CBS Boston

The Truth About Massachusetts Drunk Driving Statistics are Revealed in Special Counsel’s Report

November 2, 2012

One year ago, the Boston Globe’s Spotlight Team published several articles that completely misled the public about OUI conviction rates in Massachusetts. It tried to generate outrage by reporting certain conviction statistics without fully investigating how OUI cases are actually prosecuted in Massachusetts. In response to the article, the Supreme Judicial Court (SJC) of Massachusetts appointed R.J. Cinguegrana as special counsel to investigate OUI statistics in Massachusetts. Cinguegrana and his team evaluated data of nearly 57,000 OUI cases over a four year period. This much more comprehensive, thorough, and unbiased investigation and subsequent report, which was actually done by highly experienced legal professionals, reveals the truth about how OUI cases are prosecuted and adjudicated in Massachusetts.

Last year’s Globe article suggested that because jury-waived trials in front of a single justice result in acquittals 85-90% of the time, whereas jury trials result in acquittals nearly 30% less-often, the judges are too lenient on defendants. There is a very simple explanation for this disparity: the type of case in which criminal defense lawyers advise their clients to waive a jury are usually different from the type of case in which the defendant is advised to put his fate in the hands of his peers. In my experience, when the defense attorney’s theory of a case rests mainly on an issue of law rather than particular facts of the case, or where the evidence of one element of the offense is so weak that it’s readily recognizable to any lawyer or judge, the attorney will advise his client to waive a jury. Thus, the judges tend to hear weaker cases, resulting in a higher acquittal rate.

In Massachusetts, if you are charged with an OUI, you can rest assured that the prosecution will not be willing to dismiss your case, no matter how weak it may be. The main reason for this practice is that District Attorneys are elected officials, and they want to appear tough on drunk driving. They would rather take a very weak case to trial and lose than dismiss the charge, even when doing so is warranted. This way, they, along with the Boston Globe’s spotlight team, can blame the judges for a high acquittal rate, and still appear to be prosecuting these cases to the fullest extent of the law. With weak evidence of guilt, your attorney may file motions to exclude evidence without which the prosecution is UNABLE to legally go forward with the case. However, in most cases, you will have to go to trial with the hopes that a judge or jury finds you “Not Guilty.” This is a very different practice from other states, where OUI charges are often dismissed or amended to a less serious offense if the case is weak. In New Hampshire, for example, weaker OUI cases are routinely amended to the charge of “Reckless Driving” as part of a plea bargain. The absence of such a practice in Massachusetts forces you to hire an attorney to defend the case all the way through trial, even when the prosecutor knows that a “Not Guilty” verdict is almost certain.

Mark Leahy, president of the Massachusetts Police Chiefs association was quoted as saying, “We absolutely are not wrong 85 and 90 percent of the time. There are always going to be some lousy cases, but it doesn’t begin to approach a majority.” I 100% agree with Chief Leahy. The police are not wrong in making an arrest 85- 90% of the time. In fact, far from that. That’s why 77% of the time, the case is resolved of adversely for the defendant, with either an admission to the offense of OUI as part of a plea, or a Guilty finding after trial, according to Cinguegrana’s report. This number is actually consistent with the national average of 80.5%. Only 23% of OUI cases in Massachusetts result in either a dismissal or a Not Guilty verdict. And even of those 23% of cases with a favorable result for the defendant, the arrest was, in most cases, a good arrest. In order to arrest a person for OUI, the police only need probable cause to believe that the person committed the offense. In order to convict, the prosecution must prove beyond all reasonable doubt that the person is guilty of each element of the offense. Thus, a case in which the police made a legitimate arrest might still not be strong enough for the prosecution to prove beyond all reasonable doubt that the person is guilty.

Cinguegrana’s report also identifies inherent flaws in police investigations in Massachusetts OUI cases compared to those of other states. In many other states, video recording systems are used to memorialize a defendant’s performance on roadside field sobriety tests. In Massachusetts, such video recordings are virtually nonexistent. Thus, the prosecution’s case usually relies on the arresting officer’s narrative recollection of exactly what the defendant did and did not do satisfactorily. This testimony at trial may come a year or two, and several hundred OUI investigations by the same officer, after the defendant performed those roadside tests. A skilled defense attorney can discredit the officer’s recollection of his client’s performance based on the passage of time and the inherent problems with the officer trying to distinguish the defendant’s performance with one of the other hundred that he has investigated since that arrest. Further, an officer’s testimony is very often more detrimental to the defendant than what might have actually been captured with a video recording. An officer is likely to testify in such a way that would bolster his decision to make an arrest, and subsequently convict the defendant. Without an actual video to give the judge or jury a first-hand look at the defendant’s performance on the roadside field sobriety tests, the defendant is often left without any way to rebut the officer’s testimony, other than taking the stand which denies the defendant his constitutional right to remain silent. With the prosecution being held to the standard of proof beyond all reasonable doubt, a fact-finder often finds it unfair to find a defendant guilty based solely on the uncorroborated testimony of the arresting officer.

While it may not be the ideal situation for the “scales of justice,” the truth is that OUI cases are most often prosecuted by the least-experienced Assistant District Attorneys, while a defendant may hire a drunk driving defense specialist with hundreds, if not thousands, of similar trials under his or her belt. As an example, I prosecuted approximately 20 to 25 jury and jury-waived OUI trials as a student-prosecutor for the District Attorney’s office before I ever even passed the bar exam. Every defense attorney that I faced in court during that time was much more experienced. I also recall being handed a case file for the first time at lunch and being expected to try it in front of a jury that afternoon. It is no secret that Assistant District Attorneys in Massachusetts are grossly overworked and underpaid, with inadequate time and resources to devote to each OUI case. As a defense attorney, before every OUI case that I take to trial, I go the scene of the arrest with my investigator, police report in hand, take pictures and detailed notes. I often find nuances that may be inconsistent with the police officer’s narrative report, and I can use pictures to rebut his testimony at trial. I also thoroughly review the arresting officer’s police academy training manual with respect to OUI investigations and can point out various ways in which he did not follow the proper protocol in administering the field sobriety tests to my client. As criminal defense attorneys, we often take it upon ourselves to meet with each other and discuss cutting-edge defense strategies in this very nuanced area of the law. Such thorough investigative and preparatory practices are just not available to the time and resource-limited Assistant District Attorneys who prosecute OUI cases.

While I hope that my summary can help the public understand some of the major reasons for the relatively high-acquittal rate of OUI cases that proceed to trial, I hope that it also sheds light on the fact that the “acquittal rate” in no way reflects the fact a majority of defendants are convicted or admit to the offense of OUI with significant long-term consequences. In order to fully understand how OUI cases are prosecuted and adjudicated in Massachusetts, I encourage a full reading of Cinguegrana’s report, and stay tuned for the SJC’s response to his suggestions on how to more effectively balance the scales of justice for OUI defendants and the people of Massachusetts.

If you have been arrested for, or have questions regarding, Operating Under the Influence or any other criminal offense in Massachusetts, contact my office:


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