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.

Articles Posted in OUI/Drunk Driving

Driving while drunk or under the influence of drugs is a criminal offense with serious penalties in MA. But if you are arrested for OUI with a child in the car, those penalties are likely to be significantly harsher. You may even face additional charges. Case in point – a West Virginia woman is facing felony charges for child neglect following her drunk driving arrest; she had an 18-month old in the car with her at the time of the arrest.

Getting an OUI conviction with a child in the car typically carries more serious consequences. As with all criminal offenses, however, penalties vary widely based on a variety of factors. If you have no prior criminal history and you were barely above the legal limit, for example, you will likely face a lesser charge than an individual with a criminal history and high blood alcohol content (BAC). If you have previously been convicted of multiple OUIs, you may be facing a felony charge, even without having a child in the car. But the presence of a child will almost certainly result in more serious charges.

To be safe, you should never drink and drive, especially with children in the car. But if you make a mistake, it is in your best interest to hire a Boston criminal defense attorney immediately.

OUI with Child Endangerment

In 2005, it became a separate criminal offense to operate a motor vehicle under the influence of alcohol with a child under 14 in the car. It was enacted as part of Melanie’s Law, legislation intended to enhance OUI-related penalties. If you have been charged with OUI with child endangerment, you may be facing the following penalties:

  • First offense – Up to two-and-a-half years in jail, with a minimum of 90 days. Fines of up to $5,000 and a one-year license suspension.
  • Second and subsequent offenses – Up to two-and-a-half years in jail, with a minimum of six months. Fines of up to $10,000 and a three-year license suspension.

If your actions place a child in danger of physical or emotional harm – whether negligently or intentionally – child endangerment charges may follow. In addition, the Department of Children and Families (DCF) may get involved to assess whether it would be in the children’s best interests to be removed from the home and placed in foster care.

A DCF investigation may also occur if no children were present in the car at the time of your arrest. If DCF believes that your actions may jeopardize the health and safety of your children, they can conduct an investigation even if your offense didn’t directly involve a child. In either case, it is essential to seek the help of experienced legal counsel. A MA criminal defense attorney can help you protect your rights if you have been charged with OUI with child endangerment or any other crime.  Continue reading

In MA – and all states – a blood alcohol content (BAC) of .08 percent or higher will likely result in an OUI or DWI conviction. If you happen to be under 21 at the time of your arrest, you can be convicted if your BAC is .01 percent. And the penalties for even a first-offense OUI can wreak havoc on a person’s life.

Do Any of these Scenarios Sound Familiar?

Fortunately, there are multiple defenses against drunk driving charges. Maybe the breath test readings were inaccurate, or maybe you were never read the Miranda warning. Although an  above-limit breath test reading is difficult to challenge, it is not impossible. If any of the scenarios below sound familiar, an experienced MA OUI defense attorney may be able to get your charges reduced, or dismissed entirely.

  • No probable cause: If police stopped your vehicle and arrested you for OUI without probable cause, any evidence may be inadmissible in court. There are some exceptions to the probable cause rule, however. Namely, checkpoints and roadblocks.
  • No Miranda warnings: If you were taken into police custody but weren’t read the Miranda warnings prior to questioning, any statement you made likely cannot be used against you.
  • The officer failed to warn you that refusing a breath test would result in an automatic license suspension: If you were never warned of this consequence, breath test results may be inadmissible in court.
  • The breath test was administered incorrectly: If the officer did not comply with state requirements dictating how the breath test should be maintained and calibrated, the test results may be thrown out.
  • Inaccurate test results: Test results may also be inadmissible if a faulty machine, an incompetent technician or other circumstances created the potential for error. Breath test machines can give inaccurate readings due to certain foods and medications. For example, taking a non-impairing prescription drug prior to the test could lead to a misleading result.

The above defenses have the best shot at being successful with the help of an experienced Boston OUI defense attorney. Even a first-offense OUI can lead to license suspension, the installation of an Ignition Interlock Device (IID), hefty fines and jail time. Don’t make the mistake of thinking that an attorney is not necessary. The right legal counsel can be the difference between a clean record and time behind bars.

Penalties for OUI Offenses in MA 1st Offense – Up to 30 months in jail and fines of up to $5,000

2nd Offense – Up to 30 months in jail and fines of up to $10,000

3rd Offense – Up to five years in jail and fines of up to $25,000

In addition to the above penalties, an OUI conviction also carries a license suspension and – in some cases – the need to install an IID in your vehicle. For a first offense, the standard license suspension is one year. For a second offense, you will lose your license for two years, and a third offense will result in an eight-year license suspension. Long story short, don’t drink and drive. But if you made a mistake, hire an experienced attorney today. Continue reading

In MA, any driver who has been granted a hardship license or is eligible for license reinstatement after an OUI is required to have an ignition interlock device (IID) installed in their vehicle. An IID is connected to your car’s ignition. To start the engine, you must first blow into the device, “passing” a breath test. If the IID registers any alcohol on your breath, the car will not start. The driver must also blow into the device periodically while operating the vehicle.

Many states now require IIDs under certain circumstances. In MA, you must have an IID installed in your vehicle if you are eligible for a hardship license after two or more convictions for OUI, and if you are eligible for reinstatement after two or more OUI convictions. In both cases, the IID must remain in your vehicle for at least two years. A MA OUI defense attorney can help you protect your rights if you’ve been charged with OUI.

Are IIDs Always Accurate?

An IID works much like a breathalyzer, which measures a person’s blood alcohol concentration (BAC) if stopped for OUI. IIDs work using either semi-conductors or fuel cell technology, although there is quite a bit of controversy over the accuracy of those that use semi-conductors. That being said, all IIDs can produce false positives.

Once the negative breath test is registered, the vehicle’s engine will start. However, the driver will be required to periodically pull over to perform another breath test in order to keep the vehicle moving. This is to prevent drivers from starting the vehicle sober and then opening a beer – or several – as they drive. If these periodic tests (called rolling tests) are not performed, your vehicle’s engine will shut off.

What is My IID Recording?

The IID also records information about your driving habits and test results. The IID will record anytime:

  • you have a measurable BAC,
  • you attempt to start the car without taking the test,
  • you refuse to take the rolling test,
  • you fail the rolling test, or
  • you tamper with or disconnect the IID,

as well as:

  • the distance your vehicle has traveled, and
  • the number of times you stopped or started your vehicle.

The Cost of an IID

Although total cost varies, installation and maintenance may set you back by up to $2,000 annually. Here is a general breakdown:

  • Installation: a minimum of $100
  • Monthly maintenance fee: up to $80
  • Monthly rental fee: up to $100

There are also additional fees for things such as obtaining restricted license classification and removing that classification once you have completed the program.

Participation in the IID program can be time consuming as well. You will need to schedule regular appointments during which the recorded information will be retrieved and the system will be recalibrated. And if your IID malfunctions or “locks up,” you will need to take it in for maintenance. A Boston OUI defense attorney can help you determine how to proceed if you’ve been charged with OUI. Continue reading

Yesterday, we began discussing the case of Florian Roshi, 34 from Weymouth and hereinafter the “Defendant”. We covered how he got into alittle trouble with the criminal laws about children and OUI.

As described in the Boston herald, he is alleged to have, with a young child in the car, driven his truck while under the influence of drugs, gotten into an accident in which the small child was thrown from the vehicle and left the scene for awhile. He did come back, though. A bystander was helping the child, the police say they found various drugs in the truck and he was arrested.

I also explained that his children were now involuntary guests with the Department of Children and Families (DCF). In fact, a spokeswoman for DCF has confirmed that the agency “took emergency custody of … all children living in his home” upon being notified of the Defendant’s situation.  She declined to comment on any prior involvement with the family, citing privacy laws. The prosecutor at the Arraignment, however, apparently not as concerned for privacy rights, announced that the 4-year-old “has, in the past — recent past — been the focus of a DCF investigation.”

To add insult to injury, the Registry of Motor Vehicles has revoked the Defendant’s license indefinitely. Apparently, he had a 12-page record of vehicular offenses which date back to 2001 and includes three surchargeable accidents last year.

So, contrary to what I said yesterday, it is a “Commonwealth tripple whammy.”

Attorney Sam’s Take On Such Massachusetts “Whammys”

It is not unusual for drivers to have children. Therefore, it should not be a surprise that, when things like this happen, it can trigger problems in various arenas.

Continue reading

Drunk drivers beware! Those who feel they can “get by” driving after drinking alcohol should take a tip from some of the new advertisements put out by the Commonwealth.

As the holiday season fades into our rearview mirrors, we return to streets of ice, roads of varying  repair and some questionable drivers.  Most of the parties are over. This by no means means that no one is partying anymore.

And driving.

Recently, new advertisements from the Commonwealth have taken and interesting tact. Law enforcement realized that people know that to drive “drunk “ is a huge risk.  However, it seems to be human nature for someone who is perhaps “slightly intoxicated“ to misunderstand.  Such a person might assume that, because they are neither stumbling around incoherently or vomiting out the nights imbibement, that they are safe to drive.

Think about it. How many times have you heard people say something like, “I’m not drunk. I’m just a little buzzed.”

How many times have you heard yourself say it?

The new ads to which I refer tackle the misconception that driving while “just a little buzzed, is “ok”

It’s not ok.

    Attorney Sam’s Take On ”Buzzed Driving” And Other Distorted Thinking

Between my days as a prosecutor and my over over 20 years as a defense attorney, I have handled a great number of drunk driving cases. As common as this crime is, there are still misconceptions about it. This new ad campaign takes one of those misconceptions on.

Some folks think that they have to be falling down drunk in order to be intoxicated under the meaning of the OUI laws. They would be wrong. It really does not take all that much to hit the magic number to show intoxication on a breathalyzer. In fact, the breathalyzer itself is often misunderstood.

Continue reading

If you are at least 21, a blood alcohol concentration (BAC) of .08 percent or higher can result in an OUI arrest in MA. The limit for under-age individuals is .02 percent (basically, zero tolerance).  Licensed commercial drivers (CDL holders) have a limit of .04 percent. If police suspect that you are under the influence of drugs or alcohol during a traffic stop, you will likely be asked to submit to a breath test.

Different Strokes for Different Folks

Alcohol is metabolized at different rates for different people, and based on a variety of factors. These include your gender, weight, the type of alcohol you consumed, how quickly you consumed it, and whether or not you drank on an empty or full stomach. With so many variables, it is impossible to determine your BAC without a tool designed specifically for that purpose. Even one alcoholic beverage, consumed quickly by a person with a small build – on an empty stomach – can result in an unsafe level of impairment. The best way to avoid an OUI is to always have a designated driver if you plan to drink.

If a breath test indicates that you are above the legal limit, you may be placed under arrest. Although breath tests  – commonly referred to as breathalyzers – sometimes provide inaccurate readings, an over-the-limit result is compelling evidence that you were driving under the influence. This is especially true when a reading is particularly high.

Can I Refuse the Breath Test?

You can decline to take the test, but there are serious repercussions for refusing, including a minimum six-month license suspension. Even so, it may be in your best interest to refuse a breath test. Unfortunately, there is no one-size-fits-all solution to this problem. You will have a better chance of having your OUI charges dismissed if there are no incriminating breath test results and you have solid legal counsel. If the charges are thrown out, your attorney will likely be able to remove the penalties for refusing as well.

If you do submit to the breath test and your reading is over the limit, an experienced Boston OUI defense attorney may still be able to get your charges dismissed. Breath test results are frequently off by up to .02 percent in either direction. If you were barely above the legal limit, a skilled lawyer should be able to present multiple defenses against your charge. That being said, attempting to defend an OUI charge without legal counsel can have severely negative consequences. Don’t make the mistake of trying to go it alone. The right attorney can be the difference between a conviction and a clean record.

Per Se State

Under Melanie’s law, if a breath test registers higher than the legal limit, you are legally presumed to be impaired. MA is a “Per Se” state, which means that over-limit breath test results provide per se evidence of legal intoxication. Therefore, if you agree to the test and the results are over the legal limit, you are presumed to be operating under the influence. In such a case, it is essential to have an experienced Massachusetts OUI defense attorney by your side. Continue reading

If you get arrested on suspicion of OUI in Massachusetts, the law requires that you submit to a breath or blood test. This “implied consent” law states that if an officer arrests you for OUI – with probable cause – you must consent to a blood or breath test to determine your blood alcohol content (BAC). As such, there are consequences if you refuse.

If you refuse the breath test (commonly referred to as a breathalyzer), the officer will warn you that a refusal will result in a minimum 180-day license suspension. If you still refuse the test, the officer will automatically take your license and have your car sent to impound (although this will likely happen even if you don’t refuse the test).

In MA, refusing to submit to a breathalyzer test comes with the following consequences:

  • First offense: 180-day license suspension
  • Second offense: Three-year license suspension
  • Third offense: Five-year license suspension

There are some exceptions to the rules above, however. For example, if you are under 21 at the time of your arrest, you will receive an automatic three-year suspension. And if you refuse the test after causing serious injury to another, you will lose your license for 10 years if convicted of OUI. It’s a lifetime suspension if you refuse the breathalyzer after an OUI-related accident in which someone died. You will also lose your license permanently if you previously refused a breathalyzer in three separate OUI arrests.

Is Refusing a Breathalyzer Ever a Good Idea?

At first glance, refusing a breathalyzer may seem like a terrible idea. In some cases, this is likely the case. However, refusing a breathalyzer may also work in your favor. Unfortunately, there is no one-size-fits-all answer to this question. The help of an experienced Boston OUI defense attorney is crucial to a favorable outcome.

If, for example, this is your first offense, and your BAC is likely over the limit but not excessively high, you may improve your chances of avoiding an OUI conviction if you refuse the breathalyzer. However, a refusal should only be considered if no aggravating circumstances were present, such as having a child in the car, causing property damage, injury or death, or the presence of drugs, drug paraphernalia, or weapons. And even then, there are no guarantees.

An over-the-limit BAC is compelling evidence, even if it’s only just over. It’s easier to argue that you were not intoxicated if there is no BAC on record.

If your charges are dismissed, a skilled MA OUI defense attorney can likely help you get your license reinstated. But, as stated above, there are no guarantees. If you can show that a) the officer did not have probable cause to stop you, b) you were never officially arrested, or c) you consented to the test but it was never performed, you will likely get your license back. Continue reading

The holidays are notoriously one of the worst times of year for drunk driving. From just before Thanksgiving to just after New Year’s Day, people attend more alcohol-laden parties than at any other time of year. We eat more, drink more, and are generally more merry. This is all good news, unless you decide to get behind the wheel of your car. Don’t sabotage your cheer and joy with an OUI this holiday season.

Tips to Avoid Becoming an OUI Statistic

The only surefire way to avoid getting an OUI is to never drink and drive. If you plan on drinking, designate a sober driver before heading out for the evening. If you drink more than planned and don’t have a driver, call a taxi, an Uber, or a friend. And if you decide to drive after one drink, heed the advice below.

  • Be sure that you’re under the legal limit. In MA, a blood alcohol concentration (BAC) of 0.08 is above the legal limit. To help keep your BAC under this threshold, eat plenty of food while drinking, limit your consumption to no more than one drink per hour, and stop drinking long before you have to drive. Keep in mind, however, none of these suggestions guarantee that your BAC will remain under the legal limit. The only way to be certain is to stick to non-alcoholic beverages.
  • Use extra caution when driving. Safe driving practices are always important, but if you’ve had a drink, obeying traffic laws becomes crucial. Now is not the time to fail to come to a complete stop at a stop sign, or attempt to beat a yellow light, for example. And of course, don’t text or talk on your cell phone. An MA OUI defense attorney can help you protect your rights if you’ve been charged with an OUI.
  • Use an OUI app to reduce your risk. The following apps can help, but the only fail safe is to avoid drinking and driving altogether.
  • DrinkTracker: With this app, you can estimate your BAC based on the amount of alcohol you’ve consumed.
  • Intoxicheck: This app measures your reaction times, judgment, dexterity and memory through the use of multiple challenges. To get an accurate reading, the user must first perform the challenges sober to measure the differences after drinking.
  • BreathalEyes: Similar to the Horizontal Gaze Nystagmus test that police sometimes use to determine if a driver is intoxicated, this app tracks involuntary movements of the eyes.
  • BACtrack Mobile Breathalyzer: Although not an app, this breathalyzer device attaches to your smartphone and works with an app through which you record how much you drink throughout the night.

If you do get pulled over, be calm, cooperative, and respectful. You do not need to submit to a field sobriety or breath test, but refusing a breath test will likely result in an automatic six month suspension of your driver’s license. If your charges are dismissed, however, the six month suspension may also disappear. A Boston OUI defense attorney can help you determine how to proceed if you’ve been charged with an OUI. Continue reading

If you are stopped on suspicion of drunk driving, you are guaranteed certain constitutional rights. For starters, you have the right to remain silent if you are placed under arrest. Police will generally inform you of this right by reading the “Miranda warning” at the time of your arrest. But your rights don’t stop there.

Fourth Amendment Rights

The fourth amendment to the U.S. constitution protects against unreasonable search and seizure. When the search and seizure pertains to a motor vehicle, police are generally required to have probable cause in order to make a traffic stop. If the officer cannot show that there existed a reasonable suspicion that a law was being broken, any evidence obtained during the traffic stop may be thrown out. This includes breath and blood test readings. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with OUI.

Fifth Amendment Rights

The fifth amendment includes the right to remain silent, which also happens to be the first right of the aforementioned Miranda warning. But the fifth amendment also provides several other rights and protections, including a prohibition on double jeopardy, and the right to not self-incriminate. Police are not required by law to read you the Miranda warning, but anything you say may be inadmissible in court if they fail to do so. That being said, anything you say before you are arrested is fair game.
Sixth Amendment Rights

The sixth amendment guarantees the assistance of legal counsel to anyone who is placed under arrest. Basically, this means that if you can’t afford an attorney, one will be provided for you. That being said, it is generally a good idea to hire private counsel, even if you qualify for a public defender. The cost of a good OUI attorney can save you lots of money, and heartache, in the long run.

OUI Penalties in MA

If you get convicted of OUI, the penalties will depend heavily on the particulars of your case, whether it’s a first offense, and prior criminal history. Penalties may include:

  • First offense: Fines between $500 and $5,000, one-year license suspension, and up to 2.5 years in jail.
  • Second offense: Fines between $600 and $10,000, two-year license suspension, up to 2.5 years in jail w/ mandatory minimum of 30 days.
  • Third offense: Fines between $1,000 and $15,000, eight-year license suspension, up to five years in prison w/ mandatory minimum of 150 days. This is a felony charge.
  • Fourth offense: Fines between $1,500 and $25,000, 10 year license suspension, up to five years in prison w/ mandatory minimum of one year. This is a felony charge.

If you’ve been charged with OUI or any type of crime, a MA criminal defense attorney can help you protect your rights. Continue reading

A former Michigan prosecutor recently injured a man in a drunk driving accident. Having prosecuted many drunk drivers, Joshua Kuiper should have known better. He was charged with felony reckless driving after he crashed into Daniel Empson, who was retrieving something from a parked car. Kuiper was driving the wrong way on a one way street at the time of the incident. The former attorney was out in celebration of another prosecutor’s retirement.

Dram Shop Laws

In addition to the dangers of drunk driving, Kuiper should have known about dram shop laws. Named after the traditional term for a unit of liquor, dram shop laws hold bars liable for injuries caused by patrons they’ve over-served. Empson has filed an injury lawsuit against three bars that he alleges over-served Kuiper before the accident.

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