I have a friend that was arrested in Plymouth county for a 5th offense oui, his last was almost 20 years ago. He refused the breat/sobreity tests. He did admit to having a couple but claims he fell asleep driving. There are also a few discrepancies in the officers testimony at the dangerousness hearing vs his police report. The officer testimony claimed that the weather wasn't that bad (it was a nor'easter) not too windy and not rainy. The report noted high winds and rain, puddling, and downed trees. His testimony noted an incorrect speed limit, he was 5 or 10 miles off. Anyway, my friend is being held for 90 days, as the judge considers him a danger to society. He's due to be released in June. His attorney said that the judge can impose another bail and possibly further restrictions. If he was held for 90 days, doesn't that mean he served his time and should be free (no bail or restrictions)? Also, as part of his defense, he needs to be tested for sleep apnea. He's positive that he has sleep apnea as he snores loudly, falls asleep at his desk, the dinner table, driving... About how much time will the courts generally allow for medical testing? Should we have a sleep apnea expert testify at trial?
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Editor's Response
Under Massachusetts law, when a person is arrested on a 3rd offense (or some additional offense), the DA may request a dangerousness hearing, where he or she will attempt to convince the judge that the arrested driver is a danger to society and should not be released on bail prior to the trial or other resolution of the issue. If the judge agrees, the driver is not going home. Of course, the driver still faces additional, significant penalties if convicted. Here is a relevant portion of Massachusetts General Laws Chapter 90, Section 24, to give you some idea of the stiff penalties your friend may be facing:
If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense four or more times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment for not less than two and one-half years or by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twenty-four months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served twenty-four months of such sentence(.)
It's good that your friend has a Massachusetts attorney, as most who do this type of defense work will tell you that, because of the stiff penalties involved, it is almost always in the defendant's interest to go to trial and force the Commonwealth to prove its case, AND that the prior conviction occurred. This is often difficult to show with older convictions. For more information visit our Massachusetts Criminal Law Discussion Forum.
I hate to sound dumb but are
I hate to sound dumb but are you saying that he may not get out at all before trial? What happened to "innocent until proven guilty"? How will he be able to pursue his defense of sleep apnea without being able to see a doctor?
Editor's Response
His attorney will be permitted to mount a vigorous defense. If his attorney feels his client must be examined by a doctor, that can be arranged.