MJ, a 55-year-old professional with health issues, including sleep apnea and urinary incontinence, was stopped by the State Police. She was stopped because the Trooper saw her swerving. Although the trooper activated his lights, MJ did not stop immediately. In fact, she continued driving for approximately 3 minutes. Once stopped, the trooper “forcibly removed” MJ from her car. He did not ask MJ if she was “ok” or if she was experiencing any medical emergencies. Unable to control herself, MJ urinated. The trooper assumed that MJ’s urination occurred because of alcohol impairment. During the interaction, the trooper smelled the strong odor of alcohol, noticed MJ’s eyes were bloodshot and glassy, and thought MJ’s speech was slurred. In addition to that, he felt that MJ was extremely unsteady on her feet.
In 1983 and 1984 MJ had been convicted of separate OUIs. Under Massachusetts’ OUI laws, a person convicted of a 3rd OUI is sentenced to a mandatory 150 days in jail. The sentencing judge has no discretion.
Attorney Henry Fasoldt conducted an in-depth investigation. He obtained MJ’s medical records, visited the scene, and spoke with potential witnesses. In addition, he submitted a “breakdown” letter to the prosecutors, requesting that they reduce MJ’s charge to an OUI-2nd offense. The prosecutors did not agree to reduce the charge. In fact, they said that they would be seeking more jail time than the mandatory minimum. Unfazed, Henry and MJ prepared for trial. Henry filed a Motion to Suppress the “exit order.” Though the motion was denied, the judge noted that the trooper “forcibly removed” MJ from her car and he did not have reason to arrest her for OUI, but that he did have reason to arrest her for “failure to stop for a police officer.” Only after the arrest did the trooper gather enough evidence to charge MJ with OUI.
On the eve of trial the prosecutors disclosed that they would not be able to prove one of the prior convictions. This helped MJ in that the mandatory 5-month jail sentence was off the table. However, it presented a difficult decision – plea to OUI-2nd or take the chance at trial? If convicted at trial the judge could sentence her to as much as 2.5 years in jail. A plea, on the other hand, if accepted by the judge (that is a big “If”) would result in merely a suspended jail sentence. After significant discussion, MJ took the safe route and decided to plea to OUI-2nd. Unfortunately, the prosecutors were still seeking a lengthy jail sentence – they asked the judge for 2.5 years in jail, with 6 months to serve. Henry asked the judge to sentence MJ to suspended jail time. At one of the longest OUI sentencing hearings that Attorney Fasoldt had litigated, the judge (very tough and prosecution-friendly) agreed to sentence MJ to suspended jail time.