Archives May 2024

Operating under the influence of alcohol is a crime that is taken seriously in Massachusetts. If you are convicted, the punishment will impact not only your freedom but also possibly your relationships with others and employment opportunities.

When children are in the car when an OUI takes place, the consequences of conviction become even more serious. This is so because children are more vulnerable to injury or death when an accident caused by unsafe driving occurs.

There is a law in Massachusetts that prevents endangering children while operating under the influence of alcohol. It can be found in Massachusetts General Laws Chapter 90, Section 24V. It is called Child Endangerment While Operating a Motor Vehicle Under the Influence. There are two ways a person can be convicted.

What is OUI-Child Endangerment?

OUI-Child Endangerment is a crime in Massachusetts that occurs when a person operating a motor vehicle under the influence of alcohol puts a child in danger of death or other injury. Like all crimes, to convict a person certain facts or elements must be proven by the government beyond a reasonable doubt. They are:

• The accused operated a motor vehicle
• The accused did so on a public way, in a place where the public has a right of access, or in a place where members of the public are given an invitation or license to be at
• Either:
  • While the accused was operating the vehicle, they were under the influence of intoxicating liquor
  • While the accused was operating the vehicle, the percentage of alcohol in their blood was .08% or greater
• While the accused was operating the vehicle, there was a child present in the vehicle who was 14 years old or younger

So, a person cannot be found guilty of OUI-Child Endangerment unless each of these elements are proven beyond a reasonable doubt. If the government cannot prove one or more of these facts to this high degree of certainty, the person on trial must be acquitted.

What is the difference between being “under the influence” and having a blood alcohol content of .08% or greater?

There are two ways or legal theories of proving a person guilty of OUI-Child Endangerment. One is called impairment theory. Impairment means that the person was under the influence of alcohol while operating the vehicle. The other theory is called per se theory. Per se operating under the influence of intoxicating liquor means that the person was driving with a blood alcohol content (BAC) of .08% or greater.

The government can go with either approach if there is supporting evidence. However, in both cases they will have to overcome certain obstacles.

For example, a person is not “under the influence of alcohol” simply because they had an alcoholic beverage before getting behind the wheel. A person is under the influence of alcohol only if they have consumed enough alcohol to reduce their ability to drive their vehicle safely. The state will have to present evidence not only that the accused consumed alcohol but that this impacted their ability to drive safely.

Similarly, to have a blood alcohol content of .08% or greater is a scientific determination. This means scientific evidence must be presented that the blood alcohol content of the accused was tested. A good defense attorney will ensure that evidence of any tests that occurred were reliable by investigating:

• If they were given in a reasonable amount of time after operation
• If the person who gave the test was properly certified
• If the correct pre-test procedures were used
• If the testing device was working properly when the test was given
• If the test was given correctly

What makes OUI-Child Endangerment different from a regular OUI?

Because of the state’s interest in protecting children, being convicted of OUI-Child Endangerment increases the possible punishment.

Importantly, this crime has a punishment of 90 days to 2.5 years in the House of Correction and an automatic 1-year driver’s license suspension for a first offense.

Additionally, a person found guilty of a first offense will receive a minimum fine of $1,000. This fine could be raised as high as $5,000. A person could also receive a sentence of more than 90 days: up to 2.5 years in the House of Correction.

For people who commit this offense more than once, the punishment is increased to:

• Fine of $5,000 to $10,000
• Sentence of 6 months to 2.5 years in the House of Correction or 3 years to 5 years in state prison
• A 3-year driver’s license suspension

People convicted of a second or greater offense cannot have their sentence suspended. They also cannot receive probation or parole for good conduct until 6 months are served.

So, the consequences are harsh. This is why it is important to consult an experienced criminal defense attorney if you or a loved one are accused of this crime. An effective defense attorney will make sure that the state meets its burden of proof.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH OUI-DRUGS, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

Related Articles:

What is gunshot residue?

Gunshot residue, often abbreviated “GSR”, is a type of forensic evidence. GSR is the substances that come out of a firearm after it is discharged. Pulling the trigger of a firearm causes a small explosion to occur inside the barrel of a gun that makes the bullet project out of it. As this happens, several residues are released. These include primer residue, residue from the projectile itself, and residue from unburnt or partially burnt gunpowder.

What does GSR show in a criminal investigation?

GSR can be analyzed by a forensic scientist to help prove or disprove a case against a person accused of a crime. If discovered on a person’s body, GSR can also help show that a person discharged a firearm. GSR could be used to show that a gun was transferred from one person to another. Since GSR typically lasts for no more than 4-6 hours on a person, it can also be used to help show when a firearm was discharged.

Take for example a case where a person is accused of discharging a firearm within 500 feet from a building. This is a crime in Massachusetts. To convict a person, the government must prove beyond a reasonable doubt that the accused discharged the firearm. Say police respond to a report of a gunshot fired in a residential area. They discover a bullet hole in a wall and arrest a person with a firearm in the trunk of their vehicle. A forensic analysis of the gun and suspect’s clothing could determine that no GSR was present. This would help prove that the gunowner was not the person who discharged the firearm.

Is GSR analysis flawless?
GSR analysis is not perfect and does not always guarantee a person is guilty of a crime. All crimes must be proven beyond a reasonable doubt. This is one of the highest burdens of proof in law. An effective criminal defense lawyer will consult an expert to determine if a finding of GSR was reliable. There are various ways a GSR analysis could not be reliable.

For example, there could be a false positive. GSR might not necessarily come from a firearm. It could come from another explosive device, like a lawfully discharged firework or a piece of machinery. The sample of GSR could also have been contaminated in the lab.

How can GSR evidence be challenged?

There are a variety of ways to challenge GSR analysis. In addition to challenging the scientific reliability of a GSR analysis, the way GSR evidence was collected could be disputed.

For instance, GSR may have been collected in violation of a person’s constitutional rights. The Fourth Amendment of the US Constitution protects people from unreasonable searches and seizures. The burden of proof called probable cause is usually required. If a person were stopped during a traffic stop, police opened the trunk of the car without probable causeor any other lawful justification, and discovered a gun with GSR on it, that evidence most likely would not be allowed into evidence at trial because it was collected illegally by police.

Thanks to modern technology, forensic science has become a much more valuable tool for solving crimes. For example, the development of DNA analysis has given law enforcement the ability to compare DNA left at crime scenes to DNA stored in databases to help them identify suspects. Although DNA comparisons might be the most well-known modern forensic science technique, it is not the only one. Forensic scientists can also examine gunshot residue (GSR).

GSR analysis is a valuable forensic science, but like all techniques used to prove people guilty of crimes, it has its limitations. Recognizing these limitations may be the difference between whether a person is wrongly convicted of a crime or rightfully acquitted.

What is forensic science?

The definition of forensic science is the application of science to law. In criminal law, it includes using scientific techniques to determine if a person is guilty or innocent of a crime. The fields of science that could be involved include:

• Physics
• Chemistry
• Biology
• Computer science
• Engineering
• Data analysis

For example, in a drug case, chemistry might be used to determine whether a substance is an illegal narcotic (for example, cocaine). In a case involving possession of child pornography, data analysis could be performed to document when files were downloaded and opened. Likewise, biology could be used in a murder case to show a victim’s cause of death.

Forensic science is practiced by forensic scientists. Forensic scientists work in forensic crime laboratories. Forensic crime labs receive forensic evidence, analyze it using scientific techniques, and report their findings to law enforcement. Forensic evidence could include:

• Blood
• Saliva
• Hair
• Semen
• Soil and vegetation
• Fingerprints
• Tire tracks
• Narcotics
• Computer files
• Financial data

Forensic scientists often work for police but not always. For example, Massachusetts has a crime laboratory run by the State Police. Criminal defense lawyers will often use the services of an expert to conduct an independent forensic analysis of evidence. For example, an expert might be used by a criminal defense lawyer to analyze data on financial transactions to determine if the state will be able to prove their client committed a crime like larceny or fraud.

A forensic scientist who provides testimony in a case must be properly qualified. This usually means having degrees or certifications. Their methods must also be scientifically valid and recognized. For example, it is not very likely that a court would allow the testimony of an astrologist who says a person is guilty because of the way the stars were aligned on the night a crime was committed. On the other hand, a MIT PhD with an impressive CV who testifies to the flaws of a ballistics analysis would likely be allowed.

An criminal defense attorney will be very familiar with the law on searches and seizures. It is the job of an effective criminal defense attorney to ensure the constitutional rights of people charged with crimes are protected. This means paying close attention to how evidence was collected and ensuring that it is used fairly at trial.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH A GUN CRIME, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

|Related Articles:

What is a subsequent offense?

A subsequent offense is a crime that a person has been convicted of before. It happened subsequent or after your first conviction.

A subsequent offense does not always mean “second offense.” It could be a third, fourth, or any number offense after the first. The paper charging you with a crime (complaint, citation, or indictment) will indicate if you are being charged with a subsequent offense.

If I am convicted twice, is it assumed that the second offense was a subsequent offense?

No. If you are convicted of the same crime on two separate occasions the court is not allowed to assume when it sentences you the second time that you are a subsequent offender. The state must prove beyond a reasonable doubt that before the accused committed the second crime they had previously been convicted of the first one.

How is a subsequent offense proved?

In Massachusetts, proving a subsequent offense means proving beyond a reasonable doubt that the person who was convicted of the underlying crime is the same person who was convicted on the first occasion. If the government does not meet its burden, a person cannot be convicted of the underlying crime as a subsequent offender.

The government usually meets its burden of proof by offering certified records into evidence. The record of a person’s conviction is a public record. Courts almost always allow these types of records into evidence. However, that does not mean they cannot be challenged. Sometimes clerks—who are responsible for maintaining the case docket, or official record of the proceedings of a case—make a mistake. A good criminal defense attorney will closely examine any records showing a subsequent offense to ensure they are fair and accurate.

What is the penalty for a subsequent conviction?

If a person is convicted of a subsequent crime, the penalty will depend on the crime. For example, for the crime of assault and battery on a family or household member:

• First Offense: up to 2 ½ years in the House of Correction and/or a fine of up to $5,000
• Subsequent: up to 2 ½ years in the House of Correction or up to 5 years in state prison

As you can see, the punishment for the subsequent offense is worse. A person convicted of second offense assault and battery on a family or household member could be sentenced to state prison. A person convicted of only their first offense cannot be sentenced to state prison. The possible punishments for subsequent offenses is always worse.

Some crimes do not say what the subsequent penalty is. This gives judges discretion to impose a sentence. In these cases, judges in Massachusetts often turn to the Massachusetts Sentencing Guidelines. The Massachusetts Sentencing Guidelines, which can be viewed here, give judges instructions on how to sentence people convicted of crimes when the laws punishing these crimes do not require a particular sentence to be imposed. The Guidelines are not law but they are a very well-regarded source of legal authority in Massachusetts. A good defense attorney will be very familiar with the Sentencing Guidelines and use them to benefit their clients.

Does double jeopardy protect me from being convicted of a subsequent offense?

A subsequent offense is not the same as double jeopardy. The Fifth Amendment of the Constitution protects people from double jeopardy. Double jeopardy means being prosecuted for the same crime twice. A subsequent offense is not double jeopardy because the facts of the crime are different. For example, if a person prosecuted for an OUI occurring on July 1 is then prosecuted for an OUI occurring on September 1, the second prosecution for the subsequent offense is not double jeopardy because the OUIs occurred on two separate days.

This does not mean double jeopardy is not a defense in some cases. It can be when a person is charged with two offenses that are very similar and based out of the same facts.

IF YOU OR A LOVED ONE ARE CHARGED WITH A SUBSEQUENT OFFENSE, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

Related Articles: