Defending OUI Charges - Boston Criminal Defense Blog


According to a published reported in the Boston Globe on December 16, 2014, an off duty State Trooper was arraigned in Salem Superior Court on an OUI charge where it was alleged that he crashed his 1965 Corvette into a utility pole in North Andover in May of this year. The trooper was initially arraigned in the Lawrence District Court after the accident back in May, but was arraigned again today in Superior Court after he was indicted by a grand jury on charges of operating under the influence causing serious bodily injury, carrying a firearm while intoxicated, among other charges.  The record suggests that the off duty State Trooper severely injured his passenger, refused a breathalyzer test after being arrested as well as declining medical treatment despite being injured.   The Trooper was released on $20,000 bail, ordered not to drive unless in possession of a valid license, and ordered to abstain from consuming alcohol.  As the result of the Trooper refusing to take the breathalyzer test, his license was suspended for 180 days.  It was further reported that the State Police suspended the trooper without pay pending the outcome of his case.

Drunken driving charges can be devastating.  They are costly; you can lose your driving privileges as well as your freedom.  No one plans on having a little too much to drink at an office party or after a hard day at work.  If you are arrested for operating a motor vehicle while under the influence of alcohol (OUI), you have to challenge the evidence and prepare your defense.

It is important to note that although the Trooper refused the breathalyzer test in this case, Massachusetts law prohibits the Commonwealth from offering the fact that the Trooper refused the breathalyzer test into evidence at time of his trial.  Declining medical treatment also denies the Commonwealth valuable forensic evidence, such as a person’s serum blood alcohol levels if blood was drawn at the hospital.

The Trooper arraigned today is clearly in trouble.  Just because the Trooper was indicted and arraigned, doesn’t mean he will lose or should plead guilty.  If this were you, the question you want your criminal defense attorney to answer is – “Is my case defensible?”  Your attorney will know that the decision to go to trial to fight an OUI charge depends on the evidence against you.

To defend an OUI charge you must first understand what constitutes OUI.  In every OUI case, the prosecutor must prove three separate and distinct elements beyond a reasonable doubt:

  • operation of the motor vehicle,
  • on a public way,
  • while under the influence of liquor or with a .08 percent or greater blood alcohol level

A defendant may be convicted of operating under the influence of alcohol in two ways. First the Commonwealth may prove the operator was impaired. Second, as the result of the passage of Melanie’s Law, the operator may be convicted if he had a blood alcohol level of .08 percent or greater while driving.

Prosecutions for OUI are generally predicated upon the opinions of police and civilian witnesses that the defendant was impaired.  Opinions are subjective and most often challenged by defense counsel on cross examination at trial.  The most hotly contested issue in the vast majority of OUI cases is whether the defendant’s capacity to operate the motor vehicle was diminished as a result of alcohol.

The crime of operating under the influence is unlike most crimes.  The crime of OUI doesn’t exist until an officer forms the opinion that the operator’s ability to drive safely is impaired.  The officer’s opinion is usually based on how well one performs on so called field sobriety tests.  Field sobriety tests are divided attention tests designed to test the operator’s condition and ability to do multiple tasks at once, such as walking heel to toe, standing on one leg, reciting the alphabet or touching your nose.  Absent a breath or blood test, the prosecutor will likely place great weight on the defendant’s performance on field sobriety tests.

Witnesses usually identify “objective” symptoms of impairment to support their opinion. These symptoms usually include erratic operation of the vehicle, red and glassy eyes, strong odor of alcoholic beverage on the operator’s breath, slurred speech, and unsteadiness.  Because OUI prosecutions rely so heavily on opinion evidence by nonmedical personnel, they are uniquely vulnerable to a defense challenge. I carefully examine all the underlying factors relied upon by the witness. For example, if an officer relies on his observation of red and glassy eyes to support his opinion that the operator was impaired, I explore whether there is another, perhaps more plausible, explanation for red and glassy eyes that is independent of alcohol or drug impairment such as lack of sleep, cigarette smoking or perhaps allergies?

Boston Criminal Attorney Steven J. Topazio

Boston Criminal Attorney Steven J. Topazio

Drinking and driving is not a crime.  Drinking then driving a motor vehicle while your ability to operate that motor vehicle safely, however, is a crime.  Defending an OUI charge begins with knowing how to attack the charge.  At the Law Office of Steven J Topazio, I believe everyone is entitled to the Best Defense.  If you have been arrested for an OUI charge, contact my office for a free case evaluation.

Steven Topazio has been a criminal defense attorney for over 29 years and represents the wrongfully accused throughout Boston and Massachusetts. He is rated AV Preeminent by Martindale-Hubbell, 10.0 Superb by AVVO, a Top 100 Trial Attorney and holds membership in the invite-only American Society of Legal Advocates.

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