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A New York Times article by Stacey Cowley and Jessica Silver-Greenberg confirms what Massachusetts OUI lawyers and defenses attorneys everywhere have been arguing for years, that breath test machine are often inaccurate and unreliable.  The Times found that these machines, a “linchpin of the criminal justice system,” are, at best, unreliable. In its investigation, The New York Times found evidence that the machines’ internal code was flawed, creating rounding errors that pushed results over the legal limit – 0.08 or higher. Further, the machines are required to be calibrated; often, this never happened. In some cases, calibration records were completely faked.

Defective Design = Reasonable Doubt: Experts in Washington find numerous problems with breath test machines and results

At least one manufacturer – Dräger, a German company – has repeatedly blocked efforts to review their software code as well as any reports regarding the machines. A judge in Washington granted a request from defense lawyers to have the code evaluated by an outside expert. Robert Walker and Falcon Momot, described as “veteran programmers and security experts,” wrote a report titled, “Defective Design = Reasonable Doubt.” They shared the report with defense attorneys at a conference. But Dräger demanded that the report be destroyed by them as well as anyone with a copy. The New York Times was able to obtain a copy that had escaped destruction; it stated that Dräger’s Alcotest 9510 machine was “not a sophisticated scientific measurement instrument” and that it did “not adhere to even basic standards of measurement.” Instead, the machine rounded up at least some of the results. Further, these machines did not account for the temperature of the person’s breath. Samples above 93.2 degrees (as most breath samples are) often cause inaccurately high readings. This is because Washington opted not to pay the extra money for a sensor that would measure breath temperature and allow the machine’s software to account for it. Washington was not alone.  Massachusetts has not paid for the additional feature to account for breath temperature, only the State of Alabama has this added feature for enhanced accuracy of results.

Recent charges filed against a former Boston College Student are similar to the landmark Michelle Carter case where the SJC found that passive conduct of sending text messages could constitute involuntary manslaughter, despite the fact that Carter was not present at the time of death in that case.  Inyoung You, 21, was recently charged with involuntary manslaughter in response to an incident where her boyfriend, Alexander Urtula, 22, jumped from a parking garage killing himself just only hours before his graduation from Boston College. Authorities stated that You, who was also a Boston College student, was “physically, verbally, and psychologically abusive” towards Urtula during their 18-month relationship.

According to news reports, You was present at the parking garage when Urtula jumped because she had tracked his location.  Prosecutors said that You repeatedly text Urtula encouraging him to commit suicide saying such things as, “go kill yourself” or “go die” and making statements that You, Urtula’s family, and the world would be better off without Urtula.

Prosecutors contend that You was aware of Urtula’s depression and describe a pattern of abuse and manipulation throughout the relationship in which You allegedly exercised “total control” of Urtula both mentally and emotionally by the demands and threats she made to him.  In the two months before Urtula’s death, You sent more than 47,000 text messages to Urtula in which she told him to kill himself “hundreds of times,” according to Rollins.

Like all things in the law, the answer to the question “is this a seizure?” is “it depends.”  A seizure, under criminal law, is similar to being stopped or detained.  The Massachusetts Declaration of Human Rights and the United States Constitution protect citizens from unreasonable seizures.  A seizure does not mean being arrested, but means that a person does not feel free to leave from police presence.  Courts use a “reasonable person” standard when reviewing whether a seizure occurred; basically, courts look at the situation and determine whether, under all of the circumstances, the officer has used their authority to the point that a person would feel that they are required to follow the officer’s commands.

Last week, the Massachusetts Supreme Judicial Court decided Commonwealth v. Matta.  In this case, Matta was a passenger in a car.  The car had been the subject of two phone calls from unknown sources to the Holyoke Police, who reported that someone in the car had placed a gun under the seat.  Without having a warrant to search or arrest, or even probable cause to detain, the police begin to investigate.  Responding to the call, Holyoke police department  found Matta’s car parked in an area that the Supreme Judicial Court described as being “known for violent crime, drug sales, and shootings,” and pulled in behind it, without lights or sirens.

As the officer was getting out of his patrol car, Matta got out of his. The officer observed him grab at the right side of his waistband with both hands and adjust the waistband, then walk toward some bushes away from the sidewalk.  The officer said something to the effect of “Hey come here for a second” to Matta, who made eye contact with the officer, and then began to run.  The officer chased Matta, and yelled at him to stop.  During the chase, Matta threw a bag of what was later found to be heroin over a fence, presumably so the police wouldn’t find it on him if he was caught.  Matta eventually tried to scale a fence, and was captured.

Is Google Map evidence admissible in a jury trial?  An appeals court in Florida recently said “not necessarily” when it reviewed this question in City of Miami v. Kho.  

Juanita Kho sued the City of Miami for negligence after a trip-and-fall accident on a Miami sidewalk in 2010.  The sidewalk Juanita tripped on had an asphalt patch that was one-and-a quarter inches lower than the adjoining concrete slab.  Juanita alleged that is what caused her to fall, and that the difference in elevation was a “dangerous and defective condition.”

In order to win her case, Juanita was required to prove that Miami had either actual or constructive knowledge of the sidewalk’s condition at trial.  Unable to prove that Miami had actual knowledge of the condition of the sidewalk, she sought to prove constructive knowledge using a Google Maps photograph of the sidewalk dated November 2007 to show that the “dangerous and defective condition” existed then and that Miami should have known about it when she tripped in 2010.

United States Supreme Court considering a First Amendment challenge to Michelle Carter’s conviction.  Michelle Carter, the 17-year-old who was convicted of involuntary manslaughter for the death of her boyfriend, Conrad Roy III, when she had sent text messages encouraging him to commit suicide, has petitioned the U.S. Supreme Court for certiorari arguing that her conviction violates both the First and Fifth Amendment.

Carter argues that her case, which garnered extensive public attention and media coverage around the globe, is an appropriate vehicle to address these First and Fifth Amendment constitutional questions.

Carter wastes no time in the petition pointing out to the Court how unprecedented her conviction is stating that, “Massachusetts is the only state to have affirmed the conviction of a physically absent defendant who encouraged another person to commit suicide with words alone.”

The Supreme Judicial Court (SJC) recently reviewed Commonwealth v. Larose to answer whether it was reasonable, and therefore valid, for a police officer to stop the defendant’s motor vehicle for failing to drive entirely within a marked traffic lane.

The defendant was traveling during the early morning hours on Route 202, a two-lane highway with a single lane of travel in each direction, when the defendant, who was traveling directly in front of the officer, crossed the right-side fog line (the white line on the right-hand side of a road that separates the driving lane from the shoulder), one time for two to three seconds as shown by the officer’s dashboard camera.

After subsequent observations and further inquiries, the defendant was charged with an OUI and marked lanes violation.

In a recent Massachusetts Appeals Court opinion, Commonwealth v. Taylor, the court allowed the Commonwealth to essentially get “two bites at the apple” when prosecuting a defendant for firearm possession.

The defendant was first charged with “carrying a loaded firearm.”  The charge of “carrying a loaded firearm,” as written in the statute, requires a predicate offense of either “carrying a firearm without a license” or “possession of a machine gun or sawed-off shotgun.”  In essence, in order to charge the defendant with the charge of “carrying a loaded firearm,” the Commonwealth would have first had to charge the defendant with either of the two predicate offenses.

At the close of trial, the defendant argued that he must be found not guilty because the Commonwealth failed to charge him with either of the predicate offenses, and the trial judge granted the motion.

The Massachusetts Supreme Judicial Court reversed an involuntary manslaughter conviction in the case of Commonwealth v. Carrillo based on the defendant allegedly causing the victim to overdose on heroin.  Massachusetts’s highest court, the Supreme Judicial Court (“SJC”), vacatedUMass Amherst grad student Jesse Carrillo’s involuntary manslaughter conviction, who, in October 2013, Jesse Carrillo was charged in the heroin overdose death of fellow UMass Amherst student, Eric Sinacori.

In May 2017, a Hampshire Superior Court jury delivered its guilty verdict against Carrillo on counts of distributing heroin and involuntary manslaughter, nearly four years after Sinacori died at his off-campus apartment.  In October 2013, Carrillo was getting his master’s degree at UMass Amherst when he purchased heroin from a New York dealer for himself and Sinacori.  Two nights later, Carrillo drove to the Bronx again and purchased heroin from the same dealer for himself and Sinacori, who was found dead the next day of an overdose.

In June 2017, at Carrillo’s sentencing hearing, Hampshire Superior Court Judge John A. Agostini called the case “very difficult” before handing down a jail sentence of 2½ years and five years on probation.  Judge Agostini ordered Carrillo to spend one year behind bars, with the rest of the sentence suspended.

A Jury in a Massachusetts OUI charge normally is before a jury of Six.  Recently I had a trial in Quincy District Court where we proceeded with a jury of five people.  As is typical in the District Court, the court did not have enough jurors.  Rather than picking another date, I told the judge my client would be willing to waive his right to a six person jury and have the case heard by Five instead.  With the consent of the district attorney and the defendant, the court can allow a trial to proceed with five jurors.  If this situation arises, because it is unusual, you may have to inform the judge that the law allows for a five person jury under these circumstances.  As a defense attorney, the calculation is whether you like the five potentially sitting in the box versus coming back on another date.  I felt as though the five individuals selected could be fair and it did not make a difference to me that there was one less juror.  In fact, had the last juror not been excluded for cause by the judge; I would have asked the judge before striking the juror if he would allow me to strike that juror and go with five instead.

The Sixth Amendment to the United States Constitution and Article 12 of the Declaration of Rights normally require a six person jury, but the law allow the number to be reduced to five upon agreement of all parties.  The law does not permit a defendant to have a jury less than five even with the agreement of the parties.  Some judges will not allow a trial to proceed with five.

If you have questions about the court process when charged with OUI, feel free to contact Attorney DelSignore.  We have encountered almost every issue that comes up in court and with the RMV.  Feel free to reach out on Facebook if you have questions as well where we posted updates to the law.

 

 

You win your OUI case; you have the judge allow a motion to reinstate their license.  The client is relieved; they are back on the road.  But not so fast, the hearing officer says that they will consider the reinstatement and get back to the person in ten days.

Why won’t the RMV reinstate the license?  

The RMV will only honor a motion to reinstate if all of the charges under 90 Section 24 are dismissed, meaning if you had the client accept a plea of a CWOF on the negligent operation, the RMV will deny the request for reinstatement, despite the judge’s order.  You can appeal this decision to the Board of Appeals.  We have an appeal pending on this issue.

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