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In this Blog, I address many of the common questions and concerns about Court someone would typically have when faced with a first offense OUI.  I help people everyday understand the court process and make the best decision for them as to how they should handle the case.  In many incidents, that involves taking the case to trial.  But here are some of the most common questions I have been asked over the years.  

Important note if you recently took a breath test: Breath test evidence is not currently being offered into evidence during Massachusetts OUI trials.  Accordingly, the breath test result will not be considered by a judge or jury.

  1. When can I get my license back and can I get a hardship license? 

The Massachusetts SJC held today in Commonwealth v. Richard Sherman, Jr. that in a rape trial, when the sexual encounter starts consensual and it is alleged that the victim withdrew her consent, that the defendant is entitled to a jury instruction that a consensual sexual encounter can become rape if the victim withdraws her consent during the intercourse and the defendant continues with sex by force or threat of force.  The SJC held that the instruction is required when the jury asks a question on this issue.

The Court found that the error was harmless in this case because the victim testified that the sexual encounter was never consensual while the defendant claimed that it was always a consensual sexual encounter.  The defendant was acquitted on the charge of oral rape which the court held meant that the jury could have concluded that the victim consented to oral sex but not penetration.  While these are two different theories of rape, the jury questions and the lack of instructions on an important element of the law does not seem to be harmless error.

Should the trial judge have admitted evidence of cocaine use?

The Massachusetts Supreme Judicial Court heard oral argument in the case of Commonwealth v. Brain Harris that raised the issue whether Massachusetts law denies nonresidents the right to bear arms by exposing them to criminal penalties for not having an FID card. This case was argued in November with a decision likely in the next month or two.

In the Harris case, the defendant, Harris, was charged with possession of a firearm without an FID and possession of a Large Capacity Firearm out of the Lowell District Court.  The defendant got into an argument with his then-girlfriend who called the police.  When the defendant’s girlfriend called the police, she told the police he had guns; the police came to the apartment with guns drawn.  Harris showed the police a license to carry in New Hampshire and lead the police to the guns.

Where did the defendant Reside?

The Massachusetts Supreme Judicial Court heard oral argument in the case of Commonwealth v. Jesse Carrillo, where the defendant was convicted of involuntary manslaughter based on providing heroin to the deceased.  The defendant was a heroin addict himself and the evidence at trial indicated that he went to New York to buy heroin and that he would bring some heroin back to the victim.

At trial the defendant was convicted of both distribution of heroin and involuntary manslaughter.  The defendant claimed that the trial court committed reversible error by refusing to instruct the jury on the lesser included offense of joint possession of heroin.  It was the defendant’s claim throughout the trial that he was a user and an addict but was not distributing heroin or making any profit from selling heroin.  The defendant testified in his own defense at the trial and outlined his heroin addiction.  The defendant also presented expert testimony.

Defense Expert

The SJC decided the case of Commonwealth v. Quinton Williams finding that the trial judge did not error by excluding a juror who stated that the criminal justice system was rigged against young black Americans.  The SJC in the majority opinion and concurring opinion of the Chief Justice stated that it would not be proper to exclude the juror for cause based on this opinion, which the Court indicated has empirical support so is closer to a fact than opinion.
The Court found that the trial judge properly excluded the juror because of her equivocation about whether she could be fair and impartial.  The Chief Justice in his concurring opinion indicated that the court gives great deference to a trial judge questioning a juror as the questions are quick and spontaneous.  The Chief Justice indicated that while he would not have excluded the juror and may have asked more questions, that he did not find a reversible error in the decision to exclude the juror.

The defendant argued that if the court strikes a juror for cause improperly, the court should automatically reverse the conviction as it is a structural error in the trial, the equivalent of giving the Commonwealth and extra peremptory challenge.  The Court rejected the argument that this is the same as denying the defendant a peremptory challenge finding that the juror was presumably replaced with another fair juror.  The Court found that a defendant is not entitled to a a jury of any particular composition.

The right of confrontation is the most important and cherished right for protecting an accused‘ a right to a fair trial in the United States.  It is preserved by the Sixth Amendment to the United States Constitution.  Judges have spoken of the right of confrontation in the following terms:

With sexual assault cases, the Court has diminished the right of confrontation in an effort to protecting statutory privileges against the disclosure of records regarding psychiatric treatment, educational records and other type of records.

In the case of Commonwealth v. Richard Jones, the Massachusetts Supreme Judicial Court imposed an extremely high bar on defense lawyers seeking access to records to impeach the complaining witness.

The Massachusetts Supreme Judicial Court affirmed Michelle Carter’s conviction for involuntary manslaughter.  The SJC began its decision by addressing what it decided in Michelle Carter’s first appeal to the SJC referred to as Carter I.  In Carter I, the SJC held that verbal conduct alone could overcome a person’s will and rise to wanton and reckless conduct to support a conviction for involuntary manslaughter.

The SJC held that the evidence presented to the trial judge was sufficient to support a conviction.  The SJC essentially adopted the reasoning of the trial judge in the case.

Key Evidence Supporting the conviction 

In the case of Kansas v. Charles Glover, the State of Kansas is asking the United States Supreme Court to overturn a decision of the Kansas Supreme Court, finding that the police officer did not have reasonable suspicion to stop a motor where the police had information that the registered owner did not have a valid license.  The State is arguing that the police are allowed to infer without further information that the registered owner is driving the vehicle, allowing for a lawful traffic stop.  In Massachusetts, under the case of Commonwealth v. Daramo, 762 N.E. 2d 815 (Mass. 2002), the police are allowed to infer that the registered owner is driving the vehicle.  In light of the Glover decision, Massachusetts criminal lawyers should attempt to have the Court readdress this issue as being inconsistent with the Fourth Amendment and Article 14 of the Massachusetts Constitution.

This inference that the registered owner is the driver is inconsistent with the Fourth Amendment and requirements of reasonable suspicion as the Kansas Supreme Court correctly found.  In requesting the United State Supreme Court to hear the case, the State of Kansas argued that the rule in a majority of jurisdictions is to allow an officer to infer that the registered owner is driving the vehicle.  You can read the filing of the Glover case on the Scotus Blog.    The State’s petition for certiorari is pending before the United States Supreme Court.

Reasoning of the Kansas Supreme Court in Glover:

In the case of Mitchell v. Wisconsin, the United States Supreme Court has agreed to hear a case from Wisconsin addressing the issue of whether States can have a statute allowing warrantless blood draw of an unconscious suspect.   Wisconsin and 29 other States allow warrantless blood draws of an unconscious individual as part of its implied consent laws. In the Mitchell case, the Wisconsin Supreme Court in a divided opinion rejecting the Fourth Amendment challenge with three judges finding that consent was implied and two finding that consent was not required under the circumstances.

Implied consent means that when someone gets their driver’s license, they agree before hand to take a breath or blood test.  In other words, the consent is given when the person obtains their driver’s license.  If a person does not take a breath or blood test, the State can impose sanctions for refusal.  You can read the filings of the Mitchell case on the Scotus Blog.

If the defendant prevails on his Constitutional argument, laws in 29 states will be deemed unconstitutional allowing blood draws for someone that is unconscious.  Seven States Courts have found that unconscious blood draw statutes under the name of implied consent are unconstitutional under the Fourth Amendment.  The United States Supreme Court will resolve this split in how the Fourth Amendment is interpreted.

The Massachusetts decided Commonwealth v. Davis today further defining the law as it related to OUI marijuana in Massachusetts.  The Davis decision involved the issue of when the police have probable cause to arrest someone for OUI marijuana.  

The SJC found that the judge correctly denied the motion to suppress finding that the officer’s observations met the standard of probable cause need to make an arrest.  The SJC acknowledged that it is difficult to detect impairment by marijuana since there are not validated field sobriety tests.  However, the court indicated that a judge is permitted to rely on the officer’s observations.  The SJC held that the officer can testify about the driving, the odor of marijuana and subjective observations of the individual’s appearance and condition.  The SJC noted that the testimony was that the defendant admitted to smoking, had slow coordination and difficulty focusing.  The Court contrasted the Davis case with its other decision in Commonwealth v. Daniels where the it found not reasonable suspicion when the there was no testimony that the defendant’s alertness, judgment or ability to respond promptly had been impacted.  

The Davis decision is the first case from the SJC on probable cause for OUI marijuana and the Court is likely to have to readdress this issue in future cases.  The Court declined to further extend its decision in Commonwealth v. Gerhardt to call into question the lack of studied method to determine impairment by marijuana.  

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