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The U.S. Supreme Court will decide whether to hear the case of Zamudio v. United States which raises the issue of whether a search warrant can legally be issued for a suspected drug trafficker’s residence without evidence that the residence is being used for criminal activity. Attorneys for Juan Zamudio filed a petition for writ of certiorari asking the U.S. Supreme Court to resolve the current circuit split and establish a uniform legal standard for the basis of search warrants for suspected drug traffickers’ residences.

When can a judge approve a search warrant for a home in a Drug Trafficking case?  

Typically, a judge can only approve a search warrant application if there is a “nexus” between the crime and the location to be searched and “reasonable cause to believe specific things” with be found there. In the 7thcircuit, however, the mere fact that there is evidence a person is engaged in drug trafficking is sufficient evidence for a judge to issue a search warrant for the suspect’s residence, even if there is no evidence that anything specific will be found there which links the suspect to the alleged criminal activity.

The recent deadly motorcycle crash in New Hampshire has brought light to the issue of whether the defendants CDL license should have been active at the time of the incident. In 2013 the defendant, Volodymyr Zhukovskyy, received an immediate threat license suspension after being arrested and charged with OUI. He was placed on probation for one year and had his license suspended in 2014 for a total of 210 days. Last month the defendant was arrested in Connecticut on a second offense OUI after failing a field sobriety test and was also involved in an 18-wheeler roll-over crash as recent as last week.

Zhukovskyy’s license remained inactive until May 2017, following his completion of a “youth alcohol program suspension”. Zhukovskyy’s second OUI arrest last month should have been sufficient to suspend his CDL license. However, the issue remains whether or not the Registry of Motor Vehicles was aware of the arrest or if the information slipped through a loophole. Many Massachusetts residents are becoming increasingly concerned that there may be other people like Zhukovskyy that are on the roads but should not be. When Zhukovskyy was arrested and brought to the police station following his OUI second arrest, he refused a breathalyzer test which should have resulted in the automatic termination of his CDL license.

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Image from the scene of the accident in Randolph, New Hampshire.

The Commonwealth of Massachusetts Appeals Court is currently considering the case of  Commonwealth v. Brian Dennis 

raise the issue of how the Commonwealth proves consent to a blood test.  Dennis is being represented by a very talented DUI lawyer Joesph Bernard out of Springfield who I have known for many years.  Lawyers for Brian Dennis, a man who was arrested for suspected drunk driving, are arguing that the use of a blood sample taken from him after his arrest is a violation of his constitutional rights and should have been suppressed from evidence at his OUI trial in Palmer District Court.

What happened in the case? 

As a non-resident of Massachusetts who may be traveling within the State, are you allowed to carry a gun and what do you need to know if stopped by the police while carrying a gun? Do not assume that a license from another state allow you to carry a firearm while traveling through other states. If you are stopped by the police while carrying a firearm licensed out of state, what information should you need to avoid arrest?

The Massachusetts Supreme Court recently held that the police do not need to first determine if you have a valid license before arresting you, if they believe your firearm is not legally licensed in the State. To understand what you should do if stopped by the police as an out of state resident with a firearm in Massachusetts, it is important to first understand the local firearms laws.

First, when transporting a firearm, keep it unloaded and locked in a case in your trunk or rear storage compartment. Do not keep the gun in a glove box, a center console, under your seat, on your person, etc., and take care to ensure that the gun is not loaded. Keep the ammunition locked away as well.

The Massachusetts Supreme Judicial Court ruled in the case of Commonwealth v. Hardy that failure to strap a child in properly to a car seat appropriate to the child’s age did not constitute involuntary manslaughter or reckless endangerment of a child, reversing the defendant’s conviction on those counts.  One of the children that died in the accident was in the middle seat with an adult seat belt on, but not seat belted in as he should have under the law for his age. 

What type of proof is necessary to convict someone of involuntary manslaughter?

The SJC emphasized that the crime of involuntary manslaughter requires the following elements of proof: 

Massachusetts Appeals Court address what level of evidence is needed to convict for negligent operation.  In Commonwealth v. Zagwyn, the Appeals Court clarified the law related to evidence of negligent operation of a motor vehicle and OUI in Massachusetts. The central issue addressed by Zagwgnwas whether the Commonwealth meets its burden of proof on the negligent operation charge when the evidence demonstrates solely that the defendant was operating a vehicle with a defective headlight and rear license plate while intoxicated. The court also considered whether the officer’s opinion testimony that defendant was too intoxicated to drive a motor vehicle, the ultimate issue of guilt on the OUI charge, was improper and created a substantial risk of a miscarriage of justice.  In considering those arguments related to the OUI charge, the SJC summarily affirmed the defendant’s conviction for those reasons stated by the Appeals Court and offers no further discussion of the charge.

On the negligent operation charge, the SJC ruled that the evidence was inadequate to support the jury’s conviction and reversed the judgment of conviction. The evidence in Zagwynshowed that the arresting officer noticed that defendant’s vehicle had a broken headlight and rear plate light.  He followed defendant’s vehicle for about a mile before pulling him over.  While following defendant’s vehicle, the officer did not observe defendant speeding, swerving, or making any sudden braking movements.  When the officer stopped defendant’s vehicle, he moved the vehicle to a safe location.  Evidence obtained during the stop showed that defendant was operating the vehicle under the influence of alcohol.  The Commonwealth did not present any additional evidence of negligent operation. Defendant was convicted of OUI, negligent operation of a motor vehicle after a jury trial in the Barnstable District Court. The trial court also found defendant was responsible for civil equipment violations for the faulty headlight and rear plate light.

Prior case law dealing with negligent operation and what is enough evidence

The SJC recently heard oral arguments in the case of Commonwealth v. Zagwyn, and is considering the two main issues of improper opinion testimony by the officer as well as a conviction on a negligent operation charge. For the guilty finding on the negligent operation, counsel highlighted that the defendant was not pulled over for any erratic driving or marked lanes violations, but that he was simply pulled over for having a headlight out. Another argument raised in the SJC hearing is that the improper testimony by the officer prejudiced the defendant and ultimately swayed the jury.  This is an interesting issue on the negligent operation charge.  I had a client in Fall River who was found not guilty of OUI but convicted of negligent operation because she did not turn her lights on.  As a practical matter, in some cases, it is thought to help the OUI to have the possibility of the jury splitting the decision, by finding the client not guilty on the OUI, the more serious offense and guilty on the negligent operation.

Originating out of the Barnstable District Court,  the defendant was found guilty of OUI, negligent operation, and was found responsible for an equipment violation. Zagwyn was stopped by police for a headlight that was out; there was no mention of any marked lanes violation or erratic driving in the police report. Defense attorneys for Zagwyn are asking the SJC to reverse the guilty finding on the negligent operation, arguing that simply having your headlights out does not constitute negligent operation of a motor vehicle.

SJC Justice Graziano commented during the oral argument, asking defense counsel whether or not a defect in a vehicle, such as a broken headlight, would constitute a charge of negligent operation even if the defendant was driving in an appropriate fashion. In the brief filed by Defense counsel Meghan Oreste, she highlighted that most, if not all of the state’s evidence went only to the impairment element of the OUI charge.

District attorneys and public defenders filed a lawsuit Monday April 29, 2019 to prohibit Immigration and Customs Enforcement (ICE) agents from entering into state courthouses to enforce detainers.

What’s an ICE Detainer?

The United States Department of Homeland Security allows ICE the ability to issue a detainer, which is an immigration hold request to federal, state, and local law enforcement agencies who currently have an alien arrested on criminal charges in their custody. The detainer asks law enforcement agencies to notify ICE before releasing the alien, and to additionally detain the individual up to 48 hours in order for ICE to determine whether or not they wish to take the alien into federal custody.  ICE uses detainers for those aliens they have probable cause to believe should be deported from the U.S.

In 2005, I started DelSignore Law as a criminal defense firm handling all types of criminal charges.  While we handle every type of criminal charge, we soon got recognized around Massachusetts for handling DUI cases. It was a great honor to quickly be recognized as one of the top firms for OUI defense in Massachusetts.  The reason I like handling OUI cases is that I can really identity with what the client is going through.  After an arrest, a person feels as though their life is over, they worry about their job, and family life and it is an anxiety that from day one I try to ease for the client.  I can relate to someone who has worked there entire life for something only to believe that it is taken away by one mistake; to give someone a second chance by proving a stop was unlawful, that there was not sufficient evidence to prove the case in court or to be passionate enough to be able to convince the jury in the face of difficulty facts is a very rewarding job.  

          Unfortunately, until the person hears the words not guilty, I cannot predict the outcome or completely ease the stress of being charged.  But I have tried to develop systems over the years to reduce the stress during the process.  I understand what my clients are going through. It was three days before my law school orientation at University of Connecticut School of Law where I was going to start law school.  It was a goal I had been working toward for the last four years of college.  It was my vision in high school as I was on the mock trial team. 

             All of a sudden while driving home from Bryant College I saw the blue lights in the back of my window like so many of my clients.  I was on the side of the road performing field tests, thinking I passed only to be told I failed. How was that possible? My fate was in the hands of a police officer.  There was nothing I could do.  I knew I drank next to nothing that night; I was released and never charged because when I took the breath test the result was zero.  I was arrested because I was nervous and overcome with fear from having my fate in the hands of a police officer.  While I did not go through the stress having to go to court, the experience stuck in my mind that my clients are all at the mercy of the judgment of a police officer.  When I looked at the report the officer wrote, I noticed it was inaccurate, putting quotes for phrases I never use. 

Last August, the Pennsylvania Supreme Court upheld the conviction of Jamal Knox, a rap artist, for multiple charges stemming from what the trial court found were terroristic threats based on the contents of his rap song “F**ck the Police.”  Knox petitions for Supreme Court review and if granted, the Court could not only clarify the “true threats” standard – a muddledarea of First Amendment jurisprudence – but weigh in on the culturally-sensitive and complicated relationship between rap music and free speech.

It is well-established law that true threats of violence fall outside of First Amendment protection.  What constitutes a “true threat,” however, remains far from settled.  In Watts v. United States, 304 U.S. 705 (1969), the Supreme Court held the First Amendment does not protect statements a reasonable person would regard as threatening.  In Virginia v. Black, 538 U.S. 343 (2003), the Supreme Court added a discussion of speaker intent to “true threat” jurisprudence, but fell short of establishing a subjective intent requirement.

Since Black, courts have employed divergent standards when evaluating whether a statement rises to the level of a true threat.  Some follow more of an objective standard, asking whether a reasonable person would find the statement threatening.  Others, however, follow more of a subjective standard, focusing on whether the speaker intended to communicate a threat by their statement. In fact, the law is so muddled that in some states, like Massachusetts, the federal and state courts within the same state do not apply the same standard.

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