Legal Question in DUI Law in Massachusetts

Re: DUI Arrest Law in MA

Your question is an interesting one.

In Commonwealth v. Howe, the Supreme Judicial Court of Massachusetts addressed this issue. It said, "At common law, '[a] peace officer, in the absence of statute . . . may arrest without a warrant for a misdemeanor which (1) involves a breach of the peace, (2) is committed in the presence or view of the officer . . . and (3) is still continuing at the time of the arrest or only interrupted, so that the offence and the arrest form parts of one transaction'

(citations omitted). Commonwealth v. Gorman, 288 Mass. 294, 297 (1934). Accord Muniz v. Mehlman, 327 Mass. 353, 357 (1951); Commonwealth v. Conway, 2 Mass. App. Ct. 547, 550 (1974)." An OUI charge is a breach of the peace which must be committed in the presence or view of the police officer in order for the police officer to arrest a defendant without a warrant. This does not mean, however, that the police cannot get a warrant for a driver's arrest based on their investigation or based on incriminating statements that the driver made. A driver can also be summoned to court to answer a complaint made by the police. A person can be charged and prosecuted for a criminal offense without ever being arrested.

A defendant's admission to the police that he or she had been driving would certainly be important evidence, if credited by a jury at trial, to support the element of operation in a case alleging operating under the influence of alcohol. In some instances, under the "corroboration rule," it may be necessary to have some additional evidence that a defendant was driving beyond the defendant's alleged admission.

In cases where an arrest is improperly made for conduct occurring outside of the presence of the police, dismissal of the charge may not be the proper remedy. It may be that the proper remedy is to suppress any evidence seized as a result of the unlawful arrest under the "exclusionary rule."

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Re: DUI Arrest Law in MA

There are many different ways to prove operation. There is caselaw right on point that an admission as to driving along with an accident is a way of proving operation. I would need to really read the police report in order to assess whether I not I think a jury or judge could find operation. I hope that this helps you. Please feel free to call me at 508-587-9111 if you would like to discuss it further. Martha Kovner