Under Massachusetts general law c. 209A, victims of family or household abuse can seek help from the State to prevent further abuse by orders prohibiting a defendant from abusing or contacting the victim, or requiring a defendant to stay away from the victim’s residence or workplace. Any party may seek to get a permanent abuse prevention order (“209A order”) terminated. If the party does not challenge the entry of a permanent 209A order on direct appeal it becomes a final equitable order. While a 209A order is a civil order, a violation is a criminal offense.

In MacDonald v. Caruso, the defendant had a permanent abuse prevention order against him. He did not challenge the permanent 209A order on direct appeal. However, as with the defendant, a party may seek termination of the order where it is no longer equitable that the judgment should have future application.

The standard applied by the court depends on which party is bringing the motion. Where a defendant seeks to terminate a 209A order, the defendant must show by clear and convincing evidence that there was a significant change in circumstances, and under the totality of the circumstances, the protected party no longer has a reasonable fear of imminent serious physical harm from the defendant. Mere passage of time and compliance of the order by the defendant do not constitute a significant change in circumstances. However, where the significant change in circumstances is not foreseen when the last order was issued, these two factors may be considered in deciding whether the defendant no longer poses reasonable threat of imminent serious physical harm to the plaintiff.

What happens when you are pulled over for a traffic infraction and then charged with OUI in Massachusetts. How does this impact the defense of your case?

This can occur when an officer patrolling the road pulls you over for driving above the speed limit or for a burned taillight, and then after pulling you over, suspects that you have been driving while intoxicated.

When it becomes clear to the officer that the driver is intoxicated, the officer may arrest the driver under criminal charges. However, such a driver may be acquitted or the charges dropped if he can prove that the initial stop was not lawful.

There are usually opportunities for first-time offenders in OUI cases to accept a lighter criminal punishment in exchange for some admission in court. But many people do not realize that there are always conditions and consequences of these court admissions – although they are not guilty pleas. As in the case of Commonwealth v. Oyewole, when a defendant fails to carefully comply with the conditions of the court orders pursuant to his admission, he will be considered to have committed a crime – whether or not he was actually aware and understood these conditions.

In the matter of Oyewole, the defendant was convicted by a trial judge for operating a vehicle after his license was suspended for an OUI. The initial trial judge in Oyewole’s OUI case continued the OUI conviction without a finding for one year, and ordered that Oyewole’s license be temporarily suspended.

During the suspension period, Oyewole was pulled over in the middle of the night for driving without his headlights. When the officer asked him for a license and registration, Oyewole fully complied and produced a license. The officer returned to the police cruiser to run the plate number and license number, and found that Oyewole’s license was suspended by a trial judge less than sixty days earlier. The officer confiscated the license and arrested Oyewole for driving with a suspended license under chapter 90, section 23 of the General Laws. When Oyewole was booked at the police station, he informed the booking officer that he was a “caregiver” – which is one of the qualifications for a hardship license.

In Massachusetts, as in many other states, a driver’s prior DUI conviction could increase the severity of any subsequent DUI offenses charged by the district attorney. Many states have laws that enhance penalties for repeated DUI offenders, and even make it a crime to refuse to take a breath test in certain circumstances. As in the case of the recent Vermont Supreme Court decision, courts may even use the same prior conviction both to enhance the penalty for subsequent charges, and to criminalize a BAC test refusal.

The high court of the state of Vermont has ruled that any prior DUI conviction could be used to criminalize a refusal to submit to a BAC test, in addition to enhancing a penalty for refusal. Refusing to submit to a BAC test ordinarily results in license restrictions or suspensions in many states if the driver has no prior DUI record. Under the amended Vermont state statute, however, a refusal by a driver with a prior DUI conviction automatically becomes a criminal violation that is punishable by fees, imprisonment, and community service.

Many states, such as Vermont and Massachusetts, also enacted laws that increase the severity of the punishment for repeated offenders of DUI laws. As the number of past convictions increases, the penalty becomes more severe. Click here to see my webpage on the different OUI penalties in Massachusetts.

Two tragic DUI related accidents have resulted in charges in Connecticut for reckless endangerment as a result of failing to prevent the minor from driving drunk, causing the fatalities. As a Massachusetts DUI Lawyer, these cases raise issue of national significance and could set precedent for prosecuting failing to prevent a drunk driving accident and for the expansion of these types of statutes by legislatures.

The first set of charges were filed as part of the investigation of the death of 17 year old Jane Modlesky, according to numerous news accounts of the investigation. The arrests of the two teenage boys came after the local district attorney charged another 17 year old teen with permitting the victim and other minors to possess alcohol during her house party earlier that evening.

Police investigators stated that Modlesky was heavily intoxicated after leaving an party late into the night with four teenage boys in a car belonging to the host of the party. Police arrested the two boys who are alleged to have been the last people to see Modlesky after they drove themselves home with the car, leaving Madlesky to drive away while intoxicated.

As a Massachusetts OUI lawyer, when someone hires me to defend their OUI charge, my primary task is to find a way to communicate to the jury that they were not under the influence of alcohol, to find a theory that challenges the officer’s observations so that the jury returns a verdict of not guilty. In preparing for trial, I typically practice my opening and closing countless times with the goal of making my argument, interesting and persuasive. Just as professional athletes all have coaches, in this Blog I want to discuss a lecture that I have listened to several times and find extremely valuable.

As a trial lawyer, my job is in communication and to improve those skills I look to experts in the field. Recently, I listened to an excellent lecture from John Maxwell that I purchased in the Success Magazine online store.

John C. Maxwell is a New York Times best-selling author, speaker, and pastor who focuses primarily on leadership. His lecture “Everyone Communicates Few Connect begins by addressing how it is difficult to communicate effectively and be understood in today’s world. There is a lot of noise and distractions, especially with the rise of technology. However, it is absolutely necessary to connect with people to aptly influence and persuade them.

This is applicable because for successful leadership, there must be persuasive influence in order to have a strong connection. However, connecting with people is not always an easy task. It must be approached in the right manner and successfully followed through until the end. In order to make the process of forming a connection easy to understand, Maxwell breaks it down into five clearly defined principles:

1. Connecting increases your influence

2. Connecting is all about others

3. Connecting goes beyond words

4. Connecting requires energy

5. Connecting is more a skill than a natural talent

All of these principles are consistent with Maxwell’s value-based approach. Once these are in place, he goes into more detail:

Maxwell goes on to explain how these principles are applicable to a variety of situations
and settings vary depending on the situation at hand. They can be applicable to the environment, number of people, and more. He also goes onto talk about social media’s significant impact on modern-day communication. People now no longer have to solely rely on face-face communication. With the rise of Twitter, Facebook, Tumblr, etc. communication has become much more complex. Maxwell speaks of lots of different stories and anecdote and successfully applies these strategies depending on the situation. Some argue that Maxwell’s principle can be too simple. However, the easier people can follow these principles, the more successful they will be.

As Maxwell states, having a strong connection is essential to any form of communication. While Maxwell’s teachings are aimed at the business community, his advice on communication and connection are valuable to all criminal trial lawyers and in particular OUI lawyers in Massachusetts, looking to effectively lead and influence six individuals toward a verdict of not guilty. The joy of being a trial lawyer is that few jobs in today’s society depend so heavily on being able to tell another’s story persuasively to a group to influence the group to action.
Continue Reading ›

Law School can be stressful; one exam for the entire grade. Here are some tips on how to best prepare for exam day.

After having completed three years of law school at the University of Connecticut, I felt I got better understanding as I went along but it would have been helpful to know what I know now at the start of my first year.

Here is my advice to help you get off to a good start. While I believe it is important to outline your course material, read every case and the case notes, your exam will generally be applying the law to a new problem or issue that did not occur in any of the cases you have read. What you need to do is read current legal material related to the cases you are reading so you can see how the cases are being applied in court. If you try to expand your perspective beyond just memorizing the case law, your exam answer will have that extra insight that will make your exam stand out and earn you a better grade. What makes for an “A” exam, adding some flare to your answer that lets the professor know you understand the law and have something new and interesting way to apply it to the problem in the exam question.

The Massachusetts Supreme Judicial Court applied the “primary purpose test” articulated by the United States Supreme Court in Michigan v. Bryant, 562 U.S. ___ (February 28, 2011) in its recent decision of Commonwealth v. Beatrice. The Beatrice case demonstrates the dangerous erosion of the Sixth Amendment right of confrontation in domestic assault and battery cases. Click here to read the SJC opinion in Beatrice.

The Beatrice decision involved a very common circumstance in Massachusetts domestic assault cases where at the time of trial the alleged victim no longer wishes to testify and asserts either a Fifth Amendment privilege against self incrimination or exercises their martial privilege.

In cases with 911 calls, the Commonwealth can attempt to proceed with the case despite the noncooperation of the victim. The outcome of the trial will largely depend on the judge’s ruling as to the admissibility of the 911 call and the application of the United States Supreme Court decision in Bryant and Davis v. Washington, 547 U.S. 813 (2006).

Fighting a Massachusetts DUI charge at trial often involves contesting the reliability of field sobriety tests. To help readers better understand how these tests should be performed, what clues to look for and way to challenge these exercises at trial, I am going to write a series of blogs on the three standardized field sobriety tests, the nine step walk and turn, one leg stand, horizontal gaze test, other non-standardized tests that are used by police. The final Blog in this series will discuss what the police training manuals tells the officer to look for when observing your driving and making the initial contact with you at the scene of the motorist vehicle stop. In this Blog, I will discuss the nine step walk and turn field sobriety test.

The walk and turn field sobriety test is an exercise that many people perform very well on even when arrested for drunk driving in Massachusetts. While the officer will likely say you failed, the purpose of this blog is to explain to you what the officer should have been looking for and how the results of this test can be used in front of a jury to argue that you were not under the influence of alcohol and to achieve a not guilty verdict.

A police officer is suppose to score the nine step walk and turn according to his police training, which is based on the National Highway and Detection Field Sobriety Test Manual. I have a copy of these manuals for the various officer; there are about four different manuals depending on when an officer was trained; however, the testing procedure is basically the same for each manual. Click here to see a copy of a police training manual.

What does an officer look for on the nine step walk and turn.

• Cannot keep balance during the instructions; this is maintaining the heel to toe stance during the instruction phase
• Starts before the instructions are finished
• Stops while walking
• Does not touch heel to toe: This is an important clue because some officers make the test more difficult to perform by not recognizing that the feet do not have to touch. The training manual of the officer indicates that there can be a one-half inch space. Most officer do not recall from their training that the heel and toe do not have to touch for the test to be performed correctly.
• Steps off of the line
• Uses arms for balance: This is another clue that requires the arms to be more than 6 inches from the body. The arms do not have to be glued to the person’s body. Most officers do not tell the suspect that the arms do not have to be stuck to the person’s side.
• Improper turn
• Incorrect number of steps

It is considered a failure on the nine step walk and turn if two or more clues are present. However, the test is only deemed 68% reliable if given under ideal conditions. There are many ways to attack the reliability of the exercise based on medical conditions, weather conditions or conditions of the roadway where the test was performed, but for the purpose of this Blog Post, I will discuss how taking the officer’s training, this exercise can be used to help demonstrate normal coordination and mental ability, which is vital to winning a DUI trial.

In using this test at trial, one common method for a Massachusetts DUI lawyer is to change the jury view of the scoring on the test. Many reports do not contain any details of a motorist stepping off the line. Typically, there is no designated line, making the test harder. Given there are nine steps forward and nine back, one way to look at the scoring is to divide up each of the clues and base the scoring on a maximum of 18 points for each part of the test done correctly. This method of changing the scoring on the field sobriety tests is stressed at conferences held by the National College of DUI Defense.

Missing heel to toe: in some reports the officer states that the person missed heel to toe on 2 or 3 steps; if this is the case, the idea is to show the jury that overall the motorist did very well, scoring 16 for 18, on an unfamiliar test, under difficult conditions.

Taking the correct number of steps is also a good opportunity to demonstrate good mental ability, because it requires the person to count while performing a physical exercise.

Since the nine step walk and turn has so many different components and potential places for a defendant to make a mistake on the exercise, it provides a DUI lawyer with many opportunity to stress positive aspects of the performance that demonstrate good ability to follow instruction, to think clearly and to demonstrate good coordination.

When looking at your police report in your case, it is important to understand how the exercise is to be scored, what other clues the officer could have found, to evaluate how this exercise will be used at trial.
Continue Reading ›

The United States Supreme Court has agreed to hear another case raising the issue of the scope of the Sixth Amendment Right of Confrontation. The case of Williams v. Illinois directly raises the confrontation clause issues raised in the concurring opinion of Justice Sotomayor. The filings in the Williams case can be found on the Scotus Blog, attached as a link here.

The Williams case involved charges of sexual assault, kidnapping and robbery. The defendant allegedly grabbed the victim while she was walking home and sexually assaulted her. In the case, according to the police, the victim initially identified her attacker as a man named McChristine, but later told the police that he was not the attacker.

Over a year later, the defendant was arrested and identified by the victim as her attacker through a line-up identification procedure. At trial, the State called a forensic scientist to testify, Sandra Lambatos who testified that samples from the victim’s sexual assault kit were sent to Cellmark diagnostic laboratory for DNA analysis. Lambatos testified that Cellmark derived a DNA profile for the person whose semen was recovered from the victim. The expert witness testified that in her opinion the profile matched the defendant. The testifying expert at trial did not know what procedures were used by the lab, whether the lab calibrated its equipment, and how samples were handled once received. At trial, no witness from Cellmark testified and the report was not introduced into evidence.