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Massachusetts Drunk Driving Laws & Penalties

2nd Offense Drunk Driving Laws & Penalties What should I do if I've been charged with a second offense?

14 Reasons to Fight Your DUI in Court

OUI Case Wins Here is a list of cases just like yours and what happened. Not Guilty results and dismissals.

DUI Cases - Frequently Asked Questions

What will it cost to hire you? How I charge for OUI defense.

Why Hire Russell Matson? Training. Experience. Results.

10 Mistakes People Make in their DUI Cases

9 Reasons Why You Can Fail Field Sobriety Tests - Without Being Drunk! Field Sobriety Tests are often set up for you to fail. Here are 9 absolutely legitimate reasons why.

Top 9 Lawyers Mistakes in Defending DUI Charges (and how to avoid them)

10 Common Police Mistakes in DUI Arrests

3 Reasons Why Some People Plead Guilty

What happens in an OUI court case? What is the arraignment, the pretrial, and other court dates?

The Top 9 Mistakes Lawyers Make in Massachusetts Drunk Driving Cases . . . And How To Avoid Them

Attorneys are trained in the laws relating to a wide variety of legal practices. But most expertise comes from learning from the top practitioners in a specific area of the law and, especially practical experience.

I am fortunate to be able to focus all my efforts on drunk driving / DUI cases in Massachusetts. It's all I do, so all my experience, research, and study is on these topics. For DUI cases, which involve a great deal of science in addition to just knowledge of the basic governing laws of the state, this experience may be the most critical thing.

And because of the complexity of DUI cases, knowledgeable attorneys consider them to be among the most difficult to defend. Because of this same complexity, a great many attorneys make up to 9 big mistakes when it comes to defending DUI clients . . . mistakes which can profoundly harm their clients in terms of losing their license, paying considerable fines, being jailed, having huge increases in their insurance rates, and the effect it could have on their current or future job.

I get calls all the time from other Massachusetts attorneys looking for advice because they don't handle Massachusetts DUI cases on a daily basis. I also get calls from people who've hired other lawyers and are second guessing their lawyer's opinions. 

Especially with all the new legal wrinkles with Melanie's law, and the very confusing policies adopted by the Massachusetts RMV (Registry of Motor Vehicles) with regard to license suspensions and ignition interlocks, you simply can't afford to have someone represent you who isn't at the top of their game.

To protect yourself and to help decide whom to hire and how to plead, you had better know what these mistakes are.

Mistake #1: Assuming the Case Can't be Won

I've been practicing DUI law for 10 years and I've come to believe that making this assumption and pleading you guilty is the single most important mistake attorneys make in representing individuals arrested for DUI.

You see, after getting the breath test result and the police report, many lawyers simply give it up and advise the client to plead guilty.

In fact, the breath test, the alcohol blood level test, and the roadside so-called "field sobriety" tests the arrested person has to perform all have potential built-in flaws. Flaws which can make the difference.

For example, the results of a breath test can be challenged through a Motion to Suppress, or evidence of your sobriety, or with cross examination of the police officer or the state's expert. I'll say more about these in a minute.

 Is it more costly to defend than to plead guilty?

Sure it is. But with so much at stake (including considerable penalty fees), the possibility of winning should not be just dismissed. Review and consider the many reasons to fight the case and consider whether it is a good investment to hire the best lawyer to defend you.

Mistake #2: Assuming That The Breath Test Rules Were Followed

The Commonwealth of Massachusetts has very specific rules and regulations concerning the breath test given to people suspected of DUI. The critical point for the prosecution is that these rules must be followed.

This leaves open attacking the results on the grounds that the technical rules weren't followed.

Through conversations with other attorneys, I've discovered that far too many lawyers don't read the statute and regulations covering breath testing.

 Those that don't know the regulations don't realize that violations of the rules introduced into evidence can show that the results are unreliable. Further, showing this can be used to exclude the breath test results altogether.

Here's an example: The testing officer is supposed to watch you for 20 minutes before giving the test to make sure you don't hiccup, burp, or puke. Because these things can totally skew the test results. A number of courts have excluded test results for this violation, even though the accused may not have actually hiccupped, burped or vomited.

In fact, a host of criteria must be met or the test results will often be thrown out. These include:

• the test operator having a current certification.
• the machine having a current certification.
• calibrating the machine as often as required.
• changing the mouthpiece before the test is given.
• keeping a record of the temperature of the calibrating solutions in the machine.
• keeping a log of the tests run.
• counting the number of times the calibration solution has been changed.

 Thus, to defend you properly, a lawyer should get copies of the various logs, maintenance records, and the operator's license or certification. Sadly, most lawyers don't, settling instead for just the complaint and the arrest report.

Mistake #3: Not Filing A Motion to Suppress

 Not filing this pre-trial motion before a trial is a huge mistake according to many experts, and maybe the most common mistake according to others.

 Even though this motion doesn't succeed very often, a case can be won by filing it. While a stop is generally justified if you were weaving from lane to lane, weaving within a lane may not make the stop justified. And whether they'll admit it or not, this motion may resonate with a judge.

 Equally as important, even if the motion loses, it provides another opportunity to question the arresting officer. The officer can be asked broad range of questions. And his testimony can be used at trial as well as in plea bargaining.

I often get useful information from the officer about the case from cross examining him at the motion hearing.

If the testimony is different in the suspension hearing, the pre-trial hearing, and again at the trial, the stronger your case is. And it is not uncommon for this to happen.

Mistake #4: Not Personally Checking Out The Arrest Location

Many lawyers don't visit the arrest location. And this can be exceedingly crucial. Personally, I always take the time to visit the scene with my client, usually after the first court date. I also always take digital video and pictures of the spot where the tests were given.

Why? First of all, it could point out that the particular location made the roadside test difficult to perform. For example, if there's heavy traffic speeding by on a highway. Or if the shoulder of the road used for the roadside test is slanted. A slanting road automatically makes the tests more difficult to perform. Or a winding road could explain erratic driving.

Seeing and knowing these things makes it much easier for your lawyer to ask probing questions about the roadside test, and, in some cases, point out a physical impossibility to the jury. I'll introduce pictures of the scene of the stop as evidence to any of these claims.

Again, an example: An officer may testify that you wove a certain number of time on the road. But there may not have been enough time for you to weave this many times in a given stretch of road. When illustrated by your attorney, this is very telling.

Or, there may have been obstacles preventing you from driving with two wheels on the sidewalk, which the police may claim you did. But if your attorney doesn't visit the scene with you, he'll never find out about these points to argue.

Mistake #5: Not Exploiting The Advantage of The "Training Manual" For Roadside Tests

The "Training Manual" is another example of rules that the police must follow when they perform a field sobriety test . . .  that is, the roadside tests I just mentioned above. Most lawyers know little about this manual and its rules. A very few actually take training courses themselves to become certified and qualified to give these tests.

Because the officers actions and training are critical evidence to the prosecution, I've personally taken the time to be trained and certified as an instructor of field sobriety tests. I'm the only attorney in Massachusetts with this certification, as far as I know.

At the very least, this manual should be studied by your lawyer. He or she will then know exactly what questions to ask the arresting officer to see if he completely followed the manual's directions. This can be powerful evidence frequently overlooked by defense lawyers.

You see, if the manual's directions weren't completely followed, the test's validity can be attacked. A successful challenge can result in the test evidence being excluded at trial, which significantly weakens the prosecutor's case. I've found that in an extremely large number of cases, the police do things inconsistent with the manual's material.

Even more important, officers don't always use objective scoring. The manual explains how to score the tests and how to arrive at a final score. All too often the officer simply subjectively decides whether or not you failed the tests.

Another facet of this is officers asking you to do more than the manual requires.

If you were asked to take a test not in the manual (and there are only three), then your lawyer can get that evidence excluded altogether. Incidentally, the police commonly use tests that aren't in the manual.

What's the point? It's simple: if your lawyer doesn't know the training manual, how can he/she attack the way the arresting officer used it?

Mistake #6: Not Explaining The Extra Penalties Coming With a Conviction or a Guilty Plea

 If your lawyer doesn't advise you about the administrative sanctions resulting from a conviction, this is malpractice.

Why are these important?

Because they can include license suspension or revocation, jail time, a significant fine, inability to rent a car, substantially higher insurance rates, restricted ability to travel internationally to Canada and abroad, and loss of your job (particularly if your job involves driving).

And this mistake is all too common among lawyers.

You must take these extra penalties into account when deciding to plead guilty. If you're not aware of these penalties, you cannot help but be the loser.

Mistake #7: Putting the Client on The Stand

Contrary to popular belief, it is not typically a good idea to put the defendant on the stand, expert DUI attorneys believe. This is primarily because they are not experienced witnesses, often appearing to be nervous.

Moreover, a defendant who is put on the stand shifts the jury's focus. The objective of the defense is to show that the prosecutor's case is not strong enough to convict beyond all reasonable doubt. When the defendant is put on the stand, however, the focus shifts to the credibility and honesty of the defendant.

The jury is thus forced to choose between the police officer and the defendant. Plus, it gives the prosecutor the chance to make the defendant look like he's hiding something.

Is there ever a good time to put the defendant on the stand? Yes, to contradict something the officer said.

Beyond that, your lawyer should stick to placing reasonable doubt in the jury's mind.

Mistake #8: Attempting to Show The Officer Lied

Look, your lawyer doesn't need to make the officer sound like he lied to put reasonable doubt in the jury's mind. All he really needs to do is show how the officer might simply be mistaken this time.

Why? Because the jury doesn't want to believe that the officer is lying. But it will accept the officer being mistaken. Not to mention, do you think the officer will admit that he is lying?

It's far better to simply paint the case as being about a cop jumping to conclusions and making mistakes.

Mistake #9: Not Consulting A Specialist

Attorneys who are expert in DUI law say that someone who isn't a specialist should consult one. Just as you wouldn't hire a criminal attorney to advise on business law or divorce.

The reason for this is simple: DUI law is complex, it involves a lot of science, and a generalist cannot be everything to everybody. Knowing how to defend a DUI case involves considerable preparation, familiarity with the law, and knowing what motions to make and when. An expert in DUI law has that knowledge.

He or she will quickly be able to spot potential defenses. He'll know what the investigation and discovery should be.

If your lawyer is not a specialist in this area, you may not be getting the best advice and you may not have the strongest case. Always ask about a lawyer's specific DUI defense training and experience before making a decision to hire him or her.

You see, a DUI is no longer a minor offense. The reforms of the 80's and 90's and the recent new penalties under Melanie's Law, the tightening of the standards defining what DUI is, and the penalties imposed have made these cases not just complex, but also important.

So it's necessary for you to hire the best attorney you can afford so your case is as strong as possible.

Call me anytime for a free consultation on the specifics of your case at (781) 380-7730. I'll give you some free advice, so you have nothing to lose by calling.

Russell Matson, Attorney at Law 

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