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Breath test evidence has not been used in Massachusetts since August 2017 as a result of serious discovery violations that occurred during the litigation in Commonwealth v. Ananias.  This litigation originally started over whether the breath test source code was reliable, but evolved to include litigation about whether the Office of Alcohol Testing had a scientifically reliable method to certify the machines as reliable.

Recently, a hearing was conducted in which Judge Brennan reviewed evidence submitted by the State. A number of violations on behalf of the Office of Alcohol Testing were highlighted including unsanitary conditions, potential rodent contamination,  and failure to properly calibrate the Alcotest machine. Defense attorneys highlighted evidence that some of the 9510 devices were used as a nesting site for rodents, and that the breath test machine tested positive for MRSA. The state’s position is that the outstanding issues related to the breath test have been addressed, citing the state’s compliance with the discovery last summer.

Defense attorneys point to the systemic issues that surround the breath test machine which inherently hinder the Office of Alcohol Testing’s ability to properly calibrate the machines that police officers utilize. As of now, the OAT is not a nationally accredited crime lab. Defense Attorneys argued that in order for the tests to be used, the OAT needs to be accredited by the American National Standards Institute-American Society for Quality.  To read more about Accreditation you can read out prior blog post.

In the case of Commonwealth v. Christ O. Lys’, the Massachusetts Supreme Judicial Court has to address what type of evidence is required at a motion hearing to warrant vacating a plea based on ineffective assistance of counsel.  In the defendant, filed a motion for new trial to vacate a plea after he was detained and put into removal proceedings.  

     The defendant was charged with selling marijuana and cocaine to an undercover police officer.  The defendant faced a 28 count indictment, but accepted a plea to three counts of distribution of marijuana.  The defendant filed a motion for new trial based on his trial counsel’s failure to provide him with the immigration consequences of his plea.  

The defendant filed an affidavit stating that the lawyer did not advise him of immigration impact of the plea.  The motion judge found that the plea counsel did not testify or provide an affidavit; accordingly, the motion judge stated that he must give the affidavit of the defendant full credit given the lack of evidence.  

New Jersey Supreme Court uphold the exclusion of over 20, 000 breath test after temperature probe not performed in the case of State v. Cassidy.  

The New Jersey Supreme Court decision is important for OUI lawyers in Massachusetts and throughout the country as the Court attributed great weigh to scientific standards of accuracy when deciding whether to permit the breath test to be offered into evidence.  The New Jersey Supreme Court upheld the decision of a Special Master who wrote a 200 page decision finding that the failure to use the temperature probe made New Jersey’s breath tests scientifically unreliable.

The problem was discovered when it was revealed that Marc Dennis a coordination in the Alcohol testing until did not use the temperature probe and falsified documents that he had done so.  The issue to come before the Court was whether the failure to conduct an independent temperature probe rendered the results scientifically unreliable.

An important type of insurance coverage is uninsured motorist coverage.  This coverage protects you if you are involved in an accident with someone that does not have any insurance or has insufficient insurance.  Recently, there was a case decided by the Massachusetts Appeals Court determining the scope of this type of coverage and who is protected when the insurance is purchased.

The case was Oliveria v. Commerce Insurance.  The plaintiff seemed coverage as a household member under the uninsured motorist provision of the policy.  The plaintiff argued that he should have been covered under the insurance policy of his girlfriend’s mother and step-father, with whom he had lived with for an extended period of time. The appeals court ultimately upheld the Superior Court’s ruling that, although the plaintiff lived with the insured parties and has a son in which the policyholders are genetically related to, he himself is not related by blood and therefore not eligible to under the policy.

The plaintiff had been living with his girlfriend, their son, and her mother and step-father for an extended period of time. Oliveira is not married nor engaged to his girlfriend, but notably, they have a young child together and have been living under the same roof for years. On the night of July 18, 2014, Oliveira was injured in a one-car accident, sustaining major injuries which included a four-day hospital stay, disability benefits, and medical bills which totaled over $40,000. The driver of the vehicle involved in the accident was insured under her own policy, and Oliveira accepted a settlement with the driver of $100,000.

The Massachusetts Supreme Judicial Court will review a motion to suppress that was allowed out of the Eastern Hampshire District Court where the judge found that a single crossing of the fog line for 2 to 3 seconds did not provide reasonable suspicion for a traffic stop and was not a violation of Massachusetts General Laws Chapter 89 Section 4A.  The case is Commonwealth v. Zachariah Larose.

The Massachusetts Lane Roadway statute provides as follows:

When any way has been divided into lanes, the driver of the vehicle shall so drive that the vehicle be entirely within a single lane, and shall not move from the lane which he is driving until he has first ascertained if such movement can be made with safety.

As a Massachusetts Criminal Defense Lawyer, one of the most important areas of law to understand is how to gets statements excluded as in violation of your clients rights under Miranda v. Arizona. In a serious case, the difference between winning and the client accepting a plea may be your ability to have the Court exclude statements from evidence.  In this Blog, we will review a few common issues that come up in suppressing statements under Miranda.  

What Warnings are Required under Miranda?

What warnings are police officers required to give to comply with Miranda?  One issue that may come up in a motion hearing is that the officer does not put on the record explicitly what rights were read to the defendant.  

The Massachusetts Appeals Court decided the case of Commonwealth v. Emerton.  In this case, the defendant was arrested at an OUI Roadblock on Soldiers Field Road in Brighton and the case was heard in the Brighton District Court.  Soldiers Field road is an area where the State police have been using for years to conduct roadblocks.  Under Commonwealth v. Trumble, roadblocks are permitted under Article 14 of the Massachusetts Declaration of Rights if the following questions are satisfied:  

  1. the selection of the cars to be stopped must not be arbitrary; 
  2. safety must be assured 

The Massachusetts Supreme Judicial Court heard oral arguments in the case of Commonwealth v. Michelle Carter yesterday.  In this Blog, I have outlined some of the key issues that the SJC addressed during the oral argument.

Was there sufficient evidence to convict Carter of involuntary manslaughter?  

The defense lawyer argued that the key pieces of evidence is the defendant’s text from two months after where she told a friend that she told him to get back into the truck.  The defense contended that that text message was part of very long and rambling texts so that to use a text as the basis to find her guilty was not supported by sufficient evidence.

Under Massachusetts OUI Law, the prosecutor does not have to prove that alcohol is the sole cause of the impairment.  I had this issue in a recent trial where the Commonwealth was attempting to allege that my client was impaired through the combined impact of alcohol and marijuana.  

        The Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Stathopoulus, 401 Mass. 453 (1988), which held that the Commonwealth is entitled to a jury instruction as follows:  

If you find that the alcohol which the defendant may have ingested alone did not render him under the influence of alcohol, but the mixture of that alcohol with a controlled substance, diminished his ability to operate a motor vehicle safely, you are warranted in finding him guilty.  

In this blog we outline our process for taking a case to trial at DelSignore Law.  All cases are different but in general this is out approach that we use in every case.  Early on in the process, I start preparing the cross examination and outlining the closing statement.  I like to do this early because it helps me see the direction of the case in terms of what evidence I need and what evidence I may want to try to exclude at trial or before trial through an evidentiary motion. 

We prepare a trial notebook that consistent of the following for all cases.  We have pictures of the scene, written opening, closing and cross examination questions, motions in liming, and copies of the police report.  In all trial notebooks, I divide each section of the case with a color paper and put extra paper to use during trial.  I also have a copy of the officer’s training manual if the case is an OUI that specifies when the officer was trained on the administration of field sobriety tests.  I bring that manual to court in case an issue of impeaching the officer arises. 

The binder would also include direct examination questions that I will ask any witness as well as copies of any medical records or evidence that I intend to use at trial.  The trial folder consists of everything that I may use at trial.  There are records and motions that I do not intend to use; I keep these out of the trial binder in case I need to find something during trial.  When I have a transcript of an officer from a motion to suppress hearing, I will put the page number by the cross examination for anticipated impeachment.  In other words, if the officer claims that my client has slurred speech during the trial, but did not recall slurred speech at the motion, on the slurred speech chapter of the cross, I would have motion hearing at page 32, to tell me quickly where to find the impeachment.  

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