OUI Arrest of Driver Parked in Travel Lane Presents Second Offense Issues

October 5, 2012

License.jpgOperating Under the Influence charges were brought against Alicea-Rove Velazquez early last Wednesday. According to the Hingham Journal, Hingham Officer Michael Rockoff found a car stopped in the right travel lane of Route 53 at approximately 3:22 a.m. that morning. When he approached, he saw Velazquez asleep in the driver's seat. According to the article, the transmission was in "park" and the key was in the "on" position. It does not say whether the engine was running.

Rockoff banged on the roof of the car for a couple of minutes to awaken Ms. Velazquez. The officer then noted an odor of alcohol, an inability to focus, and glassy eyes. When she got out, she was "unsteady on her feet." These are fairly standard observations involved in these arrests.

The article says that she was getting out to perform "field sobriety tests." It does not say which tests she did, or how she fared; it only says that the police determined that she was impaired. Hence, they either determined that she failed the tests, was unable to do them at all, or refused to try. It is my guess that it would not have mattered much. She was going to be arrested even if she did fairly well. The police don't take chances in these circumstances. It will be left up to the attorneys at court.

The police also determined that Ms. Velazquez had been convicted of OUI in New Hampshire in 2008. She was, therefore, charged with Second Offense OUI, .

This story shows that one does not need to be actually driving to be arrested for OUI. It has been argued that stopping and parking is the right thing to do if you determine that you should not be driving. This, however, is not a defense, nor does it always negate the "operating" element of Operating Under the Influence. At a trial, the judge will tell the jury that to satisfy the element of operation, there must be proof that the accused citizen did something (such as turning the key) that would set a vehicle in motion. For Ms. Vazquez this issue will need to be explored thoroughly.

The story also shows that out-of-state convictions may be considered first offenses. This does, however, raise challenges for the prosecution. If a person seeks trial on a Second Offense OUI, there will actually be two separate trials. In Ms. Velazquez's case, the first trial will be to determine her culpability while parked on Route 53. If she wins, that's the end. If she loses, however, there will be a second trial in which the prosecution will be required to prove beyond a reasonable doubt that she has been convicted in New Hampshire four years ago. This will require evidence from out of state.

It does not appear that Ms. Velazquez took a breath test. These articles usually tell us the results if one has been taken. Hence, she may have refused to take the test. This raises the stakes considerably with regard to her loss of license. Refusing the breath test on a second offense results in a loss of license for 3 years. If convicted, there is an additional 2-year loss of license. On top of that, once the license is returned she must have an interlock device (portable breath test) installed in her car for yet another 2 years.

If she wins her case however, she may have her full license back immediately. This should be the focus.

Obviously Ms. Velazquez and those in her position would be well advised to consult with an experience criminal defense attorney.

If you are charged with OUI, or any other crime, you should have your case evaluated by an experienced criminal defense attorney. I have been defending criminal cases for over 20 years, so I am well prepared to assist you.

Please call any time and arrange a free consultation.
Office 781 461 4590
Cell 617 429 5066
Email gvs@stcyrlaw.com

Thank you.

The facts used in this blog were obtained solely from the cited source(s). There may be additional information that would alter the analysis.