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How Police Failures in Drunk Driving Arrests Can Help Your Case

If you were arrested for drunk driving in Massachusetts, it is natural to see the police officer as your adversary. That isn't necessarily the best way to look at it, and isn't going to get you anywhere in court. Police officers generally have the goodwill of the jury, and are assumed to be trustworthy and helpful.

However, police make plenty of mistakes when arresting people for DWI. And you are completely innocent until proven guilty under the law, beyond any reasonably doubt. Any mistakes by the officer can and do cast doubt on the state's case against you.

Failure to Investigate

In a DWI stop, the officer is trained to investigate reasons why a person may have been driving erratically. But they generally just jump to the conclusion that driving erratically means the person is intoxicated, and charge an OUI.

I had a case in the Taunton District Court where my client was driving a bit erratically and the officer didnít ask him why he was driving erratically. After he pulled my client over he noted that my client was smoking a cigarette. I argued to the jury that it is not unusual that someone may pull out a cigarette pack, pull out a cigarette or pull out a lighter and maybe drop the lighter and sometimes that can cause someone to take their eyes off the road and therefore drive erratically.

 I argued to the jury that this was why my client was driving erratically and the jury found my client not guilty. If the officer had performed a more thorough investigation, he would have determined that was the case, or ruled it out as a possible defense. But because the officer didnít do a more thorough job, it was a way to attack the case.

I have cases all the time where my clients donít perform perfectly on the Field Sobriety tests. But it may be 2 or 3AM and the officer rarely asks my client what time they got up, how much sleep they had the night before or if they are tired or fatigued.  Often just being tired can be a perfectly reasonable explanation as to why you appear impaired.

Failure to do a thorough investigation it mean that at trial I can cross examine and go after the job that the officer did, and raise reasonable doubt.

Field Sobriety Test Police Mistakes

Field sobriety tests are often a key piece of the Commonwealth's case that allegedly establishes your impairment, and yet these supposedly scientific test are often administered in a sloppy and unscientific manner.

 Administering the nine-step walk and turn test incorrectly.

According to the officer's training manual and National Highway and Traffic Safety Administration (NHTSA) standards, the test is supposed to be performed on a "high, dry, level, non-slippery surface where the subject can walk on a visible straight line". In Massachusetts, officers administer this incorrectly more often than correctly.

Frequently these conditions aren't immediately available at the site of the stop.  I've won cases because the officer gave the test on a sloped surface (I documented with photos when I visit the scene) and when the officer tells the defendant to walk an invisible line. If the line was invisible, how does the officer know that the person didn't stay on the "line"?

 Administering the one leg stand test incorrectly.

According to the officer's DWI training manual and NHTSA standards, the one-legged stand test is supposed to be administered on a level smooth surface with adequate lighting. Individuals who are wearing heels more than 2" high should be given the opportunity to remove them.

I will also review the grounds and circumstances in a visit to the scene. Massachusetts Officers also often fail to follow these guidelines, and I'll be sure to bring that up in court during cross-examination.

 Administering Field Sobriety tests to someone who is not a candidate to take these tests.

The officer's training manual states that someone with specific medical conditions, such as back or foot problems should not take the test.

I've had a few clients who fit into this category. I bring in medical records and document the condition. If this is the foundation for the arrest, then we'll almost always get a not guilty.

Administering the Horizontal Gaze Nystagmus Test

This is a test where the officer holds up an object such as a pen, a flashlight, or his finger and has you follow its movement with your eyes. The Horizontal Gaze Nystagmus (HGN) test has not been admissible for years under Massachusetts DWI law.

Massachusetts case law states that the state must provide expert medical testimony to establish a scientific basis for the test (which the prosecutor is nearly always unable to do). But officers still perform it, especially those who had their academy DWI training decades ago.

 Administering the wrong field sobriety tests, or administering them incorrectly.

According to the officers training manual, the alphabet test is a pre-screening test, to be used before the defendant exits the vehicle. I've also had clients given unofficial or unscientific tests, such as counting backwards, and the jury has come back with a not guilty.


If an officer has made any of these mistakes in your case, I will be certain to use this information in court, either in a motion to suppress the evidence hearing, or at trial under cross-examination of the officer. These are only a few examples of mistakes that can work in your favor. When we talk, we can discuss other mistakes the police may have made in your case.

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

Attorney Russell Matson
(781) 380-7730

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