The Mahoney Criminal Defense Group has been successfully representing individuals accused of OUI (DWI, DUI, Drunk Driving) for almost 20 years in the courts of Massachusetts. Attorney Kevin J. Mahoney has authored Relentless Criminal Cross-Examination, which includes a chapter on innovative cross-examination techniques for criminal defense lawyers defending those charged with drunk driving.
If you are looking for a sophisticated, proven Cambridge OUI defense attorney, contact us at 617-492-0055 or use our online contact form to arrange a free consultation.
Massachusetts DUI Arrest: The Predicament
Being arrested for Operating Under the Influence in Massachusetts is unsettling, particularly for law-abiding citizens who suddenly and unexpectedly find themselves in custody. To those unfamiliar with the criminal justice system, the process can be confusing, dehumanizing and unnerving. The system is governed by archaic procedures, needlessly complicated statutes, and dispiriting formality. Simple explanations from the judge or the court personnel are nearly non-existent; and, if any explanation is given, it is so obtuse and incomprehensible that it’s as if the court officials are safeguarding treasured scripture from unclean hands. In the courtrooms across Massachusetts, there is no such thing as “simple.” Yet, an unwary individual may forfeit unsalvageable constitutional rights and subject himself to unanticipated penalties by accepting an expeditious, but unjust result. An experienced Massachusetts OUI Lawyer can help.
The Potential Consequences
In Massachusetts, operating under the influence of either alcohol or drugs is treated as a serious offense. A conviction for driving under the influence will leave you with a criminal record, deprive you of your license to drive for a lengthy period of time, substantially increase your motor vehicle insurance rates, subject you to hefty court fines and fees, damage your employment prospects, and potentially result in a period of incarceration or a stay at an inpatient treatment facility.
Retaining a Lawyer is not a Luxury
To fully understand your rights, the potential penalties, and the process, as well as to obtain solid advice, retain an experienced criminal defense attorney. With so much at stake, retaining a lawyer with both experience and success in defending those accused of operating under the influence is not a luxury, it is a necessity.
The Mahoney Criminal Defense Group, headed by Attorney Kevin J. Mahoney, a former Middlesex County Assistant District Attorney, has been representing those accused of driving while intoxicated for 19 years. Mahoney has tried in excess of 40 DWI/OUI trials in the District Courts of Boston and eastern Massachusetts. He will meet with you regularly to patiently answer your questions and explain the legal process to you. Together, you and Attorney Mahoney will confront and dissect the allegations, and thoroughly assess the strengths and weaknesses of the prosecution’s case, and the defenses to the charges that he can raise at trial. Should you choose to proceed to trial, Mahoney will spend hours reviewing the facts with you, and with your input, devise a winning trial strategy. In his recent, best selling book, Relentless Criminal Cross-Examination, he devotes an entire chapter to teaching lawyers successful cross-examination strategies for DWI/OUI cases. While an impassioned closing argument makes good television, detailed, riveting, and tactical cross-examination wins trials.
Successfully defending individuals accused of DWI/OUI requires a comprehensive understanding of the limitations of the so-called breathalyzer, the flawed investigative methods taught by the Police Academy to the arresting officer, and the shortcomings of the field sobriety “tests.”
Contact Cambridge OUI Lawyer Kevin J. Mahoney
Explanation of a Typical DWI Case
The breathalyzer is an instrument designed to provide law enforcement with an estimate of your blood alcohol content. It is of questionable reliability because it:
- Lacks specificity (it will not distinguish between ethyl alcohol and chemicals/substances with similar molecular structures), therefore it may provide a false positive.
- Measures breath alcohol levels, rather than blood alcohol levels. The manufacturers assume each individual possesses a 2100 to 1 partition ratio and partition rations vary from person to person.
- May not have been properly calibrated for changing ambient air temperatures.
- Is incapable of adjusting to accelerated/decelerated breathing patterns, which may substantially affect the amount of alcohol detected.
Despite its limitations, the courts of Massachusetts have ruled the results of properly administered and calibrated breathalyzer admissible at trial. To challenge the reliability and/or accuracy of breathalyzer results, Mahoney retains an experience, qualified toxicologist to testify on behalf of the accused at trial.
How Each Drink Contributes to Your BAC Level
Each drink you consume will increase your blood alcohol content by approximately .025. It takes approximately one hour for your body to metabolize approximately .025 worth of alcohol. Theoretically, if you consume only one average drink per hour for four hours, your blood alcohol should climb no higher than approximately .025. The so-called legal limit in Massachusetts is .08. If you have consumed no more than four drinks over the course of four hours, you might pass the breathalyzer. But because the breathalyzer is so notoriously unreliable and each individual’s weight and metabolism vary so considerably, it might make sense to forego the breathalyzer.
Refusing to Submit to the Breathalyzer
Unfortunately, in Massachusetts, your 5th Amendment Right not to be forced to provide incriminating yourself has been abridged. If you refuse to submit to the breathalyzer, the Registry of Motor Vehicles penalizes you by automatically suspending your license for 120 days. If you fail the breathalyzer, the Registry suspends your license for 90 days. If you “pass” the breathalyzer with a .07 or lower, the Registry will not suspend your license. If the breathalyzer reveals a blood alcohol content of .06 or lower, most police departments will drop the charges and let you go free.
“Failing” the Breathalyzer
A breathalyzer reading in excess of .08, in the hands of a capable prosecutor, can be a powerful weapon against you at trial. This reading carries with it a presumption of intoxication. Your right to be presumed innocent is, therefore, compromised.
On balance, if you have consumed four or more alcoholic drinks in the preceding three or four hours, it might be wise to refuse the breathalyzer.
Manipulating the Breathalyzer Reading
Individuals have attempted creative, if not bizarre, ways to defeat the breathalyzer. Many suspects deliberately exhale as little air directly into the mouthpiece as possible, including exhaling to the side of the mouthpiece. Officers administering the breathalyzer are on the watch for such antics and will likely testify to their observations of such attempts as “consciousness of guilt” evidence. Other motorists have attempted to fool the breathalyzer with “breathalyzer mints,” chewing gum, and secreting a copper coin beneath the tongue. None of these methods have been shown to lower the BAC readings of breathalyzers. One desperate, mentally challenged individual even ate his underwear, hoping that his cotton briefs would absorb the alcohol he had consumed. Another ate his own feces. As stated above, if you have consumed more than a few drinks and want to give yourself the best possible chance for an acquittal at trial, refuse the breathalyzer.
An OUI trial is more than a police officer recounting a weaving motor vehicle and the driver’s faulty performance on field sobriety exercises. Officers are trained to build a case against a driver from a number of seemingly innocuous details. In a very real sense, before an officer signals a driver to pull over, he has already begun to build a case against him.
Once a police officer signals a motorist to pull over on suspicion of driving while intoxicated, he will meticulously note:
- The distance the motorist travels before coming to a stop.
- Whether the motorist uses his directional.
- Whether the motorist pulls his vehicle to the side of the road slowly or abruptly.
- Whether the motorist’s vehicle makes contact with the curb.
- The distance from the curb that the motorist brings his vehicle to a stop.
When the officer reaches the driver’s side door, he will note whether:
- There is an odor of an alcoholic beverage coming from within the vehicle.
- The driver is wearing his seatbelt.
- The driver’s eyes are bloodshot.
- The driver responds appropriately and coherently to routine questions (i.e., “Where are you coming from?”).
- The driver slurs his words or speaks with a “thick tongue.”
- The driver is able to retrieve his license and registration without difficulty.
- There is an open container of alcohol within the passenger area of the vehicle.
- If the driver appears disheveled.
If the officer suspect a driver of operating while under the influence and orders him from the vehicle, he will note whether the driver:
- Is able to remove his seatbelt without difficulty.
- Steps from the vehicle without difficulty.
- Uses the door or the side of the vehicle to steady himself.
Given the attention police officers pay to these “clues,” if you have been drinking and the police pull you over, be smart and refuse to provide the officer with incriminating evidence. For example, if you believe that you will slur your words or be unable to speak coherently, say nothing. Your silence is not admissible against you in court.
If the police officer asks you to perform the field sobriety tests, refuse to participate in this roadside sham. Your refusal to perform these so-called tests is inadmissible against you in court. Furthermore, there is no penalty imposed upon you for refusing to attempt these discredited “tests.” The “tests” are most difficult to pass, especially since you are required to perform them under the watchful eye of the officer with the power to arrest you. Often, the officer has already made up his mind to arrest you. He wants you to attempt these “tests” so that he can testify before the jury that you failed them. And no matter how well you may believe you performed on these “tests,” the officer will very likely testify that you failed the “tests” – badly.
The police refer to these exercises as “tests” to give them an aura of scientific validity. These exercises are more the product of imagination rather than science. Most police academies teach versions of these exercises based on the exercises developed and/or recommended by National Highway Traffic Safety Administration (NHTSA). These exercises are referred to as “Standardized Field Sobriety Tests.” These exercises are, mostly, tests of balance and the driver’s ability to perform the exercises can be undermined by road conditions, footware, and wind conditions. Few police officers administer or grade these exercises in accordance with the recommended standardized methodology or take into account the conditions that might negatively effect performance. Simply put, the driver fails the exercises if the officer feels he failed them. An experienced Massachusetts OUI lawyer should be able to effectively cross-examine the officer who testifies that you failed these “tests.”
Finally, should the officer conclude that you have passed the tests, he has the authority to arrest you if he believes, despite your performance, that you are under the influence.
Specific Field Sobriety Exercises
Heel-to-Toe or Walk-and-Turn “Test”
According to NHTSA the “Walk-and-Turn test requires a designated straight line, and should be conducted on a dry, hard, level, non-slippery surface, under relatively safe conditions.” The validity of the test is compromised by the officer’s failure to adhere to these simple requirements. Officers often force drivers to perform this exercise in the dark on uneven, wet, icy, slippery, slopes littered with debris. If the roadway has no line, officers will instruct suspects to imagine that there is such a line. At trial, these officers will claim that the driver stepped off the line. It is very rare for an officer to have a suspect perform the exercise elsewhere, even if the recommended conditions exist just across the street.
- Assume heel-to-toe position
- Place left foot on line
- Right foot in front left
- Keep arms at side
- Remain in this position until told begin
- 9 steps
- Step on the line
- Keep arms by side
- Watch feet at all times
- Count steps out loud
- Once you begin the test, don’t stop
Officer Watches for “distinct clues.” For example, whether the motorist:
- Maintains balance during instructions
- Starts before told
- Stops to steady himself
- Fails to touch heel-to-toe (space _ inch or more)
- Steps off line
- Uses his arms to steady himself
- Takes incorrect # steps
The NHTSA instructs police officers to “classify the suspect as impaired” if he exhibits two or more distinct clues on this test or if he fails to complete it. Even if the “test” conditions are ideal, the officer’s instructions perfect, and his grading accurate and fair, he will only be “able to correctly classify about 68% of [his] suspects.” That, of course, means that even the most competent officers routinely flunk 32% of the sober people who submit to the exercise. When we consider that most of these officers vary their instructions and disregard defective conditions, these officers will almost never accurately classify the unfortunate motorists they stop.
One Leg Stand “Test”
The NHTSA requires officers to give this “test” on a hard, dry, level, non-slippery surface.” The officer should insure that there is adequate lighting for the motorist. As the NHTSA concedes, “in total darkness, One Leg Stand is difficult even for sober people.” The NHTSA fails to address how the flashing blue lights of the cruiser, the headlights of passing cars and trucks, or the officer’s flashlight might also prove unfairly disorienting to a motorist. As with the heel-to-toe above, the police give little thought to where they have the motorist perform this exercise.
- Do not begin test until told to
- Listen to instructions
- Stand with feet together
- Keep arms at side
- Lift one foot 6″
- Knee straight
- Count to 1 – 15
- Out loud
- “One-one thousand, two-one thousand”â€¨(divides attention between balancing and counting)
Officer Watches for “distinct clues.” For example, whether the motorist:
- Uses his of arms for balance
- Keeps his arms by his side
- Looks at foot
- Keeps foot 6″ off ground
- Counts out loud
- Counts correctly
The NHTSA instructs police officers to “classify the suspect as impaired” if he exhibits two or more distinct clues on this test or if he fails to complete it. The NHTSA concedes that even if the “test” conditions are ideal, the officer’s instructions perfect, and his grading accurate and fair, the “test” is a “reliable” indicator of intoxication “only 65% of the time.” As with the heel-to-toe above, even the most competent officers routinely flunk 35% of the sober people who submit to the exercise. When we consider that most of these officers vary their instructions and disregard defective conditions, these officers will almost never accurately classify the unfortunate motorists they stop. A Woburn OUI Lawyer should remember, as the NHTSA recognizes, “Some people have difficulty with One Leg Stand even when sober.”
Although the majority of field sobriety test manuals do not include the alphabet “test” among the recommended field sobriety exercises to be administered, police officers routinely instruct motorists to recite the alphabet in a non-rhythmic manner to gauge their sobriety. By requiring the motorist to recite, rather than sing, the alphabet, the officer hopes to trip up a motorist with a “simple” test that a jury will likely conclude should have been easily completed by a sober motorist. Of course, sober, but nervous, motorists routinely fail to correctly recite the alphabet. The stress of performing this “easy” task in the dark, along the roadside in front of an intimidating officer or two can be most difficult. In my opinion, requiring a motorist unnerved by the prospect of imminent arrest to recite the alphabet in a non-rhythmic manner reveals little to nothing about an individual’s sobriety.
Horizontal Gaze Nystagmus
Definition of Nystagmus
“Nystagmus (ni stag_ m_s), n. a congenital or acquired persistent, rapid, involuntary, and oscillatory movement of the eyeball, usually from side to side.” WEBSTER’S ENCLYCLOPEDIC UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE, p. 1333 (1996). According to the NHTSA, “nystagmus is natural, normal phenomenon.” It notes that alcohol and drugs do not cause nystagmus, but may “exaggerate” the phenomenon.
There are numerous types of nystagmus:
Vestibular: can be caused by movement or action to the vestibular system. Types of vestibular nystagmus include rotational, post rotational, caloric, and positional alcohol.
Nystagmus can also be caused by neural activity. Webster’s defines “neural” as “of or pertaining to a nerve or the nervous system.” Id., p. 1291. Neural activity can produce optokinetic nystagmus, where the eyes jerk after having fixated on an object that suddenly leaves the field of vision or after fixated on sharply contrasting moving images. According to NHTSA, the most common type of nystagmus is “physiological nystagmus,” which is caused by neither drugs nor alcohol. It is believed that to some degree, all individuals have a naturally occurring, physiological nystagmus.
With the use of a pencil or penlight, an officer – with no medical or ophthalmology training whatsoever – attempts to gauge the jerk or bounce of a motorist’s eyes as he (the officer) moves the pencil or penlight left to right or vice versa.
Officer Watches for “Specific” Jerking
- Eyes do not smoothly pursue the pencil;
- Once eyes have followed the pencil as far to the side as possible (“maximum deviation”) and remain in that position for four seconds, they “jerk”;
- Eyes “jerk” before they have moved 45 degrees to side
Cross-Examination of Officer Portraying Himself as an Expert
The horizontal gaze nystagmus test is regarded as the most accurate of the field sobriety “tests.” However, that is only true if the person administering the test is, indeed, qualified to properly conduct it and interpret the nystagmus. A police officer with nothing more than a half-hour of training from another officer has not acquired the necessary expertise to accurately assess nystagmus. Yet, in jurisdictions where police officers are allowed to testify to their observations of the nystagmus, these officers testify as if they are indeed authorities. To undermine their “expert” status, a Massachusetts DWI defense attorney should use cross-examination to show that the officer has:
- No degree in ophthalmology, optometry or physiology
- No medical courses on physiology of eyes
- No license to diagnose eye dysfunction
- Never qualified as expert on eye musculature
- Never qualified as expert on physiology of the eye
- Taught at police academy to give nystagmus test
- Never trained by ophthalmologists, optometrists or medical physician
- Never trained by toxicologists or pharmacologists to understand how alcohol affects nystagmus
Other Causes of Nystagmus
- Cold and flu
The NHTSA states that the following illegal drugs also cause nystagmus:
- Other depressants
At any trial in which a Massachusetts DWI defense attorney anticipates that the prosecutor will attempt to introduce evidence that the defendant failed the Horizontal Gaze Nystagmus test, he should file a motion in limine seeking a pre-trial evidentiary ruling on the admissibility of the test. In Massachusetts, the results of the HGN will normally be ruled inadmissible. In Commonwealth vs. Sands, 424 Mass. 184 (1997), the Supreme Judicial Court held that to introduce evidence that a motorist failed the HGN test, the Commonwealth had to demonstrate that: (1) the “theory” behind the HGN test was scientifically sound; and, (2) that the officer who administered the test was competent to both administer the test and to interpret the results. Because the Commonwealth is unable to demonstrate that the HGN is more than pseudo-science, the results of the test are routinely ruled inadmissible.
The Finger-to-Nose “Test” is another divided attention “test” ostensibly designed to help the officer gauge the sobriety of a motorist. Officers in Massachusetts do not administer this exercise to motorists as often as they administer the Heel-to-Toe and One-Leg-Stand test. It is an exercise that is so difficult to perform correctly, that many – if not most – sober drivers would probably fail the test. The exercise requires the motorist to remember and perform nine distinct tasks almost simultaneously. For a Massachusetts DWI lawyer, it is ripe for an effective cross-examination.
- stand straight
- extend arms parallel to ground (shoulder height)
- hands in fists
- extend index finger (not middle finger)
- close eyes
- tilt head back
- touch tip nose
- with correct hand
- then return hand to outward position
Officer Watches for the Following:
- closed eyes
- standing straight
- properly extending arms
- hands in fist
- extending index finger
- tilting head back
- touch tip nose (not side or upper lip)
- with index finger of correct hand
- and returning that hand to original position
Officers usually testify that the motorist used the incorrect hand (i.e., motorist used left when instructed to use right), swayed, and touched side of nose or upper lip. Given the difficulty of the test, and the fact that the jurors are unfamiliar with each other, it may be a good idea to suggest that they try the “test” before their fellow jurors during deliberations.
A Boston, MA DUI Lawyer should be able to effectively cross-examine the arresting officer with regard to your performance on the field sobriety tests.
Commonwealth vs. J.K., Attleboro District Court
Operating Under the Influence — Not Guilty
State Trooper testified that he observed a BMW weaving in and out of its lane on 95 North in Attleboro. The Trooper testified that he smelled a strong odor of alcohol on the Defendant’s breath and that the Defendant slurred and gave confusing answers to simple questions. The Defendant admitted drinking four rum and cokes. According to the Trooper, the Defendant failed the field sobriety tests known as the heel-to-toe and one-leg stand. Trooper admitted the Defendant passed the alphabet test.
Commonwealth vs. J.R., Newburyport Superior Court,
Motor Vehicle Homicide — Not Guilty
Operating Under the Influence — Dismissed on first day of trial
According to the Commonwealth, the Defendant was driving 89 mph down Rt. 95 in Topsfield when he rear-ended another vehicle, sending that vehicle out-of-control and rolling down the embankment. The occupants of the vehicle were ejected. The driver died within a few hours. Responding police, EMTs and firemen detected an odor of alcohol on the Defendant’s breath. Two witnesses described the Defendant as intoxicated. Massachusetts DWI Attorney Kevin J. Mahoney eviscerated the Commonwealth’s accident reconstructionist by exposing his inconsistencies, his perjury and his motives. After deliberating for three hours, the jury found the client not guilty.
Commonwealth vs. J.M., Newton District Court
OUI — Not Guilty
An officer, responding to scene of a motor vehicle accident, smelled a strong odor of alcohol on the Defendant’s breath. He gave the Defendant three field sobriety tests, two of which, the officer claimed, the Defendant had failed badly. Jury deliberated approximately 1 1/2 hrs.
Commonwealth vs. D.W., Taunton District Court
OUI – Not Guilty
Driving to Endanger – Not Guilty
According to responding police, the Defendant was standing outside the driver’s side door of a truck that had struck a wall. He was very drunk. As the owner of the truck, he admitted to driving, but denied hitting the wall. The Defendant’s girlfriend, who was extremely intoxicated and covered in her own vomit, denied being in the truck. She said that the Defendant had driven the truck. After failing the field sobriety tests, the Defendant claimed that his girlfriend had driven the truck. At trial, DUI Defense Attorney Mahoney persuaded the jury that the police had lied and that the now ex-girlfriend was the driver.
Commonwealth vs. G.W., Cambridge District Court
Operating Under the Influence – Not Guilty
At 03:45 a.m. on the Sunday morning following St. Patrick’s Day, the Defendant almost collided with two cars as he ran a red light in Somerville. The Defendant failed the alphabet, heel-to-toe, one-leg stand, and nystagmus eye field sobriety tests. He admitted that he had been drinking. He was unsteady on his feet, had bloodshot, glassy eyes, and an odor of alcohol on his breath. The client took the breathalyzer, which recorded a blood alcohol content of .07 (presumption of intoxication at .08).
Commonwealth vs. E.T., Brookline District Court
Operating Under the Influence — Not Guilty
On the way home from two Christmas parties, the Defendant skidded to a stop at the intersection of Harvard and Beacon Streets in Brookline. At the next intersection, he drove down the wrong side of the median, into oncoming traffic. The Defendant was unable to say the alphabet in three attempts, and failed the heel-to-toe and one-leg stand field sobriety tests. The breathalyzer recorded a .13 (legal limit .08). Three police officers testified for the prosecution. The jury deliberated only 20 minutes.
Commonwealth vs. M.S., Woburn District Court
OUI 2nd – Not Guilty
Resisting Arrest – Not Guilty
The Defendant failed 3 of 5 field sobriety tests. The Defendant submitted to a portable breathalyzer, with a result of .134 (legal limit .08). On the booking video, the Defendant was slurring words, swearing and yelling at officers.
Commonwealth vs. J.W., Northampton District Court
OUI 1st – Not Guilty
Driving at 65 mph in a 35 mph zone, the Defendant crossed the double yellow lines, forcing an oncoming police cruiser off the road. The Defendant reeked of the odor of alcohol, had slurred speech, watery, bloodshot eyes and was very unsteady on his feet. The Defendant failed all three field sobriety tests and admitted to drinking 3 or 4 beers. The booking room video showed the Defendant unsteady, slurring, making contradictory statements and, at times, incoherent and engaged in bizarre behavior. DUI Defense Attorney Mahoney successfully moved to suppress the videotape.
Commonwealth vs. H.T., Framingham District Court
OUI 1st – Not Guilty
The Defendant was driving 58 mph in a 40 mph zone when he was pulled over by a police officer. The Defendant admitted to drinking 4 – 5 beers and to being lost. He refused to take the breathalyzer. The video showed defendant failing field sobriety tests, slurring, stammering,, and arguing with officer.
Commonwealth vs. A.O., Malden District Court
OUI 4th – Not Guilty
Failure to Stop – Not Guilty
The Defendant was weaving all over road and refused to stop when signaled. As he finally slowed down to pull over, he almost struck the curb. He staggered from his car, and he nearly fell down attempting both one-leg raise and heel-to-toe tests. Defendant did not testify.
Commonwealth vs. E.M., Newton District Court
OUI 1st – Not Guilty
The Defendant had an odor of alcohol, bloodshot eyes, slurred speech, could not say the alphabet and failed all field sobriety tests. So angry was State Trooper following cross-examination that he threatened Attorney Mahoney outside courthouse.
Commonwealth vs. M.K., Framingham District Court
OUI 1st – Not Guilty
The Defendant was weaving all over Rt. 9. After being stopped by the police, he failed all field sobriety tests. Six empty beer bottles and an empty nip bottle of whisky were found in his car. The Defendant took the breathalyzer and registered a .06. The Defendant was taken to hospital at his request and there recorded a .30 blood serum level.
Commonwealth vs. M.W., Somerville District Court
Oper. After Susp. 2nd Off. – Not Guilty
The Defendant was charged with operating after suspension, second offense. The Prosecutor wanted him sentenced to 30 days committed. Attorney Mahoney argued that the Defendant did not receive notice of the suspension.
Commonwealth vs. G.S., Cambridge District Court
OUI 1st – Not Guilty
Police pulled the Defendant and his friends over for speeding. Police testified that the Defendant was drunk and failed all field sobriety tests. Vomit was also found on the Defendant’s Jeep.