Operating Under the Influence (2nd Offense): Not Guilty After Trial. 

 Seekonk Police arrested a young college female for Operating Under the Influence of Alcohol (2^nd Offense).  Police first received a dispatch for an erratic driver who rear-ended another motorist while stopped at a red light on a busy, commercial roadway.  Police responded to the area of the crash and located motorist parked in the parking lot of a hotel.  Police approached the woman who admitted to them her involvement in the crash and drinking a martini earlier that evening.  During this discussion, the arresting officer detected an odor of an alcoholic beverage on the woman’s breath.  He then directed her to step out from her vehicle and administered to her a series of field sobriety tests, which according to him, she failed.

The officer next placed the woman under arrest, transported her to the police station and administered a chemical breath or breathalyzer test, which showed her blood alcohol content (BAC) to be .18, well above the legal limit of .08.  Based upon the collective evidence of the accident, admission to drinking failed field sobriety tests and chemical breath test, the woman was charged in Taunton District Court with Operating Under the Influence of Alcohol (2^nd Offense).

The woman retained Massachusetts Criminal Defense Attorneys at the Law Office of John L. Calcagni III, Inc., Inc. to defend her in this action.  Following her arraignment and several pretrial conferences, the woman elected her right to proceed to trial.  At trial, the woman was represented by both Attorney John L. Calcagni III and Attorney John Pensa.

The trial began with motions.  The Defense filed motions to exclude evidence of one of the field sobriety tests, known as the Horizontal Gaze Nystagmus (HGN) test, and the woman’s chemical breath test.  The Court granted these important motions.   The trial then proceeded with opening statements where Attorney Pensa told the jury that this case involved negligent, not criminal conduct.

The Commonwealth called two witnesses.  First, it called the motorist who was rear-ended by the female.  This motorist testified to observing the female drive erratically by repeatedly swerving over the median line.  She also stated that she was rear-ended by the female while the two were stopped at a red light.  The motorist got out, inspected her bumper, and after not observing any damage, got back in her car and drove off.  The female proceeded to drive off as well.

Continuing to see the female drive in an erratic manner, the motorist called 911.  On cross-examination, Attorney Pensa elicited the most important fact – that just prior to the accident, the motorist observed the female in her rear-view mirror looking down at her cellphone.  This fact formed the defense theory of negligent, not criminal conduct.  Attorney Pensa also elicited that the accident was akin to a tap that did not concern the motorist.  Because she sustained no injury or property damage to her vehicle, she drove away.

The Commonwealth next called the arresting officer.  He testified that as he arrived at the hotel parking lot, the female was driving in and parked lawfully in a marked parking space.  He also opined that she was intoxicated because of the accident she admitted to causing, her admission to drinking a martini, the odor on her breath and the failed field sobriety tests.  On cross-examination, Attorney Pensa established the female’s honesty with police about having previously ingested alcohol before returning home to Bristol, RI.  He also established that the female was cooperative with police and voluntarily participated in field sobriety tests for which she had no legal obligation.

She stood steady on her feet without assistance and did not have bloodshot or watery eyes or slurred speech.  Also, at the time of the field sobriety tests, it was dark, after 11:00 PM and extremely cold and windy from seasonable weather conditions.  Attorney Pensa also elicited how busy the roadway was that the woman was driving on and how she successfully negotiated a turn off the road, into the hotel parking lot and then a marked parking space.   Following these two witnesses, the Commonwealth rested.

The trial ended with the parties’ closing arguments to the jury.  Attorney Calcagni argued for the Defense.  He reiterated the theory of negligent, not criminal conduct.  He conceded his client’s negligent acts of texting or fiddling with her cellphone while driving.  He asked the jury to draw upon their own experiences in this regard to explain both the cause of the accident and reason for the woman’s swerving, as observed by the other motorist.  He highlighted his client’s honesty with police by admitting to having a drink earlier in the night, and cooperation by providing her documentation when asked and participating in field sobriety tests.

While her performance on the tests was not stellar, he explained this was due to weather conditions and the anxiety of being in police custody.  He emphasized the control she displayed of the vehicle when crossing over multiple lanes of a busy commercial roadway and into the parking area of the hotel.  He also emphasized the control she displayed of her speech, faculties, and body as demonstrated by her statements and actions with police.  Based upon these arguments, Attorney Calcagni successfully argued that the Commonwealth did not and simply could not meet its high burden of proof beyond a reasonable doubt that the woman was driving while impaired.  The jury ultimately agreed and returned a verdict of not guilty.