Arrested for OUI, DUI, or DWI?

OUI, DUI, and DWI are all acronyms that refer to the offense commonly known as “drunk driving.”  Different states have different names for the crime.  Massachusetts law prohibits operating a motor vehicle “while under the influence,”  so while DUI and DWI are popular acronyms for drinking and driving, Massachusetts refers to this criminal act as OUI or Operating Under the Influence.  If you or someone you know has recently been arrested for OUI in Massachusetts, you’ll want to understand the laws to better prepare yourself for the potential penalties or any viable defenses.

In Massachusetts, a person can be charged with OUI if they provide a chemical test to police and their blood alcohol content (BAC) is found to be .08% or higher.  With a BAC at or above this amount, a person can be arrested for OUI under a “per se” violation.  In plain terms, this violation means that a person can be charged with OUI simply because their BAC is over the legal limit.  The most common means of providing a chemical test is the breathalyzer machine.  In court, the prosecution will not have to provide any other proof of being under the influence if they can prove your BAC was .08%.  However, the prosecutor must prove that the reading of the breathalyzer machine was accurate and reliable.

In Massachusetts, every holder of a Massachusetts driver’s license has consented to providing a breath sample or a blood sample if they are suspected of OUI.  This is called the Implied Consent Law.  Although the police cannot physically force you to submitting to a chemical test, the consequences for refusing are harsh.  Depending on your criminal history, your driver’s license will be automatically suspended for six months to life.

If you would like a free consultation about your case, please call (617) 723-7200.

Mark D. Donovan, Esq.

 

 

The Patchak Decision

The Mashpee Wampanoag Tribe has until July 31, 2012 to come to an agreement with Governor Patrick and have the compact approved by the legislature.  However, the June 18, 2012 decision by the US Supreme Court, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, could be problematic for the Mashpee.

The case arose when a Michigan Indian tribe persuaded the federal government to take certain land into trust for the tribe, thereby facilitating the tribe’s construction of a casino on the property.  A neighbor who opposed the casino project sued the federal government, arguing that it lacked the power to take the land into trust for the tribe because the tribe was not federally recognized in 1934 – the year Congress enacted the Indian Reorganization Act (IRA), which authorized the government to take land into trust for Indian tribes.

In the lower courts, the tribe and the federal government argued that the suit was barred by the federal Quiet Title Act, which provides a mechanism for disputing the federal government’s ownership of real property but does not waive the government’s immunity for suits involving Indian trust lands (the kind at issue in this case). They also argued that the plaintiff lacked prudential standing to raise objections to the government’s compliance with the IRA. The D.C. Circuit ultimately rejected both arguments and allowed the suit to proceed.

In an opinion written by Justice Kagan, the Court affirmed, holding that the Administrative Procedure Act (APA) waived the government’s immunity from suit, that the Quiet Title Act did not withdraw or limit that waiver of immunity, and that the plaintiff had prudential standing to assert his APA claim.

Justice Kagan explained that by its plain terms, the APA waives the government’s immunity to this kind of suit, unless some other statute “expressly or impliedly forbids the relief” being sought. So the real question was whether the Quiet Title Act fell within that proviso. The Court concluded that it does not. The Quiet Title Act, the Court concluded, prohibits only suits that fall within the bounds of a traditional quiet title action – namely, suits in which the plaintiff seeks to not only divest the government of title to land (which this suit arguably does) but also asks the Court to vest title in the plaintiff (which the present suit does not). The Court brushed aside the tribe and the government’s claim that the statute should be read more broadly, given its purposes, to reach any suit that would result in the government losing title to land. Justice Kagan acknowledged that the argument had “some force” and that it is possible that “Congress would – or Congress should” prohibits such suits as a matter of policy. But, the opinion continued, “that is for Congress to tell us, not for us to tell Congress.”

The Court also held that the plaintiff had prudential standing to bring his claim. The purpose of allowing the government to take land into trust for a tribe is to facilitate the tribe’s use of the land for economic development. And, the Court held, people living near that land, and affected by its use, therefore “arguably” fall within the “zone of interests” to be protected or regulated by the IRA and therefore have prudential standing to bring claims under it.

In her dissenting opinion, Judge Sonia Sotomayor wrote about the “array of uncertainties” the majority ruling is likely to create. She believed the ruling will make lands vulnerable to lawsuits that Congress and the Executive Branch thought the “national public interest” demanded should remain immune from challenge.”

To download the decision logon to http://www.supremecourt.gov/.

Posted by Mark D. Donovan, Esq.

US Supreme Court ruling poses obstacle for tribal casino in Massachusetts

On June 18, 2012, the US Supreme Court issued its decision in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak. The Court’s ruling could affect the Mashpee Wampanoag Tribe’s plan for a casino in Taunton. In this case, the federal government took certain land into trust for an Indian tribe, which means that it took ownership of the land to allow the tribe to use it. The tribe, also known as the Gun Lake Tribe, planned to build a casino on the land. The Supreme Court held that a neighbor, Patchak, could sue the government to stop the casino project on the ground that the law did not permit the government to take the land into trust for this particular tribe. The Court held, by a vote of eight to one, that the federal government had waived its sovereign immunity to a suit challenging the government’s takeover of certain land in trust for an Indian tribe.
Presently, a group of Taunton residents has retained an attorney and is considering filing a legal challenge in an effort to prevent a casino being built in the city. The Mashpee, whose casino proposal won support from Taunton voters in a recent referendum, are currently negotiating a compact with the governor. If the state legislature doesn’t approve a compact between the state and the tribe by July 31, that would open the process to commercial bidders.
However, this casino hinges upon the Mashpee Wampanoag Tribe getting land into trust. If they don’t get the land in Taunton taken into trust by the Department of Interior, the Mashpee will not be able to build a casino. Taking land into trust is a long and complex procedure, involving a federal approval process created by Congress for federally recognized tribes. The Mashpee are attempting to have two tracts of land simultaneously declared initial Indian reservations and taken into trust as the tribe’s initial reservation. The longstanding challenge for the Mashpee, as for many tribes, is that tribal gambling can only occur on sovereign Indian land. Tribes can buy land like any other organization, but they must persuade the US Department of the Interior to take the land into trust on behalf of the tribe, in order to make the land eligible for a tribal casino. The most prominent nearby examples of tribal casinos are Foxwoods and Mohegan Sun in Connecticut.
With the Patchak decision, The US Supreme Court has thrown another obstacle in the path of the Mashpee Wampanoag and other tribes seeking to develop casinos under federal law, by expanding the number of people who can file lawsuits to challenge the gambling developments. Exposing tribal projects to more litigation could cause years of delay, increase costs for developers, and potentially make it more difficult and expensive to get financing for tribal casinos. To download the decision logon to http://www.supremecourt.gov/.
http://www.supremecourt.gov/opinions/11pdf/11-246.pdf

Posted by:  Mark D. Donovan, Esq.

Considine & Furey LLP

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