Category: Ready for Trial

People, colleagues, friends, cops, Judges, Prosecutors, potential clients ask me, “How many OUI trials have you had?”  I honestly say, “I’ve tried to verdict somewhere in the neighborhood of 700-800 DUI/OUI Jury trials, and at least that many Bench (Judge only) trials.”  It didn’t track my stats before 2010, but I can back that up. That seems like a lot of trials, but over 30 years of practice, not really, if you actually show up in a Courtroom, day in and day out and answer “Ready” for trial.  Don’t be a Plea Escort Service a great lawyer once said to me….

 

The Massachusetts Drunk Driving Law is called Melanie’s Law, and its signature feature is a Lifetime Lookback period for determining prior convictions for prosecution on subsequent offenses.  My last four OUI trials in MA this year:

MA OUI 4^th Offense Felony. 65 year old man is arrested and charged with OUI 4^th Offense, Lifetime. 1^st offense 1977, second offense 1991, 3^rd offense 1994.  Driver is arrested in 2024 for an OUI 4^th offense felony, thirty years since his last conviction.  Mandatory minimum penalty is at least 365 days in jail, and a ten (10) year loss of license, which is irrelevant, due to lifetime suspension for chemical test refusal suspension through MA RMV.  You can only be restored from a chemical test refusal (CTR) if you are acquitted of the OUI at trial.  In Massachusetts, a Jury is not allowed to hear evidence of prior convictions, nor is evidence of a chemical test refusal or field sobriety test refusal admissible.  There’s an OUI Trial, and then a second, bi-furcated trial on the prior history to establish 2^nd, 3^rd, 4^th offense, etc..    Not Guilty verdict after Jury Trial.  Defense successfully motions Court to Order MA RMV to Vacate Lifetime CTR and restore license, subject to three (3) years on Ignition Interlock Device (IID).

MA OUI 3^rd Offense Felony.  Driver is arrested and charged with OUI 3^rd Offense in 2024 based on prior history of DUI convictions in NH in 1999 and an OUI conviction in MA in 2012.  Mandatory minimum sentence of 150 days in Jail with 8 year loss of license, following five (5) year chemical test refusal (CTR) suspension.  Before OUI 3^rd Trial defense files Motion to Vacate 2012 MA OUI in original Court because client pleaded guilty to an OUI charge with breath test evidence that was later determined to be “scientifically unreliable.”  Not Guilty verdict on OUI 3^rd.  Prior OUI 2^nd is subsequently dismissed for lack of prosecution after prior plea was vacated.  Court allows Motion to Vacate five (5) year CTR and restore license following Not Guilty finding on OUI 3rd.

MA OUI 2^nd Offense (Actual 4^th).  Driver is arrested for OUI 2^nd Offense in late 2024.  Prosecution brings complaint as OUI 2^nd, despite MA RMV and MA Probation record that shows two (2) prior MA OUI offenses.  Out of State record, confirmed on MA RMV History shows an additional prior OUI in Maine, making this an actual OUI 4^th for MA RMV.  Defense tries MA OUI 2^nd (actual 4^th) to not guilty verdict at jury trial.  Court allows Motion to Vacate Lifetime Chemical Test Refusal (CTR) suspension.  Before hiring Bowser Law, client had consulted with another lawyer that had advised her to plea guilt to the OUI 2^nd, despite Lifetime CTR, and “take Uber for the rest of your life.”

MA OUI 2^nd Offense.  Driver arrested in 2024 with prior a OUI finding in 2019. Chemical Test Refusal suspension is three (3) years with mandatory minimum sentence of 2 year additional loss of license on and after three (3) year CTR and either 60 days in jail or 14 days in inpatient hospital program with aftercare treatment upon conviction on OUI.  Following jury trial driver is convicted of OUI 2^nd and receives mandatory/minimum sentence.  There was no benefit of pleading guilty to change outcome.  For those that try cases, there is no guarantee of an outcome from a fair and impartial jury.  When you meet a lawyer that tells you they’ve never lost a case, run for the hills.  They are a coward and a liar, and they don’t actually try all the cases, especially the horribly difficult ones. I can’t win them all, but I certainly try.

How many Massachusetts OUI Defense Lawyers have obtained two (2) not guilty jury verdicts in two separate courts on the same day? I did.

I pride myself on being a true trial lawyer. I expect to answer, “Ready for Trial,” on most of my OUI cases in Massachusetts. Many years ago, I met some incredibly talented DUI defense lawyers from across the country. The best advice I received from all the national seminars I’ve attended resonated with me because it was consistent with my approach to drunk driving defense cases:

“Don’t be a dump truck lawyer,” said Justin McShane of Pennsylvania.

“Don’t be a plea escort service,” said Glynn Delatte of Louisiana.

Practically any lawyer in Massachusetts can hold your hand and walk you down the aisle to make an admission for a CWOF or guilty plea to the mandatory minimum sentence on any given OUI offense, regardless of whether it’s your 1st, 2nd, 3rd, 4th or 5th Lifetime Offense. That’s what a Dump Truck or Plea Escort Service lawyer does.

The Lifetime Lookback provision of Melanie’s Law creates horrible exposure for subsequent offenders. That’s why the decision to admit to a 1st offense OUI can haunt a person decades later. The scenario most often facing a subsequent offender in Massachusetts is “go to trial or go to jail.” I suggest you hire a trial lawyer for all OUI/DUI matters.

In March 2022 I appeared in the Peabody District Court for a Monday jury trial on an OUI 2nd Offense. My client had flown in from Puerto Rico for the trial. It was a State Police arrest, and my first trial with Massachusetts State Police body worn camera (BWC) video footage in evidence. The arresting Trooper was an experienced, diligent and squared away professional. I’m sure that’s why he signed up for the body worn camera pilot program. The barely over the limit post arrest breath test was excluded. I conducted my normal aggressive cross examination of the Trooper. He asked my client at the end of the regular field sobriety tests (walk and turn, one leg stand) to recite the alphabet from “D as in dog, to T as in tiger.” My client was a U.S. citizen, born, raised and educated in Boston, but at home growing up in an immigrant household he spoke only Vietnamese with his family. His speech pattern was unique with a halting, strange accent, but knew his ABCs. He started “D dog, E elephant, F fox, G giraffe..” before the Trooper, laughing on the video, stopped him and said, “you don’t need an animal for every letter.” It was a funny moment that you only get at a real live trial. The Judge, Jury, Prosecutor and Trooper shared a laugh with my client and I, but it was still very serious business. The evidence, closing arguments and jury instructions were completed at 4:15 p.m. The Judge thankfully didn’t send the Jury out to deliberate at that late hour. Court proceedings in Massachusetts conclude at 4:30. My problem, I had an OUI 3rd felony trial scheduled the next day in Brighton District Court, also a Massachusetts State Police case. The Judge in Peabody took mercy on me. He told the Jury I had a previously scheduled matter for Tuesday and my able Associate Kristen McLaughlin would be in Peabody the next day for deliberations and the verdict.

I started the next day in Brighton early, which is always a blessing. My client was there from New Hampshire and his parents had flown in from Florida to be there with him. This was a felony, with a mandatory minimum 150 day jail sentence and an eight (8) year loss of license following a five (5) year chemical test refusal (CTR) suspension. Again, Melanie’s Law. Go to trial or go to jail. I’ve conducted somewhere between 700-800 OUI/DUI jury trials and even more bench trials over thirty years. I don’t need a tremendous amount of time to prepare for any particular OUI trial which surprises most people. I have an incredible staff that ensures all the pre-trial discovery, motions, exhibits and witnesses are in place, so I can answer “Ready for Trial.” I have a method and an approach that works in any courtroom on an OUI defense: Aggressive, professional cross examination based on a wealth of knowledge and experience and a closing argument that empowers a jury to do the right thing. It certainly helps that a competent lawyer is the easiest thing for a Judge or Jury to recognize. Not Guilty jury verdict in Brighton before the lunch break. Five (5) year CTR vacated. Not guilty verdict returned in Peabody shortly thereafter, same day. That was a nice text to receive from Kristen.