MV Ch. 10- OUI

Question 1

A person “operates” a motor vehicle by driving or doing any act that:

Answer 1

tends to set the vehicle in motion.

-Driving
- Any act tending to set vehicle in motion
- Stopped in course of driving

Question 2

Passed out defendant, in his parked car in front of a restaurant, had turned the key in the ignition to listen to the radio.

Sufficient of insufficient evidence of operation?

Answer 2

Sufficient.

Question 3

A driver continues to operate when his vehicle stops in the ordinary course of travel for a reason related to its operation (defendant seen driving from the bar later found wedged behind steering wheel of his wrecked vehicle).

However, operation ends when a person:

Answer 3

parks and leaves his vehicle for a reason unconnected to its operation.

Question 4

OUI

Proof of operation: (2)

Answer 4

1. Observe
2. Circumstantial evidence (officers may prove that a person operated without witnessing him driving)

Question 5

Is it a defense to OUI if operator voluntarily parked his vehicle to “sleep it off”?

Answer 5

No.

those under the influence should not get behind the wheel int he first place

Question 6

Operator crashed off the road. Empty and partially empty bottles of alcohol in the car. Operator said he started drinking after he crashed, however he stated he left the airport 40 minutes ago =

Answer 6

not enough time since the crash to become as intoxicated as he was.

Question 7

Defendant had facial wounds consistent with airbag deployment; her purse was under the drivers seat, and her cell phone was in the pocket of the drivers door.

Probable cause for OUI?

Answer 7

Yes.

Association with vehicle and scene and no evidence of another driver

Question 8

True or false:

Status of the way, not the status of the driver, that controls the issue of whether the suspect is operating on a public way.

Answer 8

True.

*The defendant need not personally qualify as an “invitee” or “licensee” since it is the status of the WAY that contrpls/

Question 9

Proof of Operation:

Comm Vs Leonard

Driver’s admission only AND more than one possible operator =

Answer 9

Insufficent. Need more evidence to prove defendant was actually the driver.

“Moral of Leonard: NEVER assume that an admission from the suspect is sufficient when there is more than one possible driver.

Question 10

Proof of Operation:

Comm Vs Leonard

Officers responded to a highway rest area where Leonard was fighting with his wife over the car keys. He was intoxicated and admitted to officers that he drove before the altercation. He was arrested for OUI. However, his wife testified at trial that she had been the operator. The SJC found that:

Answer 10

officers did not have enough evidence that Leonard drove- even though he demanded that his wife “give me back the keys” and police found his wife cigarettes on the passenger side of the car!

Moral of Leonard: Never assume that an admission from the suspect is sufficient when there is more than one possible driver.

Question 11

Three different locations constitute public way:

Answer 11

1. Public way
2. Public right of access
3. Public access as invitees or licensees

Question 12

2. Public right of access

Three different locations constitute public way:

Examples:

Answer 12

-Malls (even if closed, if ATM, vending machines, trash receptacle, etc. )

-Parking lots (ex “parking for registered guests only” sign restricted parking, not access)

• Rest areas/ pull offs

However, must be place to which motorists have access (baseball field did not qualify as public way because it was not designated for vehicle access- *charge OUI in a recreational vehicle instead)

Question 13

3. Public access as Invitees or Licensees

Three different locations constitute public way:

“Invitees” (typically customers) are present at:

Answer 13

the owners request.

Question 14

3. Public access as Invitees or Licensees

Three different locations constitute public way:

“Licensees” are present with:

Answer 14

the owner’s passive permission.

Ex. a person driving on a private way that is commonly used by the public without the owner’s objection

*History of use for road is key factor

Question 15

On the roads of a privately owned campground, the defendant drove drunk. The campground had only one entrance with a gate, which opened only with an electronic gate card. The cards were issued to registered campers. Non campers wishing to enter had to go to the office. They were not allowed in after 10pm. A network of unpaved roads connected campsites. There were no signs or lights.

Did this constitute public way for OUI?

Answer 15

No. Gate “totally” restricted access

The appeals court said, “the essential question… is whether the way is (or appears to be) available for public use” . In this case, no motorist approaching the entrance to the campground would believe that he was welcome to drive there. The fact that the campground solicited business was irrelevant. While member of the public are invited to become guests, they are not allowed in unless they acquire a pass.

This is a rare set of circumstances.

Question 16

Objective appearance of way, not (blank), determines status.

Answer 16

not intent of owner.

Ex private street into trailer park was a public way because it was paved and had street lights, abutting houses, traffic signs, and not signs prohibiting access

Question 17

Important police tip:

Sometimes commanders, supervisors, and prosecutors mistakenly nullify and officer’s OUI arrest based on their overly restrictive view of what sonstitutes a public way. Make the arrest, and:

Answer 17

argue the facts in court.

Bottom line: If members of the motoring public routinely have access, you should prevail.

Question 18

What is the most common proof of public way?

Answer 18

Officer testimony.

Question 19

If vehicle traveled on a public way while driver under the influence, it does not matter that is ended up:

Answer 19

on a private way or off road.

Pier 4 Charlestown Navy Yard example

Question 20

If public way may be an issue (car in baseball field, for example) consider charging:

Answer 20

OUI in a Recreational Vehicle

Note: Any vehicle used on terrain becomes a recreational vehicle

For example, a baseball field was not considered public way under 90 sec 24, but officers could have used OUI recreational vehicle

in close cases charge both and let court decide.

Question 21

What is sufficient proof, by itself, of public way?

Answer 21

Certificate of public way.

“certificate by a city or town clerk that a particular way is a public way” shall be sufficient proof.

Question 22

Two ways to prove a driver is under the influence:

Answer 22

1. Impairment
2. Per se

Question 23

Impairment means there is proof of a:

Answer 23

“diminished ability to drive safely”

Question 24

“diminished ability to drive safely”

Answer 24

Impairment

Question 25

Per Se: Definition

Answer 25

Per Se means the defendant registered a BAC of atleast .08 on the breathalyzer or blood test. Latin for "By itself"

Question 26

Does an operator have to be drunk to be OUI Alcohol?

Answer 26

No, merely has to have a "diminished ability to operate safely" -the amount of drugs or alcohol that cause this condition varies from person to person

Question 27

Officers and/or civilians may offer an opinion about a suspect's sobriety. However, officers may not say:

Answer 27

the defendant's intoxication( aka lack of sobriety) impaired his ability to drive. This is forbidden. Proper testimony: "My opinion is that John Defendant was intoxicated because I smelled a strong odor of an alcoholic beverage; heard his slurred speech; saw his glassy eyes; watched him trip when he got out of the car; and saw him perform field sobriety tests"

Question 28

May police testify to their opinion that someone was impaired by marijuana or other drugs, in the same way they can about alcohol impairment?

Answer 28

No. since there is no consensus on the signs that someone is "high" on marijuana, police officers may not offer their opinion that a motorist was under the influence of marijuana.

Question 29

Diminished capacity must be caused by: (5)

Answer 29

1. An alcoholic beverage 2. Marijuana 3. Narcotic drugs 4. Stimulants/depressants 5. Any inhalant One of these five substances must impair the driver.

Question 30

1. An alcoholic beverage 2. Marijuana 3. Narcotic drugs 4. Stimulants/depressants 5. Any inhalant

Answer 30

Causes of diminished ability (OUI) One of these substances must impair the driver

Question 31

3 factors that prove an alcoholic beverage caused impairment.

Answer 31

1. The odor on a suspect's breath or 2. His admission that he drank or 3. a breathalyzer or blood test

Question 32

Is an Officer's testimony sufficient to prove an operator consumed alcohol, despite no odor of alcohol?

Answer 32

Yes. Brockton female O'Donnell case

Question 33

OUI Drugs For drugs, there must be proof the substance fell within:

Answer 33

one of the four categories (marijuana, narcotics, stimulant/depressants, inhalants) Forgetting this technicality can be costly. ex. horribly impaired defendant acquitted- even though she admitted to taking Klonopin to officer and nurses- because prosecutor did not offer proof that Klonopin is a depressant defined by 94C.

Question 34

OUI Drugs Methods to prove Drug Causation: (4)

Answer 34

1. Judge relies on an authoritative source- like the Physician's Desk Reference; 2. Defendant stipulates before trial that the substance falls within the statute; 3.Expert testimony by a Drug Recognition Expert (DRE), medical clinician, or Pharmacist; or 4. The defendant admits to consuming a drug, such as "heroin", mentioned by name in Chapter 94C.

Question 35

1. Judge relies on an authoritative source- like the Physician's Desk Reference; 2. Defendant stipulates before trial that the substance falls within the statute; 3.Expert testimony by a Drug Recognition Expert (DRE), medical clinician, or Pharmacist; or 4. The defendant admits to consuming a drug, such as "heroin", mentioned by name in Chapter 94C.

Answer 35

Methods to prove Drug Causation

Question 36

OUI Drugs Even with obvious impairment, (blank) often required to link observed symptoms with underlying drug use for conviction.

Answer 36

expert testimony. DRE, medical clinician, or pharmacist needed to link impairment to a certain type of drug use, which is what the statute requires.

Question 37

Doe marijuana impairment typically require expert testimony?

Answer 37

not usually.

Question 38

OUI Drugs For legally prescribed substance, must prove the motorist had:

Answer 38

reason to know of the possible effect on his driving ability.

Question 39

OUI exists even if a drug magnified the effect of the alcohol, or vice versa. If the suspect *had reason to know* that her intake of alcohol and prescription medication might impair her driving, she is:

Answer 39

OUI. ex. stopped by police, defendant acknowledged that she had two drinks with dinner and was taking anti-depressant medication. She said that her doctor never warned her about any side effects, and she had not read the patient information or the label. Defendant did admit that, before her arrest, she was concerned enough about the medication effects to call her doctor. She was guilty.

Question 40

Alcohol or drug does not have to be the SOLE reason for:

Answer 40

diminished capacity. ex. defendant claimed he was asleep behind the wheel due to an diagnosed sleep apnea condition, but there was also evidence he had been drinking; no need to prove only alcohol caused his diminished capacity.

Question 41

Defendant can be guilty of (blank) even if acquitted of OUI.

Answer 41

Operating to Endanger ex. even though she was acquitted of operating under the influence of a drug, the defendant's admitted ingestion of Klonopin coupled with the circumstances surrounding the accident (she left the road and tipped her car over on a resident's lawn) proved her guilty of driving to endanger.

Question 42

OUI Causing serious Bodily Injury 90 Sec 24L(1) and (2): What makes this offense a felony?

Answer 42

Reckless or Negligent: The offender drove recklessly or negligently which caused the required injury

Question 43

OUI Causing serious Bodily Injury 90 Sec 24L(1) and (2): For Misdemeanor (Not Reckless or Negligent): For Felony (Reckless or Negligent):

Answer 43

Misdemeanor: Warrantless arrest upon probable cause because OUI is an element Felony: Felony arrest powers

Question 44

OUI Causing serious Bodily Injury: How many charges per event?

Answer 44

Even though defendant is involved in one accident, he should be charged separately for each person who suffers serious injury.

Question 45

Any injury " which creates a substantial risk of death or which involves either total disability or the loss or substantial impairment of some bodily function for a substantial period of time'

Answer 45

Serious Injury Note: put hospital in the police report so that the medical record can be subpoenaed.

Question 46

Manslaughter by MV: Death results from:

Answer 46

flagrant, reckless driving.

Question 47

Child Endangerment While OUI: What is the age?

Answer 47

Child 14 OR under Child age 14 IS included

Question 48

Is reckless, negligent, or erratic operation an element of Child Endangerment While OUI ?

Answer 48

No. 1. OUI offense 2. Child 14 or under in the vehicle

Question 49

Child Endangerment While OUI: Elements:

Answer 49

1. OUI Offense 2. Child 14 or under- There was a child 14 years old or younger in the vehicle at the time the suspect was operating under the influence.

Question 50

Child Endangerment While OUI: ROA:

Answer 50

Motorist already eligible for arrest for the OUI offense. 2nd offense: MM 6 months, felony

Question 51

OUI Detection & Proof: The National Highway Traffic Safety Administration (NHTSA) identifies 3 phases in the detection of impaired drivers:

Answer 51

1. Suspect's vehicle in motion 2. Personal contact 3. Pre-arrest screening.

Question 52

OUI Detection & Proof: NHTSA Should officers constantly be on the look out for OUI drivers?

Answer 52

Yes. NHTSA: as many as 1 in 10 under the influence between 10:00 pm and 2:00 am on Friday and Saturday nights.

Question 53

According to NHTSA, how many drivers on the road are under the influence on Friday and Saturday nights between 10PM and 2AM

Answer 53

1 in 10

Question 54

According to NHTSA, as many as 1 in 10 drivers on the roads, between what hours and on what days, are drivers under the influence?

Answer 54

10:00pm- 2:00am Friday and Saturday nights.

Question 55

Does a recent 911 call, without more, provide reasonable suspicion to stop a possibly impaired driver near the location where he was first observed?

Answer 55

Yes.

Question 56

A recent 911 call provides reasonable suspicion to stop a possibly impaired driver near:

Answer 56

the location where he was first observed.

Question 57

A recent 911 call provides reasonable suspicion to stop a possibly impaired driver near the location where he was first observed. In these cases, officers should: (5)

Answer 57

1. Rely on reports from citizens 2. View the possibility of an impaired driver as an "imminent danger to the public" 3. Look for a moving or equipment infraction upon seeing the suspect vehicle. (this provides an ADDITIONAL reason to conduct a stop) 4. ALWAYS stop vehicle immediately. Do NOT follow to see if the operator engages in erratic driving 5. Check with dispatch for "collective knowledge" before writing report.

Question 58

A recent 911 call provides reasonable suspicion to stop a possibly impaired driver near the location where he was first observed. In these cases, officers should: (5) #4 ALWAYS stop vehicle immediately. Do NOT follow to see if the operator engages in erratic driving. Following risks the possibility of a crash and may cause:

Answer 58

reasonable suspicion to evaporate if you observe good driving.

Question 59

A recent 911 call provides reasonable suspicion to stop a possibly impaired driver near the location where he was first observed. In these cases, officers should: (5) #5 Check with dispatch for "collective knowledge" before writing report. Information received after the initial broadcast, EVEN IF IT DOES NOT REACH THE AIRWAVES, is still part of the:

Answer 59

reasonable suspicion calculation. *For this reason, officers should include all information the caller furnished in their incident report.

Question 60

If callers reporting erratic operation leading to OUI are willing to pull over and speak with the officer, they are probably:

Answer 60

reliable. A prankster would not be willing to do this.

Question 61

*What is typically the best evidence of OUI?

Answer 61

The defendant's actual operation. Note: Simple moving violations- such as running a red light- often reveal impaired motorist. Other driving behavior, even when it does not constitute a moving violation, should result in a traffic stop based on reasonable suspicion (ex. stopping for a green light, weaving within one lane, etc).

Question 62

Phase 1: Vehicle in Motion The following behaviors have been identified by NHTSA as indicative of possible impairment;

Answer 62

- Wide radius turns - Straddling center line - Visually appearing to be drunk - Almost striking a vehicle/object - Weaving - Driving on other than road - Swerving - More than 10 (ten) mph UNDER the limit - Drifting side to side -Stopping without cause in lane - Following too closely - Tires on center line - Erratic braking - Driving into oncoming lane - Inconsistent signaling - Slow to respond to signals - Abrupt or illegal turns - Abrupt or illegal stops - Rapid acceleration/ deceleration -Driving without headlights

Question 63

Sobriety check points are an enforcement strategy that must satisfy 5 constitutional requirements:

Answer 63

1. Location selected for checkpoint must be based on reliable crash and/or OUI arrest data, and must take into account motorist safety and convenience 2. Selection of motor vehicles must not be arbitrary 3. The checkpoint must be configured in a way that endures public safety 4. The checkpoint must be conducted in a way that minimizes public inconvenience. 5. Officer must operate the checkpoint in "STRICT CONFORMITY" with a written plan devised by supervisors.

Question 64

Sobriety checkpoints: Officers may only ask about alcohol consumption:

Answer 64

AFTER observing a sign of impairment.

Question 65

Sobriety checkpoints: The operator should be allowed to drive to the designated area unless:

Answer 65

extremely intoxicated.

Question 65

Sobriety checkpoints: Does an odor of alcohol, by itself, justify referring a motorist for secondary screening?

Answer 65

Yes.

Question 66

Sobriety checkpoints: If the screening officer observes a sign of impairment or possible contraband, the motorist MUST be:

Answer 66

referred to a secondary are for more extensive conversation and observation (including sobriety testing).

Question 67

Sobriety checkpoints: Are multi agency checkpoints allowed?

Answer 67

Yes.

Question 68

Is public notice before a sobriety checkpoint constitutionally required?

Answer 68

NO. recommended but NOT required.

Question 69

Sobriety checkpoints: minor discrepancies with the plan- such as late arrivals, failure to sign a duty roster, and failure to file proper forms at the completion of the road block:

Answer 69

do NOT create an unconstitutional seizure- so long as there was no discretionary departure from the policy in the field.

Question 70

OUI Detection & Proof: Once a vehicle is stopped or officers arrive at an accident scene, officers enter:

Answer 70

The second phase of detection: Personal Contact with the motorist.

Question 71

Do officers have the right to avoid the barrier of a partially closed window during a traffic stop?

Answer 71

Yes. Ex. After observing defendant's vehicle repeatedly cross onto the highway "rumble strip", a trooper pulled her over. The trooper asked the defendant. whose window was only partially open, to toll it down completely. When she did, he smelled alcohol on her breath. This was NOT, as she argued, a search.

Question 72

Do officers have the right to avoid the barrier of a partially closed window during a traffic stop?

Answer 72

Yes. 90 Sec 25 also essentially requires that motorists roll down windows. 90 sec 25 states it is a violation when a driver "refuses, on demand of such officer, to produce his license.... or his..... registration, or to permit such officer to take the license or registration in hand for the purpose of *EXAMINATION*

Question 73

90 sec 25 states it is a violation when a driver "refuses, on demand of such officer, to produce his license.... or his..... registration, or to permit such officer to take the license or registration in hand for the purpose of:

Answer 73

Examination.

Question 74

An order to remove keys from the ignition is appropriate when:

Answer 74

Officer has reasonable suspicion of OUI.

Question 75

Sometimes a motorist will refuse to lower their window and press their license and registration against the glass. An officer should say "You are required by law to lower your window and hand me your license and registration so I can examine them." If the motorist continues to refuse, and officer might say "I'm not going to argue with you about the law. If you do not lower your window and hand me your documents, you are:

Answer 75

subject to arrest."

Question 76

Does a traffic stop amount to "custody" for purposes of Miranda?

Answer 76

No. A traffic stop does not amount to custody, so officers typically do not have to advise motorists of their Miranda rights.

Question 77

No Miranda custody during sobriety tests- even if they follow an

Answer 77

*unspoken* arrest. ex. Officer saw defendant maneuvering his damaged car into a driveway and asked him what happened? Defendant said :"Isn't it obvious I hit a pole?". Office later testified that, at this point, he had probable cause to arrest because defendant caused an accident and had slurred speech. Officer did NOT communicate this to defendant or provide him with miranda warning. Instead, he asked him to perform field sobriety tests. He failed miserably! A district court judge ruled that the officer should have provided miranda warnings once he decided he was going to arrest the defendant. HOWEVER, the appeals court disagreed, declaring that a police officer's "unarticulated plan" has no bearing on whether a suspect is in custody for miranda. The other features of this interaction, field sobriety tests and a brief conversation- did not rise to the level of custody under miranda either

Question 78

Is a parked motorist being investigated for OUI in Miranda Custody?

Answer 78

No. ex. the encounter was public, only two officers were present, and it was brief

Question 80

Defendant told EMT "I had too much to drink". EMT informed the officer, who the approached the defendant, who was now strapped to a gurney. He admitted drinking too much. The officer did not provide miranda warning. Valid or invalid?

Answer 80

Valid. The court felt medical custody is different from police custody. The questioning occurred in public with EMT's present, which diminished the possibility of police domination. The officer did not accuse the defendant. Bottom line- No Miranda custody for suspect who is restrained for MEDICAL treatment.

Question 81

Police custody occurred at the home of a friend, the tone was conversational and non accusatory. Defendant had parked his care on the lawn and damaged the house. Officers would not have let him leave if he tried. Was the defendant in custody for Miranda?

Answer 81

No. Although officers would not have let him leave if he tried, the test for custody is whether **a reasonable person would have felt free to go- not whether the defendant was truly free to leave**. Here, defendant never tried to leave, and officers never told him to stay. He freely admitted to being drunk. Bottom line: No Miranda custody at neutral site

Question 82

Are obscenities admissible to show intoxication?

Answer 82

Yes. ex. "Fuck that, I ain't agreeing to none of that shit"- Since obscenities were evidence of his intoxication, they were admissible even though spoken while defendant was being read his rights. ex. "Nope. I'm home. You can't make me" His flippant remark showed his intoxication.

Question 83

At 2AM, defendant was found standing to yards away from a smoking vehicle by a broken telephone pole. The officer observed money and a cell phone on the drivers seat. Defendant admitted they were his. He smelled of alcohol and slurred his speech. At one point, he told the officer " Let me leave!". Is this custody for Miranda?

Answer 83

No. His desire to leave did not change the nature of the encounter. Temporary detention at the scene is not sufficient custody for Miranda. Bottom line: No Miranda custody even if suspect says he wants to leave.

Question 85

May police search for car keys if they have probable cause to arrest?

Answer 85

Yes. ex. police officer conducted proper *search incident to arrest* for OUI in order to recover keys to the vehicle to help prove operation.

Question 86

OUI May police search for signs of injury if they have probable cause to arrest?

Answer 86

Yes. ex. at the time Officer lifted Welch's shirt and exposed a red mark on his chest and stomach, police already had probable cause to arrest him for OUI and leaving the scene. The vehicle was registered to Welch at an address near the crash scene; a male driver had fled in the direction of Welch's home; and, when he asnwered the door, Welch had visible injuries and appeared drunk. Lifting his shirt was likely to produce further evidence of the crimes. (e.g. injuries related to airbag deployment. NOTE: same applies even if the defendant is a female (PREVIOUS TEST QUESTION: female operator, officer removed a scarf from around her neck, says that he is going to do it beforehand, and see evidence of airbag deployment on her neck= valid)

Question 87

Police may search for keys and signs of injury if they have:

Answer 87

probable cause to arrest.

Question 88

Are UNOPENED "nips" in a vehicle evidence of OUI?

Answer 88

Yes. ex. officer recovered four unopened nip bottles of flavored vodka in defendant's car; they were admissible evidence of "a recognized sign of alcohol use" that is quick and secret.

Question 89

Based on reasonable suspicion, police may detain a suspect in the driveway or at the door before he enters. However, absent (blank), police may not enter without a warrant to investigate misdemeanor OUI.

Answer 89

hot pursuit. Warrantless intrusion into the home of a suspected drunk driver to avoid losing evidence of intoxication is forbidden. At the same time, knocking at the door and requesting to speak with the motorist is **ALWAYS** and option.

Question 90

OUI Based on (blank), police may detain a suspect in the driveway or at the door before he enters.

Answer 90

reasonable suspicion ex. officer was looking for a black ford bronco; he sat it in the driveway along with the defendant staggering to the back door; officer talked to defendant, then ordered him to perform sobriety tests.

Question 91

OUI What is the critical equation?

Answer 91

Alcoholic beverage odor + slurred speech + glassy eyes = probable cause for OUI arrest * When an officer lawfully stops a vehicle, and makes these three observations, probable cause exists to arrest for OUI. As a result, SFSTs are helpful, but NOT required for probable cause.

Question 92

Police received an anonymous report that a "drunk man" had run into the curb at 30 Monroe St. An officer found a pick up truck with a flat tire. It was angled from the curb and clocking a driveway. A witness saw the driver enter 28 Monroe St. A woman at #28 said that the truck belonged to the defendant, who had just arrived. He came to the door. The officer smelled alcohol, and the defendant refused to participate in sobriety testing. What should the officer do next?

Answer 92

Leave and apply for an OUI complaint. OR the officer could have asked the defendant to come outside to talk, and then arrested him there! Notes: 1. Knocking at the door and requesting to speak with the motorist is *always* an option for police. 2. The tip, combined with the officer's observations, provided reasonable suspicion to conduct an investigative detention at 28 Monroe. 3.When the officer was face to face with the defendant, the odor of alcohol provided probable cause for OUI.

Question 93

OUI Are Standardized Field Sobriety Tests required for probable cause of OUI?

Answer 93

No. helpful but not required Alcoholic beverage odor + slurred speech + glassy eyes = Probable cause for OUI arrest

Question 94

OUI What is important to remember if the defendant goes to the hospital from the scene?

Answer 94

Prompt citation service.

Question 95

Do officers have discretion to allow intoxicated motorists to continue driving?

Answer 95

No. Officers _must_ remove any intoxicated motorist from the road. ex. a town was liable for the officer's decision to allow an intoxicated operator to drive away. He soon had a head-on collision causing multiple deaths. Even if officers choose not to arrest, they should have known that permitting continued operation posed a grave risk to the public. It was unacceptable.

Question 96

If an officer believes probable cause is lacking for OUI, can an officer justify placing the motorist in Protective Custody instead?

Answer 96

No. It is legally impossible the justify placing a motorist in protective custody on the basis that probably cause for OUI is lacking. Since the minimum standard for PC is alcohol or drug "incapacitation"- which is a significantly stronger level of intoxication that merely being "under the influence"- it is impossible for a motorist to be eligible for PC but not for arrest. Note: this decision may be an excuse for really protecting a friend or a work colleague

Question 97

OUI Preferential treatment for impaired police officers is an:

Answer 97

ethics violation. ex. Lieutenant directed an officer on scene to drive home drunk off duty officer after erratic operator call. Chief ordered an internal affairs investigation. The Ethics Commission ruled that the LT, as OIC, failed to arrest or even cite the off duty officer for OUI in order to provide her with preferential treatment. The commission ordered the LT to personally pay a 7500 civil fine. The appeals court upheld the decision.

Question 98

Phase 3: Pre-Arrest Screening: (Blank) is necessary to order the driver to exit the vehicle and administer Standardized Field Sobriety Tests.

Answer 98

Reasonable suspicion. ** requiring probable cause to administer SFSTs would make no sense, since the point of SFSTs is to help determine whether to arrest.

Question 99

True or false? An officer who is present during SFSTs may testify about what the administering officer said and did.

Answer 99

True.

Question 100

How may SFSTs be administered to a non-English speaking motorist?

Answer 100

in a foreign language.

Question 101

Does an exit order for SFST's justify an automatic frisk of the operator?

Answer 101

No. Officers need reasonable suspicion that the operator is also armed and dangerous in order to frisk. ex. OUI Drug example (trooper immediately frisked and found 3 bags of crack)- the better rationale for searching the driver in this case would have been probable cause, based on the troopers observations, that the driver possessed drugs related to his impaired operation. Compare: exit order and frisk were proper because they occurred on the highway at 4AM, the trooper was alone, the driver had a tattoo of a gang symbol, and the driver failed to pull over immediately and gave illogical responses regarding his destination.

Question 102

Motorists may be ordered to perform SFSTs, but officers must not use physical force if they refuse, and may not later:

Answer 102

testify about their refusal. Note: "Refusal evidence" is typically inadmissible because it places the defendant in a catch-22 situation: Take the test and furnish evidence against oneself, or refuse and produce testimonial evidence of consciousness of guilt, which the prosecutor can argue to the jury.

Question 103

Motorists may be ordered to perform SFSTs, but officers must not use physical force if they refuse, and may not later testify about their refusal. (even a partial refusal may not be commented on) There are three exceptions:

Answer 103

1. Once a suspect agrees to SFSTs, comments about his inability to perform are admissible 2. Once the suspect claims police did not offer SFSTs, his refusal is admissible. 3. Silence is NOT considered a refusal. ( a defendant must make some expression- verbal or nonverbal- of his refusal to perform an SFST)= because its not a refusal, and officer is allowed to testify about this behavior

Question 104

OUI Once a suspect agrees to SFSTs, comments about his inability to perform are:

Answer 104

admissible. Since the person agreed to take the test, these statements are not the product of coercion. ex. on his second attempt at the one leg stand, defendant lost his balance and stated "I can't do this"= admissible

Question 105

OUI Once the suspect claims police did not offer SFSTs, his refusal is:

Answer 105

admissible. Ex. defense counsel "claimed" that defendant had not been asked to perform SFSTs, so officers could testify that he actually had refused.

Question 106

OUI Is silence considered a refusal to SFSTs?

Answer 106

No. A defendant must make some expression- verbal or nonverbal- of his refusal to perform an SFST. Ex. trooper advised defendant about SFSTs and asked if he understood; defendant nodded; when asked to perform alphabet test, he simply looked down; when asked if he was refusing to take the test, defendant did not respond or react at all; trooper was allowed to testify about this behavior.

Question 108

OUI: SFSTs Should an officer be sensitive about a motorist's disability?

Answer 108

Yes. ex officers did not provide deaf man with ASL interpreter. Administered SFSTs that were not approved for the hearing impaired.- defendant sued the town and involved officers for *reckless infliction of emotional distress*.

Question 109

Through intensive study, the National Highway Traffic & Safety Administration (NHTSA) identified 3 tests for sobriety screening:

Answer 109

1. Horizontal Gaze Nystagmus 2. Walk & turn 3. One leg stand. - The NHTSA manual is the foundation for all officers are the nation!

Question 110

All of the following are approved field sobriety tests by NHTSA, EXCEPT:

Answer 110

Alphabet test- not a test certified by NHTSA

Question 111

Is Horizontal Gaze Nystagmus an approved test for sobriety screen by NHTSA?

Answer 111

Yes.

Question 112

May officers use words like "clue", "fail", and pass to describe the defendant's performance in the walk and turn test and one leg stand test?

Answer 112

Yes this is permissible.

Question 113

Pretest question: When an officer begins SFST's, he should ask if the motorist has any:

Answer 113

physical limitations or medical conditions that prevent performing balance and coordination tests. *An officer should only score for "clues" observed during the SFST.

Question 114

OUI: What is required for HGN?

Answer 114

expert testimony.

Question 115

OUI: Walk and turn BS SO WHAT

Answer 115

1. Balance loss 2. Starts too soon 3. Stops while walking 4. Off line steps 5. Wrong number of steps 6. Heel to toe misses 7. Arm raises more than 6" 8. Turns improperly

Question 117

OUI: Walk and turn: How many clues out of the possible 8 indicate impairment?

Answer 117

2 or more - walk and turn and one leg stand are *divided attention* tests.

Question 118

OUI: One Leg Stand: PUSH

Answer 118

1. Puts foot down too soon 2. Uses arms for balance 3. Sways while balancing 4. Hopping *Like walk and turn, this is a *divided attention test*

Question 119

OUI: Walk and turn: Suspect steps off the line 3 times: How many clues should you score?

Answer 119

one. Only score one clue for each type of clue listed.

Question 120

OUI: One Leg Stand: How many clues out of the possible 4 indicate impairment?

Answer 120

2 or more

Question 121

The Preliminary Breath Test is recognized by NHTSA. If officers carry a properly maintained and calibrated device, they should use it:

Answer 121

last. -so the results do not prejudice their evaluation of other SFSTs.

Question 122

"Which of the following sobriety screening tests should an officer perform last?"

Answer 122

PBT. Officers may order a suspect to perform a PBT, since the results do not have legal consequences (unlike the "implied consent" breathalyzer at the station)

Question 123

"Which of the following is a sobriety test designed to discover OUI Drugs?"

Answer 123

Modified Romberg Balance Test Also: Lack of Convergance

Question 124

OUI Drugs: Lack of Convergence: LOC is the inability to:

Answer 124

cross one's eyes when focusing on a stimulus as it moves towards the bridge of the nose.

Question 125

OUI Drugs: Lack of Convergence: The following 4 drug categories will usually induce lack of convergence:

Answer 125

1. Central Nervous System depressants (ex alcohol, anti anxiety meds) 2. Inhalants (huffing, etc) 3. Dissociative anesthetics (ex PCP) 4. Cannabis

Question 126

OUI Drugs What is an example of a dissociative anesthetic?

Answer 126

PCP (dissociative anesthetic is one of the four drug categories that will induce Lack of Convergence) - the other 3 are: CNS, Inhalants, Cannabis)

Question 127

OUI Drugs Modified Romberg Balance Test checks a subjects:

Answer 127

internal clock, balance, and presence of tremors (eyes and body) Additional observations: Observe nostrils for powder, etc. with a flashlight while suspect performs the Modified Romberg. Afterwards, have the suspect stick out his tongue and check its color; have him pull lip back to observed teeth area for seeds, etc.

Question 128

OUI Drugs Modified Romberg Balance Test: Three parts are conducted simultaneously:

Answer 128

1. Estimation of the passage of 30 seconds 2. Observation of tremors 3. Observation of sway

Question 129

While the odor of marijuana is not probable cause to search, it usually provides a reasonable suspicion that:

Answer 129

the driver is OUI.

Question 130

True or false? Like any criminal investigation, police may order passengers to exit and interview them about the driver's operation.

Answer 130

True. - exit orders have a practical purpose to separate witnesses during field interview. - passengers in vehicle of OUI are witnesses to a crime

Question 131

If there is probable cause to arrest the driver for OUI Drugs, there is usually probable cause to:

Answer 131

search the passenger compartment for drug evidence. ex. officers saw defendant swerve toward the guardrail and straddle two lanes. They detected a strong odor of marijuana and observed his red eyes and slow speech. When asked if he had been smoking defendant said "I'm just chillin". He laughed a lot. A vehicle search revealed a still smoldering joint. Outstanding job by officers!

Question 132

In OUI Marijuana cases, SFSTs are admissible at trial as (blank) of the officer.

Answer 132

"Roadside assessments" The SJC held that the reasearch findings on SFSTs as a measure of marijuana impairment are mixed, so police officer must testify to their observations as "roadside assessments" not sobriety tests. Officers *can* testify about the defendant's performance as proof of a driver's balance, coordination, and mental awareness to safely operate a vehicle.

Question 133

In OUI Marijuana cases, SFSTs are admissible at trial as "Roadside Assessments" of the officer. May the officer testify whether the driver's performance constitutes a "pass" or "fail" (like in an OUI alcohol case)?

Answer 133

No. However, officer may testify to the physical characteristics of the driver- such as bloodshot eyes, dowsiness, and lack of coordination. It is up to jurors to decide home much weight to give these tests and observations.

Question 134

In OUI Marijuana cases, SFSTs are admissible at trial as "Roadside Assessments" of the officer. May the officer offer an opinion that a person is "high"?

Answer 134

No. Because the effects of marijuana may vary greatly from one individual to another, and those effects are not commonly known yet, only persons qualified as an expert may offer their opinion as to whether a driver was under the influence of marijuana.

Question 135

In OUI Marijuana cases, SFSTs are admissible at trial as "Roadside Assessments" of the officer. May an officer testify to the physical characteristics of the driver, such as blood shot eyes, drowsiness, and lack of coordination?

Answer 135

Yes. It is up to jurors to decide home much weight to give these tests and observations. ex. police found ash on defendant driver's shirt and smelled burt marijuana in his car; the defendant's eyes were drooping and bloodshot, his speech slow and slurred, his responses delayed, and his balance poor; and officer found marijuana and grinders in his car.

Question 136

Can a driver's admission to smoking marijuana be enough for OUI drugs conviction?

Answer 136

Yes. ex. operator driving at high rate of speed. Took 1/4 mile to stop, then rolled another 30 feet. Officer smelled alcohol, saw bloodshot eyes, and heard his slurred speech. Defendant walked slowly and deliberately as if he was walking on ice. Admitted to drinking one beer and smoking marijuana 20 minutes earlier. He performed poorly on sobriety tests. Defendant was convicted of OUI Alcohol and OUI Drugs. Defendant's admission to smoking marijuana 20 minutes before the stop supported his conviction for OUI drugs, since the jury could conclude he was still under its influence when the stop occurred.

Question 137

OUI Drugs Does marijuana require expert testimony that it is a narcotic, depressant, or stimulant defined in 94C?

Answer 137

No. Because marijuana is mentioned explicitly in 90 sec 24.

Question 137

Drug cases are challenging. The key is to develop probable cause to arrest and search. The author suggests : (5)

Answer 137

1. Do a thorough interview. The driver will often admit to ingesting drugs. 2. Observe behavior and eyes- especially whether driver's pupils are dilated or constricted. 3. Notice any odor (ex marijuana, meth, inhalants) 4. Administer SFSTs as "roadside assessments" which may reveal coordination and mental clarity problems. 5. Upon probable cause, search the driver and vehicle for evidence of drug impairment- e.g. marijuana, pill bottles, inhalant canisters, etc. Seize or at least photograph the evidence.

Question 138

OUI Drugs If there are pill bottles in the car, and the defendant admits to taking the medication, why should the officer seize the bottles? (or at least photograph them)

Answer 138

So that evidence of any patient cautions written on them can be used in the prosecution.

Question 139

Probable cause for OUI drugs does not require that officers specify a particular drug. However, for conviction, there must be evidence of

Answer 139

the specific drug that caused impairment.

Question 140

Does Probable Cause for OUI drugs require that officers specify a particular drug?

Answer 140

No.

Question 141

Use a Drug Recognition Expert at the station. The Drug Recognition Expert for a drug impaired driver is the equivalent of the:

Answer 141

breathalyzer for a drunk one!

Question 142

Trooper stopped the defendant after receiving a telephone call about an erratic driver and observing him weaving between two lanes. Defendant's speech was slurred and accelerated, but it did not smell of alcohol. Defendant explained that his poor night vision caused him to move between lanes. He passed four SFSTs, yet exhibited a very accelerated perception of time, which the trooper believed indicated drug impairment. The trooper requested a DRE to help. When one was not available, he requested a K9 unit, which arrived 10 minutes later. The dog alerted to a backpack on the floor. Valid or invalid used of drug sniffing K9?

Answer 142

Valid. The trooper did not exceed the permissible scope of the stop when he called the DRE and then the K9. Detaining the defendant for an additional 20 minutes to investigate was reasonable.

Question 143

OUI May the booking process provide further evidence of intoxication?

Answer 143

Yes. ex. sticking tongue out during booking photo, difficulty answering booking questions, etc.

Question 144

OUI What is essential if booking questions address the underlying event?

Answer 144

Miranda warnings AND a valid waiver. Ex. Defendant had already been read his Miranda rights and waived them, so the sergeant, who was completing and "OUI Arrestees Rights and Observations" form could ask him questions during booking about the amount and type of alcohol he consumed.

Question 145

OUI True or false? If a defendant refuses to answer administrative booking questions, police may place him in a cell without a phone call, bail hearing, or breathalyzer until he cooperates.

Answer 145

True.

Question 146

With reasonable cooperation, every OUI arrestee has 3 rights:

Answer 146

1st: Right to independent examination. 2nd: Right to use the phone within 1 hour of arrival at the station. 3rd: Right to receive a bail hearing within **6 hours**

Question 147

OUI: 3rd right: An OUI should receive a bail hearing within how many hours?

Answer 147

within 6 hours.

Question 148

Is the right to an independent exam required for OUI Drug arrests?

Answer 148

No. This right is restricted to offenders charged with OUI Alcohol

Question 149

OUI 1st right: Right to an independant exam: Notify Bail Commissioner Practically speaking, a defendant will not be able to have an examination unless he is released. Police should (blank) call the bail commissioner and report that the suspect wishes to exercise his 5A rights, which conveys the need for a prompt hearing.

Answer 149

quickly

Question 149

It is required that a deaf or hearing impaired person under arrest receive the assistance of:

Answer 149

a state-provided interpreter. ex. hearing impaired defendant arrested for OUI did not receive proper notice of his right to an independent exam because police failed to call an interpreter; his OUI case was dismissed.

Question 149

OUI 1st right: Right to an independant exam: Under 263 Sec 5A, a police officer must inform a person of his "right, at his request and at his expense, to be examined immediately by a physician selected by him" The arrestee must be given a copy of this law or it must be conspicuously posted. What else must the arrestee be given?

Answer 149

"a reason opportunity to exercise this right"

Question 150

OUI 1st right: Right to an independant exam: True or false? Police may insist that the defendant complete all aspects of booking prior to obtaining an independent examination.

Answer 150

True. - when a defendant decides to take a breathalyzer and claim his right to an independent examination, police may require that he complete the breathalyzer first. This approach avoids stale and inaccurate results.

Question 151

OUI 1st right: Right to an independent exam: True or false? Other than notifying the bail commissioner, police have no additional obligations when a defendant wishes to exercise his right to an independent examination.

Answer 151

True. ex. police could refuse to transport defendant to a hospital 4 blocks away.

Question 152

OUI Police are authorized to take protective steps, including (blank), once an arrestee is released on bail.

Answer 152

protective custody.

Question 153

OUI Defendant was arrested for OUI at 2am and booked at 2:33am. Defendant refused the breathalyzer, but wanted an independent blood test. After two unsuccessful phone calls, he was placed in a cell. At 3:30am the bail commissioner released him. The police told the defendant that he had to get someone to pick him up or they would continue to hold him. He made several unsuccessful calls stating "Forget it, no one is going to be up now". Police placed him in protective custody at 3:41am. As a result, the defendant later argued that police interfered with his effort to obtain an independent exam. What did the SJC say regarding this "conditional release"?

Answer 153

The SJC approved conditioning the defendant's release on his being able to arrange a ride. Officers gave the following reasons: 1. the defendant was still intoxicated at 3:35am 2. he lived a distance away in another town 3. he could not drive, and his car had been towed 4. he had no way to get home other than walking alone 5. he had been given several opportunities to use the phone before being placed in protective custody. -Under these circumstances, the requirement to arrange safe transport was "eminently reasonable... for the defendant's and public sake

Question 154

OUI Defendant was arrested for OUI at 2am and booked at 2:33am. Defendant refused the breathalyzer, but wanted an independent blood test. After two unsuccessful phone calls, he was placed in a cell. At 3:30am the bail commissioner released him. The police told the defendant that he had to get someone to pick him up or they would continue to hold him. He made several unsuccessful calls stating "Forget it, no one is going to be up now". Police placed him in protective custody at 3:41am. As a result, the defendant later argued that police interfered with his effort to obtain an independent exam. What did the SJC say regarding the officer's decision to place the defendant in protective custody after being bailed?

Answer 154

They agreed. Defendant was incapacitated- the officers had seen significant signs of intoxication when they arrested him and he remained intoxicated 1.5 hours later when he wanted to leave alone. SJC only criticism was that the officers did not offer the defendant the breathalyzer(and detox) upon placing him in protective custody. If they had, these results could NOT be used to penalize the defendant under OUI Law.

Question 155

If an OUI arrestee is released on bail and then placed into protective custody, what need to happen?

Answer 155

Officers need to offer a breathalyzer again, because it is required under the Protective Custody law. While the result may be used to decide whether PC is proper, it may NOT be used to penalize the defendant under OUI law. Also, if detox is available and desired by the defendant, police should transport him there.

Question 156

Protective Custody If detox is available and desired by the defendant, police should:

Answer 156

transport him there.

Question 157

OUI- Procedures for Refusals & Breathalyzers True or false? All motorists are deemed to have consented to the testing of their breath or blood for its alcohol content. This "implied consent" law justified suspending an operator's license upon his refusal to allow chemical testing, or upon his failure to pass the test.

Answer 157

True. Notes: - The Breath Alcohol Testing System (BATS) will generate a suspension notice -Officers should routinely check the arrestees driver history (KQ) to verify the correct suspension. If the suspension period assigned is too short, fax a BATS DATA CORRECTION form to the RMV - The RMV grants authority to state and municipal police offices to destroy Massachusetts licenses confiscated for BT test refusals and failures. (including and administrative failure by someone under 21.)

Question 158

Can officers confiscate and destroy an out of state license if the person refuses or fails the breathalyzer?

Answer 158

No. They don't have the authority. The statute say Massachusetts licenses. Out of state licenses may not be confiscated; However impound out of state vehicles for the mandatory 12 hours.

Question 159

The RMV grants authority to state and municipal police officers to destroy Massachusetts licenses confiscated for BT test refusals and failures. (including and administrative failure by someone under 21.) This is the protocol, and officers should not retain the licenses unless: (2)

Answer 159

1. they are evidence of another crime; or 2. they are somehow relevant to the OUI prosecution.

Question 160

Does an OUI arrestee have a right to counsel before refusing or agreeing to a breath or blood test?

Answer 160

No. According to the SJC, a practical problem with a right to counsel is the possibility of "stale and inaccurate" results due to delay; also, while the decision is important, it occurs before the start of court proceedings, so counsel is not required.

Question 161

Does a driver's inability to understand the implied consent form because of intoxication count as a refusal?

Answer 161

Yes. ex. ...she disputed whether she had refused the chemical test, maintaining that her extreme intoxication left her no recollection of the event. She asserted she would have consented to the test had she been coherent **The implied consent law is not like Miranda rights. There is no right to refuse. Failure to take the rest is a refusal, regardless of the reason (in this case, intoxication)

Question 162

An OUI arrestee has no right to counsel before refusing or agreeing to a breath or blood test. The author recommends that departments adopt the following policy:

Answer 162

"The Blank Police Department understand that a person under arrest for OUI has no legal right to counsel with a lawyer prior to deciding whether to take the breathalyzer of blood test offered. However, upon request, the arrestee will be allowed to make one phone call to an attorney for immediate advice. Whether or not contact occurs, the arrestee must decide after this, at most *10 minute call*, so that booking is not further delayed and test results are not stale. Remember: this is just the authors suggested policy. There is no right to counsel

Question 163

Foreign language forms used by a police department (OUI rights form, etc) must be:

Answer 163

accurately translated. ex. although police department was informed about significant inaccuracies in it Spanish OUI rights form, it failed to correct those mistake.

Question 164

OUI: Refusal Fill out RMV OUI rights for and indicate refusal. Form must be signed by: (2)

Answer 164

The officer who received the refusal AND a separate witness- otherwise the suspension will be overturned!

Question 165

OUI: Refusal Serve the refusal form (blank) to defendant.

Answer 165

in hand

Question 166

OUI: Refusal Impound vehicle being driven by the operator for:

Answer 166

12 hours. Note: It is *irrelevant* whether the car belongs to the offender. Whatever motor vehicle he or she drove is impounded for 12 hours, with the towing fee.

Question 167

OUI: Refusal Send refusal to RMV within:

Answer 167

24 hours.

Question 168

May out of state vehicles be impounded for the mandatory 12 hours?

Answer 168

Yes. Also, it is *irrelevant* whether the car belongs to the offender. Whatever motor vehicle he or she drove is impounded for 12 hours, with the towing fee.

Question 169

OUI Refusal What should the officer do after documenting the refusal ?

Answer 169

Seize Mass license and provide notice of suspension.

Question 170

OUI: Refusal Is evidence of refusal admissible in court?

Answer 170

No. it is inadmissible. Judge may only tell jurors that they cannot consider the absence of BT, blood, or SFST evidence if the *defendant* requests such an instruction

Question 171

Breathalyzer: For license suspension, is deliberate defiance (intentionally not provided a valid breath sample) required ?

Answer 171

No ex. at his registry hearing, the defendant produced evidence that he have a valid BT sample. However, he did not provide another one in five attempts. The BT did not malfunction. The fact that the defendant did not provide two valid samples was enough, by itself, to constitute a BT refusal.

Question 172

Breathalyzer Test: Consent only requires that BT not be (blank) on arrestee; it is NOT the same voluntariness standard as consent to search.

Answer 172

forced.

Question 173

Breathalyzer Test: Must the person administering the Breathalyzer Test be a certified operator?

Answer 173

Yes.

Question 174

Breathalyzer Test: Are BT certification reports admissible without inspector's testimony?

Answer 174

Yes.

Question 175

Breathalyzer Test: For a valid test, you must watch the arrestee for atleast 15 minutes. Why?

Answer 175

The waiting period ensures that the candidate does not put anything in his or her mouth- e.g. **food, drink, regurgitation.** - each subsequent test does not require a separate 15 minute observation period, as long as the suspect was continuously watched after the first test. -although it is best if one officer observes, it does not have to be the same officer watching for 15 minutes as long as the suspect is continuously watched by police.

Question 176

Breathalyzer Test: Officer provided Miranda warnings at 12:05am , administered a breath test 19 minutes later, and looked don at his computer during the 15-minute observation period while typing the defendant's responses to booking questions. Was this valid or invalid?

Answer 176

Valid "This established that the officer sufficiently observed the defendant for atleast 15 minutes"

Question 177

Breathalyzer Test: Arrestee breath samples within:

Answer 177

+ or - .02 (only lower BT result admissible)

Question 178

Breathalyzer Test must be taken within (blank) hours of operation for per se.

Answer 178

within 3 hours. Note: BT may be administered beyond 3 hours for "good cause"- e.g. suspect initially escaped, etc

Question 179

Breathalyzer Test: The BT must be taken within 3 hours of OPERATION for per se. However, BT may be administered beyond 3 hours for:

Answer 179

good cause ex suspect initially escaped.

Question 180

Breathalyzer Test: The prosecutor is required to offer expert testimony to explain breathalyzer results when a conviction is based solely on the (blank) theory of OUI On the other hand, no expert testimony is necessary when conviction rests on the per se theory, or when both theories are mentioned in the complaint (preferred practice).

Answer 180

impairment

Question 181

(Blank) scientifically proves that a suspect's blood alcohol content was greater at the time he drove than when it was measured at the police station; it must be supported by expert testimony too.

Answer 181

"Retrograde extrapolation"

Question 182

Once consent to BT is given, defendant's failure to provide a sample may be admissible to show his or her guilt. An arrestee who does not produce a valid sample is usually too impaired to take the test or deliberately sabotages the test because he is worried it will prove his intoxication. However, in order to present a failed sample into evidence for this purpose, the prosecutor must present evidence that the test was:

Answer 182

administered by a certified BT operator on a properly functioning machine. ex. defendant agreed to take a BT, but kept sabotaging the test by blowing with his mouth open. The police gave him four chances to go it correctly. The defendant claimed he could not perform because he was in "diabetic shock"- so police transported him to a hospital where he was overheard laughing and saying that he "pulled a fast one on the cops". Police could testify about his tricks.

Question 183

Blood Test Protocol: A defendant must consent to an analysis of his blood alcohol content (BAC) in order for it to be used as evidence of Operating under the influence (OUI). Two cases establish this rule:

Answer 183

1.Comm V Bohigian- Independent search warrant NOT an option to draw blood 2. Comm Vs Moreau- Independent search warrant also not an option to test blood drawn by a third party (ex. hospital staff already drew blood- still can't do it) **OUI BOOZE= IMPLIED CONSENT OR NOTHING Bottom line: Before blood is seized and/or tested at the direction of police during an OUI- Alcohol investigation, the defendant must CONSENT. (the only consequence if he refuses is license suspension for a specified period)

Question 184

What is the Bohigian/Moreau Rule?

Answer 184

1.Comm V Bohigian- Independent search warrant NOT an option to draw blood 2. Comm Vs Moreau- Independent search warrant also not an option to test blood drawn by a third party (ex. hospital staff already drew blood- still can't do it) **OUI BOOZE= IMPLIED CONSENT OR NOTHING The Bohigian/ Moreau Rule applies to any crime that incorporates proof of operating under the influence of alcohol because the "implied consent" procedure, in addition to simple OUI, is made expressly applicable to OUI-Alcohol causing serious bodily injury; Motor Vehicle Homicide incorporating proof of OUI- Alcohol; and Manslaughter by motor vehicle.

Question 185

Does the Bohigian/ Moreau Rule (Implied consent only for OUI Alcohol- Blood Test Protocol) apply to: OUI-Alcohol causing serious bodily injury? Motor Vehicle Homicide incorporating proof of OUI- Alcohol? Manslaughter by motor vehicle?

Answer 185

Yes. The Bohigian/ Moreau Rule applies to any crime that incorporates proof of operating under the influence of alcohol. Bottom line: Before blood is seized and/or tested at the direction of police during an OUI- Alcohol investigation, the defendant must CONSENT. (the only consequence if he refuses is license suspension for a specified period)

Question 186

The Bohigian/ Moreau rule It is irrelevant if a third party- for example the hospital- draws the blood.--As long as the police submit a blood sample to the crime laboratory to gain evidence of a defendant's BAC, the defendant must:

Answer 186

Consent.

Question 187

Charles Bohigian smashed into a driver while she stood outside her stalled vehicle. The victim was badly hurt. At the hospital under arrest, Nohigian refused to authorize the extraction of his blood. Troopers obtained a search warrant and seized and tested his blood. Bohigian's BAC proved he was OUI. The SJC:

Answer 187

overturned his conviction. Under 90 sec 24(1)(e) a blood test that occurs "by or at the direction of a police officer" must be consented to by the defendant or its results cannot be used as evidence of OUI. This "implied consent" procedure- where a defendant must consent to a blood draw (or breathalyzer) or lose his license administratively- is the only way for police to draw blood in an OUI investigation. Police cannot, as they did with Bohigian, circumvent "implied consent" by independently obtaining a search warrant.

Question 188

Charles Bohigian smashed into a driver while she stood outside her stalled vehicle. The victim was badly hurt. At the hospital under arrest, Nohigian refused to authorize the extraction of his blood. Troopers obtained a search warrant and seized and tested his blood. Bohigian's BAC proved he was OUI. The SJC overturned his conviction. Under 90 sec 24(1)(e) a blood test that occurs (blank) must be consented to by the defendant or its results cannot be used as evidence of OUI.

Answer 188

"by or at the direction of a police officer" This "implied consent" procedure- where a defendant must consent to a blood draw (or breathalyzer) or lose his license administratively- is the only way for police to draw blood in an OUI investigation. Police cannot, as they did with Bohigian, circumvent "implied consent" by independently obtaining a search warrant.

Question 189

Moreau smashed a pickup truck into a tree. An officer found Eric Moreau in the drivers seat. His breath smelled of alcohol, and he had glassy eyes, slurred speech, and was unsteady on his feet. The officer did not arrest Moreau. Instead, an ambulance transported him to the hospital. The officer gave the clinical staff a letter instructing them to preserve any blood they might draw to treat the injured Moreau. Police later obtained a search warrant to recover Moreau's clood from the hospital and test it. His BAC proved Moreau had driven under the influence. In Moreau, the prosecutor argued that, since the hospital independently decided to draw blood, investigators did not need Moreau's consent in otder to seize and test it. The SJC:

Answer 189

disagreed. Under 90 sec 24 (1) (e), a blood test that occurs " by or at the direction of a police officer" must be consented to by the defendant. It is irrelevant if a third party- in this case, the hospital- draws the blood. As long as the police submit a sample to the crime laboratory to gain evidence of a defendant's BAC, the defendant must consent.

Question 190

Does the Bohigian/ Moreau Rule (Implied consent only - Blood Test Protocol) apply to OUI Drugs?

Answer 190

No. OUI drugs is NOT covered. "Implied consent" only applies to a breathalyzer or blood test designed to learn a defendant's Blood **ALCOHOL** Content. That means police are free to ask a defendant for consent *and/or* to seek a search warrant to take and test his blood for narcotics Note: Aside from alcohol, OUI includes "marijuana, narcotic drugs, depressants, and stimulants substances (defined in 94C) or Inhalants (defined in 270 sec 18).

Question 191

OUI Alcohol A step-by-step is critical. When an OUI- Alcohol defendant gets transported to a hospital and becomes eligible for a blood test, a crash probably occurred with victims. These cases are serious. What is the preferred approach?

Answer 191

Arrest before or at the hospital. "Implied consent" has to be triggered by the defendant motorist's arrest for OUI Alcohol and/or a more serious crime requiring proof of OUI Alcohol (serious bodily injury, manslaughter, mv homicide etc) Police usually have probable cause to arrest by the time the defendant is placed in the ambulance. Probable cause for OUI- Alcohol _only requires_ proof that the defendant drove a vehicle on a public way while exhibiting slurred speech, red and glassy eyes, and the strong odor of alcohol. If the defendant's condition requires that he be transported to the hospital, and if officers have probable cause that he drove under the influence, officers should arrest him before transport or upon arrival to active "implied consent".

Question 192

OUI Alcohol Blood Test Protocol: (hospital) It goes without saying, the first priority is to treat the defendant. At the same time, decide which of the following strategies you should use: Strategy 1: Hospital intends to draw blood for treatment purposes: If the staff draws, or plans to draw, the defendant's blood to treat him:

Answer 192

1. Prepare two copies of a preservation order and submit one to the clinical staff and one to the hospital laboratory. 2. Find an appropriate time that does not interfere with treatment and inform the defendant of his right to consent to a blood test or lose his license. (Since the hospital will have already drawn blood, time is not an important factor. When the defendant is available, you should inform him that the hospital has already drawn blood and you need his permission to test it) -Use the Statutory Rights and Consent Form - Add the recommended statement from Comm v Dennis which held that the statutory rights and consent form provides sufficient notice for a blood test. As a result, net to the YES box on the form, you should handwrite: "I consent to the hospital staff providing a sample of my blood for the police to take as evidence. The blood sample will be tested by a laboratory for alcohol and/ or drugs." This statement should also be read to the defendant.

Question 193

You must have an ignition interlock device if you are:

Answer 193

a repeat offender (2nd+ conviction)

Question 194

At what point does a defendant have to have an ignition interlock device in their car?

Answer 194

2nd offense conviction.

Question 195

What what point does OUI become a Felony?

Answer 195

3rd offense (and beyond)

Question 196

At what point may the police seek to have the OUI defendant's vehicle seized and forfeited.

Answer 196

4th offense.

Question 197

True or false? It is considered a prior offense if you have EVER been convicted, or even assigned to an alcohol treatment program in ANY State.

Answer 197

True.

Question 198

OUI Alcohol Blood Test Protocol: (hospital) It goes without saying, the first priority is to treat the defendant. At the same time, decide which of the following strategies you should use: Strategy 1: Hospital intends to draw blood for treatment purposes: If the staff draws, or plans to draw, the defendant's blood to treat him: **If the Defendant Consent to the Blood Test:**

Answer 198

1. File and affidavit for a search warrant in which you outline the facts in support of probable cause to arrest and note the defendant's *CONSENT* to a blood test (attach the completed statutory rights and consent form with the added *Dennis* statement) 2. Serve the warrant at the hospital. This will enable you to take the preserved blood sample from the hospital and bring it to the crime laboratory for BAC testing. 3. If the crime laboratory reports the defendant's BAC was .08 or above, communicate this result to the registry for administrative suspension. * You should also report, in the case of a defendant *under* age 21, any BAC of **.02** or above for administrative sanctions.

Question 199

OUI Alcohol Blood Test Protocol: (hospital) It goes without saying, the first priority is to treat the defendant. At the same time, decide which of the following strategies you should use: Strategy 1: Hospital intends to draw blood for treatment purposes: If the staff draws, or plans to draw, the defendant's blood to treat him: **If the defendant refuses to authorize blood testing:**

Answer 199

1. Process him as a refusal at the station on the Breathalyzer (BT). this is essential to trigger the registry's administrative license suspension. **2. Request that the District Attorney _subpoena the hospital record_. While "implied consent" is the only way for POLICE to gain evidence of a defendant's BAC, it does not affect the District Attorney's authority to subpoena certified medical records and present them in a criminal case.** Note: Notify the bail commissioner and arrange for the defendant's release: There is no reason, in most cases, for the defnendant to be held. Once the bail commissioner authorizes release of recognizance, the defendant is no longer in police custody and becomes a patient of the hospital, who may be discharged in the ordinary course of treatment. This prevents the police from having to divert officers to watch the defnedant at the hospital.

Question 200

OUI Alcohol Blood Test Protocol: (hospital) Strategy 1: Hospital intends to draw blood for treatment purposes: If the staff draws, or plans to draw, the defendant's blood to treat him: Why is it a good move to prepare two copies of a preservation order and submit one to the clinical staff and one to the hospital laboratory?

Answer 200

Sometimes the clinical staff forgets to notify the laboratory and vice versa. By filing the form with both groups, police prevent blood samples form being discsrded before police have an opportunity to get a warrant to seize and test the blood.

Question 201

OUI Alcohol Blood Test Protocol: (hospital) Strategy 2: Hospital is not going to draw blood for treatment:

Answer 201

1. Find an appropriate time that does not interfere with treatment and inform the defendant of his right to consent to a blood test or lose his license. -Use the Statutory Rights and Consent Form - Add the recommended statement from Comm v Dennis which held that the statutory rights and consent form provides sufficient notice for a blood test. As a result, next to the YES box on the form, you should handwrite: "I consent to the hospital staff providing a sample of my blood for the police to take as evidence. The blood sample will be tested by a laboratory for alcohol and/ or drugs." This statement should also be read to the defendant.

Question 202

OUI Alcohol Blood Test Protocol: (hospital) Strategy 2: Hospital is not going to draw blood for treatment: If the defendant consents to the blood test:

Answer 202

1. Request that a doctor, nurse, or certified medical technician draw blood as required by 90 sec. 24 (1)(e) based on the defendant's *CONSENT*. A person afflicted with hemophilia, diabetes, or another condition requiring treatment with anti-coagulants is, for obvious reason, ineligible. 2. Transport the blood sample to the crime laboratory for BAC analysis 3. If the crime laboratory reports the defendant's BAC was .08 or above, communicate this result to the registry for administrative suspension.

Question 203

Who is ineligible for a blood test?

Answer 203

A person afflicted with hemophilia, diabetes, or another condition requiring treatment with anti-coagulants is, for obvious reason, ineligible.

Question 204

Alcohol testing Who should you call with any questions?

Answer 204

Office of Alcohol Testing (OAT). It is helpful if you provide the hospital with a forensic test kit. Kits are available to police department at no charge from OAT.

Question 205

While "implied consent" is the ONLY way for police to gain evidence of a defendant's BAC, it does not affect the (blank)'s authority to subpoena certified medical records and present them in criminal cases.

Answer 205

The District Attorney ex. defendant's hospital blood test and staff observations in her record were admissible at OUI trial. ex. ambulance records are also admissible.

Question 206

Blood Test Protocol: Strategy 2: Hospital is Not going to draw blood for treatment If the defendant consents to the blood test: Request that a doctor, nurse, or certified medical technician draw blood as required by 90 sec. 24 (1)(e) based on the defendant's *CONSENT* Hopefully, you have had hospital staff cooperate with your department before. If staff refuses to perform the blood draw based on the defendant's consent, explain that you are authorized to direct this under 90 sec 24 (1)(f)(1). If they still refuse, you may need to:

Answer 206

call the on- call judge and see if she will direct them over the phone or, worst case scenario, you may need to apply for a search warrant directing the hospital to draw the blood. Be sure to attach the defendant's signed consent form (with the Dennis Statement) to the warrant application.

Question 207

What is a Dennis Statement:

Answer 207

As a result, next to the YES box on the Statutory Rights and consent form, you should handwrite: "I consent to the hospital staff providing a sample of my blood for the police to take as evidence. The blood sample will be tested by a laboratory for alcohol and/ or drugs." This statement should also be read to the defendant.

Question 208

OUI Alcohol Blood Test Protocol: (hospital) Strategy 2: Hospital is not going to draw blood for treatment: If the defendant refuses to authorize blood testing:

Answer 208

1. Process him as a refusal on the station BT. This triggers the administrative license suspension. 2. Notify the bail commissioner and arrange for the defendant's release.

Question 209

In the RARE case where police officers lack probably cause to arrest for OUI- Alcohol, but do have *reasonable suspicion* that the motorist committed this crime, they may ask for consent to draw blood at the hospital. Officers need only to present the suspect with the (blank)- "I consent to the hospital staff drawing a sample of my blood for the police to take as evidence. The blood sample will be tested by a laboratory for alcohol and/or drugs." Make sure the suspect signs and dates this written statement at the bottom of the page. An officer should also sign as a witness. Have the hospital staff draw blood in the same way they do under "implied consent".

Answer 209

Dennis Statement. Regardless of whether the suspect agrees or refuses to consent to a blood draw, the administrative consequences mandated by "implied consent" are **INAPPLICABLE** because he is not under arrest. If the laboratory results from a consensual blood draw provide police with probable cause, officers must immeidately issue a citation as a criminal complaint application for OUI. Bottom line: no admin suspension for failure is not under arrest and given consensually ** Note: In this situation, using the immediate threat complaint as a license suspension work- around is NOT an option. The clear implication of Bohigian/ Moreau is that "implied consent" is the sole vehicle for blood testing and license suspension in OUI- Alcohol investigations.

Question 210

Does "implied consent" apply to arrest for OUI- Drugs?

Answer 210

No. Since "implied consent" does NOT apply to arrests for OUI-Drugs, police may ask for consent AND/OR obtain a search warrant.

Question 211

OUI- DRUGS: Since "implied consent" does NOT apply to arrests for OUI-Drugs, police may ask for consent AND/OR obtain a search warrant. Strategy 1: Hospital intends to draw blood for treatment purposes:

Answer 211

1. Prepare two copies of a preservation order and submit one to the clinical staff and one to the hospital laboratory. 2. Find an appropriate time that does not interfere with treatment and inform the defendant of his right to consent to a blood test. Since the hospital will have already drawn blood, time is less important. Inform the defendant that the hospital has already drawn his blood. Use the statement from Comm Vs Dennis as your consent form: "I consent to the hospital staff providing a sample of my blood for the police to take as evidence. The blood sample will be tested by a laboratory for DRUGS." Make sure the suspect signs and dates this written statement at the bottom of the page. An officer should also sign as a witness.

Question 212

OUI- DRUGS: What should an officer use as his consent form?

Answer 212

The statement from Comm Vs Dennis. "I consent to the hospital staff providing a sample of my blood for the police to take as evidence. The blood sample will be tested by a laboratory for DRUGS." Note: This version of the Dennis consent statement only mentions drug testing. The reason is that BAC testing, by virtue or Bohigian/ Moreau, may only occur under the authority of the "implied consent" procedure.

Question 213

OUI- DRUGS: Since "implied consent" does NOT apply to arrests for OUI-Drugs, police may ask for consent AND/OR obtain a search warrant. Strategy 1: Hospital intends to draw blood for treatment purposes: If the Defendant consents:

Answer 213

1. File an affidavit for a search warrant in which you outline the facts in support of probable cause to arrest and note the defendant's consent to a blood test (attach the Dennis consent form) 2. Serve the warrant at the hospital. This will enable you to take the preserved blood sample from the hospital and bring it to the laboratory for testing.

Question 214

OUI- DRUGS: Since "implied consent" does NOT apply to arrests for OUI-Drugs, police may ask for consent AND/OR obtain a search warrant. Strategy 1: Hospital intends to draw blood for treatment purposes: If the defendant refuses consent, apply for a:

Answer 214

search warrant. The Bohigian/Moreau rule does not apply!!! Have your search warrant affidavit outline facts showing that the defendant drove a vehicle while under the influence of drugs; that he was transported to the hospital where medical staff drew his blood for treatment; and that obtaining (from the hospital) and test (at the crime laboratory) the blood sample will likely provide evidence of OUI- Drugs.

Question 215

OUI- DRUGS: Since "implied consent" does NOT apply to arrests for OUI-Drugs, police may ask for consent AND/OR obtain a search warrant. Strategy 2: Hospital is not going to draw blood for treatment: If the defendant consents:

Answer 215

-Show his consent form to the hospital staff and have them draw blood for you to take the the crime laboratory.

Question 216

OUI- DRUGS: Since "implied consent" does NOT apply to arrests for OUI-Drugs, police may ask for consent AND/OR obtain a search warrant. Strategy 2: Hospital is not going to draw blood for treatment: If the defendant refuses consent:

Answer 216

- Apply for a search warrant. Your search warrant affidavit must outline facts showing that the defendant drove a vehicle while under the influence of drugs; that obtaining a blood sample (at the hospital) and testing it (at the crime laboratory) will likely provide evidence of OUI- Drugs.

Question 217

OUI- DRUGS: Strategy 2: Hospital is not going to draw blood for treatment: If the defendant refuses consent: Apply for a search warrant. Your search warrant affidavit must outline facts showing that the defendant drove a vehicle while under the influence of drugs; that obtaining a blood sample (at the hospital) and testing it (at the crime laboratory) will likely provice evidence of OUI- Drugs. What else should you include in your affidavit and the proposed warrant?

Answer 217

Language directing the hospital staff to immediately draw blood, and authorizing the police to use reasonable force if the defendant resists. Ex. under authority of a search warrant, troopers used force and held defendant down so that the nurse could extract a blood sample; this procedure was NOT criticized by the SJC.

Question 218

Typically, with a preservation order, the hospitalwill expect a (blank) to release the blood.

Answer 218

a warrant (search warrant).

Question 219

OUI Drugs: Immediate threat for blood test refusal?

Answer 219

While a Massachusetts court has yet to rule on the practice, some officer, when faced with an OUI- Drugs defendant who refuses to consent to a blood test and/or DRE evaluation, will file an "immediate threat complaint" with the registry. This causes the defendant to lose his license immediately. The legal basis for taking this action is that, unlike OUI- Alcohol and "implied consent" rules, OUI- Drugs offers no comparable procedure directed at the motorist who refuses blood or DRE testing. Officers are free to use the "immediate threat" procedure to deal with this significant safety concern until a court or the legislature prohibits it.

Question 220

OUI 3 or more is a:

Answer 220

Felony.

Question 221

OUI 2 or more requires mandatory :

Answer 221

Ignition Interlock Device.

Question 222

OUI 4 or more: eligible for:

Answer 222

vehicle forfeiture.

Question 223

OUI Alcohol or Drugs; Any person who has even been convicted and/or assigned to an alcohol treatment program, in any state, is a:

Answer 223

subsequent offender. * Conviction, CWOF, or assignment on the prior offense must occur *before* the commission of a subsequent offense.

Question 224

OUI Alcohol or Drugs; Any person who has even been convicted and/or assigned to an alcohol treatment program, in any state, is a subsequent offender. True or false? Conviction, CWOF, or assignment on the prior offense must occur *before* the commission of a subsequent offense.

Answer 224

True.

Question 225

True or false? A previous OUI- Alcohol offense will serve as a foundation for a subsequent OUI- Drugs charge, and vice versa.

Answer 225

True. *Officers should routinely check BOP; KQ; and III to discover any prior offenses. Remember: prior offenses affect the severity of the penalty for BT refusal AND conviction.

Question 226

A previous OUI- Drugs offense will serve as a foundation for a (blank) OUI- Alcohol charge, and vice versa.

Answer 226

Subsequent. *Officers should routinely check BOP; KQ; and III to discover any prior offenses. Remember: prior offenses affect the severity of the penalty for BT refusal AND conviction.

Question 227

OUI Alcohol and Drugs: True or false? Prior offenses affect the severity of the penalty for BT refusal AND conviction.

Answer 227

True.

Question 228

Is unilateral reduction of OUI charge allowed?

Answer 228

No. ex. over objection, judge should NOT have allowed defendant to plead guilty to 3rd OUI because prosecutor was prepared to prove 4th offense.

Question 229

OUI: Subsequent Offenses: Certified court and/or probation records are necessary. A live witness need not be present in court; however, the prior record must be clearly linked to the defendant. Name and birth date, without more, is INSUFFICIENT to prove that the defendant is the same person who committed the prior OUI. More identifying features are requires, such as:

Answer 229

prior addresses or photographs. - Certified conviction and RMV documents are admissible as business records; probation records are NOT, because they are prepared for trial Also, ex. prior convictions counted even though the defendant was not entitled to appointed counsel for his previous defense.

Question 230

OUI- Subsequent Offenses: Pre-trial detention is only available for (blank) offense or more.

Answer 230

4th offense or more. 276 sec 58A requires three convictions before a defendant can be detained without bail.

Question 231

How many PRIOR CONVICTIONS are required before an OUI defendant can be detained without bail

Answer 231

3 prior convictions= OUI 4 or more.

Question 232

OUI Is a CWOF available to the defendant after a jury verdict?

Answer 232

No.

Question 233

OUI Judges have discretion whether to dismiss or issue CWOF for a veteran or active duty service member's SUBSEQUENT offense. (Blank) act provides diversion to young veterans and active duty members in the district courts.

Answer 233

VALOR act.

Question 234

Ignition Interlock Devices: Any 2nd or subsequent OUI offender must have Ignition Interlock Devices installed on any cars they own, lease, or operate (including an employer's vehicle) during the time they have a hardship license and for an additional:

Answer 234

2 YEARS following the reinstatement of their license.

Question 235

(Blank) is a screening device that prevents a vehicle from starting if it detects a blood alcohol concentration over .02.

Answer 235

A certified Ignition Interlock Device.

Question 236

A certified Ignition Interlock Device is a screening device that prevents a vehicle from starting if it detects a blood alcohol concentration over:

Answer 236

.02

Question 237

Ignition Interlock Devices: A (blank) restriction appears on the license.

Answer 237

"T" restriction.

Question 238

Ignition Interlock Devices: Driving on a public way without an Ignition Interlock Device when required by law: Defendant must have a (blank) to be charged with this.

Answer 238

valid license ex. because his license had previously been revoked for removing his interlock device, defendant could not be convicted of operating in violation of this restriction! Police should simply charge operating on a suspended license.

Question 239

Ignition Interlock Devices: Driving on a public way without an Ignition Interlock Device when required by law: ROA:

Answer 239

Felony.

Question 240

Ignition Interlock Devices: Tampering or interfering with an ignition interlock device with the intent to disable the device: ROA:

Answer 240

Felony.

Question 241

Knowingly breathing into or starting an ignition interlock device for a restricted person 90 sec 24 U: Strongest Action:

Answer 241

Complaint: Note: person blowing= their misdemeanor, restricted person then driving= their felony

Question 242

Knowingly permitting an operator (with an Ignition Interlock Device restriction) to operate a vehicle that does not have a functioning Ignition Interlock Device: Strongest action:

Answer 242

Complaint:

Question 243

Ignition Interlock Devices: True or false: Acknowledgement by household members: As a precaution to issuing an IID, the RMV requires that all license operators in the offender's household sign an acknowledgment (under penalty of perjury) that they understand that the offender may not drive without an IID and that it it a crime to breathe into an IID for the offender. This ackowledgment "shall be admissible in a 90 sec 24U prosecution" as sufficient evidence of the signer's knowledge.

Answer 243

True.

Question 244

Lease Motor Vehicle, Trailer, or Motorcycle to Intoxicated person: ROA:

Answer 244

Complaint.

Question 245

Open Container Ch. 90 sec 24I & 94C sec 13 D: Does Open Container apply to both drivers and passengers, **even if the car is not being operated at the time of the infraction?**

Answer 245

Yes. Thus, a person sitting in a car (public way- apply exact same definition for public way as OUI) with an open beer or open container or marijuana is in violation. Of course, if any drivers or passengers are under 21, then other possession laws apply. $505 CMVI for Alcohol, $500 local ticket for marijuana.

Question 246

Open Container Ch. 90 sec 24I & 94C sec 13 D: Elements:

Answer 246

1. Anyone 2. Possessed open container of alcohol or marijuana 3. Passenger area 4. Public way (Apply exact same definition for public way as OUI) Drivers, passengers, or anyone else; Possessed an open container of an alcoholic beverage or marijuana; In the passenger area of any motor vehicle; On a public way (Apply exact same definition for public way as OUI)

Question 247

On open container of alcohol is enforced by:

Answer 247

a $505 CMVI Officers should issue a citation to the driver and/or passengers involved. Furthermore, 90 Sec 24P mandates and additional 180 day suspension for a driver under 18.

Question 248

An open container of marijuana is enforced by:

Answer 248

$500 LOCAL TICKET. Unlike alcohol, an open container of marijuana is NOT enforced by a vehicle citation. Instead, officers must assess the fine on a by- law or ordinance ticket in the same way they enforce other civil fines for marijuana violations under 94C.

Question 249

Under 90 sec 24 I (Alcohol) " Any bottle, can, or other receptacle used to contain an alcoholic beverage that has been opened or has a BROKEN SEAL, or the contents of which have been partially removed or consumed."

Answer 249

Open container alcohol

Question 250

Open container Under 90 sec 24I (Alcohol) Definition:

Answer 250

" Any bottle, can, or other receptacle used to contain an alcoholic beverage that has been opened or has a BROKEN SEAL, or the contents of which have been partially removed or consumed."

Question 251

"the package containing marijuana or marijuana products had its deal broken for some contents...partially removed or consumed"

Answer 251

Open container of marijuana under 94C sec 13d

Question 252

Open container of marijuana under 94C sec 13d Definition:

Answer 252

"the package containing marijuana or marijuana products had its deal broken for some contents...partially removed or consumed"

Question 253

Open container Alcohol and Marijuana: Does the "passenger area" include the trunk, locked glove box, or living quarters of a mobile home?

Answer 253

No. ** If the vehicle does not have a trunk, then the area behind the last upright seat is not considered the passenger compartment.

Question 254

Open container Alcohol and Marijuana: If the vehicle does not have a trunk, then the area (blank) is not considered the passenger compartment.

Answer 254

the area behind the last upright seat

Question 255

Open container Alcohol and Marijuana: May people drink alcohol on a bus or other vehicle that has been properly licensed for that purpose?

Answer 255

Yes. There is not license (yet) for marijuana use in a mobile vehicle.

Question 256

May traffic stops be base don marijuana odor, smoke, or visible use?

Answer 256

Yes. Clearly, officers have a reasonable suspicion to stop a vehicle for open container when they smell the odor of marijuana coming from a passing vehicle, or smell it and observe smoke, or see an occupant engaged in likely consumption (e.g. holding a bong or joint). Applying the reasonable suspicion standard makes sense because highway safety is compromised whenever marijuana is present and accessible in a vehicle.

Question 257

Open Container: Marijuana: Officers may consider most containers as "open". According to 13(d), an open container is "any package containing marijuana or marijuana products that has its seal broken or (some) contents...partially removed or consumed". Once its seal breaks, a package may not be in the passenger compartment. This restriction covers any (blank).

Answer 257

homemade container. After all, any Ziploc bag has its seal broken when the product is stored. The same is true for a Tupperware container or Mason jar. The only package truly sealed is sold unopened by a retail marijuana business. Certainly, a marijuana joint or cigarette is an open container under this definition.

Question 258

Open Container: Marijuana: Officers may consider most containers as "open". According to 13(d), an open container is "any package containing marijuana or marijuana products that has its seal broken or (some) contents...partially removed or consumed". Once its seal breaks, a package may not be in the passenger compartment. This restriction covers any homemade container. After all, any Ziploc bag has its seal broken when the product is stored. The same is true for a Tupperware container or Mason jar. The only package truly sealed is:

Answer 258

sold unopened by a retail marijuana business. Certainly, a marijuana joint or cigarette is an open container under this definition.

Question 259

Minor Possessing or TRANSPORTING Ch. 138 sec 34C: Elements: (3)

Answer 259

1. Under 21 2. Possess or transport 3. Alcohol The suspect was under 21 years of age AND *unaccompanied by a parent or legal guardian*, and Knowingly possessed, transported, or carried on his person; Any alcoholic beverage or alcohol (e.g. whipped cream with alcohol, etc).

Question 260

Minor Possessing or Transporting Ch. 138 sec 34C: ROA:

Answer 260

Warrantless arrest in PRESENCE. Exemption: However, 34C does not apply to people between age 18 and 21 who carry or transport alcohol during the course of their employment.

Question 261

Minor Possessing or Transporting Ch. 138 sec 34C: Exemption: Age 18-21

Answer 261

34C does not apply to people between age 18 and 21 who carry or transport alcohol during the course of their *employment*.

Question 262

Minor Possessing or Transporting Ch. 138 sec 34C: May possession be *constructive*?

Answer 262

Yes. ex. defendant smashed his car into his neighbor's yard. He was later arrested when he came back to the scene. An inventory of his car revealed whiskey and beer bottles in front. Aside from OUI and leaving the scene, he was convicted of being a minor in possession- even though no one saw him drinking or holding alcohol.

Question 263

Minor Possessing or Transporting Ch. 138 sec 34C: Mandatory RMV suspension?

Answer 263

90 day suspension applies to all violators, regardless of whether they were driving at the time of the violation.

Question 264

Unlawful Transportation of Alcohol: Regular citizens: A citizen may, " but only for his own use and that of his family and guests," transport at any one time without a permit, the following maximum quantities: Malt Beverages: Alcohol Beverages: Alcohol:

Answer 264

Maximum Quantities: Malt Beverages: **20 gallons** Alcohol Beverages: **3 gallons** Alcohol: **1 gallon** *Exception*: Any person may, without any license or permit, transport from his place of residence to a new place of residence... alcoholic beverages manufactured by him for his own private use."

Question 265

Unlawful Transportation of Alcohol: Ch. 138 Sec 22 Licensees who sell alcohol: Any licensee or employee may transport and deliver alcoholic beverages, bought or sold by the licensee, anywhere in the Commonwealth. Each vehicle must be covered by a :

Answer 265

permit from the Alcoholic Beverages Control Commission (ABCC).

Question 266

Unlawful Transportation of Alcohol: Ch. 138 Sec 22 Salesmen: A sales man licensed under 138 Sec. 19A may transport samples of up to (blank) gallons of alcohol or alcoholic beverages, provided he possesses a permit, invoices and delivery records.

Answer 266

*24 gallons* of alcohol or alcoholic beverages.

Question 267

Unlawful Transportation of Alcohol: Ch. 138 Sec 22 Retail wine or beer delivery: A winery or brewer licensed under 138 sec 19B, 19C, or 19F may use a parcel service or trucking business, with an ABCC permit, ti deliver wine or beer to customers not in excess of (blank) liters per shipment. A delivery receipt must contain certification from the recipient that he is atleast **21**, and from the delivery person that he observed a valid ID (of the recipient).

Answer 267

108 liters.

Question 268

Unlawful Transportation of Alcohol: Ch. 138 Sec 22 May a caterer obtain a 12C license and transport and store alcohol on behalf of its customers?

Answer 268

Yes.

Question 269

Unlawful Transportation of Alcohol: Ch. 138 Sec 22 Proof of Violation: 138 Sec 22 mandates that every motorist transporting alcohol carry a vehicle permit or certified copy or:

Answer 269

be exempt. The driver must produce documentation upon request of any police officer or ABCC investigator. Failure to do so it *sufficient evidence* of a violation. (Ex. absence of permit sufficient, no intent required)

Question 270

Unlawful Transportation of Alcohol: Ch. 138 Sec 22 Helpful conversion figures: Beer 20 gallons= 2,560 oz -so 8 30 packs or 12oz beer = 2,880 oz= VIOLATION (7 30 packs is ok) Imported half kegs are 13.5 gallons= not a violation (no one sells full kegs) Wine and liquor 3 gallons= 11.3 liters- A typical bottle of wine is 1 liter, so anything over 11 bottles of wine = VIOLATION

Answer 270

7, 30 packs is under limit 11 bottle of wine is under limit

Question 271

Unlawful Transportation of Alcohol: Ch. 138 Sec 22 ROA:

Answer 271

Warrantless arrest in Presence

Question 272

No Hawking or Peddling Alcoholic Beverages: ROA:

Answer 272

Warrantless arrest in Presence.

Question 273

No Hawking or Peddling Alcoholic Beverages: As a result of 138 sec 32, no license or permit holder may, by himself or through an agent, travel from "place to place" selling or peddling ANY alcoholic beverages from a vehicle. All sales must take place at:

Answer 273

" the licensed place of business:" ROA: Warrantless arrest in presence