Legal Question in DUI Law in Massachusetts
Prosecution with no BAC or Breathalizer test
My Nephew (24) was driving home at 10:30PM February 3rd with
three people in the vehicle who were too intoxicated to
drive and were sleeping. He was pulled over after rushing
through a yellow light at a traffic light. The officer
pulled him over and smelled alcohol in he vehicle so he
called for backup and gave a field sobriety test in the
freezing cold pouring rain while he was wearing soaking wet steeled toed work boots. My Nephew asked for his coat because he was shivering and they refused to let him wear it. He was then asked to take a breathalizer but refused.
He was then taken back to the station where they filmed another field sobriety test. They are charging him with DUI with .08 but have no evidenc that he was over the legal limit as they did no Blood Alcohol test on him. Can he be charged with DUI with just the officers word that he seemed intoxicated when the video shows that he did not seem to be
incapacitated. What are his rights? I was under the
impression that a feild sobriety test with 9 step test must be done in dry, even well lit conditions and am assuming the first one is not admissable in court. I would appreciate a second opionion other than his Court Appointed
Attourney's.
3 Answers from Attorneys
Re: Prosecution with no BAC or Breathalizer test
Yes, and they can win. Your son is in trouble; and there is little that anyone can really say but to get him an attorney who can examine the facts, the information around his arrest and tests, and any other factors and help the family determine which is the approach that would maximize the benefit to providing a defense. Even though this is a district court case, the consequences of a conviction have a life time impact. Get a competent attorney able to evaluate the criminal case.
Re: Prosecution with no BAC or Breathalizer test
It is well established that a breathalyzer test result or a blood alcohol test is not required to proceed with a prosecution for operating under the influence. However, a judge may exclude apparently unreliable field sobriety test results in his or her discretion. Typically, the defense lawyer files a motion to exclude this evidence before trial.
Where there is no objective evidence of intoxication, but only subjective field sobriety tests, it may be difficult for the prosecution to prove its case at trial.
If you would like a copy of my publication, Criminal Defense Law Report which has information relevant to this subject, please let me know.
617-566-3670
Re: Prosecution with no BAC or Breathalizer test
A jury can infer impairment from the testimony of a police officer. They do not need a breath test to go to trial. With respect to the field sobriety tests, you are dead on. The admissibility is up to a judge, although many would argue that these tests are meaningless. If admitted, a good lawyer could tear the cop to shreds.
Good luck.
Dan Gindes
781-639-5100
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