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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 23205
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Just gathering research on a case. Massachusetts. DUI 2nd

Customer Question

Hello, Just gathering research on a case.
JA: Because laws vary from state to state, could you tell me what state is this in?
Customer: Massachusetts. DUI 2nd offense- but was not drunk- just throwing up and it looks very winnable. They had to take me to the hospital twice before arraignment to try to stop the vomiting/. at that point I could no long er walk because of the electrolyte loss. Hours earlier the policer who questioned me assumed i was intoxicated. He was just doing his job. But I can;t afford this offense not handle jail time. I agreed and tried the brealalizer twice but did not have the lung capacity to blow long enough. They did not offer blood or urine- both of which I would gladly do. In massachusetts not finishing the test twice is an automatic refual and loss of licene for 6 months.
JA: Have you talked to a lawyer yet?
Customer: Spoke very brliefly with my court appointed attorney. I haven;t seen the police report yet, but have been making notes on my experience.
JA: Since laws vary from place to place, what state is this in?
Customer: Mass. My assumption is that I need to reach out to the pre trial probation officer Monday,. Already left one message for the att. awaiting his response on the next step..
JA: Anything else you think the lawyer should know?
Customer: Plenty. :)My medical records that show with very litte alcohol, I can seie and also the voting starts violently when the drinking stops. I was stopped on my way to the closest convenience store for cola to debubble and drink to try to stop the vomiting. Ity's also a package store- had i wanted to not be sick i would have purchased alchol which i did not. I had stopped the night before also, have you heard of a wet reckless? If he just wants to clear another case, ( which I think we can fight) then perhaps the prosecutor will be willing to sentence and or charge bargain. I work mostly from home. I would welcome a home sentence with bracelet and only travel with certain restrictions ie; to mee the probation officer and dr appointds.
Submitted: 2 months ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 2 months ago.


If this was your second DUI, how long ago was the first? Were the police able to get a reading of your BAC? What is the question that you have?

Customer: replied 2 months ago.
The first was in 2005. The machine was not working so we never got an accurate reading. I had been drinking that night and got what I desered. It also brought me back into sobriety. On and off about 9 years. When I did relapse I only drank at home. There's no excuse for it. I can understand the officer thinking i was drunk since some one reported me weaving once in the 3 minute ride to the store. I was not drinking, I had been throwing up and knew it would get worse and I'd have to go to the hospita. so i was trying to get to the store for cola to debubble and settle my stomach. Since that didn;t happen, I threw up all night at the station. twice they took me to the hospital so they know I wasn't lying. I don;t know how much work the Att can do for me- it's easier to plea but feel confidant I can help him build a clse -0 dependinig on the prosecutor. They can negotiate almost anything right? I know there mandates so we'll have to see what the judge is willing to do. Even home confiement is possible.
I met a woman with 5duis who secured home confinement but I think she had to serve some of her time. I just will fight the grounds of this because I know I wasnt drunk, I agreed to the breathalizer twice- I could blow long enough and in Mass they make that an autmatic refusal with 180s versus 30 and that's pre trial.
I did some work last year with the aclu- I could humble myself and call them i suppose.
It's my second charge but I am certain not my second dui. I was wobbly and told the offier I have been throwing up abnds this is what happens. They saw that the next day for themvles- other officers in lock up who had to take me out on a stretcher to the hospital to get fluds before the arraignment. that is where I have a case
Customer: replied 2 months ago.
Thank you for your time. tonight.
Expert:  Zoey_ JD replied 2 months ago.

Sorry for the delay, but I turned in for the night before you answered.

If you're asking whether you can avoid jail were you to plead to the DUI, the answer is probably. If this is your first DUI arrest, there's no reason for you to serve time in jail on a plea agreement. Probation is far more likely.

Massachusetts does have a lifetime lookback period, meaning if you were convicted of a prior DUI at any point in your life (and in any US state or territory) this would count as a second offense. Then jail would have a greater possibility, but house arrest/SCRAM monitoring can generally be negotiated.

On the other hand, all of your symptoms can be accounted for by the illness that you experienced. Further, the police knew that you were ill clearly, as they transported you to the hospital and more than once.

So, particularly without a breathalyzer result to show scientific proof that you were over the legal limit, the state may have a difficult time convicting you of this charge in the first place.

I would not be inclined if I were you to rush into plea negotiations. You have a public defender and you need to keep trying to reach him or her. If you cannot, then ask for the public defender's supervisor and complain that you've been trying to reach your lawyer but he won't return your calls. Meanwhile, of course, if you were ordered by the court to take certain steps as of now, you ought to do so.

Expert:  Zoey_ JD replied 2 months ago.

Just checking in to see if you need more help or any clarification of my answer. If so, please reply here on this question thread.

Customer: replied 2 months ago.
Thank you Zoey- I shared what I learned ( and have been learning) via email with the court appointed attorney. His office said he'd call when he was done with court today so who knows. I have been looking into hiring a DUI specific Attorney depending on whether this Attorney wants to go all the way. No way I would plead to what i didn;t do. Thank you again for your help.
Expert:  Zoey_ JD replied 2 months ago.

You're very welcome.

Best of luck with the case.