In the Spirit of the Law - Local OUI Cases May Have Broad Ramifications

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This is an irrebuttable provision, said Stephen Monsein, a lawyer with Bacon and Wilson, P.C./Monsein & MacConnell in Amherst, meaning that if a Breathalyzer records that number or higher, then a jury is to consider the operator intoxicated, and thus guilty under the new law. And for that reason, Monsein, in a case that may soon have a far-reaching impact in the Commonwealth, argued that the state must have the burden of proving everything stated in the amended measure — Chapter 90, Section 24 of Mass. General Laws.

And that means the part about "at the time of operation."

Breathalyzer tests take place, on average, more than 30 minutes after a driver has been pulled over, said Monsein, adding that in the case of one of his clients, Anne Colturi of Orange, the time lapse was more like an hour and a half. One’s blood-alcohol level could rise (or fall) over that much time, he continued, adding that for this reason, he asked that the state provide someone known as a "retrograde extrapolation expert" to attempt to gauge the blood alcohol level when Colturi was last operating her vehicle.

When the state balked, for reasons ranging from the cost of providing such an expert for every case to the lack of such individuals, Monsein argued that the Commonwealth was unfairly shifting the burden of proof in his case to the defense.

And, to make a long story short, an associate justice of the Orange District Court agreed...

You may read more at the link below.

reprinted by permission

by: George O'Brien BusinessWest February 5, 2007

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