Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Massachusetts Driver On Probation Faces Third Round Of Charges For Operating Under The Influence

David K., 38, of Hamilton, Massachusetts (hereinafter, the “Defendant”) is getting points for consistency – negative points. He has just been arrested for his third alleged occasion of driving under the influence. In fact, he also faces bonus points for violating probation because of the arrest. Currently, he is awaiting his final score as a guest of the Commonwealth.

The Defendant came to the attention of police when he was driving just after 2:00 a.m. on Bridge Street in Beverly. Unfortunately, the headlights on his pickup truck were not on. He was pulled over and, during questioning, the officer says he smelled alcohol and noticed that the driver seemed uncoordinated as he fumbled for the registration. When asked if he had been drinking, the Defendant showed the officer a prescription bottle of Trazadone, a painkiller he said he was taking because of surgery to his Achilles tendon two years ago. According to the police report, he also told the officer that he had taken two pills – twice the suggested dosage.

Digesting all of this, the officer checked the Defendant’s information and learned that the Defendant was not even supposed to be behind the wheel in the first place. In addition to a one-year license suspension because of two similar cases last year, his license had been revoked in December for four years by the Registry of Motor Vehicles, which deemed him a habitual offender for some reason.

You see, last year, the Defendant was arrested twice in less than a month for impaired driving. On August 4, 2007, he was charged with drunken driving after sideswiping another driver on Route 128 in Danvers, forcing the other driver off the road, according to a police report. He registered a .30 on a Breathalyzer test that time and denied that an accident occurred, despite a mirror hanging off the other driver’s car and other damage.

A few weeks later, on August 30, 2007, he was driving near the intersection of Bridge and River streets when he turned a corner and crashed into the side of a car that was stopped for a stop sign, injuring one of the two young children in the back seat, according to a police report. When the police came, they saw that the Defendant, who was not supposed to be driving because of the earlier arrest, was “lethargic” and slow to respond. He explained that he had taken both Ativan and Torpol that morning. Police believe he had also taken twice the recommended dose, according to the report.

In October, 2007, Judge Robert Brennan ordered the Defendant to serve 90 days of a 2 1/2 year jail term for both cases, with the balance suspended for two years. During those two years, of course, he would be on probation.

You guessed it…that means that the new arrest violates his probation and the Defendant could now be facing another 27 months in Middleton Jail if he is found to have violated his probation. This would be on top of any additional punishment for the new charges.

The Defendant makes his next court appearance on Oct. 16th; this time the Commonwealth will be providing his transportation.

Sam’s take:

I am sure you already know that you are not supposed to drive while intoxicated. I’ll bet you even know that it is illegal to drive when your license is suspended or revoked. However, here is something that you may not know…at least today’s Defendant did not seem to know…you are not supposed to drive if you are impaired by medication, even if it is legally prescribed.

The Bridge Street Bomber seemed to think that by showing the police that he was simply under the influence of medication would somehow solve the problem of his fumbling with his registration and odor of alcohol. The “No, I’m not drunk…just under the influence of this other little beauty” approach will not, and did not, help the situation. Neither does explaining how you took a double dosage…especially when you seem to have a history of doing that.

Years ago, people did not take drunk driving very seriously. It is widely understood that this has changed in a big way. However, there are still people who think that driving without a valid license is not that big a deal. It is. Aside from being a crime in itself, driving when your license is not valid sends a message to the court that its rulings do not particularly matter to you. Judges tend to frown upon that.

And now a word about being on probation. “On probation” is not a legal term for “Care Free”. Failing to follow the department of probation’s directives means a violation of probation. A violation usually means jail. When the violation is a new arrest, the result is usually jail before the new case is even resolved. That’s right…while you are still presumed innocent of the new charges.

While on probation, you are in a state of diminished rights. You are free so long as you comply with your probation officer. You also have fewer of the safeguards afforded you when facing a regular criminal charge. While there is a hearing, there is no full-blown trial. The issue to be decided is not whether you are guilty of the new offense. It is whether you violated probation.

Again, getting re-arrested is a violation of probation.

If you have any question about your rights while on probation or what does and does not constitute operating under the influence, you should contact an experienced criminal defense attorney. Do not guess. Do not assume. And, if your ability to drive is compromised, do not drive.

Have a good and law-abiding weekend!

The full article of this story can be found at :
http://www.salemnews.com/punews/local_story_283001115.html

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