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  • Tom Kelliher


Updated: Mar 11, 2022

There are multiple ways to defeat a charge that you were operating under the influence. To prevail in an OUI (Operating Under the Influence) case, the burden of proof falls on the state, requiring the Commonwealth to prove all three of the following elements to obtain a conviction against you:

  1. You were operating a motor vehicle

  2. On a public way

  3. While impaired

The first element, “operation,” must be proved by the officer’s testimony that she observed you operating the vehicle or that she has witnesses who observed you operating the vehicle. If the officer cannot prove this, then the element of operation cannot be proven and the Commonwealth’s case fails.

The second element, “on a public way,” sounds straightforward enough but it can also be defeated if the prosecutor fails to include this element in her opening statement. Even if the prosecutor does mention this in her opening statement, if she fails to prove that element by eliciting testimony from the arresting officer that you were, indeed, on a public way, the Commonwealth’s case fails.

The “impairment” element is the one on which 90% of OUI trials are determined. It is not against the law to consume alcoholic beverages and then drive. It is against the law to operate a motor vehicle when you are impaired. Consequently, observations of alcohol on your breath, glassy eyes, or admissions that you consumed alcohol are not enough to convict you.

If you refuse to take a breathalyzer, that refusal cannot be used at trial, not even indirectly (e.g. the arresting officer stating that you were informed of the right to take a breathalyzer). If you do take the breathalyzer and fail, it is possible you may be able to challenge the results. If you are successful, the test results will be determined to be unreliable and, therefore, inadmissible.

A positive breathalyzer test can be challenged in many ways. The test is scientific and must adhere to strict guidelines. The test administrator must be specially trained in the operation of the machine. There will be two practice readings on the breathalyzer with a substance known to contain alcohol in addition to two readings from you. If the two practice readings do not fall within the limits required, then the entire test is invalid and cannot be admitted into evidence or used for a pre-trial license suspension. If the two tests performed on you are not within .02% of each other, the test is invalidated. If the two tests are within .02% of each other, the lower reading must be taken as your blood alcohol level. Additionally, proper discovery motions will request, among many other documents, records of the breathalyzer machine’s maintenance, as they, like any other machine, can be defective.

Another way to avoid conviction for an OUI charge is to challenge the field sobriety tests. This may be done in a variety of ways. The main tests that law enforcement use are the horizontal gaze nystagmus test, the heel to toe test, the standing on one foot test, the touching your nose test, and the alphabet test. Proper or improper instruction and administration of these tests, conditions at the time of the test, your physical characteristics, and reliability of these tests are all possible reasons to challenge the validity of the tests.

For instance, for the heel to toe and standing on one foot test, a police officer cannot administer these tests if the defendant is over 60 years old, is greater than 50 lbs. overweight, or has a physical impairment that affects his or her ability to balance. Additionally, if the police officer does not give the instructions of the test properly, the results of the test are unreliable.

The horizontal gaze nystagmus test is a popular test but unless the prosecution provides an expert witness to explain the science behind the test, it cannot be introduced as evidence because a police officer does not possess expert scientific knowledge to qualify him or her as an expert witness. The horizontal gaze nystagmus test can also be challenged if administered improperly (e.g. the officer is standing too close) or if you have a medical condition that will cause you to fail. Additionally, if you wear contact lenses, a police officer cannot administer a horizontal gaze nystagmus test.

These are just some of the ways to obtain an innocent verdict in an OUI case. Contact the Kelliher & Beyer LLP at (508) 960-1112 or to help you navigate the law, its exceptions, and the procedural issues in order to get the best result possible for your circumstances.

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