Massachusetts DUI Blog

As most people know, in the absence of overwhelming impairment, the police typically do not arrest a person for DUI until they have administered field sobriety tests. Although the Massachusetts Supreme Judicial Court has held that, like a breath test refusal, a defendant’s refusal to perform field sobriety test is not admissible against him at trial. Many, if not most, people do submit to the tests when requested by police, perhaps because they are not aware that they may refuse.
Recently, a Massachusetts client was pulled over late at night because of a defective headlamp. He was asked to step out of his vehicle when the officer smelled an odor of alcohol and observed his eyes to be red and glassy. The client complied and walked to the rear of the vehicle. When the officer asked him to perform the voluntary tests, the client politely refused, and he was arrested. At the police station, the client agreed to take a breath test, which yielded a .08% blood alcohol level.
This week, the court held a hearing on our motion to suppress all evidence obtained after the arrest. Our contention was that the officer did not have probable cause to arrest, and so all evidence obtained as a result of the arrest was obtained unlawfully. After the hearing, the judge ruled that there was not probable cause to arrest the defendant while he was still in his car, since an odor of alcohol and red, glassy eyes were not sufficient by themselves to support a DUI arrest. Where no new evidence of impairment was obtained by the police when the defendant exited the vehicle, walked to the spot when the officer directed him, and refused the tests, the court agreed that there was still no probable cause to arrest. Since the defendant’s refusal to submit to tests could not penalize him in the eyes of the court, all evidence obtained after the arrest was excluded.
In this case, the client’s respectful refusal to supply evidence against himself benefited him significantly in the end.

Police who suspect that a driver is impaired often administer field sobriety tests in order to gather additional incriminating evidence against the driver. These tests include the alphabet test, horizontal gaze nystagmus, 9-step walk and turn, and the 30-second one leg stand. Other possible tests are touching the finger to nose or counting backwards. Some of these tests have been shown to be somewhat reliable as a means to detect impairment, provided that the tests are administered correctly by the officer.
A common issue in court is whether the officer correctly instructed the subject, and objectively scored the test. Since the accuracy rate of the tests (per the officers’ training materials) is less than 70% even if administered perfectly, much is gained by defendants who are able to show that the tests themselves were flawed, or that the officer administered the tests in a manner different from his or her training.
Most police officers will testify that they did not decide to arrest until the field sobriety tests were completed, and admit on cross-examination that there was not probable cause until the defendant performed poorly on the tests. As a result, if the jury has doubt concerning the accuracy of the tests themselves, a defendant may be well on his way to an acquittal.

The Massachusetts State Police announced that a “Sobriety Checkpoint” will be implemented by the Massachusetts State Police on a Secondary State Highway in Worcester County, Massachusetts. This checkpoint is scheduled for Saturday night into Sunday morning, and will take place during varied hours.
The State Police often team up with local law enforcement when operating these checkpoints, which may utilize over a dozen officers at a time.
The constitutionality of these checkpoints were recently upheld by the Massachusetts Supreme Judicial Court. However, the police must strictly comply with the many requirements that the Court has outlined, and the failure to do so may result in the exclusion of all evidence obtained against a defendant.
If you are arrested following a roadblock or “sobriety checkpoint,” contact an attorney who knows how to defend these cases successfully. Call Brooks & Crowley LLP at 781-251-0555.

Colonel Mark F. Delaney, Superintendent of the Massachusetts State Police, has announced that a “Sobriety Checkpoint” will be implemented by the Massachusetts State Police in Suffolk County. This checkpoint is scheduled for Thursday night, September 10, 2009 into Friday, September 11, 2009 and will take place on a Secondary State Highway. Suffolk County is comprised of all of Boston, and the cities of Chelsea and Revere, Massachusetts.
Many of these roadblocks are part of the nationwide “Over The Limit, Under Arrest” mobilization, for which state and federal grant money is used to fund police overtime, equipment and education. This roadblock coincides with the return of thousands of college students to the Boston area around Labor Day weekend.

The Massachusetts State Police recently announced sobriety checkpoints for Essex County over Labor Day weekend and Worcester County for the following weekend.
State troopers typically work along with local officers in establishing these roadblocks, typically along secondary roads for several hours at a time. They have motor-home sized vehicles (known as the “Batmobiles”) which contain all facilities needed to process arrestees, including breath testing equipment.
These operating under the influence cases can often be won, since they typically involve random stops and questioning, rather than observations of bad driving, which provides fertile ground for cross-examing the arresting officers.