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.

GEORGETOWN GENT IS CHARGED WITH 4TH TIME DRUNK DRIVING, VIOLATING A RESTRAINING ORDER AND ASSOCIATED CRIMES

Sometimes, when it rains…it pours.

No, I am not referring to the present weather situation. I am writing about Mr. Richard Ford, a 56-year-old Georgetown gentleman who is now hereinafter referred to as the “Defendant”.

You see, the Defendant was being sought for allegedly violating a restraining order early Saturday.

The police found him, alright.

Unfortunately, they found him asleep in the driver’s seat of his vehicle, keys in the ignition, blood on his face and bloody napkins on his lap according to the officers.

The troopers unlocked the Defendant’s side door. This apparently woke him up and he is said to have begun to swing at the officers with his hands and feet. He also tried to hold tightly to the steering wheel as the troopers tried to remove him from the vehicle.

Prosecutors say that the struggle continued until the troopers finally handcuffed him.

Troopers say that they noted there was a strong scent of alcohol emitting from the Defendant but that he was speaking clearly. When asked to take a breath test, the Defendant refused.

That sounds like the wisest decision he had made that day.

The Defendant was charged with charges of a fourth offense of operating a motor vehicle under the influence of alcohol, larceny of a motor vehicle, malicious destruction of property, operating with a suspended license, and resisting arrest. Apparently, the prosecutor forgot about the felony charge of Assault and Battery on a Police Officer.

Not that the Defendant is suffering from a dearth of criminal charges, mind you. After he was arraigned for these charges in the Boston Municipal Court, he was transported to Haverhill District Court to answer other charges there relating to an alleged breaking and entering in Georgetown.

Attorney Sam’s Take On Strategy And Arguments

When looking at the many alleged mis-steps in judgment demonstrated by the Defendant, you may think that he is about to be a guest of the Commonwealth for a very long time.

Well, he might be…but then, he might not.

I do not know much about the facts of the alleged breaking and entering or violation of the restraining order. The facts alleged as to the arrest do, however, shed some light on potential defenses with those charges.

For example, it would seem that the issue of intoxication is one in which some strategy decisions need to be made. First of all, forget about the refusal to take the breathalyzer test. Should this case get to a jury, they cannot be told about said refusal. The Defendant was simply exercising his right not to take the test.

Without the test, of course, the amount of intoxication, if any, is an evidentiary football. You see, conviction of 4th time OUI means jail time. If the Defendant can be considered operating the vehicle, and he was drunk, then he is in trouble with that charge as he is with the charge of not having a valid license.

However, what we have are simply the observations of the Defendant at the time of arrest. He was asleep. He was woken up by the door being open. He smelled of alcohol. He seemed coherent and able to talk with and understand the officers.

So…what if he was not under the influence? Well, then that OUI charge falls down the prosecutorial drain. Once that happens, the Defendant still has to deal with the charge(s) involving fighting with the officers.

Well, if the Defendant were intoxicated, he might have a stronger argument when it comes to those charges. The evidence could be that he was, indeed, drunk. He was sleeping it off when all of a sudden some guys seemed to be breaking into his car…perhaps intending to carjack him. So, half-asleep and maybe still alittle under the weather…he fought back. Once he realized they were police officers, he stopped fighting.

Of course, he could rely on the half-asleep argument even if he says he was not intoxicated. It would not be as strong though.

“Sam, is there any other way to attack the OUI charge?”

Sure. He could try to argue that he really did not feel he was under the influence, he only had one beer or so, but he did not want to take the chance with getting arrested for OUI. So, he just slept it off. Or, maybe he simply was tired and decided to take a nap in the car. After all, there is nothing to indicate that anyone saw him actually driving. Further, we see signs all over the highway telling us to pull over and rest our eyes if we are really tired.

“No driving means he cannot be found guilty of driving without a license too, right?”

Well, there are a couple of problems there. First of all, there are presumptions in the law which the Defendant would have to overcome. Being in the front seat, key in ignition, is considered strong evidence of operation.

Second, it is unlikely that the Defendant will take the stand on his own behalf. If he does, he risks the jury finding out about his criminal record…such as the three prior OUI charges.

Given the totality of the circumstances, I am sure there is a lot more for the defense to look into when considering what happened here. The Commonwealth will simply stick with the argument that he is guilty of everything charged in both courthouses because…well…that was what he is charged with.

All cases have their own fact patterns and they are seldom as straight forward as they appear at first sight. This is but one reason why you want to have an experienced criminal lawyer representing you…so that he or she can help weigh all the options and advise you.

Not to mention fight for you when it is your turn in battle in the trenches.

To read the original new story upon which today’s blog is based, please go to http://www.boston.com/metrodesk/2012/11/07/man-sought-north-shore-located-boston-charged-with-fourth-drunk-driving-offense/yGyV4qTtbXJvd3vT2J8ucJ/story.html

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