Friday, June 3, 2011


In Massachusetts, the O.U.I. statute defines "driving under the influence" as one who has consumed enough alcohol so as to impair  his ability to drive safely. Note these words, carefully.
You don't have to be falling down drunk. You don't, necessarily, have to appear "shitfaced" to an objective observer. If you consume one bottle of beer, or one glass of wine, which causes your ability to drive safely to drop from 10 (sobriety) to 9, you are embraced by the statute. Tests have been run using that standard. Stanchions are strategically placed on a road. Volunteers, determined to be alcohol free, are instructed to drive in between these obstacles, without striking or knocking them down. There is no problem in doing this. Then the volunteers are each given a bottle of beer,or glass of wine, and asked to repeat the test. A majority of them will hit one or more stanchions, and, perhaps, cause one or more to fall. This demonstrates the slight amount of alcohol required to impair one's ability to drive safely. To be sure, the required amount of alcohol will vary with the individual's tolerance, but the point is, nonetheless made,i,e. it don't take much booze at all, to violate the statute's narrow definition of impairment to drive safely.

But, will juries listen to and adopt this strict standard, in deciding the issue of "driving under"?
The unsatisfying answer is : it all depends.

And, oh, for the record, I suggest that you consider purchasing stock in a particular company.
That is to say that whenever a defendant in an O.U.I. case is asked how much he had to drink, in 99% of the cases tried before me, the answer will invariably be "two Bud Lights"! I don't care if the individual is in an eyes-open-coma, all he had were two Bud Lights. This answer is so ingrained in him that, when called to the stand and asked for his name, the betting is 50-50 that he will identify himself as "Two Bud Lights". The court docket will thus reflect the name of the case as "Commonwealth v. Two Bud Lights". Check it out, man, those are the driver's suds of choice.
In one case, the defendant claimed to have been drinking two (it's always two) cans of Coors, I found him not guilty, on my own, and hailed him as "The Last of the Truthsayers". (jes' kiddin', folks.)

Used to be, that the booking of the defendant at the police station would be videotaped, as a matter of course. by the police. This was deemed to provide visual evidence of the arrestee's condition. And, it did, except for the fact that by the time the suspect had dealt with the arresting officer at the scene, perhaps taken some field sobriety tests , when he arrived at the station, he had sobered up, considerably. So, what had been deemed a prosecutorial tool, backfired and played into the defendant's case.

Tactically, their are various gambits which a defense attorney uses to respond to prosecutorial evidence.
If the client has failed a breathalyzer, he asks the jury, "how can you depend on a machine?"
If he has failed field sobriety tests, "they are designed for failure" and he asks the jurors to try the tests, themselves, in the jury room. In truth, they are quite difficult, even if you are (pardon the expression) sober as a judge.

But in an O.U.I. case, which does not involve personal injury or property damage, the attorney takes aim on the intangible factor. He can't address it directly. He can't even specifically mention it. But, it's there for him to utilize,i.e, "Ladies and gentlemen of the jury, does not your common sense, based upon your own life's experience, tell you that just because a man has a beer or two, or a glass of wine or two, he is not violating the statute if he drives a car?"

He is referring to, and relying upon, the indelible thought that is in the minds of most, if not all, the jurors:


No comments:

Post a Comment