Dudley Goar, Attorney at Law

Driving Behavior Can Be Caused by Many Factors Unrelated to Alcohol

Dudley Goar, Attorney at Law — Sun, 03 Mar 2024 22:53:59 GMT

Police officers are often required to make difficult decisions with incomplete information when they arrest someone for OUI. When they pull over a driver and have a suspicion that the driver may have consumed alcohol, they need to determine whether there is probable cause that the driver is “under the influence” (OUI) in a legal sense, meaning that their ability to operate a motor vehicle safely is reduced due to alcohol. Doing this at road side can be challenging and, frankly, it is not uncommon for them to get it wrong. Behavior that the police attribute to alcohol may well be due to some other factor. A recent article in the New York Times about a driver that was arrested for drunk driving but in fact was experiencing a serious medical episode unrelated to alcohol illustrates this point. Another example is an OUI case I recently tried in which the officer attributed my client’s driving to alcohol impairment when it was likely due to her inability to see well at night. She told him that she needed glasses, but he never asked her about whether that fact was related to her driving. I have also had numerous OUI cases in which my client simply did not understand what the officer was telling him because of limited English language skills. It is difficult or even impossible for someone who does not understand instructions about how to properly perform field sobriety tests to perform the tests correctly.

All of which goes to show that the officer’s decision to arrest someone for drunk driving is often the result of incomplete information and a rush to judgment. Ultimately, it is not the officer’s decision that counts but the jury’s decision at a trial. Therefore, if you have been charged with drunk driving it is critical that you consult an experienced attorney. A qualified OUI attorney will assess all of the relevant facts, including those that were never known or considered by the police officer who arrested you, and will let you know whether it makes sense to take your case to trial.

Police Body Cameras Are Game Changer for OUI Cases

Dudley Goar, Attorney at Law — Sat, 24 Feb 2024 21:49:23 GMT

Police departments in Concord, Massachusetts and several nearby towns now use body cameras and dashboard mounted cameras to record interactions with motorists. This represents an extremely important development in the way that OUI cases are handled by prosecutors and defense attorneys. Previously, OUI defendants were stuck with the police officer’s account of the interaction in the police report. With video and audio of these interactions now being routinely recorded and produced to defense counsel, the jury and judge can see for themselves how the defendant behaved, and do not have to rely on the police officer’s memory as reflected in the police report. Any differences between the police report and the video may call into question the accuracy of the officer’s testimony at trial. I recently tried an OUI case in the Concord District Court in which I thought the dash and body camera videos demonstrated my client’s sobriety. The evidence at trial consisted mostly of playing the body camera footage for the judge. The judge agreed with me and found my client not guilty.

The increasingly availability of such video is a “double edged sword,” because it can also provide powerful incriminating evidence against intoxicated drivers. In addition, numerous complications can arise in the use of video, including: difficulties with utilizing the video software used by a particular police department (police departments often use different camera technology and computer software to play back the video); police officers failing to point their body cameras at the defendant (or part of the defendant) at a crucial time; and poor quality audio or video. These challenges aside, this technology seems to be here to stay and is rapidly improving. Overall, I believe it will result in fairer outcomes for OUI cases.

S.J.C. Clarifies Use of Field Sobriety Tests in OUI Drugs Cases

Dudley Goar, Attorney at Law — Tue, 27 Mar 2018 01:13:00 GMT

In Commonwealth v. Gerhardt, 477 Mass. 775 (2017), the Massachusetts Supreme Judicial Court was asked to decide whether the Commonwealth may introduce evidence of a defendant’s performance on standardized field sobriety tests (FSTs) in a case in which the defendant is charged with driving under the influence of marijuana. The Court held that to the extent that FST’s are relevant to establish a driver’s balance, coordination, mental acuity, and other skills required to operate a motor vehicle safely, they are admissible at trial as observations of the police officer conducting the assessment. However, neither a police officer nor a lay witness who has not been qualified as an expert may offer an opinion as to whether a driver was under the influence of marijuana. The Court reasoned that, unlike the case with alcohol, there was no reliable scientific relationship between a subject’s performance on FST’s and marijuana consumption. Therefore, an officer could not draw any reliable conclusions about a driver’s marijuana consumption based on his or her FST performance. However, the Court held, information FST are still relevant, and therefore admissible, because they are a reliable indicator of someone’s balance, coordination, and mental acuity, all things needed to drive safely. An officer is simply not permitted to state that the defendant’s poor performance on FST’s is the result of marijuana consumption.

If you have been charged with OUI/DWI drugs or drunk driving, please call me to discuss your case. I have been representing clients charged with these offenses since 2003 and can help you obtain the best results for your case. Please call (978) 369-1505.

Sealing Criminal Record After Dismissal Now Easier

Dudley Goar, Attorney at Law — Mon, 01 Sep 2014 20:00:00 GMT

In a recent case, Commonwealth v. Pon (No. SJC-11542), the Supreme Judicial Court announced a new lowerstandard for sealing anindividual’s criminal record (“CORI”) with respect to a charge that was dismissed. Under the statute, G.L. c 276, §100C, a former criminal defendant was entitled to have the record of a criminal charge that resulted in adismissal or nolle prosequisealedif the judge hearing the petition to seal determined that “substantial justice would best be served” by sealing. In 2010, the Legislature enacted reforms to the CORI legislative scheme. In Pon,the SJC stated that, “given the demonstrable legislative concerns in these reforms about the negative impact of criminal records on the ability of former criminal defendants to reintegrate into society and obtain gainful employment” the prior stringent standard for sealing a record no longer achieves the proper balance of interests. The Court explained that judges should now determine whether there is good cause to seal a record by balancing the interests at stake: The public’s general right to know versus the defendant’s and the Commonwealth’s interest in keeping the information private. The specific factors a judge should consider in balancing these interests include at a minimum: the particular disadvantages identified by the defendant arising from the availability of the criminal record; evidence of rehabilitation suggesting that sealing the record would held the defendant overcome these disadvantages; relevant circumstances of the defendant at the time of the offense that suggest a likelihood of recidivism or of success; the passage of time since the offense and since the dismissal; and the nature of and reasons for a particular deposition.

Spoliation of Evidence Warrants Sanctions But Not Summary Judgment

Dudley Goar, Attorney at Law — Sun, 18 May 2014 19:41:00 GMT

Lawyers Weekly has reported that, in a products liability case brought in Massachusetts federal court by an insurance company on behalf of its insured against the manufacturer of a leaky water heater, a judge ruled that the disposal (“spoliation”) of the water heater before the manufacturer had an opportunity to test it did not call for summaryjudgment in favor of the manufacturer, but it did warrant sanctions. The case, Fireman’s Fund Insurance Company v. Bradford-White Corporation, demonstrates that a judge must take into account many factors in determining the appropriate sanction for spoliation, including aparty’s degree of blame fordisposing of the evidence (for example, whether the spoliation was intentional or accidental); the harm caused by the spoliation (for example, whether the other party can adequately replicatethe spoliated evidence);and the availability of sanctions that fall short of entering judgment against the spoliating party (for example, a curative jury instruction.)

Insurance Company is Hit With Punitive Damage Award After Refusing to Settle Personal Injury Case

Dudley Goar, Attorney at Law — Thu, 24 Apr 2014 13:33:00 GMT

In Anderson et al. v. American International Group, Inc. et al., a Superior Court judge found the insurance company AIG liable for treble damages and attorney’s fees under chapters 93A and 176D after it refused to settle a case in which the liability of its insured, the driver of a shuttle bus, was clear. The plaintiff had received severe personal injuries including brain damage, after being struck by the bus. The judge determined that the insurance company committed unfair claims settlement practices by, among other things, failing to conduct a reasonable investigation based on all available evidence; by relying on a defense to the claim that relied on fictitious evidence; and by failing to promptly settle the plaintiff’s claim once liability had become reasonably clear. The judge rejected AIG’s position that the jury’s determination that the plaintiff was comparatively negligent for the accident demonstrated that liability was not reasonably clear, because he concluded that the comparative negligence finding was the result of AIG and its defense counsel’s misconduct.

Description of Car Does Not Have to Match Perfectly to Give Police Reasonable Suspicion for Stop

Dudley Goar, Attorney at Law — Tue, 15 Apr 2014 13:15:00 GMT

The Massachusetts Supreme Judicial Court (S.J.C.) reversed a district court judge’s order suppressing the stop of a motor vehicle by police in the caseComm. v. Rohena. The district court judge had ruled that the police did not have “reasonable suspicion” to stop the car, because a 911 caller had identified a black car of a different make than the one that was stopped, even though the police recognized the occupants of the car as having been at a “gang house” minutes before a reported shooting at that address. The S.J.C. reasoned that there was a sufficient match between the caller’s description and the actual vehicle that, combined with officer’s own recognition of the two men, and familiarity with the area created reasonable suspicion for the stop. The S.J.C., relying on the caseComm. v. Ancrum,65 Mass. App. Ct. 647 (2006) observed that “It is inappropriate to assume [that reasonable suspicion] cannot exist absent a full match-up of all parts of the description.”

Be Careful with Emails and Texts

Dudley Goar, Attorney at Law — Wed, 22 Jan 2014 16:20:00 GMT

An article in the January 13, 2014 edition of Mass. Lawyer’s Weekly highlights the growing acceptance by courts that emails can be given the same weight as letters or other documents when it comes to contract enforcement. For example, an email might be sufficient to bind a party to an unsigned purchase and sale agreement in a real estate transaction or bind parties to a settlement agreement that has not yet been formally executed. The important issue for courts is whether the email expressed an intent to be bound, or put another way, whether there was a “meeting of the minds” between the parties. Therefore, care must be taken whenever emails, texts or other electronic communications are used during business negotiations. If the party does not want to be bound by a statement, he must make that clear in the communication. “Email Communications Result in Hard Lessons for Attorneys, Clients.” Mass. Lawyers Weekly, Jan. 30, 2014.