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The Masshole defense: Driving on a sidewalk not good enough evidence driver was drunk, court rules

The Massachusetts Appeals Court today reversed a man's third OUI conviction for an incident in which a Revere police officer stopped him after watching get out of a traffic jam on American Legion Highway by pulling off the road and driving on the sidewalk for 200 feet.

The reversal centered mainly on evidence the court said the jury shouldn't have been allowed to see - RMV records that showed he'd refused to take a breath test after he was stopped - but the court agreed with Arturo Cueva that simply pulling a Masshole maneuver on that stretch of American Legion Highway on Aug. 28, 2015, was not enough to prove he showed enough signs of impairment to warrant pulling him over.

In fact, that was Cueva's main line of defense on the OUI charge: That people have been driving on that sidewalk for a long time and so it was hardly out of the ordinary. As the court noted:

He asserted, through counsel, that he drove on the sidewalk to avoid the traffic and that the sidewalk was wide enough for vehicles. He also claimed that vehicles often parked on that sidewalk and introduced evidence - two photographs - to corroborate his claim.

The logic persuaded the court:

Although the defendant clearly exhibited signs of intoxication, and evidence that he drove on a sidewalk was sufficient to prove impaired operation, the evidence was not overwhelming. The defendant essentially was stopped for taking a shortcut along the sidewalk to avoid traffic.

In the same decision, the court threw out Cueva's conviction for driving with a suspended license, because prosecutors were unable to prove the Registry of Motor Vehicles had notified Cuevas his license was suspended and that he shouldn't have even been behind the wheel of his girlfriend's Camry that day.

Prosecutors argued Cuevas should have known his license was suspended, given that he'd pleaded guilty to OUI in January, 2015 and that part of his sentence was a two-year loss of license but the court ruled that, under state law, that's not enough, that the Registry had to have supplemented the verdict with proof it had sent him notification of his license suspension:

The Commonwealth, therefore, did not meet its burden of proving every element of the offense [driving with a suspended license] beyond a reasonable doubt.

A spokesman for the Suffolk County District Attorney's office said today prosecutors intend to retry Cuevas on the OUI charge.

Innocent, etc.

PDF icon Complete ruling in the Cuevas case114.89 KB

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Wait a second. The court said he shouldn't have been pulled over for driving on the sidewalk? That its perfectly legal because other Masshole drivers do it? WTF?

This is like when Phocian Fitts killed a pedestrian in a crosswalk last year in Allston and didn't care. "I'm not worried about nothing. People hit and run people all the time" he said. Boston drivers think its fine to drink and drive, park and drive on sidewalks and kill pedestrians because they see other Boston drivers do it. Disgusting.

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It's truly an alarming passage. From page 12 of the slip opinion:

The defendant essentially was stopped for taking a shortcut along the sidewalk to avoid traffic. See id. (defendant was stopped "for an essentially technical violation: running a red light after safely stopping and looking both ways"). Furthermore, there was evidence that the sidewalk was wide enough to permit the passage of motor vehicles, and the presence of parked vehicles on the sidewalk, as depicted in the photographs introduced by trial counsel, permitted the inference that the sidewalk was used by drivers as well as pedestrians.

This is a Massachusetts court providing a number of excuses for it being cool to drive on the sidewalk. You don't want to wait your turn in a traffic jam? Drive on the sidewalk. That's sidewalk's a bit on the wide side, no? Go ahead and drive on it lad! People sometimes park on it, but they're not parked on it now, so go and get some, son.

And as a bonus, apparently red lights are just a suggestion. Technically, you should remain stopped at them. But if you pause and look both ways, that's good enough for MA judges.


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Across Tremont Street from Police Headquarters, south of Ruggles, police department vehicles drive on the sidewalk every single day of the week.

They do it in order to park on the "grass" on either side of the sidewalk for a hundred yards and more.

It is an unbelievable demonstration of disrespect.

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to warrant police pulling somebody over? Weird.

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But no, it doesn't prove he was drunk.

One has to wonder why the DA would waste time appealing this other than to pad personal stats for the prosecutor in charge of this case. Lawyer time ain't free, and maybe a better use of that money would be to hire another clerk at the RMV to make sure that suspensions get handled by the book, not by the "well you should have known, you were told by a judge, but because we didn't mail you a notice you get to walk" standard.

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that the refused breathalyzer would push the answer over into “probably driving under the influence.” Even if the jury didn’t get to see it, the appeals court sure did. But one often underestimates the willingness of the commonwealth to put assailants back behind the wheel.

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The court didn't rule that the police can't make a stop for driving on that sidewalk, only that it doesn't show any impaired driving (which still shouldn't matter in this case)

And the breath test is never admissible, and even if it were a bench trial (which the judge would probably see all this as well), they can't hold it against them.

Really a silly process but at the very least you get your license suspended (if the RMV does it correctly) by refusing the test.

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Pete, you seem to know what's going on with this. I sat on the jury for a DUI case a few months ago and it was all but obvious that the guy was impaired, what with the admitting to drinking, and driving 20 mph on 93 at 2am, dragging the jersey barrier. Pitifully, some of my fellow jurors took quite a bit of convincing to convict, but we got there.

That aside, we were all surprised that a breath or blood test wasn't admitted. I at least knew that you can refuse a breath test and that you can't bring that up in court, but I wasn't aware that breath tests aren't admissible. Is that new? Does that have to do with training or machine calibration or some other technical thing, or is it statutory? Could you possibly provide some color?

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in that if you refuse the breath test, the law states that this cannot be brought up at trial for any subsequent OUI arrest.

Sure, the law says that if you refuse your license is automatically suspended. BUT! If you win your OUI trial, they have to re-instate the license (another Massachusetts-oddity not shared by the rest of the country).

So to recap: if you get pulled over, always always always refuse the breath test. Call a lawyer. You will spend the night in jail.

But, your lawyer will then request a bench trial and the odds are fantastic you will not be convicted. See this boston spotlight article series:


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It probably has to do with the state lab that didn’t give prosecutors reports on failed breathalyzer calibrations. The prosecutors couldn’t then provide those reports to defense attorneys, which amounts to a discovery violation that hindered the ability to mount an effective defense. To make up for it, the DAs offices agreed not to admit breathalyzer results at trial.


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Is that you have the right not to incriminate yourself, which is what the breath test is. Basically when the police ask you to take that test, you may incriminate yourself if you say yes or no. Same thing goes for a gun license. If the police suspect you of not having a license and they find you with a firearm, they can’t ask you for the license, but they can demand it (the law says you must provide a license upon request by the police per the statute)

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...when this guy finally kills somebody, if he hasn't already

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When you see the court and/or prosecutors twisting like a pretzel to avoid conviction of a felony such as bank robbery or third offense OUI, the first place to look is at the defendant's immigration status. Lest we forget then Suffolk DA Dan Conley's office preposterously lowering two charges of (armed) bank robbery --a senior Boston teller said one of the robberies was the scariest she had ever been through--to "pickpocket" in order to keep a green card holder here. The defendant showed his appreciation by then brutally murdering two doctors in South Boston. In this case, it's the courts, not the prosecutor who dutifully made a ridiculous ruling. It's great to know that driving on the sidewalk is now legal and that the thousands of people operating on suspended licenses need only claim they were never notified.

As for one of the above comments suggesting lawyers are expensive, do you think Arturo Cueva paid anything for a felony defense (the cheap lawyers start about $10,000 for OUI third) or paid anything for the massive amount of billable hours preparing the case for the Appeals Court? Such cases would bankrupt the average US citizen. May the future victim(s) of this guy enjoy their lives now while they can.

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