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The Massachusetts Supreme Judicial Court heard oral arguments in the case of Commonwealth v. Bohigian on February 10, 2020, dealing with the issue of the admissibility of a blood test in a OUI case involving Serious Bodily injury.  The case arose out of the Westboro District Court.

What is Serious Bodily Injury?  

Serious Bodily injury is defined as creating a substantial risk of death, involves total disability, the loss of any bodily function for a substantial period of time or involves substantial impairment of any bodily function for a substantial period of time.

The Massachusetts Supreme Court will address the issue of when a seizure occurred in the case of Commonwealth v. Evelyn.  The Evelyn case is SJC-12808 and was argued on January 7, 2020.

This case involved a young black man running from the police while the police were investigating a shooting in the Roxbury section of Boston.  This decision will have important implication for how black males are treated by the police and what it means for the police to have reasonable suspicion.

Under the United States Constitution, the US Supreme Court has interpreted the 4thAmendment to find that if a defendant runs, there is not seizure until the defendant submits to the authority of the police.  The United States Supreme Court announced this rule in the case of California v. Hodari D, 499 U.S. 621 (1991).  In that case, the defendant fled and the United States Supreme Court held that he was not seized until the police physically stopped him.  While running, the defendant threw cocaine from his pocket.  If there was no reasonable suspicion prior to the flight, the evidence would have been suppressed, but since the court held that the defendant was not seized until he was stopped, the court declined to suppress the evidence.  The Massachusetts SJC does not follow this rule as State Court are free to interpret their State Constitution different from how the US Supreme Court interprets the United States Constitution.

The Massachusetts Supreme Judicial Court heard oral arguments on March 3rd in the case of Commonwealth v. Edward Long, SJC-12868, that deal with the issue of disparity treatment and discriminatory enforcement of traffic laws by the Boston police.  In this case, the defense lawyer presented a compelling statistical case that race played a role in the traffic stop.  Under the Equal Protection Clause of the 14th Amendment and Article 1 Section 10 of the Massachusetts Declaration of Rights, a defendant who shows discriminatory enforcement of the laws can have the case dismissed.

What happened in the Long Case?  

The Long case involved two officers on the gang unit who were essentially profiling cars, finding minor reasons to stop the car, with the hopes of discovering further evidence that would lead to an arrest.  Two officers were involved in the stop of the defendant, Officer Rodriguez and Lopes.  The defendant was stopped for an expired inspection sticker after the officers randomly ran his plate, according to their testimony at the motion hearing.  Officer Rodriguez testified that giving traffic citation was not a primary concern of the gang unit; he testified that he gave out 5 citation out of 1000 cars that he stopped for traffic violations.  He testified a lot of arrests start out as average traffic stops.

Yesterday, the Supreme Court heard oral arguments in a major abortion case.  This is the first time since Justices Neil Gorsuch and Brett Kavanaugh joined the Bench, creating a strong conservative majority, that abortion will be addressed by the Court.  That case, June Medical Services v. Russo addresses whether the Louisiana law requiring abortion providers to have privileges in a hospital within 30 miles of their clinic is constitutional. The Louisiana law at issue in this case is virtually identical to the Texas law that was struck down by the Court in Whole Women’s Health v. Hellerstedt in 2016.

What could happen is anyone’s guess.  The Court could

  • follow the June Medical Services argument to follow stare decisisand rule, as it did with Whole Women’s Health, the law unconstitutional. Or, it could

Massachusetts District Attorneys will be mailing out notices to those individuals who took a plea on OUI cases involving breath tests that there were potential inaccuracies with the test results.  As a result of the litigation in Commonwealth v. Ananias, many of out clients went to trial on OUI cases from 2012 to 2019 without the breath test coming into evidence.  Attorney Delsignore was involved in the litigation from its inception; attending the first meeting of lawyers on this issue at the CPCS office in Worcester, Massachusetts.  Clients with good cases based on the observations, had their cases stayed until the litigation was resolved.  Ultimately, those clients went to trial without breath test evidence coming into evidence during the trial.  

However, many individuals charged with OUI may have plea to an OUI charge without the benefit of having a lawyer that was aware of the litigation or could have represented themselves pro se without knowing that the breath test evidence would not be part of the case at trial.  Although breath test evidence can be inaccurate and unreliable as it was in Massachusetts, it tends to be misunderstood by the public in terms of its reliability.  

Based on these recent developments, if you admitted to an OUI, you may want to consult an attorney to see if your case can be reopened.  It is possible if the officer is around that the Commonwealth could still prosecute the case without the breath test results.  In other words, there are two theories that the Commonwealth relies on to prove an OUI offense.  First, the per se theory.  This means that if you took a breath test and it is over .08, you are in violation of the per se law.  The second theory is the impairment theory used when the breath test is excluded from evidence or when a breath test is refused.  Under this theory, the Gov contents that based on the driving, the observations of the officer and your performance on the field sobriety tests, that you were impaired in the officers opinion.  If a judge or jury believes this opinion, beyond a reasonable doubt, you can be convicted of OUI under an impairment theory.  It is possible that the Commonwealth could seek to retry the case under an impairment theory.  Since you would have completed probation and already lost your license, the Commonwealth may be satisfied with vacating the conviction and dismissing the charge.  In some cases, witnesses may not be around to prove the case.  Each case will be reviewed on a case by case basis in terms of what happens if the plea or conviction is vacated.  

Massachusetts OUI Lawyers will once again have to deal with breath test evidence as most police departments have complied with the reforms required by Judge Brennan as part of the Ananias litigation.  Last week I spoke at the Plymouth Country Bar Association on Breath test evidence.  It has been a long time since many lawyers have had to try to keep a breath test out of evidence as a result of the Ananias litigation.  But it is back.  

What do lawyers need to know about breath test evidence?  

All breath test data is now online; you can get all the periodic tests and annual certifications for each breath test machine in the online portal. As part of the reforms required by Judge Brennan, the Office of Alcohol testing is suppose to be more transparent about what it is doing with the breath test machines, the documents that it has and be more forth coming with discovery requests.  While all the documents are online, it is still the Commonwealth’s burden to introduce and provide these documents at the time of trial.  The online portal means that defense lawyers do not have to wait for the Commonwealth to produce these documents to begin determining if the breath test documents would be admissible and show that the machine is reliable.  

The Massachusetts Appeals Courts defined the crime of Strangulation in a recent decision.  This is a felony offense which can be charged in a domestic assault and battery case.  In the recent Massachusetts Appeals Court decision in Commonwealth v. Rogers, Mass. App. Ct., No. 19-P-229, slip op. at December 31, 2019, the court reviewed a domestic assault and battery conviction and ruled that although there were not facts in evidence that the victim could not breathe during strangulation, there was sufficient evidence to infer that the defendant’s intentional grabbing of the victim’s neck interfered with the victim’s breathing, thus neck grabbing is strangulation.

This case involves a couple that had been dating for ten years and starts in Bourne, Massachusetts after a 911 call to police in 2018.  During that 911 call, the victim told dispatch that she had been “assaulted” by the defendant.   When police arrived at the couple’s home and spoke to the victim, police noticed marks on the victim’s neck and scratches on her chest.  Police took photos of the injuries and the photos were later used as evidence at trial.  During the trial, the victim testified that the defendant had grabbed her by the sweatshirt with one hand and around the neck with his other hand. The victim also stated that the defendant, while applying pressure to her neck, stood her up from the couch and threw her onto the floor.  The victim also told the jury that when the defendant had his hand around her neck, she felt pain and almost “peed [her] pants.”  When the defendant released his hand from her neck she coughed.  The trial ended in the defendant being convicted for strangulation.

The defendant appealed the conviction on the basis that there was insufficient evidence to support a strangulation conviction.  The defendant claimed that the evidence did not suggest that he touched the victim’s throat or neck, and further contended that there was no basis to conclude that his conduct interrupted the victim’s breathing. The defendant also challenged the inconsistencies in the victim’s statements.   During her testimony, the victim initially said that the defendant had his hand around her jaw line.  At other times in her testimony, the victim referred to the defendant having his hand on her “throat” and “neck.”  The trial record indicated that the victim had demonstrated the location of the defendant’s hand to the jury.

On November 14, 2019, Thomas Bell, a motorist convicted of DUI, filed a Petition for a Writ of Certiorari with the Supreme Court seeking review of the Pennsylvania Supreme Court’s decision that warrantless blood test refusals may be used as evidence of guilt in DUI cases under the State’s implied consent law.  The case being reviewed by the United States Supreme Court is Bell v. Commonwealth of Pennsylvania.  In Massachusetts, the SJC has ruled that refusal evidence violates a defendant’s privilege against self incrimination under Article 12 of the Massachusetts State Constitutional.

Bell’s Petition  asks the Supreme Court to address the following question:

Whether a motorist’s assertion of his Fourth Amendment right to refuse consent to a warrantless blood test may be used as evidence of guilt for the offense of driving under the influence?

In a December 23, 2019 article in the New York Times by Stacey Cowley and Jessica Silver-Greenberg, the New York Times reported on an increasing concern over the use of ignition interlock devices for drivers with drunken driving convictions. The interlock device is connected to the vehicle’s ignition and requires the driver to prove sobriety by blowing into the device before allowing the vehicle’s ignition to start. By some accounts, the devices have resulted in 15% fewer fatalities from alcohol-related car accidents in the 34 states that require them and have prevented more than three million attempts to drive drunk in the past decade or so.

While the interlock devices have effectively prevented attempts to drive drunk and prevented alcohol-related accidents, the interlock devices have also presented as a new cause for distracted driving. While the interlock devices first require a breath test prior to starting the vehicle’s ignition, they also require intermittent tests while the driver is on the road. Drivers are required to hold the test with one hand and blow into it to keep driving. If the driver does not comply with one of the randomly-initiated “rolling tests,” the vehicle’s horn honks and lights flash until the vehicle’s ignition is turned off.

Manufacturers of the interlock devices, while benefitting from the rapidly-growing and lucrative interlock device industry, cite a lack of evidence of interlock-related distracted driving accidents, and also cite that it is impractical to expect drivers to pull over each time they retest. The National Highway Traffic Safety Administration, however, began revising its guidelines for the use of the device, indicating that it intends that drivers should pull over to the side of the road before performing the retest. Still the function of the devices has not changed, and the device does not require that a vehicle be in park before performing a retest.

First Circuit finds no right to cross-exam witness in sexual misconduct disciplinary hearing.  On any given day, when schools are in session, university students can end up wandering around as they wonder what to do.  Groups of friends and acquaintances meet up at a local hangout and run into strangers who will become friends. Sometimes they consume alcohol, and sometimes they don’t.  Sometimes they flirt, and sometimes they don’t.

Students who attend Boston College may be vaguely aware of the Student Conduct Handbook. They may know that there are consequences to actions, and there are forums to disprove an accusation. What they may not be aware of is that the Student Conduct Handbook creates a contract between the student and Boston College and that that contract rules disciplinary matters regarding allegations of sexual misconduct.

In November 2018, a female student (Roe) accused a male student (Doe) of sexual misconduct.  Boston College investigated the incident by interviewing both students separately and on multiple occasions as well as interviewing witnesses, finally issuing a 60 plus page report.  As a result of a finding of sexual misconduct, Doe was suspended for one year (2019-2020).

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