On Monday night, motorists traveling on the Southeast Expressway called the police to report a U-Haul truck swerving its way South out of Boston. According to the Patch, one man reported that the truck almost forced him off the road. Other witnesses followed the truck while apparently relaying information to the police with their cell phones. Mr. Brian Mahoney was eventually arrested in Braintree and charged with operating the U-Haul under the influence of drugs.
Braintree Deputy Police Chief Jenkins is quoted as saying that "Officer Brian Eng located the U-Haul at the intersection of Elm and Middle Streets and identified Mahoney as the operator." He also said that "Mahoney displayed some symptoms of impaired operation, but did not smell of alcohol." According to the article, the police found a white powder and a plastic bag in the truck. Mr. Mahoney did field sobriety tests on the scene, and "underwent further tests" after being transported to the police station. The combination of the items seized and the tests resulted in the Operating Under the Influence charge.
As a criminal defense attorney, I look at this story and see several issues that will be relevant to Mr. Mahoney's defense.
1. Did the motorists who reported their observations of the U-Haul identify themselves to the police? If they did not, then the prosecutor will not be able to call them as witnesses to testify at trial, and the jury will not know of the alleged erratic driving on the expressway. Even if they did give their information, will they be willing to spend a day or two in the Quincy District Court during the trial?
2. The way the Deputy Chief described the situation -- "Eng located the U-Haul . . . and identified Mahoney as the operator" -- makes me wonder whether Mahoney was pulled over or was parked. Wouldn't the police say he was pulled over if that were the case? And why say that he was "identified as the driver" if in fact they saw him driving? Perhaps the police found the U-Haul parked and found Mahoney nearby. If that were the case, then the need for the witnesses is even more pronounced. Obviously an essential element of Operating Under the Influence of Drugs is "operation." And if you do not have any witnesses to say he was driving, you don't have proof of that element.
3. What did Mahoney say to the police? Here again, silence is not only your right, but the best policy when you are in a jam. If Mahoney admitted to driving, then that may be the end of that issue. But, what about the drugs? Did he admit to using them? If not, how will they prove that he had drugs in his system.
4. The breathalyzer is for alcohol, not drugs, and the police do not do blood tests at the police station. So what were those "tests" that they conducted back at the station? Furthermore, field sobriety tests are supposedly based on science that relates one's ability to perform them to one's ability to drive safely. It is doubtful that the prosecution will call an expert witness to say that this same science applies to drugs.
5. What was the white powder? To be convicted of operating under the influence of drugs the prosecution has to prove that one's ability to operate safely was impaired by the ingestion of "marijuana, narcotic drugs, depressants or other stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue." In drug cases, the substances are sent to the drug laboratory for analysis. If the analysis shows that drugs found are not listed in the OUI statute, then the case should be dismissed. If the drugs do contain the substances listed, then the chemist who analyzed them must come to court and testify. But this does not end the inquiry. How will the prosecution prove that the drugs found in the truck were the cause of Mahoney's state? On this score, it is interesting to note that the article does not say that the white powder was actually found in the bag that the police claim is "commonly used to hold narcotics." If the powder was not in the bag, then where was it, and how much was there? And where was the bag? This is a rental truck which may contain items left by others. Is Mahoney's name on the rental agreement? Why didn't the police find any paraphernalia (needles, syringes, pipes, straws, etc.) that would indicate Mahoney's recent consumption of drugs?
6. Lastly, did the search of the truck violate Mahoney's right to be free from unreasonable searches? If so, a Motion to Suppress will keep the powder and the bag out of evidence at trial, and that should clinch it for the defense.
So Mahoney's defense will have a lot to work with. Fortunately for Mahoney, there was no breath test refusal or failure, so he will have his driver's license while he fights the charge.