The Massachusetts SJC will soon release a decision that could have a major impact on how addiction and drug offenses are treated in Court.  The case of Commonwealth v. Julie Eldred involves a very common situation that occurs in the district courts.  The defendant agreed to a plea on the charge of Larceny over $ 250.00; as part of that plea, the defendant was to remain drug free with random screens.  The defendant received a CWOF or continuance without a finding which is technically not a criminal conviction in Massachusetts.

The defendant tested positive for fentanyl; the judge in the Concord District Court detained the defendant until she could find a bed in an in-patient treatment, pending a final violation hearing.  At the final violation hearing, the defense filed a motion to change the condition of probation to remove drug free, arguing the the defendant because of her addiction could not comply with that condition.  The district court judge reported the question to the appeals courts, and the SJC accepted the case for direct appellate review.

The defense argued that the court cannot impose conditions designed for someone to fail.  This reasoning is derived from the case of Commonwealth v. Henry, 475 Mass. 117 (2016) where the SJC held that the court must address someone’s ability to pay before ordering restitution as a condition of probation.  

In a Massachusetts gun charge of possession of a firearm without an FID card, there are typically three common defenses that are successful in fighting the case:

1.  That you did not possess the firearm

2.  That the seizure of the firearm from you was unlawful

As a Massachusetts Criminal Defense Lawyer, the outcome of serious criminal cases can often come down to very specific facts developed during a motion to suppress.  In the case of Commonwealth v. Aderito Barbosa, the defendant was charged with Human Trafficking.  This is a criminal offense that carries up to twenty years in a Massachusetts State Prison; if found guilty of the crime you are required to serve a minimum mandatory five-year state prison sentence. If the victim is under the legal age in Massachusetts, you could be looking at a life sentence.

In this case, the police raided the defendant’s hotel room at the Park Plaza in Boston.  Upon exiting the elevator, the defendant was greeted by the police.  Knowing what they were there for, he requested an attorney and said he would exercise his Miranda rights.  He tried to flee and was alleged to have resisted arrest and, at that time, requested a lawyer.  As part of an arrest, police are permitted to conduct a search incident to arrest.  A search incident to arrest is a search conducted by the police during the actual arrest; they are legally permitted to search the person being arrested, including his or her immediate surroundings.

Federal laws mandate that the police may search for weapons, contraband, or evidence of a crime, even if it is not related to the crime for which the individual is being arrested for. However, in Massachusetts, police are only granted the authority to search for evidence which is related to the crime.

The Massachusetts Supreme Judicial Court heard oral arguments recently in the case of Commonwealth v. Carter. Carter is charged with involuntary manslaughter for encouraging her boyfriend, Conrad Roy, to commit suicide. The question the court must answer now is whether evidence that a juvenile has encouraged someone else to commit suicide constitutes “infliction or threat of serious bodily harm” for the purpose of indicting Carter as a youthful offender. Massachusetts currently does not have a statute about whether encouraging another person to commit suicide is criminally punishable.

Carter’s attorneys contend that verbally encouraging someone to commit suicide, no matter how forceful the encouragement, does not constitute a crime in Massachusetts. Carter’s encouragement did not cross the line to conduct that caused Roy’s death. Carter’s attorneys argue that verbal action of encouragement does not constitute “wanton and reckless behavior that results in the death of another” under the Massachusetts involuntary manslaughter statute. Roy was 30 miles away, and her encouragement was telling him to “get back in the car” where he then committed suicide by carbon monoxide poisoning. He got back into the truck with the intention of ending his own life, with no coercion from Carter.

Carter’s attorneys argue that words alone cannot be wanton and reckless. If someone makes a decision to participate in a dangerous activity, it is not because the words of another were wanton and reckless. Even the encouragement to take place in a game of Russian Roulette is not enough to constitute wanton and reckless behavior without the fact that the encouragement is to participate in the underlying crime of taking another’s life.

The Massachusetts Supreme Judicial Court Ruled this past week it was unreasonable for the police to impound a vehicle lawfully parked in a department store lot and conduct an inventory search of the vehicle after the authorized driver of the vehicle was arrested for shoplifting in the case of Commonwealth v. Oliveira. Police officers went to the loss prevention office of a department store in Dartmouth, where defendants had attempted to leave the store without paying for some items. A bag of merchandise was in the car that Defendant Violet had driven, which was registered to Violet’s girlfriend. Violet gave permission to search the car for the bag, and provided the keys to the car. Defendants were then placed under arrest. When told that the car would be inventoried and towed, Violet stated that he wanted his girlfriend to come and pick it up instead. The police did not honor Violet’s request, and conducted an inventory search of the vehicle, which produced a loaded firearm.

During a motion to suppress the firearm, the judge concluded that the seizure of the car was unreasonable. The judge found that Violet’s request that the vehicle not be towed and that its owner be permitted to get it was reasonable. After the arrest of a driver, a vehicle may be seized for a legitimate reason. However, seizure with the purpose of investigation is not a legitimate reason.

Courts look at the totality of the circumstances to see whether the alternative offered by the owner was an alternative the police reasonably should have allowed instead of impoundment. In this case, the car was registered to Violet’s girlfriend, and the police did not question that he was authorized by her to drive it. Violet requested that the police leave the car where it was parked until his girlfriend could retrieve it. Violet was only arrested for shoplifting and it was likely that he would be released on bail after he was booked and could then notify his girlfriend to retrieve the car. Even if Violet was not quickly released on bail, he could have used his phone call to call his girlfriend to pick up the car. There was no evidence of the car being at risk of being stolen or vandalized while left in the parking lot. The car was properly parked in the lot, and did not obstruct other vehicles.

In a recent Massachusetts SJC decision, Commonwealth v. Morales, the Court confirmed its authority to revoke a defendant’s bail after being out “on release” and had defaulted by not appearing to his pretrial hearing and subsequently committed a new crime. The decision essentially means that when a defendant has a bail set to insure his appearance at a hearing, he is conditionally out “on release”. If the conditions are violated and he is not in custody after defaulting, he is still considered “on release” and therefore bail may be revoked.

The case arose out of Boston Municipal Court, where the trial judge decided that because the defendant defaulted, he was no longer “on release” within the meaning of G. L. c. 276, § 58, and therefore his bail could not be revoked. In August 2014, the defendant was arraigned in the Boston Municipal court on the charge of larceny of property over $250. The defendant was put on notice for bail revocation and was released on personal recognizance. At the subsequent pretrial hearing, the defendant failed to appear and a default warrant was issued. By April 2015, the warrant was still outstanding when the defendant committed a new crime of assault and battery of a family or household member.

During the defendant’s arraignment hearing for the new charge, the Commonwealth filed a motion to revoke the defendant’s bail or recognizance in the larceny matter and also requested bail in the new assault and battery matter. A judge from Boston Municipal Court denied the motion, reasoning that because he defaulted in the prior larceny matter he was no longer “on release” within the meaning of G. L. c. 276, § 58, sixth par. The Commonwealth filed a petition to appeal from the denial of its motion to revoke the defendant’s bail.  The single justice reserved and reported the matter to the full court.  The Massachusetts SJC disagreed with the lower court and remanded the case to county court.

The Massachusetts Supreme Judicial Court heard oral argument in the case of Tirado v. Board of Appeals addressing the issue of whether a CWOF qualifies as a conviction for the purposes of CDL license suspensions. In Souza v. Registrar of Motor Vehicles, 462 Mass. 227 (2012), the SJC held that a CWOF could not count as a conviction for the purposes of calculating subsequent offense license suspensions. The SJC found that because the legislature did not explicitly state that a CWOF was a conviction it could not be used to enhance a license suspension by the RMV. The legislature quickly amended the statute to include CWOF as convictions.

The legislature however, never amended the CDL statute to address whether a CWOF was a conviction for the purposes of CDL license suspensions, leaving the SJC with an issue of great importance for Massachusetts OUI Lawyers.

Under Chapter 90F Section 1, a person is disqualified from holding a CDL license if he or she has certain convictions. The statute defines a conviction as follows:

In Commonwealth v. Crayton, 470 Mass. 228 (2014), the SJC issued an important decision regarding in court identification testimony. The SJC held that if there is no prior identification of the defendant by the witness prior to trial, then an identification for the first time in court is unnecessarily suggestive and the CW must file a motion in limine to admit the in-court identification.

The Court held that an in court identification is suggestive in the same way that a show up identification is and should require the Commonwealth to establish the same foundation to admit the identification. The Court held that it will treat an in court identification without any prior identification as an in-court show up and require the Commonwealth to show good reason for its admission. The Court listed a number of factors that would fall within the “Good Reason” category:

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