Articles Posted in DUI/OUI

A Newburyport District Court judge found sufficient facts to convict Methuen High School Assistant Principal Donald Gibson of a second offense OUI last week.  The Lawrence Eagle Tribune reported that on April 25, 2008 Gibson was stopped by the Amesbury Police for a marked lanes violation after having left the Winner’s Circle in Salisbury, Massachusetts.  Gibson admitted to drinking 5 beers and was placed under arrest.  He was charged with OUI second offense which carries a penalty of 30 day mandatory in the Essex County House of Correction.  Read Article, Lawrence Eagle Tribune August 29, 2008.  However since Gibson’s prior conviction was more than 10 years old the judge had discretion to treat this as a first offense.  See Massachusetts Drunk Driving Laws G.L. c. 90 sec. 24D.  The judge suspended Gibson’s license for 90 days, twice the minimum mandatory, placed him on probation for 2 years and required him to attend the alcohol awareness program.  Gibson will be entitled to apply for a hardship license immediately.  The case was continued without a finding, which essentially provides that if Gibson successfully completes his probation the case will be dismissed.  There will always be a court record to alert judges and prosecutors that Gibson was given this break in 2008.  With the exception of the 90 day license suspension this defendant was given the equivalent of a first offender’s disposition under G.L. 90 sec. 24D.  Gibson’s first OUI offense was in 1981 out of the Lowell District Court.  The result of Gibson’s case was typical of how second offense drunk driving cases (with the prior offense being over 10 years old) are resolved in Massachusetts. 

People generally believe that if they had 5 beers as did Gibson they have no choice but to plead guilty.  This however is not always the most prudent way to resolve the case.  Our office utilizes toxicologists to evaluate the quantity of alcohol our clients drank over the period of time the beverages were consumed.  This, coupled with the person’s weight and food consumption yields a fairly accurate estimate as to what the person’s blood alcohol was at the time of operation.  You can drink and then drive.  You cannot drive under the influence of alcohol.  The presumptive level of impairment in Massachusetts is .08 blood alcohol.  Five beers over five hours will not result in a .08 for most people. 

These days people charged with OUI in Massachusetts usually want to resolve their case quickly particularly if this is a first offense.  This is due to recent changes in the Massachusetts Drunk Driving laws.  The most recent statute is also known as Melanie’s law.  It rewards first time offenders who plead guilty by restoring their operating privileges almost immediately with certain restrictions.  People opt for pleading guilty so that they can resume driving and continue on in life with minimal inconveniences.  While seductive this is not always the most prudent way to resolve your case.  Our office takes the time to analyze your case and advise you of all alternatives so that you will consider more than just getting your license back as soon as possible.  Call us now with any questions about your drunk driving case in Massachusetts. 

Salem Massachusetts Police reported that a concerned citizen’s call prompted the arrest of a Salem man on drunk driving charges.  Apparently the caller followed the driver for several miles and stayed with the car until police were able to catch up to the parties.  The witness related that the driver had run over a traffic island, gone through a stop sign and driven the wrong way down a one way street.  The witness detailed the driver’s route in great detail.  When the police stopped the suspect he admitted to drinking too much and stated that he just wanted to go to bed.  He refused a breath test and refused to take field sobriety tests.  The man was charged with drunk driving in the Salem District Court. 

Read Full Artricle, Salem Daily News August 23, 2008.

Drunk driving in Massachusetts is governed by G.L. c. 90 sec. 24 and G.L. c. 90 sec. 24D.  The penalties for a conviction of drunk driving vary.  Multiple offenders received sentences more severe than first time offenders.  If there is an accident or if someone is injured the penalties for first time offenders can be of great consequence as well. 

The defendant was charged with OUI.  He took and failed a breathalyzer test.  He then filed and argued a motion to suppress the results of the breathalyzer test claiming that the test was improperly administered.  The trial judge allowed the motion to suppress and the prosecution appealed the ruling. The Massachusetts Appeals Court heard the appeal and affirmed the trial judge’s decision.

Code of Massachusetts Regulations (CMR) Sec. 2.55 advises that the test operator observe the defendant for a period of fifteen minutes prior to administering the test.  The regulation is designed to ensure that the suspect is not doing anything that might adversely effect the accuracy of the test.  For example, people experiencing reflux might burp or hiccough thereby bringing up from the stomache food or drink.  This action could provide a false positive result.  The regulation was designed to prevent this from occurring.  Massachusetts courts have ruled that it is not necessary that the observation actually occur in the breathalyzer room.  Rather, the observation can occur during the stop of the defendant, the administration of any field sobriety tests and during transport to the police station. 

In this case the officer who administered the test believed that the fifteen minute waiting period was for the purpose of letting the breathalyzer machine warm up.  He never offered his observations, particularly whether he observed a contaminating event.  Rather, he talked about the events that transpired and provided time estimates as to each event.