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Admission of Evidence in Massachusetts

The following will overview what evidence can potentially be admitted against you and what questions should be asked.

What the state will be able to admit as evidence against you is largely dependent on your conduct during the stop and during the trial process.  First, the state cannot admit anything against you that you did not provide, so if you refused any field sobriety tests and refused a chemical test, that evidence does not come into play.  Secondly, your attorney or you (if pro se) must object to any evidence that you feel should not be admitted.  The state will probably attempt to admit all the evidence it has and it is the job of the defense to explain why certain evidence should not come in.  Major areas of contestability include:

  • Were any field sobriety tests given properly?  As stated previously, inability to perform a FST does not mean you were under the influence of something.  A legitimate excuse can be used to show the test was not administered correctly or suggests an incorrect conclusion.  Also, every department has a manual or procedure that explains exactly how an officer is supposed to administer the FSTs.  Even something as small as an officer holding his/her hand two feet away from your eyes during the eye test when procedure says it should be between 1 and 1.5 feet from the suspect’s eyes can invalidate a test, which means the test and your performance cannot be considered by the jury.
  • Was the chemical test(s) administered properly and at the right time?
    • If you were given a breathalyzer, the machine should have used infrared light to measure the presence of alcohol in your lung air.  First your air is tested and then a known solution is tested.  The controlled experiment (the known solution) should yield .14, .15, or .16 for the first result and the second result must be within .02 of the first or the test is invalid.  All of this is printed on a ticket.
    • If you gave a blood or urine sample instead, was proper procedure followed?
    • This link here, provides the rules of chemical testing for Massachusetts
  • Why did the officer initially pull you over?  Per the Constitution, officers must have reasonable suspicion to pull you over.  This is defined as an officer’s reasonable belief that a crime had been or is about to be committed.  In Massachusetts an officer may legitimately stop you for any infraction.  This means if you were speeding, you may be stopped.  Once stopped and the officer begins to talk to you, he needs to gather enough information that he has reasonable suspicion to ask you to perform FSTs.  This assessment by the officer can be challenged if you believe he did not meet this burden. 
  • Did the officer specifically state to you why he pulled you over?
    • The National Highway Traffic Safety Administration recognizes 24 patterns that can indicate a possible drunk driver, and they include: wide turning, straddling the center line or lane marker, almost striking an object, weaving, driving outside the designated roadway, swerving, driving more than 10 mph below the posted speed limit, stopping in traffic for no reason, drifting, tailgating, erratic breaking, driving into oncoming traffic, signaling inconsistent with driving, driving without headlights after dark.  If the officer pulled you over not because you were violating any statute but because he believed you were intoxicated, he needs to meet the reasonable suspicion burden for the stop to be legitimate.
    • The same logic applies to when the officer asks you to step out of the vehicle or perform a FST.  For example, the highest court in Massachusetts has held that an officer smelling marijuana emanating from a car is not, in itself, enough reasonable suspicion to order the occupants out of the car.
  • Are there errors in the DUI ticket you were issued?
  • Were you read your Miranda Rights?  Most people know these rights but there is a procedure that most jurisdictions follow.  Sometimes officers keep them on a card and read them to you.  Some jurisdictions even change the words, which the US Supreme Court has said can be ok.  If your Miranda Rights were not read to you, read incorrectly, or read too late in the process, you can bring that to the court’s attention.

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