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.

Drunk Driving Accident Leaves Two Suspects Needing Lawyers

It’s holiday time again!. This weekend is Halloween, as I am reminded every day when I try to drive through downtown Salem. As is usually the case, around Boston and environs, law enforcement is particularly aware about drunk drivers. One very recent case, however, did not really take all that much detection. By the time it was over, there were two Pittsfield women needing criminal defense attorneys come yesterday.

Victoria D., 22, and Felicia M., 21 (hereinafter collectively, the “Defendants”) were in a car Saturday. The car ended up crashing into a house on Route 9 in Schodack at about 5:00 a.m. According to the police, the accident caused “substantial damage”.

The Defendants were then transported to Albany Medical Center Hospital.

As the police came to investigate, they say they discovered that both women had been drinking alcohol. The Defendants also gave conflicting accounts as to which one was driving at the time the car careened into the house.

So,the police determined that they each had been driving at different times of the night. As a result, both were arrested for drunk driving and criminal mischief in the fourth degree. The prosecution is now awaiting lab results from the airbag that was secured from the driver side of the vehicle.

The Defendants were released without bail and will return to court on November 4th.

Attorney Sam’s Take:

Interesting approach.

First of all, you may be wondering why they are doing tests on the driver’s airbag. It would seem that the airbag was employed at the time of the accident. Both women were, at least to some degree, injured. Therefore, there may be blood or other material on the airbag which they can test to determine who it was that was driving at the time of the accident.

That type of expense (if they go all the way into checking DNA) is not typically used in drunk driving cases, particularly where no one was killed, but it is possible to do. it is, however, possible.

The idea of charging both of them with drunk driving is somewhat novel…but will likely have problems should the matters reach the trial stage.

It would appear that the prosecution is going to have to be based, in large part, on the Defendants’ statements to police, inconsistent though they may be. Otherwise, they have no way of knowing whether both or each of them had been driving at all. Unless the Defendants admitted to be driving at some point when they had been intoxicated, this case has a substantial problem.

If each Defendant’s statement is being used to inculpate the other, the prosecution is likely to fail. What will likely happen is that, though motion of the defense attorneys, the cases will be severed, in other words, separated. This is because of the prejudice of bringing both statements into evidence. In other words, one Defendant’s statements may be admissible against that particular Defendant, but not against the co-Defendant. Any experienced defense attorney would know that and so separating the cases will be step one.

“Well, Sam, can’t they separate the cases and then just call the other Defendant as a witness against her friend to testify that she saw her drive?”

Well, that brings us to step two. At trial, if the driver not on trial were called to testify, she would likely rely on her Fifth Amendment right not to testify because she would likely incriminate herself. If each Defendant did that at each other’s trial, then the prosecution loses both statements when tryig to use them against the Defendant on trial.

Of course, if both Defendants admitted to driving while intoxicated, then the drunk driving conviction is likely (using only each Defendant’s statement against themselves) for the drunk driving, but not for the Criminal Mischief (property damage).

By the way, the Criminal Mischief charge is likely to be particularly important to the Defendants and their families because a civil lawsuit for the damage is likely to be following the criminal matter.

Naturally, the defense has other ways of challenging the statements, both relying upon the rules about search and seizure as well as simple commons sense. In terms of the former, there is likely to be a motion to suppress the statements claiming that no Miranda Rights were given and that the Defendants were “in custody” at the time of questioning.

For the latter, given the pain about which the Defendant’s complained, and their needing to go to the hospital, the defense would likely argue that the Defendant did not even know what she was saying.

While many people see drunk driving cases as simple and a “slam dunk”, they often are not. There are many legal issues that can be involved, particularly if the defense attorney is experienced enough to recognize them. Therefore, it is important to have one of those experienced criminal defense attorneys.

Should you find yourself or someone you care about to be facing such serious charges as these and wish to discuss the matter with me, please feel free to call me at (617) 206-1942.

For the full article upon which today’s blog is based, go to http://www.troyrecord.com/articles/2009/10/26/news/doc4ae61c7a06590678248779.txt

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