Field Sobriety Tests

To take or not take the field sobriety tests?

At a recent family dinner, a few members of my family were drinking their usual “Vodka with a splash of cranberry.”  As with most families, having a drink or two at a dinner is a common occurrence in my family.  However, there has never been a more dangerous time in Massachusetts to have a few drinks and then go behind the wheel of a motor vehicle.

For example, on April 22, 2011, a young girl lost of her life due to the alleged drunk-driving of her friend. And of course, there has never been a year where more State Troopers were hit and injured by the actions of alleged drunk drivers.  So the questions remains, what if you are pulled over after having a drink?  What do you do?  Do you take the Field Sobriety Tests?

Under the Massachusetts Declaration of Rights, Article 12, all citizens of the Commonwealth have the right to refuse a police officer’s request to submit to Field Sobriety Tests.  Further, said refusal is inadmissible at trial.  However, if you refuse to submit to the Field Sobriety Tests you will almost certainly be placed under arrest and charged with Operating Under the Influence.  So the question remains, what are the pros and cons of submitting to a field sobriety test?

In the first instance, we should all be acutely aware that when someone is pulled over after a drink or two there is nothing more nerve-racking.  Our reactions will not be the same.  Our decision-making ability might be altered, and quite frankly, we may not do things the way we would normally do.  The very first thing one must do is gain their composure and make sound and logical decisions.  Take a deep breath, and quickly obtain your driver’s license and registration — even before the police officer approaches the vehicle.   Indeed, your goal at this point would be to minimize your engagement with the officer, as everything the officer sees, smells, and hears will be used against you.

Secondly, in almost every circumstance, if you have had more than two drinks over a short amount of time, it would be advisable to not take the field sobriety tests.   The following articulates the reasons as to why this is a sound idea:

(1) Everything observed will be used against you.  When you submit to field sobriety tests every mis-step, every stuttered letter, and everything you say or do not say will be used against you at trial.  Why help the Commonwealth build their case against you?

(2) Your chances of passing the tests after having a drink or two are slim.  Sober people do not pass all of the sobriety tests.  You are nervous.  It could be dark.  The road could be slanted or skewed.  There is traffic passing you.  There are people watching you.  Even sober people – who have had nothing to drink – do not pass field sobriety tests.  Therefore, do not submit to the tests because you think you are going to pass.  Indeed, if I am asked to take a field sobriety test, I will not do it.  If a police officer is asking you to take a field sobriety test he is already inclined to arrest you and charge you with OUI.

(3) You have no obligation to submit to the Field Sobriety Tests — But the police do not need to tell you this.  When someone is asked to step out of their motor vehicle by a police officer, many scary things will be running through your head.  Indeed, your livelihood, your family’s well-being could all be on the line.  The police officer WILL intimidate you.  The police officer will make you feel that you have no choice but to take the filed sobriety tests.  However, what he does not have to tell you — and trust me, he won’t tell you — is that YOU DO NOT HAVE TO TAKE FIELD SOBRIETY TESTS.  You have a Constitutional Right not to incriminate yourself.  Use your rights!

(4) No evidence, no case.  The burden of proof in a criminal case falls squarely on the shoulders of the Commonwealth.  You never have to prove a thing.  You do not need to prove that you were not drinking.  Rather, the Commonwealth must prove that you were operating your motor vehicle while under the influence of alcohol.  How does the Commonwealth prove that you were drunk?  They do this by observations of police officers and witnesses.  They do this by watching you submit to field sobriety tests, and they do this by the breath test results.  If you do not submit to the field sobriety tests, and you do not take the breath test, the only thing the Commonwealth will have in their case-in-chief is the observations made by any witnesses that may have observed your driving, and the testimony of the police officer who pulled you over.  While there are never any guarantees, the Commonwealth would be hard-pressed to prove BEYOND A REASONABLE DOUBT that you were driving under the influence with such little evidence.  Play the game, they want to win, don’t give them the cards to do so.

Massachusetts Child Support

Massachusetts Child Support: When does it end?

It is common belief — at least for those who have never had to deal with the issues of child support — that child support obligations terminate upon a child turning the age of 18.   While it is true that under certain circumstances a child support obligation will terminate when the youngest child reaches the age of majority, in Massachusetts a parent may receive child support up and until their youngest child reaches the age of 23.  Indeed, there is no other state or jurisdiction within the United States that allows for child support to run for so long.  Whatever your personal opinion on the possible length of child support in Massachusetts, understanding  the framework and logic behind court ordered child support payments will help you better be prepared for any future court proceeding, and will allow you to have the knowledge you need to navigate this most important area of Massachusetts Family Law.

There are two controlling statutes that govern Massachusetts Child Support:  Massachusetts General Laws Chapter 228, Section 28 (for the children of married parties), and Massachusetts General Laws Chapter 209C, Section 9 (for children born out of wedlock).  Both statutes — while not identical in language — are identical in all respects with what the statutes require.  Indeed, it is violative of both federal and state law to treat children born out of wedlock differently than children born of marriage.  These two statutes set clear parameters as to the how long child support should run.  However, the statutes alone are not the only essential read to understand the Massachusetts Child Support laws.

The Massachusetts Child Support Guidelines, revised and updated in 2009, are a must read for anyone who is involved in a child support case.   A substantive document with explicit rules on child support in Massachusetts, the Child Support Guidelines give guidance to practioners and litigants on all aspects of child support in Massachusetts.   For example, the Guidelines give the judges of the Probate and Family Court guidance on how to appropriate income from a secondary job, or income from a parent who is working overtime.  Further, the guidelines give guidance to the Family Court on how to handle unreported income, or attribution of income if a parent is underemployed.  The Guidelines are full of substance, and are an essential read for anyone dealing with the frustrating issue of child support.

The Guidelines, however, do not explicitly deal with the issue of termination of child support.  Rather, the legislature left this to statutes.  Massachusetts has three different categories, or three different age brackets with respect to child support.  The first, and most obvious, is any child who is under the age of 18.  The simple rule here is that barring some sort of unusual circumstance, any child under the age of 18 is entitled to receive child support.  There is no need to look into the circumstance of the child, what the child is doing, or what the circumstances are of the custodial parent.

The second bracket is a child who has obtained the age of 18, but has not yet obtained the age of 21.  This bracket is an interesting one.  Under Massachusetts law, a child between the age of 18 and 20 is entitled to receive child support in two circumstances.  The first, and most obvious, would be the traditional situation where the child is enrolled in college.  In this instance, the custodial parent would be eligible to receive child support for the support and maintenance of the child while the child is enrolled in post-secondary education.

There is an important aside to the traditional circumstance where the child moves off to college that should be addressed.  A child who lives away for college — a common occurrence even in a saturated college environment such as Massachusetts  — is still dependent upon his/her parents.  Indeed, the custodial parent must still maintain a room for the child when the child returns to home during breaks and summer vacation.  Accordingly, a child living in dormitories for 9 months out of the year is still entitled to child support payments, and will be until said child is graduated from college or has reached the age of 21.

The third and final age bracket is 21 up to the age of 23.  This bracket only applies to children that are enrolled in a post-secondary education program.  This bracket is similar to age bracket two above, however, it does not include children that are not enrolled in college.  Accordingly, a child that is 21 years-of-age or older in Massachusetts — and is not in college — is emancipated and not eligible for child support, even if the child lives at home is for all intents and purposes is dependent upon the custodial parent for support.

Moreover, a child that is 23 years-old and is on the “7 year” college plan (See the movie “Animal House ” for a better understanding of the “7 year college plan), and accordingly, has not yet graduated from college is nonetheless ineligible to receive child support payments.  In other words, once a child reaches 23 years-of-age in Massachusetts, regardless of their education situation, or their dependency upon their parents for support and maintenance, the custodial parent is no longer entitled to child support payments from the non-custodial parents.

Finally, while these so-called “brackets” are explicitly outlined in the Massachusetts Child Support Guidelines, there is one exception to the termination of child support upon a child reaching the age of 23.  In Massachusetts, the Supreme Judicial Court has concluded in the case Feinberg v. Diamant, that adult children past the age of 23 are nonetheless entitled to support from their parents if the child of said order is dependent upon his parents for maintenance and support.  Therefore, if a child is over the age of 23, yet suffers from a condition (mental or physical) that renders said child dependent upon his parents, the non-custodial parent will be required to pay child support to the custodial parent.








Announcing the official launch of Rao Law Blog

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