Problems with OUI / DUI Investigations- Massachusetts

In Massachusetts, when a person is arrested for drunk driving, the official charge is called “Operating Under the Influence (OUI).” The charge is the same, whether the person is accused of operating under the influence of alcohol, or operating under the influence of drugs. In 95% of OUI cases, the person is charged with OUI-alcohol.

In order for you to be found guilty of OUI, the government must prove 3 elements, and each must be proven beyond a reasonable doubt:

1. You were operating a motor vehicle (the “operation” element)
2. You were operating that motor vehicle on a public way (the “public way” element)
3. At the time you operated the motor vehicle on a public way, you were doing so under the influence of alcohol or drugs (the” intoxication” element)

Different cases present different theories of defense. If the government fails to prove ANY ONE of the 3 elements of OUI beyond a reasonable doubt, then you are entitled to a finding of Not Guilty. I have successfully defended clients on all three theories (either element 1, 2, or 3 was not proven).

In most cases, because the person was probably pulled over for a minor traffic violation, elements 1 and 2 are easy for the prosecution to prove (the person was operating a motor vehicle on a public way). However, here are just a couple of examples of when the prosecution failed to prove one of those first two elements against my client:

• The police arrived on scene with my client, visibly intoxicated, leaning against his car, which was crashed against a guard rail on the side of the road. His girlfriend (also intoxicated) told the police that my client was operating the car when it crashed. However, without the girlfriend’s live testimony at trial, the police did not have enough evidence to show that my client had operated the crashed car, and he was found not guilty, as the prosecution failed to prove element #1.
• My client was operating his motor vehicle under the influence of alcohol. However, police arrested him on a private camp ground. After a thorough investigation, I made it clear that the camp ground was not legally accessible to the general public without a permit. My client was found Not Guilty because the prosecution did not prove element #2.

In 90% of OUI cases that go to trial, I proceed by attacking the third element of the charge. This is because most cases start out with my client being pulled over for a minor traffic violation, and the prosecution doesn’t have any problem showing operation on a public way. In these cases, I attack the most subjective nature of the charge: intoxication.

Police officers are human and make mistakes just like the rest of us. They have very important responsibilities and are expected to make on-the-spot decisions. They are also entrusted to keep our streets safe. For these reasons, it is not surprising that if they have any doubt as to whether you have been operating under the influence of alcohol or drugs, they will arrest you. All that a police officer needs to arrest you for OUI is “probable cause,” meaning that at that moment, based on the officer’s observations, he reasonably believed that you were “probably” under the influence of alcohol or drugs. Unfortunately, this often leads to people getting arrested who are actually not guilty.

Fortunately, the prosecution is held to a much higher standard of proof. They must prove beyond a reasonable doubt that you were under the influence. More importantly, the prosecution is not the fact-finder; they do not decide whether the burden of proof beyond a reasonable doubt has been met. That decision is left to a jury of your peers, and that jury alone will decide whether the prosecution has met that extremely high burden of proof beyond a reasonable doubt. If you don’t want to have a jury, you may decide to have a jury-waived bench trial, where a single judge will be the fact-finder, determining whether the prosecution has proved your guilt beyond a reasonable doubt. Of course I will analyze your case to help you decide which type of trial is best in your situation, but the decision whether to have the case decided by a jury or a judge is yours and yours alone.

At trial, these are the most common problems that the prosecution will face as the case unfolds:

• If the police did not have a legally sufficient reason to stop your car, then your whole case may be dismissed.
• DRIVING:

  The prosecution may think that they have a strong case based on your driving. You might have been speeding, swerving, using improper signals, delayed reaction to police lights, or even involved in an accident. However, what I bring up in cross-examination is the things that you did right, and I can usually get the officer to admit to some of them. If the prosecution argues that your driving suggested impairment based on two or three factors, and then I show ten or fifteen other factors that the police were trained to look for in OUI investigations, and you did every one of those without a problem, then this usually casts serious doubt on the prosecution’s case. Further, even if there were two or three minor “traffic violations,” I can usually show them to be just that- minor traffic violations- having nothing to do with being under the influence. People get pulled over all the time for these infractions, and most of these people aren’t under the influence. Even infractions such as swerving or driving over the yellow line can be caused by other distractions such as adjusting your radio or GPS, cell phone, texting. You might be a distracted driver, but that doesn’t mean that you were impaired by alcohol or drugs.

• THE INITIAL OBSERVATIONS:

  I routinely cross-examine officers at trial and get them to admit to other possible factors for their observations that they initially attributed to “intoxication.” For example, I can’t count how many times a police officer says in the report that he/she believed the person was intoxicated because of “red, bloodshot, glassy eyes.” I think that most of us have red, bloodshot, glassy eyes after midnight. And most of the time, the officer doesn’t even ask the person about the red eyes- he looks for intoxication, so that’s his conclusion! He never asks about allergies, lack of sleep, long work hours, long periods of driving, etc. The same goes for other “observations of intoxication” made by the officer, such as the odor of alcohol, slurred speech, or nervousness. The odor of alcohol does not mean you were impaired- even if you had one drink and then drove, that is not illegal (assuming you are of age), and there is NO WAY for an officer to tell how many drinks you consumed based on smell. How can the officer tell whether your speech is slurred any more than your normal speech if he has never met you or heard you talk? And of course you are nervous- you just got pulled over by a police officer! I could go on for days about the problems that come up when police officers ask the wrong questions, and more importantly, when they fail to ask the right ones. When I cross-examine officers about these observations, I am very good at creating reasonable doubt which often leads to a NOT GUILTY verdict.

• FIELD “SOBRIETY” TESTS:

  Absent any breath test, the prosecution usually relies on these field “sobriety” tests (FSTs) as their strongest evidence in the OUI case. Personally, I love to cross-examine the arresting officer on these tests, or as I refer to them at trial, “roadside gymnastics.”

  Performance Conditions

  The FSTs set you up for failure. I will make sure that the jury sees this. The officer administering these tests was trained of how to perform them. Unlike you, the officer performed these tests in a comfortable, indoor facility during the day. He/she has probably performed the test hundreds, if not thousands of times. It is not fair to expect you to perform these tests the same way, knowing that if you make a mistake, you could be arrested. You are also forced to perform these tests under MUCH more difficult conditions. You likely are doing these tests unexpectedly, in the middle of the night, with an armed police officer shining his flashlight on you, outdoors, in conditions that might be rainy, snowy, cold, windy, on the side of the road with cars flying bar, cruiser lights flashing, having never practiced these tests, with only ONE CHANCE to perform them perfectly. Before you even start these tests, you are set up to fail.

  Candidates for FSTs

  Police are trained that certain people are not good candidates for the FSTs, yet they routinely administer these tests to unqualified individuals. According to the Massachusetts State Police OUI Training Manual, people with the following characteristics are NOT good candidates for certain FSTs:

  • Over 65 years old
  • More than 50 pounds over weight
  • Medical conditions affecting dexterity, balance, or coordination

  I have represented many clients with one or more of these characteristics who were still administered these tests. Often times, the officer did not know about a medical condition because he never asked, even though he was trained to! When I get an officer to admit that he had no good reason for not asking whether my client had any medical conditions which might have affected his performance on the tests, and then bring in medical evidence documenting those conditions, it usually casts more than enough reasonable doubt for my client to be found not guilty.

  The different FSTs and some of their inherent problems

  1. “The Alphabet Test”: You are asked to recite the alphabet or perhaps only a sequence of certain letters.
  • Officers routinely fail to say “do not sing the alphabet,” but they will hold it against you if you do sing. Almost all of us learned the alphabet by singing it. Many adults still can only “recite” the alphabet by singing it. For example, an officer might say “recite the alphabet from G to T.” If you need to start by singing, the officer will hold this against you. This is something that many sober people cannot do, so it is unfair and ridiculous to assume you are intoxicated just because you started to sing.
  • Officers often fail to ask if English is your first language. If it isn’t, and you make a slight mistake on this test, is it reasonable to blame alcohol or drugs for mispronouncing or skipping a letter?
  • The National Highway Traffic Safety Administration (NHTSA) has established guidelines for field sobriety tests it considers valid. THIS TEST IS NOT VALIDATED by NHTSA! If the officer testifies about your poor performance on this “test,” of course I will get him to admit that it has not been validated.
  2. “The Horizontal Gage Nystagmus Test”
  • While NHTSA has validated this test, in order for it to be admissible in Massachusetts, the prosecution must establish its reliability and show that it was administered by a person qualified to do so. As a practical matter, this test is NEVER ADMITTED AT TRIAL, and is therefore meaningless.
  3. Nine-step Walk and Turn Test: You are asked to walk nine steps heel-to-toe, turn 180 degrees, and walk nine steps back, also heel-to-toe.
  • You cannot raise your arms. You cannot “pivot” but must “turn” (officers seem to claim there is a difference and you should apparently know this as you perform the test under extreme conditions). You cannot “sway.” Your feet must touch on every step. You cannot step off the line on a single step. You cannot miscount, or take one extra step. If you start too soon, the officer will hold it against you. If you pause too long before starting, the officer will hold it against you. The officer may or may not tell you about these requirements, but you can be sure that he will hold you to them. Most importantly- you only get once chance to perform this test without error.
  • This is a divided attention test, to see if you can simultaneously perform the physical task (the walking) while also concentrating on counting properly, at the same time. Of course, people with problems like attention deficit disorder are set up for failure from the start. The officer almost always fails to ask about issues of divided attention, in which case I will raise this lack of investigation during my cross-examination.
  • Officers are trained that a straight, visible line is required, but they often use an “imaginary line.” If the officer does not adhere to the test requirements, how can you then be expected to? How can an officer “fail” you for not walking on an arbitrary line that the officer created with his own imagination? A reasonable jury can see that this is clearly unfair.
  • Officers are trained that a flat, dry, level surface is required. If you are forced to perform the test in conditions that vary from this, your performance, and the test’s validity, will be compromised.
  4. One-Legged Stand: You are asked to raise one foot six inches off the ground for a specified period (usually thirty seconds), while counting aloud.
  • Most people cannot perform this test when completely sober.
  • You cannot raise your arms. You cannot sway. Your leg must be six inches off the ground (the officer will subjectively estimate), no more, no less. Your elevated foot can never touch the ground. You cannot miscount or stand on one foot for any longer or shorter than asked. If you start too soon, the officer will hold it against you. If you pause too long before starting, the officer will hold it against you. The officer may or may not tell you about these requirements, but you can be sure that he will hold you to them. Most importantly- you only get once chance to perform this test without error.
  • This is a divided attention test, to see if you can simultaneously perform the physical task (the walking) while also concentrating on counting properly, at the same time. Of course, people with problems like attention deficit disorder are set up for failure from the start. The officer almost always fails to ask about issues of divided attention, in which case I will raise this lack of investigation during my cross-examination.
  5. “The Finger to Nose Test”:
  • The National Highway Traffic Safety Administration (NHTSA) has established guidelines for field sobriety tests it considers valid. THIS TEST IS NOT VALIDATED by NHTSA! If the officer testifies about your poor performance on this “test”, I will also get him to admit that the test has not been validated.

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