There are two ways in which the Commonwealth can prove that a driver is “under the influence.” The first way is to prove that the person consumed enough alcohol to diminish her ability to operate the vehicle safely. The second way is to prove that the person had a blood alcohol level of 0.08% or greater.
No Breath Test
If you have not submitted to a breath test or had blood drawn, the Commonwealth must proceed on the “diminished capacity” theory of prosecution. This means that a person can be convicted for drunk driving only if the alcohol affected the driver to such a degree that she threatened public welfare. The evidence presented in “diminished capacity” OUI cases often include the observations of police officers and bystanders of the accused near the time that s/he was driving. It is for the jury to decide whether the defendant had the ability to operate the car safely.
In cases without a breath test, police officers and civilian witnesses are permitted to give opinions that the defendant appeared drunk. The witnesses usually identify symptoms of impairment to support their opinion such as erratic driving, red and glassy eyes, strong odor of alcoholic beverage on the driver’s breath, slurred speech, and unsteadiness. In cases where there is no breath and blood testing, this type of opinion evidence is uniquely vulnerable to a defense challenge. As your Lowell OUI lawyer, I would carefully examine all the underlying factors relied upon by the witness and suggest alternate explanations to the jury. For example, if the officer noted red and glassy eyes, there could be a reason for this independent of alcohol or drug impairment, such as lack of sleep or cigarette smoking. Preexisting medical conditions may also explain observations commonly associated with drunkenness, such as unsteadiness and slurred speech.
Breath testing devices are commonly perceived by the public as an extremely reliable indicators of drunk driving. As an experience lawyer, I know that this is not true. If you have submitted to a breath test you need a lawyer who understands the intricacies and idiosyncrasies of breath testing. If the test is not administered properly the result will be unreliable and may even be kept out of evidence at trial. The manner in which alcohol is absorbed by the body is complicated and there are many factors that will impact the results in breath. Simply put, there are ways to beat an over 0.08 breath test reading at trial by effectively challenging the breathalyzer.
Field Sobriety Testing
After being pulled over, you may have been asked to undergo field sobriety testing, which is a series of balance and coordination exercises given a lofty name that promises much more than they deliver. While poor performance on these exercises demonstrates deficient balance and coordination, which are symptoms of intoxication, they by no means demonstrate that they are the result of alcohol consumption. A vigorous challenge to field sobriety testing must be done before and during every OUI trial.
Evidence of a defendant refusing to submit to breath testing or field testing cannot be used against him at trial. The prosecutor may not even elicit police testimony that the defendant was informed of the right to a breath test since this would amount to indirect evidence of the refusal. Any admissions made by the defendant that are part of the refusal to do a test may also be excludable.
Under G.L. c. 90, § 24(1)(f), the suspect has a right to be warned of the consequences of refusing to take the breath test (which results in a pre-trial suspension of her right to drive), but not of the consequences of failing to pass it. There may be grounds for dismissal if you were not adequately advised of this and other statutory rights.
- Client found not guilty
- Not guilty verdict
- No right to counsel when deciding whether to take a breathalyzer
- Talk to your teenager about breathalyzers even if they don’t drive
- State agency withheld evidence of faulty breathalyzer machines
- Breathalyzer results excluded from evidence at trials
You Need A Lowell OUI Lawyer Fighting For You
I would be happy to discuss your OUI case with you. Please contact me for a free consultation.