If you have been arrested for Driving Under the Influence of Liquor or Drugs (OUI / DUI / DWI), you need a lawyer who has the knowledge and experience to help you assess your case and make informed decisions about how best to proceed. Most importantly, you need a seasoned trial lawyer who is unafraid to take your case the distance. Attorney Bethany Rogers specializes in the defense of OUI / DUI / DWI cases and has a proven track record of success. In many of the cases Attorney Rogers has defended, she has successfully challenged the admissibility of breath or blood test readings resulting in the evidence being excluded from trial and Not Guilty verdicts being returned for her clients. To see a sampling of some of Attorney Bethany Rogers' results, click here.
Attorney Bethany Rogers wins many of her cases without her clients ever having to go to trial. A good lawyer will recognize when police officers violate the constitutional rights of a client during an investigation and will challenge the unlawful police conduct in court. Attorney Rogers is well-versed in constitutional law and knows where to look for evidence of violations of her clients' rights. More importantly, Attorney Bethany Rogers is skilled in challenging the conduct of police officers in the courtroom, which has lead to the dismissal of many cases on behalf of her clients.
In the Commonwealth of Massachusetts, it is illegal to drive a motor vehicle with a breath/blood alcohol concentration (BAC) of .08 percent or higher. The limit is lower for drivers of commercial vehicles (.04%) and drivers under the age of 21 (.02%).
When you drive a motor vehicle in the Commonwealth of Massachusetts, you are presumed to have consented to a chemical test of your breath or blood if a police officer has reasonable cause to believe that you have been operating a motor vehicle while under the influence. This is called the Implied Consent Law. While you are presumed to have consented to a chemical test, you are NOT required to take a breath or blood test. In fact, if you are arrested for OUI / DUI / DWI, you will be asked by the police to consent to a breath or blood test. While you may refuse the test, there is a penalty for your refusal.
WHAT ARE THE PENALTIES FOR REFUSING A BREATH TEST?
Your driver’s license will be suspended for a period of 180 days if you have not previously been convicted of OUI / DUI / DWI or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth, or any other jurisdiction, for a like offense. Your license will be suspended for a period of 3 years if you have one prior OUI / DUI / DWI conviction or have previously been assigned to an alcohol or controlled substance education, treatment or rehabilitation program for a like offense; for a period of 5 years if you have two prior OUI / DUI / DWI convictions; and for life if you have 3 prior OUI / DUI / DWI convictions. Drivers under the age of 21 who refuse a chemical test will have their license suspended for a period of 3 years.
WHAT IF I HAVE TAKEN AND FAILED A BREATH OR BLOOD TEST?
If you have taken the breath or blood test and registered a BAC of .08% or higher (.02% or higher for drivers under the age of 21), your license will be suspended for a period of 30 days and you will be charged with OUI / DUI. Many people who have taken and failed a breath or blood test believe their best or only option is to plead guilty or admit to the OUI / DUI charge. They believe there is no chance of winning their case, especially if the reading is high. If you have been charged with OUI / DUI and failed a breath or blood test, you should know that there are specific legal requirements that must be followed in the administration of a breath/blood test. If any of those requirements have not been met, the prosecution may be barred from using the test as evidence against you.
One such requirement pertains to the breath test machine. The government must be able to show that the machine was properly functioning on the date your test was administered. There have been major developments on this front in recent years. In 2017, District Attorneys statewide suspended the use of breath test results from a newer and commonly-used model of the breathalyzer machine, the Draeger 9510, after defense attorneys challenged the reliability of the machines. During the litigation, prosecutors handling the case on behalf of the Commonwealth of Massachusetts failed to turn over hundreds of documents showing instances where the breathalyzer machine did not properly calibrate. As a result of the prosecutorial misconduct, an investigation of the state agency overseeing administration of breath testing was conducted and the Director of the Office of Alcohol Testing was terminated after it was concluded that high-ranking employees of the agency “made serious errors of judgment” in responding to court orders for production of documentary evidence related to the machines at issue. In 2018, an agreement was reached between defense attorneys and the District Attorneys of Massachusetts that all breathalyzer results obtained between June 1, 2012 and August 31, 2017 would not be used in the prosecution of OUI / DUI / DWI cases. The exclusion of breath test results was later extended by court order until April 18, 2019, on which date the ban was lifted due to the Massachusetts Office of Alcohol Testing receiving national accreditation. Although breath tests results are no longer presumptively excluded as evidence in court, the prosecution still has the burden of demonstrating a test was administered on a properly calibrated breathalyzer machine before the evidence may be used against a defendant.
Thousands of cases have been and will continue to be impacted by ongoing issues associated with the reliability of breathalyzer machines. Many people who were convicted or pled to OUI / DUI / DWI charges between June 1, 2012 and April 18, 2019 will now be eligible to have their convictions / pleas vacated.
The lesson in all of this for persons charged with OUI / DUI / DWI? Consult with a knowledgeable attorney before making important legal decisions that will affect your future. Additionally, if you were convicted or pled to an OUI / DUI / DWI offense that involved breathalyzer evidence obtained between June 2012 and April 18, 2019, contact Attorney Rogers to explore the possibility of vacating your conviction or plea and obtaining a new trial.