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Transcript
Hi, it’s Mike DelSignore next to the Brighton District Court. I wanted to talk about a case that I had recently out of the Brighton District Court. A lot of the cases I have here are roadblock cases. They do roadblocks on Soldier Field Road frequently.
If you’re arrested for an OUI at a roadblock, the case will go to Brighton District Court. These cases tend to be one of the more defensible types of OUI cases. The reason that is, is there’s no evidence of unsafe, erratic driving. So on a roadblock, the Government’s at a major disadvantage, because they can’t say you were all over the road. They can’t say anything about your driving that shows you were under the influence of alcohol. Now they still can prosecute the case, and they’ll still try, but it’s very difficult for them to prove that beyond a reasonable doubt. The Jury Instruction says that the Government doesn’t need unsafe, erratic driving to prove somebody is under the influence of alcohol. But when I argue these in front of a judge or a jury, I really emphasize that of course the government wants that evidence, and when they don’t have it, it really seriously weakens their case.
So what’s a roadblock case going to depend on? It’s going to depend on field sobriety exercises. So if you refused a breath test, they’re really going to rely heavily on those exercises, the one-leg stand, the nine-step walk and turn. Those exercises are easy to attack, and I attack those in every case in different ways. In some cases I’ll say, “Hey, you actually passed those exercises.” “The officer just didn’t give you the credit you deserved.” “He didn’t score it correctly.” “He just documented everything you did wrong, rather than focusing on all the things you did correctly on the field tests.” So in many cases the officer will say, “You missed some steps heel to toe. You didn’t keep your feet together.” Well, you don’t have to perfectly keep your feet together. Their training allows for a half-inch gap. As far as stepping offline, a lot of times it’s just very minor and they’ll say, “Well, the other steps were online.” So there’s a lot of ways that I can attack these tests.
If it’s an arrest by the State Police, usually they’ll just do the one-leg stand, the nine-step, and they’ll do an HGN test, which doesn’t come into evidence. State Police typically don’t do any alphabet tests, which is a really good test to determine whether someone’s under the influence of alcohol. So when there’s a lack of evidence, it’s something we can point out to and argue that the Government doesn’t meet their burden of proof beyond a reasonable doubt.
Now, if you took a breath test, potentially that can get excluded from evidence. In a roadblock situation, they’re doing all these breath tests and there’s a Batmobile. So they’re bringing all these people into a trailer basically, and that’s not the proper environment to be doing a scientific test. So this Batmobile, when everyone’s drinking, there’s alcohol around, scientific tests should be done in a sanitized environment.
There are other issues too, with the breath test. They’re supposed to watch you for a certain period of time, you’re supposed to consent, the machine’s got to be periodically tested and calibrated. So there’s a lot of ways a breath test could get excluded from evidence.
And finally, in a roadblock case, let’s say you took a breath test, we can even challenge the basis of the stop in the first place. Roadblocks are an extraordinary deprivation of somebody’s liberty. You haven’t done anything wrong, you’re driving down the road, and they just stop you for no reason. Our Supreme Court says in order for that to be constitutional, the Government’s got to prove that it’s complied with certain procedures and written protocols that are set forth in the State Police Plan, which they call TRF-15. We can do an Evidentiary Hearing indicating, 1) they didn’t have a basis to pull you out of the roadblock. In other words, they didn’t have reasonable suspicion to even think that you were under the influence in the first place to justify stopping you and seizing you, and 2) that they didn’t comply with all the details they required.
My name is Mike DelSignore, (781) 686-5924, my cell number. Call anytime, text anytime. I’ve handled a lot of cases out of Brighton. We’ve had great success out of this Court. If it’s a roadblock case, I’ll go over the best ways to win that case. If it’s another type, [inaudible 00:04:08] we handle those as well. But frequently we do a lot of roadblocks out of this Court, so it’s a common question. It’s a common type of OUI case that I’ve handled out of Brighton Court and courts all over Massachusetts, so I’m happy to help. Call anytime.
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