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The Massachusetts Legislature is considering requiring first time offenders to have the ignition interlock imposed if convicted of a first time OUI offense.  All states, except Massachusetts, have laws that may require first-time drunk driving offenders to install “ignition interlock devices” in their vehicles. This device is like a mini-breathalyzer that the driver must blow into before driving the vehicle. If there are measurable amounts of alcohol in the driver’s breath, the vehicle will not start. Not all states mandate the devices in all circumstances, for example the devices are mandatory in some states if a first-time offender registers an extremely high blood alcohol content.  It is already mandatory for Massachusetts repeat drunk driving offenders with hardship licenses to have the device installed in any vehicle the offender drives, but Massachusetts is the only state where this remedy cannot be ordered for first-time offenders, regardless of the blood alcohol level associated with the offense.

There are currently several different pieces of proposed legislation that, if passed, would mandate ignition interlock devices for certain first-time drunk driving offenders. Gov. Baker’s proposed bill (S.7) would require ignition interlock devices as a condition of receiving a hardship license, for the duration of the hardship license. Anyone, including first-time offenders, that does not receive a hardship license would still be required to use an interlock ignition device for the first six months after their license is reinstated. It also establishes clear penalties for anyone who has an interlock ignition device that tries to drive intoxicated or tampers with the device. Similar bills sponsored by Sen. Tarr (S. 2137) and Rep. Whelan (H. 1580) would mandate interlock ignition devices for all first-time offenders once their licenses are reinstated. The Whelan bill would reduce the term of license suspension for first-time offenders if the offender installs the ignition interlock device. The bills have all been referred to the Joint Committee for Transportation.

Reforms to the ignition interlock laws were previously proposed in the Massachusetts legislature at least three times, but failed to pass. Now that Massachusetts is the only state that does not allow for any first-time offender to be ordered to use ignition interlock devices, there is increased pressure on lawmakers to pass this legislation.  The National Transportation and Safety Board (NTSB), Mothers Against Drunk Driving (MADD), and AAA all support these bills, citing a Centers for Disease Control report that the use of ignition interlock devices reduces repeat offenses by 67 percent, therefore reducing the number of drunk driving deaths. MADD claims that ignition interlock devices have prevented three million drunk drivers from driving since 2006. Proponents also believe that these reforms offer a fair balance between the offenders need to drive and the public safety risks from drunk drivers.

The Commonwealth of Massachusetts requires a license to carry, or LTC, to purchase, possess, and carry a handgun, shotgun, or rifle.  But what does possession actually mean? Of course, if you have the gun on your person, such as in your pocket or purse, then you are in possession of it.  That is what the law calls actual possession. What if you are in a car where there is a gun? Or in a house where someone owns a gun? Does that count as being in possession? Owning a gun is not the same as possessing the gun.

The law does not require that you actual physically possess something for the law to conclude you have possession of that object. There is a type of possession called constructive possession. When it comes to gun laws in Massachusetts, you will want to be aware of what constructive possession means.

The legal definition of constructive possession is if you have:

In Massachusetts, those charged with OUI since August of 2017 have not had breath test evidence used in Court.  This was based on some egregious violations of discovery orders in the 9510 breath test litigation that began in 2015.

To remedy the problem with the Office of Alcohol Testing not providing documents and understanding its obligation to provide exculpatory evidence, Judge Brennan imposed seven criteria that the Office of Alcohol Testing must comply with in order to use breath test evidence in court.

  1.  That the Office of Alcohol Testing submit an application for accreditation with the ANAB that is substantially likely to succeed.
  2. that the application be put on the online portal;
  3. that the ANAB Accreditation criteria be public on the online portal;
  4. that the Office of Alcohol Testing create a discovery protocol.
  5. that the protocol be put online.
  6. that the OAT employees be trained on the meaning of exculpatory evidence.
  7. that all written training procedures be put online.

Judge Brennan found that the Office of Alcohol Testing complied with all of these seven criteria on April 18, 2019.  Accordingly, his ruling allows breath test evidence on machines calibrated after that date to be used in evidence.  This means that police departments are going to have to have their machines certified immediately to have its test resulted admitted in court.  Typically, police departments have the machines certified on an annual basis.

History of the breath test litigation in Massachusetts and how we got to Judge’s Brennan’s recent ruling

In 2015, Massachusetts criminal defense lawyers started the 9510 breath test litigation.  This was an attempt to challenge the scientific reliability of the breath test machine used in Massachusetts.  The focus of the litigation when it started in 2015 was on the source code and other scientific problems with the breath test machine.  The source code of the breath test machine is the computer program that governs how the breath test machine produces the numbers that come out of the machine as a breath test result.  Other scientific challenges included the blood to breath partition ratio, whether the breath test was specific enough for alcohol to be scientifically reliable.  Judge Brennan ultimately rejected all of the scientific challenges.  However, during the litigation, it was revealed that the Office of Alcohol testing had documents that were never provided to defense attorneys in the usual discovery.  Work sheets were provided that had not been previously turned over as part of the Office of Alcohol testings discovery package. Defense attorney asked Judge Brennan to find that the Office of Alcohol Testing did not have a method or procedure to perform its annual certification on the breath test machines, making the results unreliable in court.

Judge Brennan agreed with this argument and excluded two years of breath test results.  His initial decision in the 9510 litigation excluded breath test results prior to September 14, 2014.  After this decision, the lead expert for the defense Thomas Workman discovery that he received different documents in his public records request than what was received during the discovery process.  It was reveled that 425 failed calibrations were never turned over to the defense.  It was this discovery violation that lead to the head of the Office of Alcohol testing being fired and the Commonwealth agreeing not to use breath test evidence until the violations were remedied.  This occurred in August of 2017.

It was as a result these discovery violations that Judge Brennan ruled that there should be independent oversight over the Office of Alcohol Testing.  By requiring the Office of Alcohol Testing to be accredited, Judge Brennan is holding the Office to external standard of scientific reliability.  To maintain its accreditation the Office of Alcohol Testing is subject to external audits.  Further, his requirement that all discovery be online was meant to create an atmosphere of transparency.  The Office of Alcohol testing was not being upfront with its discovery and honoring its requirement to provide exculpatory evidence.

What it means for those charged with OUI in Massachusetts?

Judge Brenann’s ruling means that the Commonwealth will have a major piece of evidence back in when prosecuting OUI cases.  Defense lawyers still have many ways to challenge this evidence.  Police must administer the tests in the proper manner and there are other scientific reasons why a breath test result may not be accurate for a particular defendant.

To read some earlier post on the Massachusetts breath test litigation you can click here.

You can also find Attorney DelSignore on Facebook to learn more about Massachusetts OUI Laws.

To read Judge Brennan’s decision visit the this link of resources to important DUI cases and materials.
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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.

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