Are you interested in Appealing a prior OUI conviction or Tender of Plea?
Read the Information Provided Below and Decide for Yourself
As a result of years of litigation surrounding the reliability of Breathalyzer test results in Massachusetts, the court in Com v. Ananias has held that in most instances, any Breathalyzer result that was conducted on a Draeger Alcotest 9510 Breathalyzer machine between the dates of June 2011 and April 17, 2019 as being presumptively excluded. You may have received a letter in the mail indicating this from either the Trial Court or the from the Committee for Public Counsel Services. In a nutshell, the Breath Test result from your old OUI should not have been admitted during your tender or plea or Trial.
If you have a prior guilty conviction as a result of a guilty verdict after trial where evidence of the Breathalyzer result was admitted, then you may be a good candidate to have a motion for new trial filed on your prior OUI matter.
If you have previously tendered a plea and received a Continuance Without of Finding (CWOF) or Guilty finding, you may be a good candidate to have a motion to withdraw plea filed on your prior OUI matter.
If you have a Second or subsequent offense OUI pending in the court system and your previous OUI occurred during the above referenced time period, then it may be worth looking into whether or not your previous OUI can be appealed. Successfully appealing a prior offense could make a big difference as to whether or not you will have to have an Interlock Ignition device installed in your vehicle.
It is important to note that simply filing the appellate motion will not automatically result in your prior OUI being dismissed or not prosecuted any further. If a motion for new trial or a motion to withdraw plea is allowed then the Commonwealth does have the right to try the case over again. During this re-trial there are no guarantees that you will be found not guilty, but in many instances where the Breathalyzer Test is now excluded, it could greatly increase your chances of being found not guilty.
Each motion is addressed on a case by case basis with the District Attorney’s office in your county. One case may result in the motion for new trial or motion to withdraw plea being allowed by agreement and the Commonwealth decides not to prosecute the matter any further. In this instance, the old OUI is effectively dismissed and is no longer on your record. A motion to correct the information sent to the RMV is also filed so that the RMV is aware that you no longer have the OUI on your driving record.
Another case may result in your Motion for New Trial or Motion to Withdraw Plea being allowed but the Commonwealth decides to re-try your case. This means that after the motion is allowed, your matter is restored to a Pre-Trial Hearing and then your case proceeds to trial where evidence of the Breathalyzer Test is excluded from being admitted during your trial.
If you are found not guilty, then this will be reflected on your criminal record and the information will also be sent electronically over to the RMV. However, in the event you are convicted, you will likely be placed on probation or re-sentenced. In some cases, overturning an old OUI conviction can cause more problems than it can solve. Please ask all the questions you have regarding the pro’s and con’s of proceeding with these types of motions before you make this important decision.
As of March 2022, Dan is charging a flat fee of $1,000.00 to review your prior OUI and answer all questions you have regarding the pro’s and con’s of moving forward with a motion. If you decide to proceed with the drafting/filing and argument regarding your Motion for New Trial or Motion to Withdraw Plea, than an additional fee of $1,000.00 is due prior to any drafting of the Appellate documents. Traveling time to courts outside of Franklin, Hampshire, and Hampden Counties may incur additional travel related costs.
Finally, the above referenced costs do not include any services related to re-trying your OUI in the event the Commonwealth decides to further prosecute you. All services terminate after the Motion for New Trial or Motion to Withdraw plea is allowed or denied.
If you wish to have attorney Sandell be the trial attorney for your case, a separate fee agreement will need to be reviewed and signed with him.
Feel free to call the office at 413-549-3883 if you would like to discuss this issue in further detail.