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- Breathalyzers in our schools – Massachusetts OUI DWI Defense Attorney
- Field Sobriety Tests – Massachusetts OUI DWI Defense Attorney
- The stop of the defendant’s vehicle was not justified under the “community caretaking function.”
- Government’s Job just got tougher to prove that someone was operating after license suspension
- Motion for New Trial Allowed where written waiver not obtained
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JAMES M. MILLIGAN
Board Certified OUI Defense
308 Victory Road, Marina Bay
Quincy, Massachusetts 02171phone: 888-684-6494
Breathalyzers in our schools – Massachusetts OUI DWI Defense Attorney
Posted in OUI DWI Defense, Video: OUI Defense
Tagged Breathalyzers, Breathalyzers in schools
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The stop of the defendant’s vehicle was not justified under the “community caretaking function.”
In Commonwealth v. Ortolani (Lawyers Weekly No. 81-895-11) (Lawyers Weekly No. 81-895-11) (6 pages) (Appeals Court – Unpublished) (No. 10-P-487) (July 18, 2011). The Court held that the stop of the defendant’s vehicle was not justified under the “community caretaking function.”
“The sergeant observed no signs that the driver was in distress, had any difficulty controlling the van, or posed a danger to other motorists. The judge did not find that the van weaved, crossed into another lane of traffic, slowed or accelerated suddenly, or otherwise drove in a fashion which would provide an objective basis for concern for the driver’s well-being. We therefore conclude that the sergeant did not have an objective basis to conclude that the defendant’s well-being or the safety of the public was in jeopardy. … Consequently, the decision to make a well-being check of the defendant after he drove away from the end of the off ramp and then continued down the road was not reasonable. …
Posted in Appeals Court, Court Decisions, Massachusetts drunk driving laws, Supreme Judicial Court of Massachusetts
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Government’s Job just got tougher to prove that someone was operating after license suspension
In the recent decision of COMMONWEALTH vs. PETER L. PARENTEAU, The Supreme Judicial Court considered whether a District Court judge erred by admitting in evidence, pursuant to G. L. c. 90, § 22 (d),(1) a certificate from the registry of motor vehicles (registry) attesting to the fact that a notice of license suspension or revocation was mailed to the defendant, Peter L. Parenteau, on May 2, 2007. The Commonwealth did not present any testimony from a witness on behalf of the registry. For the reasons that follow, we conclude that the admission of the certificate violated the defendant’s rights of confrontation and cross- examination under the Sixth Amendment to the United States Constitution, and that such admission was not harmless beyond a reasonable doubt. Accordingly, we reverse the defendant’s conviction of operating a motor vehicle after his license had been revoked for operating while under the influence of intoxicating liquor and remand the case for further proceedings.
A charge of operation of a motor vehicle with a suspended or revoked license requires the Commonwealth to prove, among other things, that the defendant was notified that his license had been suspended or revoked. See G. L. c. 90, § 23. This case will have a significant impact on the Commonwealth’s ability to prove individuals Guilty of Operating a Motor Vehicle with a suspended license.
Motion for New Trial Allowed where written waiver not obtained
In a recent decision of Commonwealth v. Johnson, (10-P-0957, May 17, 2011), the Appeals Court reversed a conviction on the subsequent portion of a conviction for Distribution of a Class B substance.
The defendant challenged the conviction on the basis that she did not sign a written jury trial waiver even though the judge went through a thorough colloquy and the defendant indicated on the record that she understood. The Appeals court cited to the decision of Commonwealth v. Osbourne, 445 Mass. 776 (2006) in support of its decision.
This case along with Osbourne may be helpful in filing a Motion for New Trial for a person who was charged with an operating under the influence (OUI) case and either pled guilty or went to a jury-waived trial and lost. This is just one of many ways that an experienced drunk driving attorney can help undo a prior OUI offense.
Posted in Court Decisions, Massachusetts drunk driving laws
Tagged Appeals Court, drunk driving laws, jury trial for drunk driving, Massachusetts OUI laws
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