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 Vehicular Crimes

Interestingly, Boston.com Has on the front page of its website this little story.  The story is actually from 2013 according to the byline, but it is really too good a story to pass up.

In my last two postings, we spoke about defendants who make statements to law enforcement. This is a tale about a gent who, not only apparently made a full confession to the officers, but went so far as to make sure they had enough evidence to convict him of any Massachusetts motor vehicle crimes.

Must be one of those “law and order” types…kinda sorta.

Norwood police say that they stopped the unnamed gentleman (hereinafter, the “Defendant”) during a particular driving spree. The spree included driving more than 100 miles per hour in a 45-mile-per-hour zone on busy Route 1 on a Friday night.

The Defendant was pulled over at around 10 p.m. . He is said to have told police that he knew he was being pulled over for speeding and that he was going “at least a buck’’ (a/k/a100 miles per hour).

He apparently also explained that he was using one hand to drive and one hand to capture video of his speedometer to show how fast his car could go to potential buyers

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There are a number of ways to lose your driving privileges in MA. From excessive traffic violations to an OUI conviction, reasons for suspension can vary widely. Fortunately, some MA drivers who lose their license will qualify for something called a hardship license. A hardship license allows the individual to drive, but only for approved reasons, and only under limited circumstances. Generally speaking, a hardship license allows people to drive to and from school and / or work.

Do I Qualify?

As stated above, there are many ways to lose your license. Whether or not you qualify for a hardship license will be largely dependent on several factors, including:\

  • the reason for your suspension or revocation,
  • how long your license has been suspended,
  • your previous driving record, and
  • whether your suspension is based on refusal of a chemical test or breath test.

Habitual Traffic Offenders and individuals with OUI convictions are generally eligible for a hardship license. If your suspension is due to refusal of a chemical or breath test you may still be eligible for a hardship license. To qualify under such circumstances, you must be enrolled in the 24D (first offender’s) program. Without enrollment in this program, the hardship license will be denied. It’s important to note that if your license has been suspended for refusing a chemical or breath test, you are entitled to a hearing within 15 days of the suspension. A Boston OUI defense attorney can help you protect your rights, and possibly get the refusal suspension overturned, at your hearing.

What Does a Hardship License Allow?

If you receive a hardship license after a suspension or revocation in MA, you will be allowed to operate a motor vehicle during the same 12-hour period each day. If you are found to be driving outside of that 12-hour period, you may receive a citation or even be arrested. Although the hardship license is primarily intended to allow you to drive to and from work and school, there are no restrictions on where you can drive as long as you stay within your designated 12-hour period.

Hardship License Requirements

There are many requirements for obtaining a hardship license. Some of the most common criteria include:

  • No operation of a motor vehicle since the suspension or revocation
  • Minimum suspension period for hardship consideration has passed
  • Enrollment in the 24D program
  • Completion of the National Safety Council Driver Retraining Course
  • Completion of an approved alcohol treatment program
  • Documentation that you are in compliance with probation
  • A letter from your employer or school stating that you need a hardship license

You may have to serve a specific term of your suspension prior to becoming eligible for a hardship license. If your suspension is due to being classified as a Habitual Traffic Offender, for example, MA law holds that you must wait at least one year before applying for a hardship license. The Registry typically issues about 3,500 hardship licenses per year. Even if you qualify under the hardship criteria listed above, there are no guarantees that you will be issued a hardship license. An experienced Boston defense attorney is crucial to a favorable outcome. Continue reading

There are many reasons why your Massachusetts driver’s license may be suspended or revoked. These include specific driving violations, such as excessive speeding tickets or driving without insurance. You could also lose your license due to criminal offenses, such as operating under the influence or violation of other state laws. Whatever the reason, driving on a suspended or revoked license is never a good idea. Choosing to do so may result in additional consequences, and even jail time.

Suspended vs. Revoked

Massachusetts driver’s licenses can be temporarily suspended or permanently revoked:

  • With a suspension, you are not allowed to drive for a certain period of time, but you may have the opportunity to get your license back at a later date.
  • With a revocation, your driver’s license is canceled, and you only have the opportunity to get it reinstated if you submit to an investigation.

In either case, license suspension and revocation are both red flags to insurance companies. Your premiums will likely skyrocket. In some cases, your insurance company may even cancel your policy. A MA defense lawyer can help you protect your rights if you’ve been stopped for driving on a suspended or revoked license.

Reasons for Driver’s License Suspension/Revocation

Operating under the influence and driving without insurance are among the most common reasons for license suspension and revocation, but you can also lose your Massachusetts driver’s license for the following reasons:

  • The state determines that you are a threat to public safety due to serious violations of traffic law.
  • You drove with a suspended license or used a false driver’s license. Driving with a suspended license leads to an increase in the length of the suspension, and could also result in imprisonment of up to five years.
  • You have physical or psychological impairments. Your driving privileges may be suspended if a health care provider or law enforcement officer determines that you are unable to drive safely.

Next to specific driving violations, there are also non-driving reasons for license suspension. These include:

  • being delinquent on your child support payments,
  • not registering as a sex offender,
  • not appearing when there is an arrest warrant,
  • failing to pay traffic tickets, fines or surcharges, and
  • certain criminal offenses.

With regard to criminal offenses, you may lose your license if you:

  • are caught stealing a motor vehicle – three year suspension,
  • leave the scene of an injury accident without giving aid – one to two years,
  • are found guilty of homicide involving a motor vehicle – 15 years to a lifetime suspension, or
  • are convicted of driving to endanger – two months to one year.

Penalties for Driving on a Suspended License

If you are stopped for operating a motor vehicle with a suspended or revoked license, you may face the following penalties:

  • Up to 10 days in jail
  • Fine between $500 and $1,000
  • 60 day license suspension (mandatory)

The sentence will also be based on the reason you lost your driving privilege in the first place, and whether or not you have already been convicted. In some cases, the sentence may result in a fine of up to $10,000, and up to one year in jail. A Boston defense attorney can help you determine how to proceed if you’ve been stopped for driving on a suspended or revoked license. 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

Commonly referred to as “hit and run,” leaving the scene of an accident is a criminal offense in MA. As with most crimes, the penalties depend largely on the particulars of the case, the severity of the accident, and prior criminal history.

Consider the following scenarios: Sue runs into her neighbor’s mailbox because she was texting while driving. She’s not intoxicated, and she doesn’t have a criminal record. But she leaves the scene because it’s late at night and she’s too embarrassed to admit her mistake. Sue may be charged with leaving the scene of an accident, but her penalties will likely be minor. Gretchen, on the other hand, hits a pedestrian while driving drunk, breaking the victim’s leg and shoulder. Gretchen has an extensive criminal record. Chances are, her outcome won’t be nearly as pleasant.

Penalties for Leaving the Scene (No Injuries)

In MA, leaving the scene of an accident is loosely defined as failing to stop after a collision to contact the police or exchange information with the other parties involved. At it’s most basic, leaving the scene is a misdemeanor offense. If convicted of this offense, you may face the following penalties:

  • A fine of up to $200
  • Up to two years in jail
  • A minimum license suspension of 60 days with a maximum suspension of one year

But what if the accident was so minor you didn’t even know it had occurred? If you were unaware of the damage, how could you have known to stop and exchange information? While a smashed mailbox would be hard to miss, it is common for minor accidents to be overlooked when it’s dark outside, or due to distractions or loud music.

Penalties for Leaving the Scene (Injuries)

Things get much more complicated if you leave the scene of an injury accident. When you leave the scene of an accident that resulted in injury to another, you will be looking at a mandatory minimum sentence. Penalties for this crime may include:

  • A minimum of six months in jail, with a maximum of two years
  • A fine of up to $1,000
  • A minimum license suspension of one year, up to indefinite
  • Subsequent convictions carry a minimum two year license suspension

A skilled Boston criminal defense lawyer can help you get your penalties reduced or dismissed entirely. In some cases, you can avoid a conviction by working out a payment arrangement to compensate the victim for medical bills and any other expenses associated with the accident. Continue reading

In MA, drivers are required to carry liability insurance. The minimum requirements are $20,000 per person for bodily injury, $40,000 per accident for bodily injury, $8,000 for personal injury protection, and $5,000 to cover property damages and a portion of uninsured/underinsured motorist protection. Driving without insurance, or with a policy that doesn’t meet these minimum requirements, is a civil motor vehicle infraction (CMVI) in MA.

Is Driving Without Insurance a Crime?

It depends. If this is your first offense, chances are you won’t see jail time. However, if this is a second or subsequent offense, or someone was injured, it might be a different story entirely. Even if you are not criminally charged, a first offense does carry fines and a license suspension. In addition to a $500 fine, you are likely to lose your license for 60 days and pay an additional $500 to get it reinstated.

At first glance, jail time and hefty fines may seem a harsh punishment for neglecting to purchase auto insurance. But there’s a reason why motor vehicle insurance is so important. If you are involved in a collision, people could be seriously injured or killed. What if you are the at-fault driver? Who will pay the medical expenses and lost wages for those who are injured? Who will cover funeral expenses if someone is killed?

Generally, these expenses are at least partially covered by the at-fault driver’s insurance policy. If you drive without insurance, accident victims could be facing more than injuries; they could also be facing a financial catastrophe. For this reason, it is required by law to carry auto insurance before you take to the open road. A MA defense lawyer can help you protect your rights if you are facing penalties for driving without insurance.

Penalties for Operating an Uninsured Vehicle

MA is tough on drivers who hit the roadways without insurance. Even for a first offense. But what about second and subsequent offenses?

If a second offense occurs within six years of your first offense, you are looking at a fine of up to $5,000, a one-year license suspension, one year in jail, and a $500 license reinstatement fee. That’s a lot of money and time behind bars. The moral to this story? Don’t drive without insurance. But if you made a mistake, an experienced Boston defense attorney can help you determine how to proceed.

Disputing a Citation for Driving an Uninsured Vehicle

If you have received a CMVI citation, it’s in your best interest to contact an attorney immediately. You have 20 days in which to request a hearing, and pay the corresponding fee to the Massachusetts Registry of Motor Vehicles. But you have to do it right. Failure to pay your fine, or file a dispute in a timely manner, can result in additional fines and the suspension of your license. 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.

It’s common knowledge that hand-held electronics, such as smart phones, pose a serious distraction when we’re behind the wheel. But is that distraction as dangerous as intoxication? Can technology actually affect our sobriety? A new Washington law aims to treat cell phone use while driving in much the same way as drunk driving. The law would ban the use of all electronic devices when driving, even when stopped at a red light.

Electronic Driving While Impaired

According to Washington Governor Jay Inslee, the bill is called “electronic driving while impaired,” and the new offense would be called a DUI-E. “When you are driving with a cell phone,” said Inslee, “you are a more dangerous driver than if you are driving drunk with a .08 blood alcohol level.” And these aren’t just empty words; research backs up Inslee’s statements.

Summer is time for relaxation and fun. If you take that fun too far, however, it can result in a number of less-than-fun consequences, including charges for criminal offenses such as OUI, disorderly conduct, or assault. You may even find yourself behind bars. Follow the tips below to have fun, and avoid getting charged with OUI, this summer season.

 

  • No open containers in the car. You don’t need to be drinking to get charged. It is illegal to have an open container in an unlocked compartment of your car. For example, a half-full bottle of rum in the center console, or in the back seat, can get you in big trouble. If you are traveling to a party and taking previously-opened containers of alcohol, make sure that they are all safely stowed in the trunk, where they can’t be reached while the vehicle is in use.

 

  • Zero tolerance for underage drivers. If you are under 21, you can get charged with an OUI offense for any amount of alcohol in your system. In MA, a driver is “over the limit” with a blood alcohol level of 0.08 or more. But even 0.01 can result in an OUI if you’re under 21. A MA OUI defense attorney can help you determine how to proceed if you’re facing charges for an underage OUI offense.

 

  • Even prescription drugs can lead to an OUI. If drugs – even prescribed medications – impair your ability to drive, you may find yourself facing charges for OUI. And the drugs in question don’t have to be controlled substances such as oxycodone or ADHD meds. Even antihistamines can result in an OUI if they impair your ability to drive safely.

 

  • Have a plan for how to get back to your home or hotel before the night begins. Prior to heading out for the night, talk to your friends and determine your end-of-night plan. Will you walk? Will you call an Uber? Is there a designated driver? And if you’re staying in an unfamiliar location, like a hotel, write down the address in case you aren’t as clear headed at the end of the evening.

 

  • If all else fails, contact your attorney. If you made a mistake and you’re facing OUI charges, a skilled Boston OUI defense attorney can help you fight them. Many OUI stops, especially during the busy summer season, are riddled with errors that can be used to your advantage. For example, a faulty breathalyzer test can result in inaccurately-high readings. It’s important to know your rights; you can refuse to take a breath test. However, there are some serious implications for doing so. Refusing a breath test carries an automatic license suspension of 180 days. There is no one-size-fits-all answer to whether or not you should refuse a breath test. If you have no prior OUIs and you passed the field sobriety test, you have a better chance of winning your case if you refused the test than if you took it and failed. But, as with most things in life, there are no guarantees.

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