What Does It Means to Be Under the Influence of Alcohol
Under Massachusetts law there are two ways for the government to prove that someone committed the offense of operating under the influence of alcohol, according to defense attorney Shane W. Surrette of Worcester, MA. The Commonwealth may allege that at the time of operation, the person’s blood alcohol content, as measured by a breathalyzer test, was .08 or above. The Commonwealth may also allege operation on a public way at a time the person’s alertness, judgment, and ability to respond promptly were reduced by the consumption of alcohol.
When there is a breathalyzer test taken that is .08 or above, the Commonwealth will normally proceed under both theories of OUI. When there is a breathalyzer refusal or failure of the machine to record a number, the Commonwealth will only be able to proceed on the under the influence or reduced alertness branch of the statute.
In cases proceeded on under both theories, the Commonwealth has more to throw at the proverbial wall in hope that something sticks. For example, if the breath test result is high, but the person shows no signs of impairment, the breath test will be highlighted at trial beyond the under the influence theory, and vice versa.
What is essential in any OUI case whether one is charged under one or both prongs of the statute, is to choose a criminal defense attorney with experience trying cases with and without a breathalyzer test. When the government throws it all at the all hoping that something sticks, go with an experienced OUI attorney who can even out the odds.
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In a recent Worcester Superior Court decision, the marijuana search and seizure laws were applied and the case highlighted that an exit order from a vehicle is not appropriate where the odor of burnt marijuana alone provides the criminal suspicion. Similarly, probable cause is not established to allow for a search of a motor vehicle based solely on the odor of burnt marijuana, unless there is probable cause to believe that a “criminal amount of marijuana” is present within the vehicle, according to Defense Attorney Shane W. Surrette of Worcester, MA.
While the defendant in the case admitted that he had smoked marijuana earlier in the evening and had a small amount of marijuana within his possession, it was held that the Trooper’s observations and the defendant’s admissions were insufficient to allow for an exit order or subsequent search. This case highlights that additional factors need to be present beyond the mere odor of less than a criminal amount of marijuana to order an individual out of a car and to search the car.
What is important under the marijuana search and seizure law is to what extent is the exit order and subsequent search solely based on the odor of burnt marijuana? For example, Courts will often look to whether there is any objective criteria indicating that the officer might have a reasonable fear for his safety or that of the public. Also, Courts will see if there are additional factors to bolster reasonable suspicion of criminal activity, such as whether or not there are any instruments such as digital scales which might be suggestive of an intent to distribute the marijuana.
Similarly, if there is erratic operation coupled with an odor of marijuana, the additional factor of the erratic operation may provide sufficient suspicion for an exit order based on a belief that the operator is driving while under the influence of marijuana/narcotics. As the factors in support of reasonable suspicion of criminal activity increase, the more likely it is that the exit order and subsequent search will be upheld.
To read more of the article in the Telegram & Gazette click here.
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