Criminal Defense of OUI Causing Death in Massachusetts: A Case Study


Our client, was accused of felony motor-vehicle homicide by negligent operation after allegedly driving through a stop sign while intoxicated. He was accused of causing the death of an off-duty police officer after colliding with him at the intersection of Forster Street and Princeton Boulevard.

The officer was off-duty and riding a motorcycle at a high rate of speed when the accident occurred. Our client was determined to have a blood alcohol content (BAC) of 0.09, while the officer’s BAC was 0.15.

When the collision occurred, the off-duty officer was thrown more than 100 feet and suffered a fractured skull, brain hemorrhage broken ribs and other internal injuries. He was given CPR at the scene, and was pronounced dead hours later.

While the prosecutor did acknowledge that the off-duty officer was driving drunk and traveling an estimated 75 miles per hour, he accused our client of “triggering” the crash. According to the prosecution, if our client hadn’t been intoxicated as he approached the stop sign, he would have heard the loud Harley Davidson Road King motorcycle that was approaching.

Our Investigation Found Flaws Including a Cover Up

Our investigations found that according to a government accident reconstructionist, the crash occurred because of off-duty officer was traveling at a high rate of speed. Our client also stated that he stopped at the stop sign.

During our investigations, we also discovered a cover up; accident investigators and the medical personnel who treated the off-duty officer tried to conceal that he was driving at twice the legal limit; in fact, they claimed he had no alcohol in his system.

Read more at The Lowell Sun: Defense attorney claims cover-up as jury gets case in crash that killed Lowell police officer

We also questioned state Medical Examiner Dr. Marie Cannon regarding the officer’s inebriated condition, and whether it was a factor in his death. Dr. Cannon responded that she hadn’t noted that.

The Jury Trial: Science and Criminal Defense

The Court house was a buzz the morning of the arraignment of the defendant as the accident happened over the weekend. I was asked to discuss the issue of bail for our client. The prosecutors wanted a $20,000 bail and after reading the reports and making the bail argument, bail was set at $5,000 dollars.

Who would have thought we would not get to trial until four years later.

We had to attack the accident reconstruction report, (which took over 8 months to complete) we needed to attack the blood evidence reading of 0.09% and his interrogation at the police station.

First, I and our private investigator along with my Accident Reconstructionist visited the accident scene. We walked the crash scene, took photos and began to look for witnesses. This proved very helpful as we began to see a different version of what actually happened that horrible night.

Witnesses were reluctant to talk at first but with persistence we were able to get numerous statements from the neighbors in the area.

Every accident has a reaction but the logistics were not adding up after we received the accident reconstruction’s report from the State Trooper. We decided to hold a Daubert/Lanigan hearing to prove that the state report was not reliable. We challenged the five principles of this holding.

  1. No proficiency testing of the analysis;
  2. No protocols, policy manual or other documents setting forth any standards followed Analysis and Reconstruction Section in conducting his analysis in this case;
  3. There is NO list of publications relied upon in conducting his analysis and reaching his conclusions in this case;
  4. There is NO consideration of error rate in the calculation;
  5. There are NO available citations to reference literature or research conducted demonstrating the methodology applied in this case.

For the reasons set forth herein and in the attached affidavit, memorandum of law and fact, that the expert’s opinion evidence cannot be deemed reliable and must be excluded as it relates to the speed of the Defendant’s vehicle. Alternatively, a hearing should be ordered to determine if such opinion evidence is reliable and if the expert is qualified.

Commonwealth v. Lanigan, 419 Mass. 15 (1994); Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 562 U.S. 1 (1999); Massachusetts Guide to Evidence, Section 702; see also Strengthening Forensic Science in the United States: A Path Forward, National Research Council, National Academies Press (2009); National Academy of Sciences Report, A Challenge to the Courts, Nancy Gertner, Criminal Justice, American Bar Association, Spring 2012, Volume 27, Number 1.

Further Reading: Lawyer: Toss blood test in crash that killed Lowell police officer

This motion was allowed by the court. A year later on a motion by the Commonwealth for reconsideration the ruling was modified. The Commonwealth stated that if this ruling was allowed to stand, no further accident reconstruction could be done in the Massachusetts, which was our key!

After this ruling we were able to tell the jury that “you Expert, needed to do a second report because you missed areas of examination on the first report”.

OUI/DUI defense is about understanding the science and applying it against the Government. Your lawyer needs to not only understand the science but know where the Achilles tendon is to cut!!!

The blood evidence of 0.09% was critical to this case, how do we suppress it or attack it to show that it did not have the relevance before the court and jury. In Massachusetts a Pre Se charge exists if the alcohol content is over 0.08% then the jury instruction suggests that the defendant was over the limit and that he/she should be found guilty of this OUI charge.

In order to throw-out or suppress the blood and/or urine test you need to be able to read and perform Gas Chromatography while understanding the procedures in taking these tests. Was this test done for medical purposes or for a police direction?

In our client’s case after a hearing it was determined who drew the blood and why it was drawn. It turned out that the blood was drawn at the direction of the police. A different standard and different person is to take this blood. This matter is currently under appeal for our client!

Watch Now: Lowell Attorney Greg Oberhauser’s Opening Statement

The jury was presented with 5 different verdict slips they could find our client guilty of. Four had different variations of OUI causing death/homicide and one of misdemeanor negligent driving causing a homicide. They came back with NOT GUILTY on the first four charges and Guilty on the misdemeanor charge.

After locking in the medical testimony we filed motion in limine to exclude the blood just before the trial. This was not allowed but it framed the issue for trial. This caused the judge to change the jury verdict slips after sending the jury back to deliberate the next day very odd!!!

Using earlier testimony from the medical doctor, we were able to suppress the urine test results and educate those involved that a urine test is not reliable test and will not stand up to a challenge as evidence in an OUI case at trial. Call our office if your attorney has not suppressed this evidence if it is against you!

At trial we discredited the Commonwealth’s blood expert and the state crime lab. The lab was not certified. The intricate issues about what could cause errors in the blood test result where explored. There are over 25 potential sources of errors in a blood test. If your attorney does not know them, give us a call.

At sidebar the Commonwealth said we don’t know what those issues are about blood! I said our expert will address those issues very clearly and why they are important to this case. The expert did exactly that and showed why this blood test is flawed and without an error rate is not acceptable to be allowed into evidence.

Take away on this is the need to have a smart intelligent jury. In evaluating the jury pool, we focused on engineers and those with college degrees. As mentioned above, the science is where this case was going to be won. We felt that engineers would see through the “junk science” coming from the Commonwealth and find our client Not Guilty.

Defense Attorney Greg Oberhauser Gives His Closing Argument

In the end a long tragic case for two families those of the victim and for our client. With all the work we had done on this case, my client was offered probation with a 15 year loss of license. He said he wanted a trial, after 5 days and three days of deliberations by the jury, we had almost a clean sweep on all the charges.

I still get calls from our client saying thank-you for what we did for him and also from people in Lowell, MA on what a good job our office did for this client. If you have a tough case give us a call to sit down and go over your options—you will be glad you did.

– Greg Oberhauser