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Articles Posted in DUI Laws and Court Cases

In a recent Massachusetts Supreme Court decision, Alfred Tirado v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, the Court held that a continuance without a finding (CWOF) is a conviction funder G.L. c. 90F, section 1, which governs the licensure of commercial drivers. The decision essentially means that CDL holders who plea to an OUI will suffer the same license loss as those found guilty of the charge.  The SJC’s decision in Tirado can be found here.

The case arose out of an Appeals Court decision vacating three Board of Appeals CDL suspensions where the drivers received CWOFs on OUI charges. The Appeals court held that a CWOF was not a conviction. The Board appealed and the Supreme Court overturned the Appeals Court’s decision.  You can hear the oral arguments from the case on the Suffolk Law School Website.

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The Massachusetts Supreme Judicial Court has just issued a decision establishing a single definition of reasonable doubt, the standard by which jurors are to find the defendant guilty of a crime. The decision, published and released under the case heading of Commonwealth v. Gerald Russell, marks a significant effort to protect the most important legal principal in Constitutional law.

The 150-year-old Webster Instruction

Proof beyond a reasonable doubt is a difficult concept to understand and to explain, and is the most difficult standard for any party to meet. Courts have been relying specifically on one definition of this standard, published over 150 years ago in the case of Commonwealth v. Webster, 59 Mass. 295 (1850). The Supreme Judicial Court explained the standard of finding guilt beyond reasonable doubt to mean that the jury, after considering the facts and the reasonable inferences drawn from them, reached a “satisfactory conclusion” of “moral certainty” that the defendant committed the charged offense. The courts then derived from this decision what has become the model “Webster instruction” – which requires a “moral certainty” and an “abiding conviction.”

The Massachusetts Appeals Court addressed the issue of proving a motorist has a blood alcohol content over .08 under the per se law when there is a substantial time lapse between the time of the breath test and driving observations. This issues frequently arises as one of the many defenses in an OUI charge with breath test results.

The Appeals Court in Commonwealth v. Dacosta recently upheld a defendant’s conviction on the “per se” charge of operating a vehicle with a BAC level of .08 or greater when the defendant’s BAC level was tested approximately an hour after the traffic stop. According to the Court, no “retrograde extrapolation” evidence was required where a breathalyzer test was administered 55 minutes after the traffic stop. To learn about the science behind retrograde extrapolation see the attached Article by Kurt Dubowski.

The defendant was stopped when an officer noticed a faulty inspection sticker on the windshield. During the stop, the officer observed that the defendant had red glassy eyes and so administered two sobriety field tests. The defendant failed both tests, and so was arrested and transported to a nearby police station.

For drunk driving defense lawyers in Massachusetts, the area of law that is most in flux and subject to changing court decisions is the Sixth Amendment Right of Confrontation. A recent case from Indiana addressed the meaning of a defense lawyer’s prior opportunity for cross examination that is required if testimony is presented at trial without the live testimony of a witness.

In a felony murder case, the Indiana Court of Appeals ruled that a defendant’s Sixth Amendment right was not violated when a trial judge allowed transcripts of witness testimony into evidence without the presence of the witnesses in court. A petition for writ of certiorari was filed in the United States Supreme Court and recently denied.

In the matter of Berkman v. Indiana, the appellate court affirmed the trial judge’s decision to allow the transcripts in lieu of the witnesses’ live testimony because the defendant had an opportunity to question the witnesses during earlier proceedings. Unfortunately, the Supreme Court recently denied the defendant’s application for review of the decision.

As an OUI Lawyer in Massachusetts, a common defense is to attempt to exclude statements from evidence based on the police department failing to provide an individual with their Miranda warnings.

The United States Supreme Court denied review of a Florida Supreme Court’s decision in Deviney v. State, 112 So. 3d 57 (Fla. 2013), reversing a conviction in a murder case on the grounds that the interrogating officers obtained a confession after the defendant had invoked his right to remain silent.

The Fifth and Fourteenth Amendments to the U.S. Constitution protect a defendant in a criminal proceeding from self-incrimination, and forbid the government from detaining the defendant without due process of law. In layman’s terms, these constitutional amendments protect the defendant from being required to testify against himself, and ensure that the defendant receives a fair and proper proceeding.

The case of Berkman v. Indiana raised an interesting issue under the Sixth Amendment regarding the meaning of a prior opportunity for cross examination. As a Massachusetts OUI Lawyer, Sixth Amendment case law will continue to shape how drunk driving and other criminal charges are defended in Massachusetts.

The Indiana Court of Appeals ruled that a defendant’s Sixth Amendment right was not violated when a trial judge allowed transcripts of witness testimony into evidence without the presence of the witnesses in court. The Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees a defendant the right to face his accusers. In the matter of Berkman v. Indiana [976 N.E. 2d 68 (Ind. App. 2012), the appellate court affirmed the trial judge’s decision to allow the transcripts in lieu of the witnesses’ live testimony, holding that the defendant had an opportunity to question the witnesses during earlier proceedings.

Berkman was accused of murdering a drug dealer during a scheduled drug exchange in a supermarket parking lot. After the murder, Berkman allegedly brought the victim’s body in the victim’s car to a girlfriend, who later watched Berkman ignite the victim’s car on fire. Berkman was charged with murder and felony murder. The jury acquitted Mr. Berkman as to the murder charge, but was unable to reach a verdict on the felony murder charge.

The United States Supreme Court agreed to hear two cases that will have a major impact on the prosecution of drunk driving cases in Massachusetts.

On October 1, 2013, the United States Supreme Court agreed to hear the appeal of two California brothers who were charged with drug possession and distribution after police officers pulled their truck over on an anonymous tip. The case is Navarette v. California, the filings can be found on the Scotus Blog.

For one facing an OUI charge in Massachusetts, the first hearing will be an arraignment and then the next hearing will be a pretrial. This pretrial will be the defendants first opportunity to raise issues of evidence or even raise a motion to dismiss the charges. The purpose of this hearing will usually be for the judge to decide whether or not there is evidence that needs to be suppressed or to rule on any other motions by the defendant. If there is no probable cause for the charges and the defendant raises a motion to dismiss, the case should be dismissed at this point. The recent case of Commonwealth v. Huggins examines what evidence can be examined when determining if there is probable cause or not.

In Commonwealth v. Huggins, the defendant was arrested and charged with a second offense OUI. This is after police found the defendant off the road, facing the woods, stuck on rocks. After asking for his license and registration, the defendant had trouble finding it and the officer noticed a strong smell of alcohol on the defendant’s breath. After finally getting out of the vehicle, the defendant refused to take a field sobriety test and was arrested for an OUI. At the pretrial, the judge looked at the totality of the circumstances including the position of the car, the smell of alcohol and the defendant’s refusal to submit to the field sobriety test in determining if there was probable cause to continue the action. The judge denied the defendant’s motion to dismiss and the case proceeded to trial where the defendant was convicted. On appeal, the defendant raises the sole issue of whether the judge erred in concluding there was probable cause to support the charge of OUI.

The main issue here that the defendant raises is that the judge relied on the refusal of taking the field sobriety test in determining whether there was probable cause. The Supreme Judicial Court upheld the conviction and stated that a judge can use this refusal in determining whether there is probable cause. When a judge is determining this, she will have to look at the totality of the circumstances which is what the judge did when denying the defendant’s motion. The defendant also brought up the fact that there was a disagreement over the witnesses who brought forward the complaint, this being the officer. The court ruled that in the pretrial, a defendant will not have the right to cross-examine witnesses or call his own witnesses to show whether or not there is probable cause. This probable cause hearing is essentially a paper trial i.e. the judge will look at the facts as brought forth in the complaint and determine whether there is probable cause. Debates over facts and witnesses will be handled at the trial.

On Wednesday, the Supreme Court heard oral arguments for Salinas v. Texas. The issue in Salinas is whether the Fifth Amendment protects a defendant who remains silent during police questioning before being arrested or read his Miranda rights. As a Massachusetts OUI lawyer, I would expect that the Court will hold that the Fifth Amendment precludes the State from admitting evidence of pre-arrest silence. In additional to a Fifth Amendment argument, a defendant should argue under the rules of evidence that the silence is immaterial and irrelevant and should not come into evidence as having no relevance to whether a defendant committed the criminal offense.

The defendant was a suspect in a homicide investigation and voluntarily accompanied authorities to a police station for questioning. After about an hour of questioning, the defendant stopped answering questions and remained silent. Subsequent investigation linked the shotgun shells found at the scene of the murder to a shotgun found at the home of a defendant.

He was charged with murder and at trial the State sought to introduce the defendant’s silence in response to police questioning. The defendant objected to this evidence, claiming that the Fifth Amendment privilege should exclude the evidence regardless of the fact that he was not in police custody at the time of questioning. The trial court declined to extend Fifth Amendment protection to pre-arrest, pre-Miranda questioning.

The United States Supreme Court held today in the case of Missouri v. McNeely that the natural dissipation of alcohol by the body did not justify a blood draw without a warrant under the Fourth Amendment. As a , the Court decision to take a case-by-case approach is consistent with the protections of the Fourth Amendment and will ensure that officers make some efforts to obtain a warrant, leaving for the trial court the decision of whether the circumstances in any particular case rose to the level of exigent circumstances to excuse the warrant requirement.

In this case, the police officer took the defendant to the hospital to obtain a blood draw after the defendant indicated that he would refuse a breath test. The defendant’s breath test results were .154 and were excluded from evidence by the trial court and Missouri Supreme Court. The State appealed to the United States Supreme Court. You can read the decision of the United States Supreme Court by clicking on this link. .

The State argued that because the body eliminates alcohol over time that this creates an exigent circumstances that eliminates the need for a warrant under the exigent circumstances exception to the warrant requirement. The United States Supreme Court rejected this argument, for the following reasons:

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