I usually advise my OUI clients to waive the jury and try their case in front of a judge at a bench trial.
Why? Because you never know what jurors are going to do.
Here’s a recent example from today’s Appeal Court slip opinions.
A district court jury convicted a defendant of operating under the influence of alcohol even though his blood-alcohol concentration (BAC) was under the legal limit.
According to court documents, the man allegedly crashed his car and showed signs of impairment while speaking to police.
He was arrested for OUI and consented to a chemical breath test.
His breath test result came back as .07 BAC. This is .o1 below the legal limit of .08 BAC.
To convict a defendant of OUI in Massachusetts, the prosecutor must prove that the defendant’s BAC was .08+ or that the defendant was otherwise too impaired to safely operate a vehcile.
The prosecutor in this case went with the second option, arguing that the defendant was simply too impaired to drive.
At trial, the judge allowed the prosecutor to submit an unredacted copy of the defendant’s breath test results.
The document included the defendant’s “subject test” which was .08 BAC.
(You blow into the breath test twice and the lower of the two readings is used against you in court. The higher reading–the “subject test”–cannot be used as evidence of intoxication.)
After hearing testimony and considering the unredacted breath test report, the jury convicted the defendant.
The defendant appealed and today the Appeals Court upheld the conviction.
We need not determine whether the admission of the BAC results was erroneous because even if there was error, it did not amount to a substantial risk of a miscarriage of justice because the evidence against the defendant was overwhelming….The jury heard substantial evidence of the defendant’s impairment. The defendant twice told police that he was too drunk to drive, gave inconsistent responses to the officer’s questions, and had difficulty finding his driver’s license. The jury also heard evidence from multiple witnesses that the defendant exhibited “classic” signs of intoxication — appearing unsteady on his feet, smelling of alcohol, appearing confused and disoriented with red and bloodshot eyes, and slurring his speech.
The full text of the slip opinion is attached below.