Episode 4: DUI/OUI – What do you do?
In this episode, Mike speaks about the recent ruling on the admissibility of the breathalyzer in Massachusetts’ courts. With the new ruling, should you take the breathalyzer or refuse? As a criminal defense attorney with significant experience in DUI/OUI cases, Mike talks straight about what you should do if you are pulled over.
Welcome to In Your Court. Today’s episode is entitled “DUI/OUI. What Do You Do?”
In this podcast Mike discusses the recent ruling in Massachusetts courts that the breathalyzer is now, once again, admissible evidence. So, with that recent ruling, what does a criminal defense attorney recommend you do when pulled over suspected of operating under the influence. This is Jordan Rich and I’m pleased to be back with Mike Contant an attorney whose firm, Contant Law, specializes in criminal defense and Title IX defense protecting the rights of the accused in Massachusetts.
JR: Very simply where do we stand now?
MC: Currently, as of June of this year, the breathalyzer tests being used in Massachusetts are admissible so long as they were calibrated under the new standards as of April 18, 2019. So, in other words, if the machine at issue has gone through the new calibration standards after April 18th of this year then the test results will be admissible. Absent some other reason that you can find to keep it out of court.
JR: OK. All right. Let’s talk about the role that you have as a defense attorney when you’re representing people. The recent changes in the law and they’re very recent as you just told us how is that changing the way you defend your clients?
MC: It hasn’t changed the way we’re defending our clients at all. It’s always been my position that people should refuse the breathalyzer test, so that that particular test cannot be used in evidence against them. The reasons behind all the challenges to the test had to do with whether or not the test was scientifically reliable. And so, it’s gone back and forth over a couple of years through a very intense and hard-fought litigation and for basically a little over two years they haven’t been admissible in Massachusetts at all until more recently.
JR: Now listeners to this podcast many of them will ask the question well what happens if I refuse? Aren’t there consequences to not taking the test?
MC: There are. So, whenever you sign your license you’ve signed what you’ve signed and agreed to what they call the implied consent law which basically says that you consent to take a breathalyzer test under certain circumstances if you’re arrested for drunk driving and if you don’t do so you’re gonna lose your license for a period of time. A refusal to take the breathalyzer test or a first-time offender results in license loss of six months and this is regardless of whether or not you’re ultimately found guilty or innocent of the charge it’s not part of the criminal prosecution. It’s a separate issue dealing primarily with the registry.
JR: So it’s your advice. Just want to be clear about this. If you’re pulled over and the police officer says take this test, you refuse?
MC: Yes. And the reason we do that is because that piece that test is a very valuable piece of evidence for the prosecution against you. The way the law is written currently if you blow above a .08 on the breathalyzer test that’s .08 percent blood alcohol level in your system it’s automatically they can be found guilty if that evidence is properly presented at trial. So, absent any other evidence you could be found guilty just for failing that test.
JR: And the reasons people might fail the test assuming that there’s something wrong with the equipment and it’s not calibrated correctly is what?
MC: Yes. So, there’s this many scientific reasons that were being challenged had to do with everything from the actual sensors that detected the alcohol in your system to interference from other things such as chemicals. People thought that one of the arguments was well if I use mouthwash could throw it off, other items could throw off the machine, it when there were challenges to that. It’s still basically computer. So, the machine source code there are challenges to whether or not that was proper. There’s a lot of scientific challenges to the machine which he found has not then all that reliable over time. As well as the calibration procedures that are used to make sure these machines are being accurate. And that was what the primary challenge was to litigate.
JR: So have we reached the gold standard as of April of this year in terms of calibration in your opinion?
MC: We’re going to find out the it’s gotten a lot better. Basically, under the old system they were doing these very quick tests. Many times, these machines would fail during the calibration process and as opposed to taking that machine and sending it back to Drager who was the manufacturer saying, “Can you fix the machine?” What the lab techs at the office of alcohol testing we’re doing was sticking the machine on a shelf for three days and then trying to calibrate it again hoping it would pass. In a recent case the machine at issue had failed every other calibration. And each time it was never fixed. No one ever looked into why it was failing. We asked a technician on the witness stand. “So, this machine failed this particular date. So why did it fail?”
His answer was, “Well because it didn’t register these numbers during the calibration.”
“Right. But why? What was the scientific reason behind its failure?”
And his answer was, “I don’t know.”
And I said, “Well what did you do to investigate that? Did you call the manufacturer?”
“Did you look into the inner workings of the machine?”
“Did you get a screwdriver and open it up and try to find this out?
That was under the old system. The new Newton new system is supposed to be better and only time will tell, quite frankly.
JR: All right. We have other issues though to contend with and that is advice for drivers who are finding themselves in this situation they’re pulled over for whatever reason. If it is a suspected drunk driving you have some very practical and sound advice for folks.
MC: Sure, I think Nancy Reagan said it best, “Just say ‘no”.” So, whenever you’re pulled over you’ll be asked to do a number of things. You’ll be asked to get out of your vehicle you really can’t say no to that. If the cop asked you to get out, you have to get the car. You’ll be asked for license and registration produce them promptly. Say as little as possible. If they ask you if you’ve been drinking, you can politely decline to answer those questions. They may ask you to step out and do what they call field sobriety testing which is a series of tests including saying the alphabet in a certain order, counting numbers backwards ,and tests that involve balancing components like what they call the one legged stand or the nine step walk and turn, these tests will all be used as in evidence against you should this case go to trial
JR: So you would politely decline to take those tests?
MC: Yes, and there’s no downside to decline those particular tests either says no license loss or anything like that. And essentially no one will ever know you decline them at trial and they’ll they won’t have that evidence against you. It’s a much cleaner and better case for you if they don’t have that evidence.
JR: Needless to say, do not be belligerent to any police officer.
JR: That’s only going to make things worse.
MC: when the police start this investigation they’re looking at everything you do. When they walk up to the car are you belligerent? Are you a jerk to them? That can be evidence of intoxication. Are you able to get your license out of your wallet without dropping it or fumbling it? Are you able to find your registration in your glove box? Are you able to interact with them in a normal manner? These are all initial signs that the police officers are looking for. They’re trained to look for these things as they’re approaching the car and as they’re interacting with you and they’re writing it all down.
JR: And if and when you go to the police station or have an opportunity to make that important phone call, the first phone call should be I would assume to an attorney who knows something about OUI?
MC:Yes. I prefer to call our office in each instance. But, yes, definitely if you know an attorney or if you have an attorney call them get their advice as to what to do. But the underlined advice that I give to everybody is just say no to any testing whether it be the breathalyzer test or field sobriety testing or anything else.
JR: And of course don’t drink and drive. First and foremost
MC: First and foremost. You probably won’t find yourself in this particular situation if you’re not drinking and driving but that that would be the best advice.
JR: Take an Uber or have a designated driver.
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