Your Fourth Amendment Rights

The Fourth Amendment of the United States Constitution gives us all the right to be protected against unreasonable searches and seizures. It also provides a buffer between citizens and the intimidating power of law enforcement.

Implemented during the American Revolution, the Bill made it so that law enforcement officers must acknowledge only the evidence pertaining to the immediate scope of the alleged offense. Now, with probable cause, any warrant must be judicially sanctioned before a search is allowed. Under the Fourth Amendment, any evidence obtained by an illegal search and seizure is inadmissible in court under the Exclusionary Rule.

There are many facts and circumstances that involve each case and therefore lead to many exceptions to the 4th Amendment of the Constitution. To understand if your Fourth Amendment Rights have been violated, a test is given to determine whether a person has a legitimate expectation of privacy in the invaded place. As an example, a person can expect a greater amount of privacy in one’s home and privacy to a lesser degree in one’s vehicle. The lack of privacy in a vehicle is due to the fact that there is a risk of a suspect fleeing the scene with evidence.

The lack of privacy is also to protect police officers. Many times an officer may ask if they can search your vehicle, you have the right to say no. Once a person gives consent to a search, that search is now made legal and many police officers are trained in savvy methods of making you waive your rights.

During a traffic stop, a police officer is able to search a vehicle without a warrant if the vehicle has been pulled over for a valid infraction and there is reason to believe that the car contains illegal items. Under federal law, the driver and passengers may be ordered out of the vehicle without any justification by the officer and if an officer has any reason to believe that any occupant in the vehicle is dangerous, the officer may perform a protective search of the vehicle. Without probable cause, a warrant, or the driver’s consent, the police may not search a vehicle, however, within the “plain view” doctrine, an officer may confiscate any weapons or contraband and use them as evidence if they are visible from outside the vehicle.

When you are pulled over, respectfully decline when asked by officers to search your vehicle and never offer more information than asked. Since each is fact based, depending on the circumstances behind the Search and Seizure, it is extremely important for you to contact an experienced criminal defense attorney. If you find yourself arrested after a Search and Seizure, please contact Attorney Paul R. Moraski at 1-978-744-1200.

Paul R. Moraski, Esq.
The Law Office of Paul R. Moraski
221 Essex Street, Suite 51
Salem, Massachusetts 01970

Tel: 978.744.1200
Fax: 978.825.1370

attorneymoraski@yahoo.com
www.northofbostonlaw.com
www.massdefense.com
www.massdrugdefense.com

Whether You Should Take the Breathalyzer?

When prompted by a Police Officer to take a Breathalyzer test after you have been arrested for DUI/OUI, it is very important to understand your options. Most people assume that they have no choice but to take the Breathalyzer test, however, this is not the case. There are several things to keep in mind when you find yourself in this situation.

You need to know that you are not required to take a Breathalyzer test. If you refuse to take this test, you will have your license suspended for a period of time but the prosecutor will not be able to use this test against you in court. However, if you choose to take the test and fail, the results will definitely be used against you at your trial. Please keep in mind that we live in an era where most of your potential jurors are of the CSI mindset. Meaning if they hear evidence that you were over the legal limit in Massachusetts, which is .08%, it will be very hard to convince them that you were not impaired at the time of your DUI/OUI arrest. Although you face a license loss (described below in more detail) if you choose not to take the breathalyzer and are found over the legal limit, at the time of trial, the prosecutor will have less evidence to work with.

If you are over 21 the time of your arrest without any prior OUI/DUI driving offenses on your record and you refuse the Breathalyzer, your driver’s license will be suspended for 180 days. In the instance that you have 1 previous offense and refuse the test, your license will be suspended for 3 years. In the situation that you have 2 prior offenses and refuse, your license can be suspended for 5 years. If you have had 3 or more previous OUI/DUI offenses and refuse to take the Breathalyzer test, you may face a lifetime suspension.

The amount of time for a license suspension varies for people under the age of 21 and even under 18. If you are under 21 and refuse to take the Breathalyzer test, your license will be suspended for at least 3.5 years up to 4 years if you are under the age of 18; even if there are no previous offenses for OUI/DUI. If there is one or more prior offenses, your license will be suspended for even longer.

Even if you take the Breathalyzer and the result is over the legal limit, all is not lost, as far as defending your case. A successful Motion to Suppress can be brought on your behalf, by a seasoned attorney, who knows the ins and outs of the Breath Test Procedure. Sometimes, Law Enforcement Officers do not follow the correct breath test procedure or the breath test machine is not properly maintained. An experienced DUI/OUI Attorney will be able to request all of these records in the discovery process to determine whether or not you have a good opportunity to suppress the Breathalyzer Results. Additionally, these records may show that the particular Breathalyzer Machine used at the Police Station had been giving inaccurate Breath Test Results for a period of time, before and after, your particular case. If any of these issues are raised at the Motion to Suppress and a trial Judge finds that there is no indicia of reliability for the Breath Test Results, the Breathalyzer will be suppressed, leaving you with less evidence against you.

It is imperative that you understand your options in this scenario because it can make all the difference in your DUI/OUI trial. Whether you have taken the Breathalyzer or not, you still need to contact a Criminal Defense Attorney with extensive knowledge and experience handling these types of cases. If you find yourself on the receiving end of a DUI/OUI Charge, please contact Attorney Paul R. Moraski at 1-978-744-1200.


 The Law Office of Paul R. Moraski
221 Essex Street, Suite 51
Salem, Massachusetts 01970
Tel: 978.744.1200
Cell: 978.397.0011
Fax: 978.825.1370

attorneymoraski@yahoo.com
www.northofbostonlaw.com
www.massdefense.com
www.massdrugdefense.com

Some of the Things You Should Think About If You Are Asked to Perform Field Sobriety Tests

If you ever find yourself pulled over by a Police Officer and the Officer suspects that you may be operating a motor vehicle under the influence of alcohol or drugs, or a combination of both, the Officer will ask you to exit your vehicle. The Officer will then ask you to perform some field sobriety tests. As a Criminal Defense Attorney, some of the most common questions I get regarding DUI/OUI cases, is “do I need to take these "tests" and whether I should take them?”

What most people do not realize is that these tests are designed in such a way that it is easy for people to fail them, even if they are not under the influence. For example, in the so-called "One-Legged Stand Test," the Police Officer is trained to look for eight separate things. Even if you were to do six of the eight things correctly (which would have been a passing grade in school, 75% or a C), it is still considered to be a failure. Furthermore, there are numerous reasons why people do not perform these tests adequately. For example, some people will not perform these tests to the Police Officers liking because, they have an injury, they are overweight, they are tired, they are nervous or because they have a learning disability.

The good news is that, unlike the case with refusing the breathalyzer test, your license will not be suspended just because you refuse to take the "field sobriety tests." It is also great news that, in Massachusetts, the prosecutor and the police are not allowed at trial to make any mention of the fact that you refused these "tests." In fact, sometimes jurors are left with the impression that the police officer conducted a shoddy investigation and didn't even give you the tests. Thus, there are some very good reasons to refuse these tests, depending on the circumstances.

However, even if you have taken these "tests" and done poorly, all hope is not lost. With the help of a top-notch attorney, many people who failed the tests can still beat their DUI/OUI Case. Oftentimes, what the Police Officer claims is an indicator of impairment can be parsed out with good cross-examination to show a Jury or a Judge, that the Police Officer made a mistake. For example, what the Police Officer interpreted to be a failing score on a field sobriety test can easily be explained with medical documentation that you were injured. That is why it is so important to contact an attorney immediately if you have been arrested and charged with a DUI/OUI. If you find yourself on the receiving end of a DUI/OUI Charge, please contact Attorney Paul R. Moraski at 1-978-744-1200.


The Law Office of Paul R. Moraski
221 Essex Street, Suite 51
Salem, Massachusetts 01970
Tel: 978.744.1200
Cell: 978.397.0011
Fax: 978.825.1370

attorneymoraski@yahoo.com
www.northofbostonlaw.com
www.massdefense.com
www.massdrugdefense.com