The Channel 4 I-Team has a news report suggesting that a Continuation without a Finding, or CWOF is a loophole in Mass DUI Laws. But in fact, it is a longstanding and well understood legal practice, and always counts as a prior offense if there are future drunk driving charges.

The news report cites the case of a bar owner who allegedly received a CWOF on a second offense DUI, and later was convicted of an additional (third) offense, which was amended as a second.

Drunk driving law advocate Ron Bersani, the primary force in the passage of Melanie’s Law (named after his granddaughter) calls this a loophole.

But the facts as described suggest there is something more mundane than sinister going on here.

Judges simply do not grant typically grant CWOFs on second offense DUI charges,  they are reserved for first time offenders. The one case where some judges will accept a CWOF on a second is in the case of a second chance 24D disposition, which only applies in cases where the prior was more than ten years earlier.

But the fact that the so-called second offense was a CWOF, and the third offense was amended to a second offense, suggests that the first offense was very old, and/or the Commonwealth did not have sufficient proof that the defendant had ever committed the first offense.

When determining if the defendant has a prior OUI, the commonwealth must prove, beyond a reasonable doubt, that the defendant was previously “convicted” or “assigned to an alcohol education program” for a like offense. In Massachusetts, a defendant whose case is resolved by a CWOF is assigned to an alcohol education program.  A judge has no discretion in the matter to rule that a CWOF does not count as a prior.

This is actually surprisingly common in older drunk driving charges. The court has a record of a person with that name convicted of an OUI, but that can’t establish that it is the exact same person. Old records are often incomplete. For example, it may have a name, but not have a social security number attached.

It would certainly not be fair to convict a person of a second (or third offense, with mandatory jail time) if the Commonwealth cannot prove that the first offense is the same person.

And none of this has anything to do with the court procedures on how CWOFs are handled.

Separate Issues on CWOFs & RMV License Loss To Go To SJC

The I-Team report also conflates an entirely separate challenge to the use of CWOFs as evidence of a conviction when it comes to additional license loss due to chemical test (breath test) refusals. Several judges have questioned the current Registry practice of considering all CWOFS as convictions.

So even if the standards for license loss issued by the Registry are successfully challenged it court, that has no effect on whether CWOFS can be not counted as prior convictions. That is simply not true, and the I-Team got this one dead wrong.

Here is the tv report.

Via the patch, The Hingham PD warns about impaired driving at Cinco de Mayo celebrations.

Cinco de Mayo has become a day a traditional time to celebrate Mexican heritage and pride similar to St. Patrick’s Day and Oktoberfest. It has become a big night out for many, particularly for young adults. But it is also a night out with expected dangers when someone chooses to drink and drive.

Whether your are just meeting a few friends after work or attending a Cinco de Mayo party, if you plan on drinking alcohol, never drink and drive while impaired-and never let a friend drive if they show signs of impairment.

All good advice. It’s also Kentucky Derby Day tomorrow, so for the love of god, do not mix mint juleps and tequila.

Stay safe!

The Patriot Ledger has an article on the relatively low rates of jail time for those convicted of an OUI with Child Endangerment, which is drunk driving with a child under 14 in the vehicle. 

Under Melanie’s Law passed in 2005, the additional charge of Child Endangerment by Operating Under the Influence was added, which mandated an additional 1 year loss of license for anyone convicted of this offense, in addition to any OUI loss of driver’s license. There is no mandatory jail time for this offense.

While images of a drunk driver with a child in the car are disturbing to most people, there aren’t a lot of these cases. In 2010, only 34 people were convicted of this offense, and just 7 of those served some time in jail.

The District Attorney of Norfolk County prudently cautions that is doesn’t make sense to read to much into the low rate of incarceration. A jail sentence is not the best remedy for everyone charged with this crime.

It is up to a judge to determine what is in the best interests of justice, and for the defendant. Presumably the interests of the child are a factor in the sentencing as well, particularly if the person charged is the parent. The defendant is going to face penalties that include mandatory alcohol education treatment, and probation at a minimum, as well as substantial fines and fees.

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More on Massachusetts child endangerment laws.

The decision by the Registry of Motor Vehicles to grant a Massachusetts hardship driver’s license after an OUI charge for the uncle of President Obama is standard procedure, and perfectly reasonable and ordinary.

Onyango Obama recently agreed to a Continuance without a Finding (CWOF) on a first offense OUI in Framingham district court, after an arrest last summer. The CWOF is similar to a guilty plea as far as the penalties for the offense, license loss, required alcohol education classes, and fees and fines, but it is technically not a guilty plea or conviction. Although it does count as a prior offense if there is ever a subsequent drunk driving arrest, it would be charged as a second offense.

For anyone who is required to drive to work or earn a living, and there is not adequate public transportation to compensate, the registry will offer a limited 12 hour a day hardship license.  With a hardship license, you are allowed to drive only during the allotted hours, which must be pre-selected to go along with a person’s working hours. For Mr. Obama, who is a manager in a liquor store, he selected a 12 hour window of noon to midnight.

The rationale for a hardship license is simple:  most people need to drive to work, and it is reasonable that a person who has only committed a first offense not be punished with the immediate potential loss of their job. In addition, the hardship license is a strong incentive for defendants to plead cases out for a guilty or CWOF, since the options of a hardship license allows them to get on with their lives.

If not for the hardship license, a lot more people would be willing to fight cases in court, and go to trial. But because the trial process can take so long, often 6 months or more, most people can’t afford to wait without a driver’s license. Many people end up taking a deal for a CWOF even in cases with weak evidence that could be won, since they can’t get by without driving while the trial process works it’s way through the courts.

While some opinion journalists are up in arms over the fact that Onyango Obama had a legitimate Massachusetts driver’s license, despite having an apparent immigration problem, that has nothing to do with the issuance of a hardship. The process is generally straightforward – if you meet the eligibility requirements, you are granted the license.  The RMV can’t consider issues outside of it’s area, and there is no evidence that Obama did not have a legitimate Mass license.

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UPDATE: Even DUI Experts can get this wrong.  Lawrence Taylor’s DUI Blog suggests that Mr. Obama got special treatment, but that is simply not the case.  Perhaps in California where he practices, hardship licenses are a rare and privileged exception, but in Massachusetts it is strictly routine.

We help our DUI clients get hardship licenses every week. If they meet the stated requirements, and the proper work documentation is produced, the Registry will always grant a limited hardship license after a 1st offense OUI.

P.S. Happy Birthday, Mr. Taylor!

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via Boston Herald and The Boston Channel.

Field sobriety checkpoints are supposed to be announced in advance, making fairly pointless non-news event press releases like this one announcing dates in Hampden County for March 30-31.

While DUI checkpoints in Massachusetts are perfectly legal as determined by the courts, their actual effectiveness is controversial. Is a concerted effort to stop people at random more useful that extra police cruisers patrolling the highways looking for people driving erratically who might be drunk? Many experts disagree on the matter.

The small percentage of roadblock stops that actually result in DUI arrests are also sometimes more easily challenged in court, since the police will first say that there was no probable cause to stop the car, therefore there is no evidence of bad driving to suggest impairment.

At The Law Offices of Russell J. Matson, PC, we fight a lot of roadblock cases, and our success rate is pretty good. Give us a call and we’ll evaluate your case and let you know if your case is beatable, and is good one to challenge in court.

The Federal funded holiday drunk driving campaign “Drive Sober Or Get Pulled Over” is underway, with a national ad campaign and Federal grants to local and state law enforcement to pay for extra DUI patrols.

These campaigns run several times per year, and include lots of national and local publicity like this one from the Watertown police. Across Massachusetts, there are 180 local law enforcement campaigns funded by the Executive Office of Public Safety and Security’s Highway Safety Division. Extra police could be involved in rolling DUI patrols as well as fixed sobriety checkpoints, or “DUI roadblocks”.

It is always an open question how much difference these campaigns make it deterring DUIs in Massachusetts, but there is no question that it is an increased focus at this time of the year.

And drunk driving penalties in Massachusetts remain tough for the average first time offender, no matter what the local politicians claim. And the recent campaign by the Boston Globe claiming that judges are too lenient in agreeing to dismissals at DUI bench trials (a claim we dispute), things are not likely to get any better for those facing DUI charges in Massachusetts.

The bottom line, is stay safe out there, and avoid getting yourself in any questionable situation with the police. (Good advice any time of the year).

But if you do get pulled over and accused of drunk driving this season, as thousands of people will, give us a call and let our experienced lawyers help you. Police engaging in extra-aggressive DUI enforcement may mean they are arresting people on even weaker cases. Let us figure out what we can do to challenge your case and defend your rights in court.

The Boston Globe has a big ongoing series of articles on drunk driving trials that make the case that judges who decide cases in bench trials as opposed to trials in front of a jury are more lenient, and more likely to acquit. But the conclusion may not be so clear.

The big takeaway from the story is their conclusion is that, of the 15% of drunk driving cases that go to trial, and are not pleaded out, judges in bench trials reach a not guilty verdict 80% of the time.  When juries decide the outcome,  the defendant is found not guilty only 50% of the time.

It is important to first point out that the vast majority all Massachusetts DUI cases are settled without a trial, and almost all of these are guilty or continued without a finding (CWOF), which has essentially the same harsh penalties as a guilty – hefty fines, probation, driver’s license suspension, and a mandatory 16 week alcohol education class. (And you can bet that the small percentage of DUI charges that are dismissed before a trial even happens at a motion hearing have virtually no evidence to support the charges.)

It is also not fair to compare the acquittal rates for jury trials and jury waive (bench trials) since they are not definitely not identical situations. The pool cases are not randomly selected, the defendant and his attorney must choose to waive a jury. And it makes sense that weaker cases with worse evidence would be more likely to be bench trials, and therefore more likely to result in not guilty verdicts.

Juries are simply much more unpredictable than judges, and are more likely to be influenced by factors other than the evidence and the law. So if the evidence against a defendant is very thin, and doesn’t meet the standard of beyond a reasonable doubt, it is always safer to take that case to a judge. A defense lawyer would prefer not to risk a good case on it’s legal merits to a situation where a jury just not might like the defendant for whatever reason, and be more willing to be swayed by circumstantial evidence.

Conversely, a jury being more unpredictable works the other way in cases where the facts aren’t very good. Where there is pretty strong evidence of guilt, and a judge would almost certainly find a defendant guilty, it can make sense for a defense lawyer to “roll the dice” with a jury, and see if they find that person’s story compelling and sympathetic, and might end up with a not guilty verdict.

The Patriot Ledger reports of a man arrested for driving on a suspended license 10 hours after being arrested for a DUI.

According to the news story, the Pembroke man was arrested for on a DUI charge Friday night, presumably a first offense incident. The next morning he was pulled over for driving on a suspended license, resulting from the incident the evening before.

If you are charged with drunk driving in Massachusetts, your license is immediately suspended for 30-45 days if you fail a breath test at the police station, and 180 days if you refuse to take a breath test.

Simply put, you should never drive while your license is under suspension for DUI.

It is unclear whether or not this young man didn’t understand that his license was under immediate suspension, or just made a dumb mistake and thought he could get away with it.

However, stories like these aren’t particularly rare or newsworthy. It sounds like a fairly straightforward DUI charge with an accident, and they a very poor decision to drive the next day.

For driving on a suspended license for DUI, you can face 60 days in jail mandatory, if you are convicted of the charge, so it is a serious mistake or error in judgement to do this.

Before and after holiday weekends like labor day, there are always news reports about additional police patrols looking for drunk drivers in Massachusetts. But does it actually make a difference?

Reports like this one in the Arlington Patch note that additional police patrols netted more OUI arrests, and noted that 3 arrests in Arlington is a high number for a weekend.

But it is fairly inevitable that this will happen, when they make these efforts, like the recent campaign titled “Drive Sober or Get Pulled Over” . Increased patrols, especially when there is special federal funding for drunk driving enforcement, will always net more arrests, so long as there is a supply of impaired drivers on the road.

News flash: it is an unfortunate fact that right now in Massachusetts, there are hundreds if not thousands of people out on the roads who are legally impaired by alcohol or drugs. And 99% of them will make it home with no problems.

Some of them had 1 extra drink after work. Some of them had a couple too many at a party. And a number of them have serious chronic alcohol problems.

And an unfortunate number that is larger than most people think will be arrested when they are not legally impaired at all. They happen to be unlucky enough to fail field sobriety tests due to a bad feet, bad back, or other medical conditions that lead to balance issues where they can’t pass the tests. And some people will be flagged as false positives due to any number of known flaws in breath test machines.

Nobody is condoning this or saying it’s a good thing, but it’s simply a fact. People continue to drink and drive. If every police department is increased by a factor of 10, and the police stop every person driving 5 or 10 mph over the speed limit, some percentage of them will be legally impaired. And there will be lots more drunk driving arrests.

It is an open question whether this really helps anyone, or is just pure PR.

The Boston Herald reports that less than half off all those charged with DUI in Massachusetts are actually convicted. This is supposed to seem alarmist, but is actually routine and proper, and does not at all suggest that DUI laws are too lax, and that drunk driver’s are routinely getting off scott free. 

The fact is that about two thirds of all drunk driving arrests are first offenses. And it most cases, a Continuance Without a Finding disposition, or CWOF,  is available as an option for those who are willing to settle their DUI charges without a trial.

A Continuance Without a Finding is an admission that there are sufficient facts to find you guilty, even though you are not admitting guilt. A CWOF is fairly standard for most first offense OUI charges unless there is an accident, or the facts are particularly egregious. And the actual penalty, license suspension, fines and fees, are almost never any different between a CWOF and a Guilty plea. But a CWOF does allow you to say that you have not been convicted of a crime, and reads differently on a criminal record check. But a CWOF still counts as a first offense, and will absolutely be used against you if you are arrested on a subsequent 2nd offense OUI.

A CWOF is not a slap on the wrist, or getting away with anything, and it is silly to suggest otherwise.

The Herald article goes on to mention the recent arrest of a man facing an 8th offense OUI charge. Certainly this is someone with a serious alcohol addition problem, and no doubt other isses. And it’s also somenone  who hasn’t had a valid driver’s license in over 15 years.

All of which has exactly nothing to do with a typical first offense OUI case, where someone makes a mistake, and subsequently never gets in trouble with the law again.