Massachusetts Criminal Defense Lawyer Blog

SJC Oral argument in Commonwealth v. Davis focus on probable cause to arrest for OUI marijuana

September 14, 2018 | by Michael DelSignore

The Massachusetts Supreme Judicial Court heard oral argument in the case of Commonwealth v. Davis. The Justice had to determine what is the standard to determine if there is probable cause to arrest a driver for being impaired by marijuana. In the Davis case, the defendant was stopped for speeding, the car smelled of marijuana, the officer said that his speech was delayed and the arresting officer formed the opinion that the defendant was impaired by marijuana. The oral argument before the SJC revealed the following questions and areas of concern for the Justices.

Justice Link suggested that the officers did not have much evidence to make that conclusion that the defendant was impaired by marijuana. The Commonwealth disagreed contending that the officer had more than sufficient evidence to conclude that the driver was impaired. Davis’ lawyer argued that the officer should have conducted some field tests to perform a better investigation to determine impairment. Justice Lenk questioned the Commonwealth about how much the smell adds to the analysis because it can be long after consumption.

On the issue of probable cause, the Justice seems to suggest that if it were an alcohol case there would be enough probable cause to arrest. Justice Gaziano suggested that the SJC allows field sobriety tests into evidence in Gerhardt because it informs the officers opinion regarding the probable cause to arrest. He questioned the lawyer for the defendant that if the car smelled like alcohol, we would allow the officer to arrest; in this case it smells like marijuana, so the same inference of impairment he asked if that should be permitted. The defense lawyer skillfully argued that marijuana is different and the Court cannot tell if the person is impaired. The studies on marijuana suggest that a driver would drive slower if under the influence of marijuana and not faster as the defendant in this case.

Massachusetts Jury Selection and challenges for cause in the case of Commonwealth v. Chambers

September 10, 2018 | by Michael DelSignore

Jury selection is a critical part of any criminal trial in Massachusetts. In Massachusetts, the rules have changed allowing greater attorney participation in jury selection. The new rules permit Attorney conducted voir dire. However, the judge still determines whether an individual shall be excluded for cause from a jury. There are two ways to exclude a potential juror from sitting on a jury. The first is through a challenge for cause. This is a request by one of the attorney to exclude a juror based on the fact that the lawyer believes that the juror cannot be fair and impartial.

For example, in an OUI trial, a judge may exclude a juror for cause that has been in an accident with someone thought to be under the influence of alcohol. This would be based on the fact that the juror’s experience may bias the juror against the defense. Some judges may try to rehabilitate the juror to keep the juror on the panel by asking if the juror can set aside that experience and still be fair and impartial. A judge should allow a defense lawyer to ask follow up questions to determine if the experience is so ingrained that it would start the defendant off at a disadvantage with respect to this juror.

A recent case decided by the Massachusetts Appeals Court addressed the issue of when a judge abuses his discretion for not excluding a juror for cause. The case was Commonwealth v. Chambers, decided on August 29,2018.

OUI marijuana case before the SJC raises of what evidence does an officer need to establish probable cause to arrest

September 3, 2018 | by Michael DelSignore

The Massachusetts Supreme Judicial Court will hear arguments this Friday September 7, 2018 in the case of Commonwealth v. Davis. The case raises the issue when the police have probable cause to arrest based on a belief that someone is impaired by marijuana. In this case, the defendant Davis was charged with Carrying a firearm without an FID card and drug possession with the intent to distribute. He was found not guilty of Firearm offense, which carried an eighteen month mandatory minimum sentence, but convicted of the Drug possession with intent to distribute charges.

The Drugs were found during an alleged inventory search of the car. The officers justified the search of the car based on the probable cause to believe that the defendant was operation under the influence of marijuana. The issue is whether police have probable cause to arrest based on an odor of marijuana and other indicators that the officer observed.

In this case, the evidence that the operator was impaired by marijuana was very weak. The defense on appeal also challenged the issue of whether the inventory search was proper. I submitted an amicus brief in this case on behalf of the National College of DUI Defense. I am a member of the College’s amicus committee and have been a member since 2007. Based on the officer belief that the defendant was under the influence of marijuana, the officer search the car and discover the evidence that was later used to convict the defendant of the drug charge.

Ananias breath test litigation in Massachusetts turns to the issue of whether the Office of Alcohol Testing should become an accredited lab

September 1, 2018 | by Michael DelSignore

Should the Office of Alcohol Testing in Massachusetts responsible for calibrating and certifying the breath test be an accredited lab? This is the next issue before Judge Brennan in the Massachusetts breath test litigation in the case of Commonwealth v. Ananias.

Judge Brennan recently granted the defense request for a hearing on this issue in the Ananias litigation. The defense has requested that prior to the continued use of the breath test in Massachusetts that the OAT should seek accreditation. In May of this year, I attended a seminar called Serious Science at the University of Texas Arlington Laboratory which was a five day program that focused on many of these scientific standard that will be at issue in the accreditation motion hearing.

What does Accreditation mean?

OUI drugs in Massachusetts: How the District Attorney prosecutes these cases in Court

August 28, 2018 | by Michael DelSignore

After the Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Gerhardt, many wondered how the Commonwealth would prove OUI Marijuana cases in Court. Charges involving OUI drugs, including marijuana are difficult to prove. However, these cases are still being prosecuted in the court.

The SJC in Gerhardt did not exclude field sobriety tests, now referred to as assessments from being offered into evidence in Court. It placed limitations on how this evidence can be presented to the jury and what its ultimate weight should be in assessing whether the Commonwealth has proven the case beyond a reasonable doubt. OUI marijuana cases will be prosecuted based on the observations of the driving, the field tests, admissions of the person consuming marijuana, the smell of marijuana, evidence of drugs found in the car.

This case was the first case to hold that field sobriety tests are not scientific tests of impairment by marijuana and that a jury should get a cautionary instruction when presented with this evidence. The Court also held that officers could not testify as lay witnesses that someone was impaired by marijuana.

Ananias litigation in Massachusetts could result in Old OUI convictions or pleas with breath test evidence being subject to motions to vacate the convictions

August 22, 2018 | by Michael DelSignore

Why you may be able to vacate an Old OUI conviction in Massachusetts? For the past two years, over 30 DelSignore Law clients have been involved in the breath test litigation in Concord District Court. It was a 6:00 meeting with myself and a group of Massachusetts OUI lawyers where we discussed the upcoming litigation regarding the breath test source code. At DelSignore Law, we initially joined approximately 30 clients to the litigation who took breath tests. As the breath test litigation took additional time, more clients were joined to this statewide litigation.

The litigation took about two years, as every aspect of the machine was tested by the defense. Judge Brennan ultimately ruled that the breath test had a reliable source code, that it was specific enough for alcohol and that the partition ratio was scientifically reliable. He essentially rejected all of the defenses scientific attacks on the machine. However, he made a major ruling that resulted in two years of breath tests being excluded from evidence. Those were tests prior to September 14, 2014. In his original ruling, the results were only presumptively excluded meaning that the Commonwealth could seek to introduce them. Ultimately, the breath tests were excluded in all of our cases that were part of the litigation as the Commonwealth was never able to meet this burden in court to admit the test results.

https://www.youtube.com/watch?v=n-9A_7l5Vkw

No Fix violation results in dismissal of Massachusetts OUI charge out of Suffolk Country Superior Court

July 12, 2018 | by Michael DelSignore

The Massachusetts Supreme Judicial Court affirmed the dismissal of an OUI charge by a Superior Court judge after the officer did not issue a citation until 9 days after and the defendant did not receive notice until five or six months later.

The defendant in Commonwealth v. O’Leary was indicted on an OUI subsequent offense, meaning that it was greater than a Fourth offense. His case involved a common situation that Massachusetts OUI Lawyers encounter. He got into a one car accident and was taken to the hospital. When the officer got to the hospital it appeared as though O’leary was intoxicated. He admitted to a couple of beers, had bloodshot and glassy eyes as well as slurred speech.

The officer informed the defendant that he would receive a summons in the mails for OUI. The officer had to seek approval of the report and did not issue the summons until nine days later. This was an important fact that came out at the motion hearing as the motion judge found no good reason for the nine day delay.

National DUI College’s Serious Science Seminar an exceptional educational event for lawyers, combining science and advocacy

June 27, 2018 | by Michael DelSignore

With an increase in OUI drugs arrests in Massachusetts, Massachusetts OUI Lawyers can expect to see an increase in OUI drugs arrests. In serious case, there is likely to be forensic testing of blood for drugs. In OUI alcohol cases, typically a suspect will be asked to take a breath test. In case involving, injuries to the operator believe to be under the influence, forensic testing of the blood may be requested in cases involving serious bodily injury or death. Recently, I attended a seminar called Serious Science sponsored by the National College of DUI Defense. This seminar featured a first hand view of the Science with a visit to the University of Texas Lab at its Arlington campus. This was an excellent event run by a Andrew Mischlove, Joe St. Louis and Virginia Landry, lawyers I have known for many years. They were assisted by two other outstanding lawyers who work with the Gerry Spence Trial College Kimberly Benjamin from Missouri and Franciso Durate from Washington State.

Gas Chromatography separates the elements of a compound for analysis by a forensic scientist. What happens is the machine takes an element and transforms it into the gas phase for analysis. The machine then determines what type of substance is being analyzed by the retention time. As part of our work in the lab, we created standards; these standards are used so that there is a known solution that is put into the machine that comes out at a specific time. The unknown standard is then compared to the known standard that are prepared in the laboratory.

Liquid Chromatography is also another type of separation analysis where the compounds are turned into a liquid instead of a gas. Liquid Chromatography allows for greater depth of analysis as some compounds cannot be transformed into a gas phase; the use of liquid chromatography is the most accurate way to detect drugs in the blood steam.

Can the State and Federal government prosecute same crime under the Double Jeopardy Clause?

June 26, 2018 | by Michael DelSignore

Does Double Jeopardy bar prosecution for the Same crime in Federal and State Court? A series of petition for certiorari before the United States Supreme Court ask the Court to address whether the Double Jeopardy Clause bars either the State or Federal Government from prosecuting a person for the same crime when the other entity has already convicted the individual.

The Double Jeopardy Clause of the Fifth Amendment states that no person shall be subject for the same offense to be twice put in jeopardy life or limb. The Clause does not distinguish between State versus federal government. The United States Supreme Court has interpreted this clause as not barring prosecution in State and federal court on the theory that each is a separate sovereign entity. The three petition for Certiorari all ask the Court to revisit this doctrine.

In support of the petition in Gamble v. United States, the defense argues that at the time of the court decision in it was very rare to have both federal and state prosecutions, but with the expansion of federal law, dual prosecutions have become more common. The dual sovereign doctrine was formed in cases from the 1800s and was reaffirmed in a case called Bartkus v. Illinois, 359 u.S. 121 (1959). The defense points to the concurring opinion of Justice Ginsburg and Justice Thomas in Puerto Rico v. Sanchez Ville, 136 S.Ct. 1863 (2016) suggesting that the doctrine should be revisited as reason for the Court to grant certiorari.

Eldred case before the Massachusetts SJC raises the issue of whether addiction is a medical condition that precludes a court from ordering drug free to an addicted person as a probationary condition

June 7, 2018 | by Michael DelSignore

The Massachusetts SJC will soon release a decision that could have a major impact on how addiction and drug offenses are treated in Court. The case of Commonwealth v. Julie Eldred involves a very common situation that occurs in the district courts. The defendant agreed to a plea on the charge of Larceny over $ 250.00; as part of that plea, the defendant was to remain drug free with random screens. The defendant received a CWOF or continuance without a finding which is technically not a criminal conviction in Massachusetts.

The defendant tested positive for fentanyl; the judge in the Concord District Court detained the defendant until she could find a bed in an in-patient treatment, pending a final violation hearing. At the final violation hearing, the defense filed a motion to change the condition of probation to remove drug free, arguing the the defendant because of her addiction could not comply with that condition. The district court judge reported the question to the appeals courts, and the SJC accepted the case for direct appellate review.

The defense argued that the court cannot impose conditions designed for someone to fail. This reasoning is derived from the case of Commonwealth v. Henry, 475 Mass. 117 (2016) where the SJC held that the court must address someone’s ability to pay before ordering restitution as a condition of probation.