Operating Under the Influence (OUI) 3rd Offense and Operating While License Suspended for OUI: Not Guilty After Trial

Massachusetts local and state police received a report of a disabled vehicle in the middle of the roadway at an eight-lane intersection at approximately three o’clock in the morning. Police responded and discovered the vehicle with its operator seated in the driver’s seat, unconscious and slumped over the steering wheel. The man was unresponsive to the officers’ voices. One of them opened the door and shook the man to wake him up. He awoke in a daze, looked around and commented that he “almost made it home.” All officers on scene detected a strong odor of alcohol inside the man’s car and emanating from his breath. Police also observed him to have bloodshot eyes and slurred speech. They removed him from his car and administered two separate field sobriety tests: Horizontal Gaze Nystagmus (NGN) and 9 Step Walk and Turn. According to police, the man failed both tests miserably and refused to participate in a chemical breath test. Police also discovered his was license was suspended due to a recent drunk driving or OUI conviction (his second offense of this nature). Based on this information, police arrested the man and charged him with OUI (3rd Offense) and Driving While License Suspended for OUI. The man retained Massachusetts Criminal Defense Attorney, John L. Calcagni III, to defend him in this matter. He did so after firing his first lawyer who advised that he plead guilty to the charged offense because he would most definitely lose at trial. Attorney Calcagni beat all odds for this client. At trial, Attorney Calcagni successfully filed motions to exclude evidence of the HGN and breath test refusal. He also persuaded the Court to grant his motion to sever charges of OUI from the 3rd subsequent offense, and the operating while license suspended charge. At the last minute, the Defense elected to proceed to trial by judge alone, thereby waiving the right to a jury trial.

Attorney Calcagni defended the case by attacking the legal element of operation. To convict on OUI, the Commonwealth must prove the Defendant operated a motor vehicle, on a public way, while intoxicated due to alcohol. The element of operation is contained in the operating on the suspended license offense. Three police officers testified at trial: one state and two local officers. Though the officers attempted to stray from their police reports by stating the engine was running upon their arrival and/or they observed keys in the ignition (two potentials ways to prove the legal element of operation), Attorney Calcagni successfully blocked this testimony and limited the officers’ testimony to the confines of the police report received by the Defense during discovery. After carefully limiting his cross examination of these witnesses, Attorney Calcagni argued that police came upon a disabled vehicle in the roadway, just as described in the dispatched report. They did not know how or when the vehicle arrived in the roadway or for how long it had been there. The trial evidence established there were no eyewitnesses to seeing the defendant drive and the car in question was also registered to a third party. Lastly, there was no allowable evidence of any keys in the ignition or in the man’s possession or the hood being warm to the touch indicating its recent operation. Based on this lack of evidence, Attorney Calcagni successfully argued that the Commonwealth failed to meet its burden of proof regarding operation, which was common element of the charged offense. The judge returned not guilty verdicts, which enabled the man to avoid mandatory jail, which he faced if convicted.