Letter to the Patriot Ledger on their OUI Laws Editorial of 3/19/07 by Boston OUI Attorney Russell Matson.

Finding new ways to help clients "beat the rap" is exactly what good defense attorneys have always done, and must do if our judicial system is to be kept honest. The flip side of that statement is "Prosecutors are putting their considerable energies into finding new ways to put defendants behind bars", yet somehow that doesn't sound quite so inflammatory to most people.

You cite a drop in the total number of drunk diving convictions, and claim that "convictions are down due to defense tactics designed to raise doubt about the reliability of breath-test evidence." Is there even the slightest evidence to suggest this? Is it possible that the total number of drunk driving arrests is down, and the conviction rate is the same, or even higher?

Finally, you seem to suggest that questioning the validity and accuracy of breath-test machines is simply a "loophole". In fact, given that simply blowing a .08 is per se illegal and sufficient grounds to land you in jail, it is more than reasonable that the Commonwealth must be required to prove that the machines are accurate in all cases, and that the number actually means something. As a defense attorney, I can't cross examine a machine. I can't even independently examine or test the machine. There is a vast amount of scientific study that shows countless flaws in the design and operation of these devices. False positives can easily appear, based on acid reflux, stomach disorders (GERD), mouth alcohol, consumption of bread, abnormal breathing patterns or other physiological issues, rising blood alcohol level at the time of the test, radio frequency interference, poor machine maintenance or calibration, and more...

Your editorial seems to suggest that simply on the basis of a number put out by a mysterious box which can't be challenged, my client is supposed to go to jail. Such an outcome would be a dangerous abuse of justice, and un-American.

Attorney Russell Matson is a criminal defense attorney who concentrates his practice in OUI (Operating Under the Influence) defense. He is a sought-after legal speaker and commentator, having been seen on Fox25 News and Channel 5 in Boston. He has been quoted in the Boston Globe, Patriot Ledger, Boston Herald, Cape Cod Times and Men’s Health Magazine, and he has lectured on OUI & Massachusetts Registry of Motor Vehicle and Hardship License issues for Massachusetts Continuing Legal Education (MCLE) and the Massachusetts Association of Criminal Defense Lawyers (MACDL). His web site is http://madrunk.pdxids.com.

Letter to the Editor