in cases where you are likely to win or where discovery might lead to success you probably should not plead guilty. A good lawyer can advise you about your rights in this regard. Remember, once you have been charged hire a lawyer. There are many things to discuss prior to arraignment all of which will help you make the decision of whether to plead or pursue your defense.

Continue Reading...

How an OUI Lawyer Fights Inaccurate Breathalyzer Results in Massachusetts

Many people don’t realize that breathalyzer test readings are not necessarily accurate. A breathalyzer is a machine. Machines have flaws. But before those flaws can be shared with a judge or a jury the OUI defense lawyer you hire needs to know how these machines work. If he or she does not know then how can the flaws in the process be explained to a jury. Think about it. Jurors are just normal people. Some work. Some do not. They come from all different backgrounds. Some are educated while others are not. If the primary issue in the DUI trial is to challenge the accuracy of the breathalyzer reading then your lawyer better be able to do this in a way that gives the jury pause before accepting the police officer’s recitation of his reading of the machine. It is also important to keep in mind that there are several types of breathalyzer machines in use. Your lawyer must know how each one works if you are going to be properly defended. This post briefly examines one of these machines, the Intoxilyzer, how it works and facts about false readings.

The Intoxilizer Machine in Massachusetts

This machine uses infrared technology to estimate the presence of alcohol in a gas sample. The sample is acquired by having the subject blow into a mouthpiece that is attached to a tube running into the machine. Alcohol molecules, if present in the sample enter the chamber and react with infrared radiation sending a reading that is calculated in accordance with the amount of infrared radiation that is absorbed. The calculations are based on generally accepted partition ratios of 2,100 to 1. That is, for every one molecule of alcohol in your breath sample there are 2,100 such molecules in your blood. In order for this evidence to be presented to a jury the prosecution must put an expert on the stand. This someone who not only administers the test but is able to explain how the machine works. As a practical matter there are very few of these people in Massachusetts and all of them, if being honest will admit that there are several flaws with this machine.

What Are the Flaws With the Intoxilyzer Machine in Massachusetts?

The intoxilyzer machine cannot distinguish between mouth alcohol and blood alcohol. That is, if there is some residual alcohol in your mouth the reading will be higher than what your blood alcohol truly is. Mouthwash or toothpaste give high false readings as do certain types of chewing gum and breath mints. Certain medications give higher readings. People with acid reflux, GERD, tend to have intoxilyzer readings that are high and not reflective of actual blood alcohol. Improper administration of the test can result in a false positive reading. This often occurs when the police officer tells you to keep blowing. The test itself requires only 1.1 liters of breath to establish an admissible reading. Most people can provide samples three or four times that large. The more you blow the greater the chance of getting a higher reading. There are many more factors that show how these tests can be inaccurate. This is something you want your lawyer to point out to a jury. Our office has the ability to do that. Call us now to get started with your Massachusetts OUI defense.

Continue Reading...

Massachusetts School Districts Break Bullying Law-Attorney Sam’s Take

Massachusetts bullying is not simply old news these days. As predicted, many people have made the mistake of assuming that the rushed so-called “anti-bullying” statute would solve the problem. They figured that the schools, following the clear
guidance our elected officials presented would take care of it.
It didn’t. Maybe because the “guidance” presented was anything but clear.
To date, more than a third of Massachusetts school districts have failed to present complete antibullying plans by the end of 2010. This deadline was one of the few clear and presumed urgent things presented by the law, but why quibble? These figures, by the way, were by the state Department of Elementary and Secondary Education.
On the other hand, some school districts have
complied... sort of. In 13 percent of those plans, at least a quarter of the elements required by the law were not clearly addressed.
If I may add a little note here...since the legislative “cure all”, I have actually seen a growth
of calls regarding severe bullying problems about which the schools seem to have turned a blind eye...no matter what evidence was placed before said eye. An example of how bad the problem is can be illustrated by the simplest of requirements of the new law, namely, contacting parents of the kids involved. Even this seemingly simple exercise seems to be too much for the schools to handle.
Elizabeth Englander, the director of the Massachusetts Aggression Reduction Center at Bridgewater State University, who helped shape the law, seems to have escaped disillusionment. She explains “This was always going to be a work in progress...I think I was operating on the assumption that maybe half of the schools would really get it right the first time.’’
One can certainly understand how difficult requirements like contacting parents would be something that would take several tries to get right.
Of course, private schools have not failed to perform as required. The “strongest anti-bullying law in the country”, as the lawmakers had dubbed it, does not include private schools, with the exception of schools for special education students.
You might think that failing to comply with the law would bring about its own penalties for the school districts. After all, this was considered urgent legislation pushed through in answer to bullying victims' suicides.
Nope. No penalty.
Some people believe that, since school board members are elected, they should be punished by removal or lack of votes for not complying.
Maybe. We’ll see.
The problem of bullying or violent kids may be changing, however. It seems to be getting worse.
A new study suggests that the longer teenager from abroad live in the United States, the more likely they are to become violent.
The study, by Northeastern University researchers who surveyed hundreds of Boston teenagers, found that local high school students who arrived recently from foreign countries are significantly less violent than their American-born counterparts. However, the researchers found that as the immigrant teens spend more time in the United States, their behavior deteriorates.
What surprised researchers at Northeastern was how quickly youths who came to the United States began adopting bullying and violent behavior.
“Within a matter of four years of being in this country, the youths’ rates of violence were converging with those of us born here,’’ said Joanna Almeida, associate research scientist at Northeastern’s Institute of Urban Health Research. “It’s not even that it takes a generation. It’s happening within a handful of years.’’

Community leaders who work with young immigrants said the study confirmed what they already knew.

Valerie Batts, executive director of Visions Inc., a Roxbury-based group that promotes diversity, said young men born outside the country who have participated in the group’s programs have said they felt they needed to bully others, and even carry a gun, to avoid becoming victims.
As an experienced Boston criminal defense attorney, I howled in this blog when there was suddenly a movement, led by a, now, ex-district attorney to solve this problem with felony indictments. I warned that, in the overnight creation of anti-bullying bill would virtually force schools to do nothing about bullying but pass the problem over to law enforcement. I argued that this would ruin many lives.
What I did not expect was that so many of the schools would simply do nothing.
The law itself, which I have also criticized in the past, is unduly vague. It was the product of politicians not wanting to be outdone by elected prosecutors and so wanting to seem “tough on crime”. What they came up with was this overnight mishmash.

In short, it was what I would expect them to come up with in so short a time.
But schools are different. They are supposed to be experts in dealing with these issues. For them to do next to nothing, if not actually nothing, to obey the new law would be as unforgivable as the lawmakers providing no penalty for breaking the law.
Oops, sorry. That’s what happened, isn’t it?
Having no leadership from lawmakers or schools, I wonder how kids will handle the bullying problem.
Actually, that is not true. It is quite clear how they are handling it. And new American kids are learning the environment, and how to survive in it, very quickly.

So, what does this have to do with you?
Plenty, if you are either a student or care about one. I have seen a number of cases where students, like those mentioned above, feel they must bully or else be bullied. However, as these situation tend to escalate, the original victim, thinking they are merely surviving, may breach the criminal law. Or should I say that they could be the one who gets caught.

So, if there is a bullying problem in which you are involved, on either side, it is best to hire experienced counsel. Students can, and will, be wrongfully accused. Others may have a back story to explain the situation. Further, others may be getting tired of being the victim in a microcosm which is doing little to help them and be about to take matters into their own hands.
All this while we remain complacent because our “daring” law makers rushed a law that was incredibly vague and had no teeth which is virtually ignored by many schools.
After all, it is our kids we are talking about.

Continue Reading...

Former Massachusetts Police Chief Not Guilty in Gun Homicide Of Child-Attorney Sam’s Take

Today is the first holiday in quite a while that former Pelham Police Chief Edward Fleury (hereinafter, the “Ex-Defendant”) can breathe freely. The cloud of criminal allegations which has surroundied him since 2008 has finally lifted. He was finally acquitted of homicide charges in the tragic death of the late young Christopher Bizilj.

The Ex-Defendant’s firearms training company co-sponsored an annual Machine Gun Shoot and Firearms Expo at the Westfield Sportsman's Club, about 10 miles west of Springfield. Young Christopher’s dad brought the 8-year-old to the event. In doing so, he also signed a waiver acknowledging the risks and absolving anyone else of liability should something bad occur.

Something very bad did.

The boy was shooting a 9 mm micro Uzi at some pumpkins, when the gun kicked back and shot him in the head. The Ex-Defendant was not present in the area in which this took place, although the father and other personnel were.

Prosecutor William Bennett told the Springfield jury that the ExDefendant was criminally reckless in running the event because he allowed children to illegally shoot machine guns under the supervision of a firing range officer who was 15 at the time and didn't have a firearms license or certification.

The accident was shown, via graphic videotape, to the jury during the course of the trial.

The defense denied the allegations and blamed the boy's father, an emergency room physician, for allowing Christopher and his then-11-year-old brother to shoot such a dangerous weapon.

Neither the father nor the teenage range officer were charged.

The jury returned its verdict on its first full day of deliberations. They acquitted the Ex-Defendant of the involuntary manslaughter as well as three charges of furnishing machine guns to minors.

I have dealt with countless gun crimes in my quarter century experience in the criminal justice system. I have often told you that when a tragic accident happens, we always seem to need somebody to blame. Nowhere is this more true than with gun travesties like this one.

Fortunately for the Ex-Defendant, the jury was able to see beyond that need...maybe. The defense, of course, seemingly accepted that somebody may have to be to blame and pointed to the father. While perhaps distasteful to many, one would imagine that he was a more likely candidate than the Ex-Defendant.

Of course, I would not wave any victory flags for either the Ex-Defendant or the father. I doubt either is celebrating right now. A little boy is dead and you may be assured that this case has haunted and will continue to haunt the Ex-Defendant for a long time to come. As for the father...one can only imagine the turmoil he is in. I would venture to say that there is nothing any criminal justice system could do to him that is worse than what he is already doing to himself.

This case, however, may not end here. There is likely to be a civil law suit brought by the family against the Ex-Defendant and others (there are, by the way, others who were charged criminally and are awaiting trial).

“But, Sam...there was a waiver signed. How could the Ex-Defendant be charged or sued?”

First of all, a waiver cannot bar criminal prosecution. It is, if anything, an agreement between the father and the Ex-Defendant. While it is supposed to shield , in this case the Ex-Defendant and the company, that may make it hard for the father to prevail at trial, but there is alot of time and money between the initiation and trial of a civil lawsuit. In other words, it may be more expedient to settle. Further, there area are always legal arguments to make to discount the waiver.

If you are dealing with a civil lawsuit, you should get experienced civil litigation attorneys. Might I suggest the good folks at Altman & Altman, LLP?

If you are dealing with a potential criminal action, you want to have experienced counsel in that realm.

If you would like that to be me, , please feel free to call me to arrange a free initial consultation at 617-492-3000.

In the meantime, take a moment or two to think warm thoughts in the memory of a true American hero, Martin Luther King, Jr.

For the original story upon which today’s blog is based, please go to http://www.boston.com/news/local/breaking_news/2011/01/gun_fair_organi.html

View the original article here

Continue Reading...

Massachusetts Drunk Driver Admits Guilt But Is Not Responsible For Vehicular Accident- Attorney Sam’s Take

It would appear that this Massachusetts driver thought ahead. Realizing that the coming storm would make it difficult to go out and drink, Ms. Tara Tobin (hereinafter, the “Defendant”) got in one last trip just before the snow. The result was not too pretty.

The Yarmouth police say that the Defendant admitted that she had drunk six or seven beers in Dennis before driving.

What happened? The crash took place Tuesday night around 9 p.m..

The unusual part? According to the police, the Defendant, whatever condition she was in, did not cause the accident.

Apparently, a 47-year-old emotionally disturbed man jumped into the path of a Dodge Dakota pickup truck. The truck's driver swerved to avoid the man and was then rear-ended by the Defendant’s car..

The man suffered serious, but non-life-threatening, injuries and was taken to Cape Cod Hospital, police said.

The Defendant is to be arraigned in Barnstable District Court…whenever it reopens following the storm...for drunk driving.

Let’s all hope she presents a bit better than she did in her “mug shot” which was published at the below link in the original article.

My experience, since 1984, handling drunk driving cases in Massachusetts goes back to my last year at Boston University School of Law as a student prosecutor. The cases, particularly when a breathalyzer is involved come down to issues of perception and prejudice.

I do not mean racial prejudice, but bias based upon indoctrination. Most often, if a police officer pulls you over because he or she feels you are intoxicated, or begins to suspect you are under the influence, you will most likely be charged with

This influence, by the way, can be alcohol, illegal drugs or even legal prescription drugs…to say nothing of any mixture of the three.

In my experience, once suspected of being under the influence, you should assume that the police report will say that you have glassy eyes and slurred speech. Most likely there will also be some kind of odor of alcohol listed.

That said, consider yourself under arrest. Any other descriptive is gravy for the Commonwealth. This is why it is usually a mistake to submit to any tests. Granted, if you pass the breathalyzer, for example, it will help you down the road. However, it will probably not prevent your being arrested. If you do not pass it, it will surely hurt you down the road.

Given the amount of vehicular homicides last year due to drunk driving allegations, victims sometimes being police officers, you are not likely to receive a “break” from the officer.

So don’t ask for one. Said request will simply be treated like an admission of guilt by the prosecution.

And, yes, there will be a prosecution.

The advice in these cases is to not quarrel with the officer, or try to outwit or outrun the officer.

Simply remain polite, do not make statements (except name, license, etc.), and get an experienced criminal defense attorney as soon as possible.

If you would like to discuss such a matter with me, please feel to call me to arrange a free initial consultation at 617-492-3000.

To view the original story, and charming photograph about which parts of this blog were based, please go to : http://www.boston.com/news/local/breaking_news/2011/01/by_john_r_ellem_29.html

View the original article here

Continue Reading...