MA OUI Breathalyzer Cases Halted Pending Resolution of Local Lawyer's Argument in Front of Supreme Judicial Court

February 5, 2007


Stephen B. Monsein, Esquire

Amherst, MA - The regional law firm of Bacon & Wilson, P.C / Monsein & MacConnell is proud to announce that Stephen B. Monsein, will argue a ground-breaking OUI case on Thursday, February 8 at 9AM in front of the State's Supreme Judicial Court (SJC) in Boston. This case goes to the heart of Melanie's Law and its requirement that juries must consider a vehicle operator who registers a .08 or greater breathalyzer score at the time of arrest intoxicated, and thus, guilty.

The crux of this case is that Monsein is arguing that the burden of proof of intoxication at the time of vehicle operation is on the State. Since breathalyzer tests typically occur at least a half hour following an arrest, and sometimes, as in this case, up to a couple hours later, a person's blood-alcohol level could rise or fall during that time. He asked that the State provide a "retrograde extrapolation expert" to attempt to gauge the blood alcohol level when Monsein's client was last operating her vehicle. The State originally balked that this would be too expensive, and Monsein rebutted that this shifted the burden of proof of innocence on his client rather the State's burden to prove guilt.

The lower Court agreed with Monsein, and ordered that the State could not enter into evidence a breathalyzer result unless it hired the expert to retroactively conclude actual blood alcohol level at the time the operator was driving the car. The State appealed this decision, and the case was joined with another similar one and escalated to the SJC.

If the SJC upholds the lower Court's decision, this will significantly impact the Melanie's Law's requirement regarding breathalyzer tests. In the meantime, a single Justice of the SJC has halted all OUI cases that involve breathalyzer results pending the resolution of Monsein's case.

The bottom line is in the State's attempt to shift the burden of proof from the prosecution to the defense. There is clear case law in MA that this is not acceptable. Monsein is arguing that the State must prove intoxication at the time the driver was operating the vehicle, and this was simply not done in his client's case.

This proceeding will be webcast live here. Please click on 2/8/07, SJC-09796 Commonwealth v. Colturi.

Stephen B. Monsein is an member of the litigation and domestic relations departments. His work is primarily concentrated on divorce cases, but he also handles personal injury cases and does a significant amount OUI defense work each year. He is a Fellow with the Massachusetts Chapter of the American Academy and Matrimonial Lawyers and has been active in Pelham Town Government and University of Massachusetts activities for many years. Monsein earned his J.D. from Suffolk University Law School and his B.A. from the University of Massachusetts. He lives in Amherst with his wife.

Bacon & Wilson, P.C. has a total of 36 lawyers plus 65 paralegals, secretaries and other support staff. The firm's main office is located in Springfield, with additional offices in Westfield, Northampton and Amherst. The firm was founded in 1895, and Bacon & Wilson provides legal services in almost every area of the law to clients throughout Western Massachusetts and Northern Connecticut.

by: Stephen B. Monsein