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Massachusetts OUI Lawyers will once again have to deal with breath test evidence as most police departments have complied with the reforms required by Judge Brennan as part of the Ananias litigation.  Last week I spoke at the Plymouth Country Bar Association on Breath test evidence.  It has been a long time since many lawyers have had to try to keep a breath test out of evidence as a result of the Ananias litigation.  But it is back.  

What do lawyers need to know about breath test evidence?  

All breath test data is now online; you can get all the periodic tests and annual certifications for each breath test machine in the online portal. As part of the reforms required by Judge Brennan, the Office of Alcohol testing is suppose to be more transparent about what it is doing with the breath test machines, the documents that it has and be more forth coming with discovery requests.  While all the documents are online, it is still the Commonwealth’s burden to introduce and provide these documents at the time of trial.  The online portal means that defense lawyers do not have to wait for the Commonwealth to produce these documents to begin determining if the breath test documents would be admissible and show that the machine is reliable.  

The Massachusetts Appeals Courts defined the crime of Strangulation in a recent decision.  This is a felony offense which can be charged in a domestic assault and battery case.  In the recent Massachusetts Appeals Court decision in Commonwealth v. Rogers, Mass. App. Ct., No. 19-P-229, slip op. at December 31, 2019, the court reviewed a domestic assault and battery conviction and ruled that although there were not facts in evidence that the victim could not breathe during strangulation, there was sufficient evidence to infer that the defendant’s intentional grabbing of the victim’s neck interfered with the victim’s breathing, thus neck grabbing is strangulation.

This case involves a couple that had been dating for ten years and starts in Bourne, Massachusetts after a 911 call to police in 2018.  During that 911 call, the victim told dispatch that she had been “assaulted” by the defendant.   When police arrived at the couple’s home and spoke to the victim, police noticed marks on the victim’s neck and scratches on her chest.  Police took photos of the injuries and the photos were later used as evidence at trial.  During the trial, the victim testified that the defendant had grabbed her by the sweatshirt with one hand and around the neck with his other hand. The victim also stated that the defendant, while applying pressure to her neck, stood her up from the couch and threw her onto the floor.  The victim also told the jury that when the defendant had his hand around her neck, she felt pain and almost “peed [her] pants.”  When the defendant released his hand from her neck she coughed.  The trial ended in the defendant being convicted for strangulation.

The defendant appealed the conviction on the basis that there was insufficient evidence to support a strangulation conviction.  The defendant claimed that the evidence did not suggest that he touched the victim’s throat or neck, and further contended that there was no basis to conclude that his conduct interrupted the victim’s breathing. The defendant also challenged the inconsistencies in the victim’s statements.   During her testimony, the victim initially said that the defendant had his hand around her jaw line.  At other times in her testimony, the victim referred to the defendant having his hand on her “throat” and “neck.”  The trial record indicated that the victim had demonstrated the location of the defendant’s hand to the jury.

On November 14, 2019, Thomas Bell, a motorist convicted of DUI, filed a Petition for a Writ of Certiorari with the Supreme Court seeking review of the Pennsylvania Supreme Court’s decision that warrantless blood test refusals may be used as evidence of guilt in DUI cases under the State’s implied consent law.  The case being reviewed by the United States Supreme Court is Bell v. Commonwealth of Pennsylvania.  In Massachusetts, the SJC has ruled that refusal evidence violates a defendant’s privilege against self incrimination under Article 12 of the Massachusetts State Constitutional.

Bell’s Petition  asks the Supreme Court to address the following question:

Whether a motorist’s assertion of his Fourth Amendment right to refuse consent to a warrantless blood test may be used as evidence of guilt for the offense of driving under the influence?

In a December 23, 2019 article in the New York Times by Stacey Cowley and Jessica Silver-Greenberg, the New York Times reported on an increasing concern over the use of ignition interlock devices for drivers with drunken driving convictions. The interlock device is connected to the vehicle’s ignition and requires the driver to prove sobriety by blowing into the device before allowing the vehicle’s ignition to start. By some accounts, the devices have resulted in 15% fewer fatalities from alcohol-related car accidents in the 34 states that require them and have prevented more than three million attempts to drive drunk in the past decade or so.

While the interlock devices have effectively prevented attempts to drive drunk and prevented alcohol-related accidents, the interlock devices have also presented as a new cause for distracted driving. While the interlock devices first require a breath test prior to starting the vehicle’s ignition, they also require intermittent tests while the driver is on the road. Drivers are required to hold the test with one hand and blow into it to keep driving. If the driver does not comply with one of the randomly-initiated “rolling tests,” the vehicle’s horn honks and lights flash until the vehicle’s ignition is turned off.

Manufacturers of the interlock devices, while benefitting from the rapidly-growing and lucrative interlock device industry, cite a lack of evidence of interlock-related distracted driving accidents, and also cite that it is impractical to expect drivers to pull over each time they retest. The National Highway Traffic Safety Administration, however, began revising its guidelines for the use of the device, indicating that it intends that drivers should pull over to the side of the road before performing the retest. Still the function of the devices has not changed, and the device does not require that a vehicle be in park before performing a retest.

First Circuit finds no right to cross-exam witness in sexual misconduct disciplinary hearing.  On any given day, when schools are in session, university students can end up wandering around as they wonder what to do.  Groups of friends and acquaintances meet up at a local hangout and run into strangers who will become friends. Sometimes they consume alcohol, and sometimes they don’t.  Sometimes they flirt, and sometimes they don’t.

Students who attend Boston College may be vaguely aware of the Student Conduct Handbook. They may know that there are consequences to actions, and there are forums to disprove an accusation. What they may not be aware of is that the Student Conduct Handbook creates a contract between the student and Boston College and that that contract rules disciplinary matters regarding allegations of sexual misconduct.

In November 2018, a female student (Roe) accused a male student (Doe) of sexual misconduct.  Boston College investigated the incident by interviewing both students separately and on multiple occasions as well as interviewing witnesses, finally issuing a 60 plus page report.  As a result of a finding of sexual misconduct, Doe was suspended for one year (2019-2020).

A Massachusetts Attorney was reprimanded for a facebook post about his status.  Being friends with many lawyers in Massachusetts and all over the country, the attorney’s facebook post was typical of many attorney posts that I have seen on my newsfeed.  The Massachusetts Board of Bar Overseers found that this case violated the rules of professional conduct.

It seems so innocuous.  An attorney updates his public Facebook page stating: “Back in Boston after appearing in Berkshire Juvenile Court in Pittsfield on behalf of grandmother who was seeking guardianship of six-year-old grandson and was opposed by DCYF yesterday.  Next date – 10/23.” But is it so innocuous?  Is the Facebook post simply an update of the day in the life of an attorney? Or is it enough information to run afoul of the Rules of Professional Conduct. On November 6, 2019, the Massachusetts Board of Bar Overseers (BBO) publicly reprimanded the attorney who wrote this post.

This is the type of situation every attorney must navigate daily. Social media forums allow attorneys to connect with potential clients, advertise the types of law practiced, comment on new case law, etc. Regardless of an attorney’s age, experience, or length of practice, an attorney is required to stay up to date on new technology (Rule 1.1).  In today’s world, it could be argued that Facebook, established in 2006, is not a new technology, and all attorneys should be aware of the pitfalls of any client-related posting on Facebook.

Narcan: Not Just For Criminal Overdose

As early as the 1960s, the drug, Naloxone, commonly known as Narcan, has been widely used to reverse the effects of opioid overdose. Medical personnel use Narcan to revive patients who have overdosed on opioid-based drugs. In criminal Driving Under the Influence (DUI) cases, prosecutors try to use evidence of the revival by Narcan to support a DUI charge. The attempt to use Narcan as evidence of DUI is problematic for many reasons.

To understand the problems with the introduction of Narcan use as evidence, it is important to understand how Narcan works. A person who overdoses on opioid-containing drugs will suffer from an excess of opioids blocking the opioid receptors in the brain, causing the shut down of the body’s nervous and respiratory systems. Narcan, at least temporarily, takes the place of the opioids and prevents respiratory failure, but should be followed up by other medical intervention. More recently, due to Narcan’s simple administration techniques and minimal side effects, many states have approved Narcan administration by lay people who are close to those regularly using or addicted to opioids. Lay people or medical personnel may use Narcan to save the life of a person who recently overdosed, either intentionally or accidentally, on opioids.

Recently, the Supreme Court of the United States decided three cases that require a new look at determining the standard for consent under the Fourth Amendment to the Constitution. In Missouri v. McNeely, the Court held that the taking and testing of a person’s blood could not be done without probable cause and a warrant unless there is some exception.  The Court further held that a search incident to an arrest cannot justify a warrantless blood draw in the case of  Birchfield v. North Dakota.  Finally, in Mitchell v. Wisconsin, a majority of the Court held that implied consent statutes do not give unfettered consent to a search to draw blood under the Constitution.

Given these decisions, the Appeals Court of Massachusetts reexamined how these cases impacted the decision in Commonwealth v. Dennis.  In this case, officers arrive at the scene of an accident and find the defendant behind the wheel.  At the scene, the defendant admitted that he had been drinking, there were empty alcohol containers in the car, and the officer observed the smell of alcohol on the defendant.  Because of his condition, officers transported him to a medical center.  After that, they placed him under arrest.  The officer attempted to get the defendant’s consent for a blood draw, but he was not medically cleared to give his consent.  Two and one-half hours later, the officer read the defendant the rights and consent form. Of significance, the request is only for a “chemical test.” It does not “specify that the “chemical test” will be on blood, as opposed to breath, urine, or anything else…”

The first step in evaluating whether a defendant has consented to a blood draw when there is probable cause for his or her arrest is to determine if the blood draw requires a warrant or are there exigent circumstances that excuse the police from obtaining a warrant.  Just because alcohol will dissipate from the blood the moment a person stops consuming alcohol does not automatically mean that there are exigent circumstances.  This was the ruling on Missouri v. McNeely.

The Massachusetts Supreme Judicial Court upheld the trial court’s decision to allow two witnesses’ identification of a robbery suspect as admissible evidence despite the lack of protocol and questions surrounding the identifications’ reliability.  The SJC alternated the procedures going forward requiring an instruction prior to the identification as in Line up identifications. The case adopting this new rule is Commonwealth v. Christian German decided November 13, 2019.

The case involved a robbery that occurred as a restaurant owner and three employees were leaving the restaurant late at night. As the women exited the restaurant, one of them got in the front seat of a waiting taxi. The other two employees waited as the owner locked the door. A man approached the three women standing outside of the restaurant, demanding their belongings. While one of the women threw her belongings on the ground, the owner ran around the corner to her vehicle to call 911. The robber then followed the other two women across the street, continuing to demand their property. Men on a nearby rooftop yelled at the robber, and the robber fired a gun in their direction and then left. When police arrived, two of the women had left in the taxi, while the owner and one employee remained to speak to police. After searching the area, officers found the suspect and detained him. One officer told the owner and employee that officers had detained a man, although they did not know if he was the robber, and that they needed witnesses to indicate whether or not he was the robber. While the officer wanted to transport the women one at a time to see the detained suspect, the women insisted that they would not go unless they stayed together and if assured that the suspect would not be able to see them.  The officer acquiesced and drove the two women to where the man was detained. Without any prompting, upon the officer pointing the police cruiser’s headlights at the suspect, both women simultaneously stated that the suspect was the robber and that they were 100% certain.

At trial, defense counsel argued that the women’s identification was improper where the women identified the man while sitting in a police cruiser together, not separate, and where the police officer did not provide adequate instructions prior to eliciting the “showup” identification. Defense counsel also argued that they should be allowed to introduce expert testimony that the witnesses’ degree of certainty of the suspect’s identity was questionable.

What is Involuntary Manslaughter in Massachusetts?  

Involuntary manslaughter is an unlawful killing base on wanton and reckless conduct.  In both, the Carter and Inyoung You cases, a major issue is whether the defendant had fair notice under the due process clause that there conduct was criminal.

The case of In Young You involved her sending an extraordinary under of text to her boyfriend, 47,000 and a hundred of them told him to kill himself and go die.  90 Minutes before his graduation the 22 year old biology major jumped from the garage killing himself.  

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