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United States Supreme Court considering a First Amendment challenge to Michelle Carter’s conviction.  Michelle Carter, the 17-year-old who was convicted of involuntary manslaughter for the death of her boyfriend, Conrad Roy III, when she had sent text messages encouraging him to commit suicide, has petitioned the U.S. Supreme Court for certiorari arguing that her conviction violates both the First and Fifth Amendment.

Carter argues that her case, which garnered extensive public attention and media coverage around the globe, is an appropriate vehicle to address these First and Fifth Amendment constitutional questions.

Carter wastes no time in the petition pointing out to the Court how unprecedented her conviction is stating that, “Massachusetts is the only state to have affirmed the conviction of a physically absent defendant who encouraged another person to commit suicide with words alone.”

The Supreme Judicial Court (SJC) recently reviewed Commonwealth v. Larose to answer whether it was reasonable, and therefore valid, for a police officer to stop the defendant’s motor vehicle for failing to drive entirely within a marked traffic lane.

The defendant was traveling during the early morning hours on Route 202, a two-lane highway with a single lane of travel in each direction, when the defendant, who was traveling directly in front of the officer, crossed the right-side fog line (the white line on the right-hand side of a road that separates the driving lane from the shoulder), one time for two to three seconds as shown by the officer’s dashboard camera.

After subsequent observations and further inquiries, the defendant was charged with an OUI and marked lanes violation.

In a recent Massachusetts Appeals Court opinion, Commonwealth v. Taylor, the court allowed the Commonwealth to essentially get “two bites at the apple” when prosecuting a defendant for firearm possession.

The defendant was first charged with “carrying a loaded firearm.”  The charge of “carrying a loaded firearm,” as written in the statute, requires a predicate offense of either “carrying a firearm without a license” or “possession of a machine gun or sawed-off shotgun.”  In essence, in order to charge the defendant with the charge of “carrying a loaded firearm,” the Commonwealth would have first had to charge the defendant with either of the two predicate offenses.

At the close of trial, the defendant argued that he must be found not guilty because the Commonwealth failed to charge him with either of the predicate offenses, and the trial judge granted the motion.

The Massachusetts Supreme Judicial Court reversed an involuntary manslaughter conviction in the case of Commonwealth v. Carrillo based on the defendant allegedly causing the victim to overdose on heroin.  Massachusetts’s highest court, the Supreme Judicial Court (“SJC”), vacatedUMass Amherst grad student Jesse Carrillo’s involuntary manslaughter conviction, who, in October 2013, Jesse Carrillo was charged in the heroin overdose death of fellow UMass Amherst student, Eric Sinacori.

In May 2017, a Hampshire Superior Court jury delivered its guilty verdict against Carrillo on counts of distributing heroin and involuntary manslaughter, nearly four years after Sinacori died at his off-campus apartment.  In October 2013, Carrillo was getting his master’s degree at UMass Amherst when he purchased heroin from a New York dealer for himself and Sinacori.  Two nights later, Carrillo drove to the Bronx again and purchased heroin from the same dealer for himself and Sinacori, who was found dead the next day of an overdose.

In June 2017, at Carrillo’s sentencing hearing, Hampshire Superior Court Judge John A. Agostini called the case “very difficult” before handing down a jail sentence of 2½ years and five years on probation.  Judge Agostini ordered Carrillo to spend one year behind bars, with the rest of the sentence suspended.

A Jury in a Massachusetts OUI charge normally is before a jury of Six.  Recently I had a trial in Quincy District Court where we proceeded with a jury of five people.  As is typical in the District Court, the court did not have enough jurors.  Rather than picking another date, I told the judge my client would be willing to waive his right to a six person jury and have the case heard by Five instead.  With the consent of the district attorney and the defendant, the court can allow a trial to proceed with five jurors.  If this situation arises, because it is unusual, you may have to inform the judge that the law allows for a five person jury under these circumstances.  As a defense attorney, the calculation is whether you like the five potentially sitting in the box versus coming back on another date.  I felt as though the five individuals selected could be fair and it did not make a difference to me that there was one less juror.  In fact, had the last juror not been excluded for cause by the judge; I would have asked the judge before striking the juror if he would allow me to strike that juror and go with five instead.

The Sixth Amendment to the United States Constitution and Article 12 of the Declaration of Rights normally require a six person jury, but the law allow the number to be reduced to five upon agreement of all parties.  The law does not permit a defendant to have a jury less than five even with the agreement of the parties.  Some judges will not allow a trial to proceed with five.

If you have questions about the court process when charged with OUI, feel free to contact Attorney DelSignore.  We have encountered almost every issue that comes up in court and with the RMV.  Feel free to reach out on Facebook if you have questions as well where we posted updates to the law.



You win your OUI case; you have the judge allow a motion to reinstate their license.  The client is relieved; they are back on the road.  But not so fast, the hearing officer says that they will consider the reinstatement and get back to the person in ten days.

Why won’t the RMV reinstate the license?  

The RMV will only honor a motion to reinstate if all of the charges under 90 Section 24 are dismissed, meaning if you had the client accept a plea of a CWOF on the negligent operation, the RMV will deny the request for reinstatement, despite the judge’s order.  You can appeal this decision to the Board of Appeals.  We have an appeal pending on this issue.

     In many cases, when you are involved in an accident, the Commonwealth will make a motion to summons your hospital records to determine your blood alcohol content.  While this motion is often allowed, it should be objected to as the Commonwealth does not have an unlimited right to summons medical records after any accident.  

Is the hospital blood test scientifically reliable?  

A hospital blood test is a quick screening test that the hospital used to determine if alcohol is at issue in your medical treatment; it is not a forensic scientific test.  There are a number of ways to challenge the reliability of a hospital test.  You will need to hire an expert to educate the judge on the scientific issues undermining the reliability of the tests as most judges assume the tests are reliable.  

The Massachusetts Legislature is considering requiring first time offenders to have the ignition interlock imposed if convicted of a first time OUI offense.  All states, except Massachusetts, have laws that may require first-time drunk driving offenders to install “ignition interlock devices” in their vehicles. This device is like a mini-breathalyzer that the driver must blow into before driving the vehicle. If there are measurable amounts of alcohol in the driver’s breath, the vehicle will not start. Not all states mandate the devices in all circumstances, for example the devices are mandatory in some states if a first-time offender registers an extremely high blood alcohol content.  It is already mandatory for Massachusetts repeat drunk driving offenders with hardship licenses to have the device installed in any vehicle the offender drives, but Massachusetts is the only state where this remedy cannot be ordered for first-time offenders, regardless of the blood alcohol level associated with the offense.

There are currently several different pieces of proposed legislation that, if passed, would mandate ignition interlock devices for certain first-time drunk driving offenders. Gov. Baker’s proposed bill (S.7) would require ignition interlock devices as a condition of receiving a hardship license, for the duration of the hardship license. Anyone, including first-time offenders, that does not receive a hardship license would still be required to use an interlock ignition device for the first six months after their license is reinstated. It also establishes clear penalties for anyone who has an interlock ignition device that tries to drive intoxicated or tampers with the device. Similar bills sponsored by Sen. Tarr (S. 2137) and Rep. Whelan (H. 1580) would mandate interlock ignition devices for all first-time offenders once their licenses are reinstated. The Whelan bill would reduce the term of license suspension for first-time offenders if the offender installs the ignition interlock device. The bills have all been referred to the Joint Committee for Transportation.

Reforms to the ignition interlock laws were previously proposed in the Massachusetts legislature at least three times, but failed to pass. Now that Massachusetts is the only state that does not allow for any first-time offender to be ordered to use ignition interlock devices, there is increased pressure on lawmakers to pass this legislation.  The National Transportation and Safety Board (NTSB), Mothers Against Drunk Driving (MADD), and AAA all support these bills, citing a Centers for Disease Control report that the use of ignition interlock devices reduces repeat offenses by 67 percent, therefore reducing the number of drunk driving deaths. MADD claims that ignition interlock devices have prevented three million drunk drivers from driving since 2006. Proponents also believe that these reforms offer a fair balance between the offenders need to drive and the public safety risks from drunk drivers.

The Commonwealth of Massachusetts requires a license to carry, or LTC, to purchase, possess, and carry a handgun, shotgun, or rifle.  But what does possession actually mean? Of course, if you have the gun on your person, such as in your pocket or purse, then you are in possession of it.  That is what the law calls actual possession. What if you are in a car where there is a gun? Or in a house where someone owns a gun? Does that count as being in possession? Owning a gun is not the same as possessing the gun.

The law does not require that you actual physically possess something for the law to conclude you have possession of that object. There is a type of possession called constructive possession. When it comes to gun laws in Massachusetts, you will want to be aware of what constructive possession means.

The legal definition of constructive possession is if you have:

In Massachusetts, those charged with OUI since August of 2017 have not had breath test evidence used in Court.  This was based on some egregious violations of discovery orders in the 9510 breath test litigation that began in 2015.

To remedy the problem with the Office of Alcohol Testing not providing documents and understanding its obligation to provide exculpatory evidence, Judge Brennan imposed seven criteria that the Office of Alcohol Testing must comply with in order to use breath test evidence in court.

  1.  That the Office of Alcohol Testing submit an application for accreditation with the ANAB that is substantially likely to succeed.
  2. that the application be put on the online portal;
  3. that the ANAB Accreditation criteria be public on the online portal;
  4. that the Office of Alcohol Testing create a discovery protocol.
  5. that the protocol be put online.
  6. that the OAT employees be trained on the meaning of exculpatory evidence.
  7. that all written training procedures be put online.

Judge Brennan found that the Office of Alcohol Testing complied with all of these seven criteria on April 18, 2019.  Accordingly, his ruling allows breath test evidence on machines calibrated after that date to be used in evidence.  This means that police departments are going to have to have their machines certified immediately to have its test resulted admitted in court.  Typically, police departments have the machines certified on an annual basis.

History of the breath test litigation in Massachusetts and how we got to Judge’s Brennan’s recent ruling

In 2015, Massachusetts criminal defense lawyers started the 9510 breath test litigation.  This was an attempt to challenge the scientific reliability of the breath test machine used in Massachusetts.  The focus of the litigation when it started in 2015 was on the source code and other scientific problems with the breath test machine.  The source code of the breath test machine is the computer program that governs how the breath test machine produces the numbers that come out of the machine as a breath test result.  Other scientific challenges included the blood to breath partition ratio, whether the breath test was specific enough for alcohol to be scientifically reliable.  Judge Brennan ultimately rejected all of the scientific challenges.  However, during the litigation, it was revealed that the Office of Alcohol testing had documents that were never provided to defense attorneys in the usual discovery.  Work sheets were provided that had not been previously turned over as part of the Office of Alcohol testings discovery package. Defense attorney asked Judge Brennan to find that the Office of Alcohol Testing did not have a method or procedure to perform its annual certification on the breath test machines, making the results unreliable in court.

Judge Brennan agreed with this argument and excluded two years of breath test results.  His initial decision in the 9510 litigation excluded breath test results prior to September 14, 2014.  After this decision, the lead expert for the defense Thomas Workman discovery that he received different documents in his public records request than what was received during the discovery process.  It was reveled that 425 failed calibrations were never turned over to the defense.  It was this discovery violation that lead to the head of the Office of Alcohol testing being fired and the Commonwealth agreeing not to use breath test evidence until the violations were remedied.  This occurred in August of 2017.

It was as a result these discovery violations that Judge Brennan ruled that there should be independent oversight over the Office of Alcohol Testing.  By requiring the Office of Alcohol Testing to be accredited, Judge Brennan is holding the Office to external standard of scientific reliability.  To maintain its accreditation the Office of Alcohol Testing is subject to external audits.  Further, his requirement that all discovery be online was meant to create an atmosphere of transparency.  The Office of Alcohol testing was not being upfront with its discovery and honoring its requirement to provide exculpatory evidence.

What it means for those charged with OUI in Massachusetts?

Judge Brenann’s ruling means that the Commonwealth will have a major piece of evidence back in when prosecuting OUI cases.  Defense lawyers still have many ways to challenge this evidence.  Police must administer the tests in the proper manner and there are other scientific reasons why a breath test result may not be accurate for a particular defendant.

To read some earlier post on the Massachusetts breath test litigation you can click here.

You can also find Attorney DelSignore on Facebook to learn more about Massachusetts OUI Laws.

To read Judge Brennan’s decision visit the this link of resources to important DUI cases and materials.
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