THE Season is upon us and it’s that time of year, “Holiday Party Season.” Whether it is an office Christmas Party or Club Holiday Party or the like it is also another Season, “Intense Operating Under the Influence of Intoxicating Liquor, (OUI) Enforcement Season,” by the Police. In Massachusetts, many Police Agencies ramp up their enforcement efforts for OUI’s, during the period from Thanksgiving through New Years Eve. Police Agencies across Massachusetts will have “Saturation Patrols” in areas where they suspect, there will be a lot of Holiday Parties. Areas where there are function halls, restaurants and bars that cater to these events are prime locations for the Police to saturate with Officers looking for impaired drivers. In many instances grants and other monies fund these activities.
First and foremost, if you feel you had too much to drink, do yourself a favor, do not drive. As much as I like to win OUI cases, the average cost for a seasoned Criminal Defense Attorney who has a good record for winning such cases is in the range of Ten to Fifteen thousand dollars for a first offense. It is a costly matter. Take a Lyft, an Uber, or a Taxi, have a sober friend drive you, get the car the next day, it is not worth it.
In Massachusetts, it is not illegal to drink and drive, but it is illegal to be impaired by the alcohol and drive or operate as is said in our General Laws. There are three elements to the OUI charge.
First there is operation of the motor vehicle, which in Massachusetts is as simple as anything that can initiate the vehicle to be put into motion. That simply means the key in the ignition or your key fob on your person and a push button start. The vehicle does not actually have to be in motion to be considered operating.
The Second Element is “Public Way,” Public Way is defined as any road, street, avenue, parkway or highway under the control of the state, county or municipality, it is also any private property that is open to the public, such as shopping mall parking lot or a restaurant parking lot, these places are considered public way under Massachusetts General Law.
The third and final element is impairment. Now I want to go down memory lane a little here, remember back when you first got your learners permit, for some us it was a pink slip of paper from the Registry of Motor Vehicles, well when you signed for that, many people did not realize they were signing an implied consent form. That means as a condition of having the privilege, yes privilege, to operate a motor vehicle you consented to taking field sobriety tests and a Breathalyzer as a condition of licensure. In Massachusetts if you refuse to take a Breathalyzer the Registry suspends your license for six months, if you take and fail the Breathalyzer, it is a thirty-day suspension, but you have given an important piece of evidence against yourself, per se evidence that you were intoxicated. There are challenges to the Breathalyzer, but it is an enormous battle in court and requires an attorney with a lot of OUI trials under their belt.
The other issue is field sobriety tests. In Massachusetts there are three field sobriety tests that are given to the suspected offender, first is the “walk and turn test,” where the officer instructs the suspected offender to walk nine steps heel to toe perform an unusual pivot turn and walk back nine steps. Now during this test, you are standing in a heel to toe position with arms at your side. Try it at home, sober, see how difficult it is to hold that position for two or three minutes and concentrate on what your being shown and instructed by the officer. It is damn near impossible. The next test is the “one leg stand,” where in the officer asks you to lift one leg of your choosing and hold it at a forty-five-degree angle, he then will instruct you to count to thirty slowly, try that sober, most people can’t get to fifteen. The third test is the “Rhomberg Alphabet Test.” In this test, the officer will instruct you to stand with arms by your side, place your head back and close your eyes. The officer will then tell you to say the alphabet loudly and clearly, and to not sing it, and saying “Now I’ve said my ABC’s….” is held against you if you say it.
All police officers in Massachusetts receive a 40-hour instruction period on administering the aforementioned tests. The trainees practice and practice doing the tests and instruction countless times. The tests are part of the National Highway and Traffic Safey Administrations, (NHTSA) training manual. The Agency instructs recruit officers to arrest in most instances, to send a deterrence to the general public to refrain from such behavior. The tests are designed for you to fail. Many things such as old injuries, head colds, ringing ears, all can affect your sense of balance, co-ordination, and control, but the tests and the officer’s evaluation of you don’t take any of that into account.
In an OUI matter you give all of the evidence against you from you. In Massachusetts, a BAC, or Blood Alcohol Content of .08 is per se impaired if you take the Breathalyzer.
Now although you did sign an implied consent you still have your Rights under the United States Constitution and the Massachusetts Declaration of Rights, (The Massachusetts Constitution.) A right in both documents that is an absolute, is the right to remain silent. Silence is not limited to speech, performing tests is covered under this. Another right that is an absolute is the right to counsel before questioning.
An example, I had a client who was stopped in Western Massachusetts on I-91. A call to the State Police said she was operating erratically. A trooper stopped her vehicle based on this call. My client had been drinking, she didn’t think she was drunk or impaired, but these were her actions when the Trooper came to the car. The trooper approached her window, asked for her license and registration which she provided. The trooper then asked her to exit the vehicle, with the troopers body worn camera recording, she stated, “Trooper, I refuse to participate in any tests and I also refuse to take a Breathalyzer, also I will be co-operative but I will not answer any questions other than biographical questions without the presence of my lawyer.” The trooper stopped his questions and placed her under arrest; he also ended the recording. Yes, her license was suspended, but at arraignment the Commonwealth knew they had a problem, there was no evidence of impairment. No field sobriety test., No admissions to consuming alcohol. No Breathalyzer, nothing nada, zip.
Yes, the trooper had probable cause, but beyond that the Commonwealth had not much else. On the second court date the Commonwealth dismissed the OUI Charge, although she admitted to negligent driving and a fine. The Court allowed a motion for re-instatement of her license.
Now this isn’t always the case you have to weigh what you feel comfortable with doing, however a .08 or greater is an uphill climb to get a not guilty. A lot of factors play into your decision, do you have a good Criminal Defense Lawyer, not a friend who does evictions, wills, trust, a little criminal defense, and some divorce stuff. Lawyers are specialists, and in this case, you need a seasoned Criminal Defense Attorney who knows the lay of the land when it comes to OUI’s. The safest and practical bet is if you feel like you had too much, you had too much, get a ride.
Please note this article does not offer legal advice and it does not establish an attorney client relationship between the author and the reader. Please consult your own Attorney before following any advice you may believe was offered here.
Stay safe, enjoy the Holiday Cheer and the Party, and have fun.
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Peter Marano is a former Police Officer and now a Criminal Defense Attorney with twenty years of experience, his sole focus is Criminal Defense, he practices in Boston and Washington D.C.
