Massachusetts Criminal Defense Lawyer Blog

Scotus to hear Mitchell v. Wisconsin: do implied consent law allow warrantless blood draws when the person is unconscious

January 18, 2019 | by Michael DelSignore

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.

Massachusetts SJC finds probable cause to arrest for OUI marijuana in Commonwealth v. Davis

January 14, 2019 | by Michael DelSignore

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.

Worcester District Court Jury misunderstands that verdict has to be unanimous, Massachusetts Appeals Court declines to vacate conviction

January 12, 2019 | by Michael DelSignore

In a Massachusetts Criminal Trial, of any type, whether murder or an OUI, the verdict must be unanimous, meaning that all six jurors have to agree whether the verdict is guilty or not guilty. If jurors cannot reach a unanimous verdict, it is called a hung jury and the Commonwealth is permitted to retry the case. The first Bill Cosby trial ended in a hung jury. In every criminal trial, a jury should be instructed on this principal of law. The jury misunderstood this; possibly the instruction should be simplified telling the jury directly that a conviction cannot rest on a vote of five to one or four to two.

In Commonwealth v. Dibenedetto, a trial from the Worcester District Court the jury was under the mistaken belief that only a majority was required to return a verdict. When the judge learned of this after thanking the jurors following the verdict, he instructed them that the verdict must be unanimous. After his reinstruction following the first verdict, the jury then again returned a guilty verdict.

The Appeals Court held that after the verdict is recorded the verdict is final. After the verdict is rendered, the judge is precluded from inquiring into the propriety of the jurors deliberation or decision making. The Appeals Court stated that the prohibition against impeachment of a verdict is not absolute. Juror testimony, the Court stated, can be used to show the following: unauthorized site visits, improper communication between parties, or consideration of facts not in evidence, as well as racial bias.

Breath Test evidence in Massachusetts Inadmissible in Court following Judge Brennan Decision

January 9, 2019 | by Michael DelSignore

Breath test evidence has not been used in Court in Massachusetts since August of 2017. The reasons for this was based on discovery violations that were uncovered during the 9510 Breath test litigation in Commonwealth v. Ananias. In November 2018, Judge Brennan held a hearing to determine when breath test evidence could be used in Court following efforts of the Commonwealth to remedy its discovery violations. Judge Brennan rejected the Commonwealth’s proposal that would have allowed it to use all breath test after August 2017 and also rejected the defense proposal that breath test evidence should not be used until the OAT becomes accredited. His decision was a victory for the defense as his seven criteria require the OAT to implement standards consistent with the scientific community and have transparency throughout their processes.

Judge Brennan set forth seven criteria that the Commonwealth must show has been satisfied prior to continued use of breath test evidence in Court. These seven criteria, including the following:

That the OAT has filed an application for accreditation with the ANAB that is demonstrably substantially likely to succeed; The ANAB is a national accreditation board for scientific labs that has to confirm to the ISO standards. This will subject the OAT to annual audits and oversight by an independent entity.

Kevin Spacey to face arraignment on Massachusetts Indecent Assault and Battery charges

January 2, 2019 | by Michael DelSignore

On January 7th, Actor Kevin Spacey will be arraigned on Indecent Assault and Battery charges out of Nantucket District Court. Spacey’s lawyers requests that his presence be waived for the arraignment due to publicity from the case. Spacey is charged with sexual assault of a teenager in a Nantucket bar.

Lawyers argued that Spacey’s appearance would increase the publicity from he case and potentially contaminated the jury pool.

Definition of an Arraignment in Massachusetts Felony Charge

Judge Brennan to decide if Massachusetts Breath test lab must become accredited prior to continued use of breath test evidence

December 13, 2018 | by Michael DelSignore

Breath test evidence has not been used in Massachusetts since August 2017 as a result of serious discovery violations that occurred during the litigation in Commonwealth v. Ananias. This litigation originally started over whether the breath test source code was reliable, but evolved to include litigation about whether the Office of Alcohol Testing had a scientifically reliable method to certify the machines as reliable.

Recently, a hearing was conducted in which Judge Brennan reviewed evidence submitted by the State. A number of violations on behalf of the Office of Alcohol Testing were highlighted including unsanitary conditions, potential rodent contamination, and failure to properly calibrate the Alcotest machine. Defense attorneys highlighted evidence that some of the 9510 devices were used as a nesting site for rodents, and that the breath test machine tested positive for MRSA. The state’s position is that the outstanding issues related to the breath test have been addressed, citing the state’s compliance with the discovery last summer.

Defense attorneys point to the systemic issues that surround the breath test machine which inherently hinder the Office of Alcohol Testing’s ability to properly calibrate the machines that police officers utilize. As of now, the OAT is not a nationally accredited crime lab. Defense Attorneys argued that in order for the tests to be used, the OAT needs to be accredited by the American National Standards Institute-American Society for Quality. To read more about Accreditation you can read out prior blog post.

Vacating a Plea in Massachusetts to Avoid Deportation or immigration consequences

December 6, 2018 | by Michael DelSignore

In the case of Commonwealth v. Christ O. Lys’, the Massachusetts Supreme Judicial Court has to address what type of evidence is required at a motion hearing to warrant vacating a plea based on ineffective assistance of counsel. In the defendant, filed a motion for new trial to vacate a plea after he was detained and put into removal proceedings.

The defendant was charged with selling marijuana and cocaine to an undercover police officer. The defendant faced a 28 count indictment, but accepted a plea to three counts of distribution of marijuana. The defendant filed a motion for new trial based on his trial counsel’s failure to provide him with the immigration consequences of his plea.

The defendant filed an affidavit stating that the lawyer did not advise him of immigration impact of the plea. The motion judge found that the plea counsel did not testify or provide an affidavit; accordingly, the motion judge stated that he must give the affidavit of the defendant full credit given the lack of evidence.

New Jersey Supreme Court excludes over 20,000 breath test results as independent Temperature check was not performed

November 19, 2018 | by Michael DelSignore

New Jersey Supreme Court uphold the exclusion of over 20, 000 breath test after temperature probe not performed in the case of State v. Cassidy.

The New Jersey Supreme Court decision is important for OUI lawyers in Massachusetts and throughout the country as the Court attributed great weigh to scientific standards of accuracy when deciding whether to permit the breath test to be offered into evidence. The New Jersey Supreme Court upheld the decision of a Special Master who wrote a 200 page decision finding that the failure to use the temperature probe made New Jersey’s breath tests scientifically unreliable.

The problem was discovered when it was revealed that Marc Dennis a coordination in the Alcohol testing until did not use the temperature probe and falsified documents that he had done so. The issue to come before the Court was whether the failure to conduct an independent temperature probe rendered the results scientifically unreliable.

Who is eligible for uninsured motorist coverage in Massachusetts?

November 15, 2018 | by Michael DelSignore

An important type of insurance coverage is uninsured motorist coverage. This coverage protects you if you are involved in an accident with someone that does not have any insurance or has insufficient insurance. Recently, there was a case decided by the Massachusetts Appeals Court determining the scope of this type of coverage and who is protected when the insurance is purchased.

The case was Oliveria v. Commerce Insurance. The plaintiff seemed coverage as a household member under the uninsured motorist provision of the policy. The plaintiff argued that he should have been covered under the insurance policy of his girlfriend’s mother and step-father, with whom he had lived with for an extended period of time. The appeals court ultimately upheld the Superior Court’s ruling that, although the plaintiff lived with the insured parties and has a son in which the policyholders are genetically related to, he himself is not related by blood and therefore not eligible to under the policy.

The plaintiff had been living with his girlfriend, their son, and her mother and step-father for an extended period of time. Oliveira is not married nor engaged to his girlfriend, but notably, they have a young child together and have been living under the same roof for years. On the night of July 18, 2014, Oliveira was injured in a one-car accident, sustaining major injuries which included a four-day hospital stay, disability benefits, and medical bills which totaled over $40,000. The driver of the vehicle involved in the accident was insured under her own policy, and Oliveira accepted a settlement with the driver of $100,000.

Massachusetts SJC to decide whether police can stop for one crossing of the fog line

November 12, 2018 | by Michael DelSignore

The Massachusetts Supreme Judicial Court will review a motion to suppress that was allowed out of the Eastern Hampshire District Court where the judge found that a single crossing of the fog line for 2 to 3 seconds did not provide reasonable suspicion for a traffic stop and was not a violation of Massachusetts General Laws Chapter 89 Section 4A. The case is Commonwealth v. Zachariah Larose.

The Massachusetts Lane Roadway statute provides as follows:

When any way has been divided into lanes, the driver of the vehicle shall so drive that the vehicle be entirely within a single lane, and shall not move from the lane which he is driving until he has first ascertained if such movement can be made with safety.