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 Drunk Driving (Fifth Offense) Defendant Returns To Face Warrant

Last night, William T., 61, of Northampton (hereinafter, the “Defendant”) was taken into custody after removing his criminal justice situation from the “Bad” column and placing it solidly under “Worse”. Now, his need for a gifted and experienced attorney has become even more critical.

You see, the Defendant was supposed to be in court Tuesday morning to face an arraignment. He did not make it. The court ordered a warrant for his arrest because of the default.

Last night, he was found. Another motorist noticed him struggling to operate his moped and called the police. It was 5:50pm when police say they responded to the call that someone seeming to be heavily intoxicated was trying to operate a moped but kept falling off the vehicle and trying to get back onto it.

Police came to investigate and they found the Defendant. Upon questioning the Defendant, police say they detected a strong odor of alcohol on his breath. They asked him to perform field sobriety tests and he complied…sort of. He failed. The police determined that he was, indeed, under the influence of alcohol, according to a police report. A further search of the moped, the police reported, revealed a partially consumed bottle of vodka hidden in a compartment under the seat.

This would be the Defendant’s Fifth drunk driving offense.

During booking, the Defendant submitted to a Breathalyzer test and his blood alcohol content was reportedly measured at .18 percent, more than two times the legal limit, according to court documents.

As the “fifth offense” would indicate, the Defendant has a bit of a history. He was convicted of operating a motor vehicle under the influence of alcohol in Nashua, N.H., in June and December of 1989; in Concord, N.H., in December of 1992; and in Lowell in June of 1996.

Until last night, when he became a guest of the Commonwealth, the Defendant lived in a local VA Medical Center in Leeds. He now faces charges of operating a motor vehicle under the influence of alcohol, fifth offense; operating a motor vehicle with a revoked license and operating a motor vehicle while in possession of an open container of alcohol.

If convicted, the Defendant will lose his right to operate a motor vehicle for the rest of his life and will face a mandatory 2½-year jail sentence.

Attorney Sam’s Take:

The Defendant is obviously a sick man and, despite my typical sarcasm, this is a very sad story. The man lives in a medical center and clearly has a horrendous drinking problem. That problem has shown itself to be not only dangerous to himself, but also motorists around him.

The Defendant now not only faces a mandatory lengthy jail sentence and permanent loss of his license, but has demonstrated to the court that he cannot be relied upon to return to court. This generally means high bail.

Of course, there are two issues that will likely confront the Defendant in his attempt to leave Commonwealth Housing this morning. The prosecution may well argue that he is a threat to society and so should be held pending trial without any bail. After all, he clearly did not have a valid license to drive when he was arrested..so simply taking that away did not seem to do much good.

“But Sam, he was only driving…or trying to drive…a moped. It wasn’t a car.”

The charge and punishment of drunk driving do not mention not driving a “car”. It is a motor vehicle, which a moped is. Further, he was found doing that after not showing up in court when he was supposed to.

Of course, one may also wonder why this gentleman, knowing he was so intoxicated that he could not even stay on the moped, would willingly submit to the breathalyzer and field sobriety tests. But then, clear thinking was obviously not his modus operandi yesterday, was it?

By the way, you may be wondering as to why the officers had the right to search the moped and find the alcohol. There are a host of arguments they could use, but the most obvious is that it was an inventory search which they must conduct upon taking a vehicle into custody (with the Defendant). Of course, given the Defendant’s willingness to take tests, it would not be shocking to learn he had given his permission either.

Unlike in the “old days”, drunk driving cases are treated quite seriously today. Any such charge is a serious one and, of course, if the accused repeats the behavior, it gets even more serious. As with other areas of criminal law, the statutes regarding drunk driving issues can be complex and so, if you are facing such charges, it is vital to have an experienced attorney by your side who can advise and represent you. If you wish to discuss such a matter with me, feel free to call me at (617) 206-1942.

For the full article upon which today’s blog is based, go to http://www.gazettenet.com/2009/11/04/man-skips-5th-oui-court-date?SESS73bad0498c4258471b0eebde3b4f2703=gnews

Note To Readers: No, your eyes did not deceive you either Monday or Tuesday. There was no new posting of the blog either day due to illness. Maybe it was Michael Jackson’s revenge after Saturday’s Halloween Blog. Either way….I am back.

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