July 2011 Archives

Massachusetts OUI Arrests Decline and Some Police Believe More Getting Away with It

OUI.jpgDrunk driving arrests in Massachusetts have declined this year according to an article in the July 20 Boston Herald. This is interesting because on July 14 the Boston Herald reported that "cops are busting boozy motorists at a record-breaking pace so far in 2011."

The Herald attempted to explained the contradiction. The paper said that it was due to an erroneous reading of complicated data from the Massachusetts Registry of Motor Vehicles. The Herald relayed the RMV's explanation "that the ["DWI Liquor"] category includes only some OUI violations" and that there were a large number of uncounted violations "in which the offender was sentenced to alcohol rehabilitation or treatment."

So, even though the articles were about arrests, the RMV numbers did not include people that were actually arrested and assigned to a treatment program. This is somewhat confusing, especially since the first article was counting citations. And as such would be an accurate way to count arrests. Why would a citation not be counted because the offender was assigned to treatment? Furthermore, if they are not counting the same numbers this year that they failed to count last year, wouldn't the first article be correct?

In any event, it may be that the RMV data showed convictions and the articles were focused on arrests. A first offender may actually admit to an OUI charge and not be convicted. After the admission, the case may be "continued without a finding" for a period of time, during which he/she must complete an alcohol treatment/education program.

What is even more interesting are two different reactions to the data. Massachusetts State Police spokesman, David Procopio responded to the article that described the spike in arrests by saying "we're very proud of what's happening out there . . . . we are working hard at trying to help people save themselves." When asked for reaction to the correction, he said that the decline in arrests was because they had fewer troopers available to patrol the roads. So, for the state police, more arrests are good because they are catching the drunk drivers. And conversely, fewer arrests are bad because it means that a lot of drunk drivers are getting away with it. This, of course, assumes that the number of drunk drivers remains a constant regardless of their efforts. Pessimistic?

Contrast this with anti-drunk driving advocates' reaction to the article describing the spike. In the first article they were quoted as saying that "the startling numbers signal a need to strengthen the laws." Unfortunately, the second article did not contain their perspective. One, however, would expect that they would be pleased with the decline and credit their efforts to stiffen penalties and educate the public.

In fact, in 2008, an anti-drunk driving advocate stated that increased enforcement coupled with "strong education and public relations program [sic] to let people know that they will be caught for drunk driving and facing stiff penalties, it is going to have an impact." ["Crackdown yields spike in OUI arrests" Boston Herald, Mike Underwood, June 26, 2008.]

I guess it all depends on your motives and perspective. Hopefully the advocates are right and their efforts (as well as police efforts) over the last several years have paid off.

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Foxboro Police Traffic Stop Yields Load of Illegal Fireworks

Fireworks.jpgA Foxboro Police Sergeant on patrol Thursday saw a pickup truck traveling through town with a fairly large load of fireworks in the bed. The sergeant pulled the vehicle over and seized the evidence -- an estimated $5,000 worth of fireworks. Apparently, the driver told him that he was coming from New Hampshire where such fireworks are legal.

The article in the Foxboro Reporter does not describe the charge that the Foxboro Police will seek, but it is likely that it will be more than just illegal possession of fireworks The amount involved here will likely result in an application for complaint for "keeping fireworks for sale."

The law that makes fireworks illegal in this state is Massachusetts General Laws chapter 148, section 39. Under this law, possession of fireworks is punishable by a fine of not less than ten dollars ($10) and not more than one hundred dollars ($100). But, if you "sell or keep for sale . . . any fireworks" you may be punished by a fine of not less that one hundred dollars ($100) and not more than ($1,000), or imprisonment for not more than one year, or both. This punishment range makes these charges misdemeanors.

Five thousand dollars worth of fireworks is an amount likely to raise an inference that the man driving the truck intended to sell them in the same way that the volume of drugs in one's possession may be indicative of an intent to distribute. Section 39 allows for the arrest of someone suspected of a violation, but, luckily for the pickup truck driver, the sergeant decided not to take him into custody. Instead, the police will file an application for complaint and he will be sent a summons to appear in the Wrentham District Court. Most likely he will appear for a show cause hearing before a clerk magistrate.

At the hearing the man will have a chance to prevent the complaint from issuing. If successful, he will not be required to appear for arraignment (and perhaps many other court dates) in front of the judge of the Wrentham District Court. This is a golden opportunity, especially where there are limited defenses available.

Whenever a case involves a crime that requires proof of possessing something illegal, the first question that comes to the mind of a criminal defense attorney is whether or not there is a viable Motion to Suppress. In this case, the sergeant apparently saw the fireworks in the back of the truck. If this is true, and the driver left them out in plain view, then he cannot argue that the police violated his rights to be free from unreasonable searches when he simply looked over and saw the boxes in the back. The picture in the article shows a stack of boxes that may have reached higher than the side of the pickup's bed, depending on the size of the truck/bed.

Unlike drug cases where one need not sell but merely distribute drugs to be charged with the enhanced penalty aspects of the drug laws, the fireworks statute's enhanced penalties apply solely to the sale of fireworks. Hence, if the man were just bringing them to a party (large party) for use by guests (lots of guests), there would be no sale and therefore no punishment beyond the lesser fines.

A bill calling for limited legalization of fireworks has been pending in the Massachusetts Legislature since at least January of this year. The bill, H.3372, would allow cities and towns to grant permits to possess and licenses to sell fireworks. The bill removes the possibility of jail as a punishment, but increases the minimum fine to $500 for a first offense and $1,000 for each subsequent offense. (Query: If you get a permit and some fireworks for your cookout, may anyone else at the party set them off?)

In any event, the man stopped in Foxboro will not likely be seeing the inside of a jail cell as a result of the incident. He has already lost some valuable merchandise (and partially defused his Independence Day celebration) by not investing in a tarp and some rope. He should limit further losses by contacting experienced local counsel prior to responding to the summons that he will be receiving in the mail. Doing so could save him not only the fines, but many trips to court.

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