The simple premise I use when going into a case is the fact that most likely each member of the jury is sitting there and thinking but for the grace of God, this could be me. This is probably the only charge in our criminal justice system that this premise works. It certainly does not work for Robbery, Drug or Domestic Violence cases.  So now that we have the premise going into trial that the people who are going to hear the case and decide your fate probably have consumed 1,2,3 or more drinks and then got behind the wheel.

The prosecutor has to prove that the amount of alcohol you consumed has diminished your ability to operate a motor vehicle safely. Sounds pretty simple but what on earth does that mean?

I like to focus on what it doesn’t say. The instruction doesn’t say is that if you have consumed any alcohol whatsoever, you’re guilty. In other words, ITS NOT ILLEGAL TO DRINK AND DRIVE. A couple of years ago the State Police had a commercial,  “you drink, you drive, you lose. Unfortunately that was not and is not the law and I routinely used that premise in my closing arguments to juries. It is no longer their slogan.

What does it mean to be “under the influence” of alcohol? The jury instruction that a judge will read after the trial is over is as follows:

Someone does not have to be drunk to be under the influence of alcohol. A person is under the influence of alcohol if he (she) has consumed enough alcohol to reduce his (her) ability to operate a motor vehicle safely, by decreasing his (her) alertness, judgment and ability to respond promptly. It means that a person has consumed enough alcohol to reduce his (her) mental clarity, self-control and reflexes, and thereby left him (her) with a reduced ability to drive safely.  The most important part of this section of our jury instructions is what is said next. “The amount of alcohol necessary to do this may vary from person to person. “ Twice in the past 3 years I had clients admit to consuming 7 and 8 drinks respectively yet the jury acquitted both clients.

When you factor in that the prosecutor has to prove their case Beyond a Reasonable Doubt, it becomes clearer why OUI’s are very winnable. Part of the jury instruction the court reads on Beyond Reasonable Doubt is as follows.

“A charge is proved beyond a reasonable doubt if, after you have compared and considered all of the evidence, you have in your minds an abiding conviction, to a moral certainty, that the charge is true. The judge will also instruct the jury “I have told you that every person is presumed to be innocent until he is proved guilty, and that the burden of proof is on the prosecutor. If you evaluate all the evidence and you still have a reasonable doubt remaining, the defendant is entitled to the benefit of that doubt and must be acquitted. It is not enough for the Commonwealth to establish a probability, even a strong probability, that the defendant is more likely to be guilty than not guilty. That is not enough. Instead, the evidence must convince you of the defendant’s guilt to a reasonable and moral certainty; a certainty that convinces your understanding and satisfies your reason and judgment as jurors who are sworn to act conscientiously on the evidence.

Not only is it NOT enough that the jury PROBABLY thinks my client is guilty but the words MORAL CERTAINTY are used in the instruction as well. I argue to juries in almost every trial that whenever the words moral are used in anything, you have to think we are taking about a very high standard.

Let me review your case and give you a free analysis on what I think your cases strengths and weaknesses are. Not every case is winnable but make sure your attorney has a track record of success.

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I have had tremendous success in the area of my practice and understand what needs to be done in order to increase your chances of obtaining a successful result.  If you have questions, please contact me at my office at (508) 791-9001 or by cell phone at (508) 769-7995.   You may also e-mail me or text me.  I take great pride is a very quick response time and will promptly schedule a free initial consultation at your convenience.  I have also begun to conduct quite a few meetings via FACETIME or SKYPE for those clients who are either out of state or have license issues.