Massachusetts Criminal Defense Lawyer Blog

New evidence supports correlation between gastric bypass and higher breath test readings

February 3, 2016 | by Michael DelSignore

The results of a sobriety test, such as the Breathalyzer or blood test, frequently play a crucial role in the outcome of a drunk driving case. When assessing how reliable the sobriety test results may have been, it is important to consider the medical background of the client and any conditions that may have impacted their results.

Scientific evidence shows that weight loss surgeries, such as the gastric bypass, can cause a a significant increase in blood alcohol content for someone stopped and arrested for DUI for a variety of reasons.

The health risks and associated conditions of obesity are well documented in the media- from diabetes to cancer, overweight individuals often turn to high intensity exercise programs and extreme dieting in their attempts to lose weight. Although this works for some, many people may see no improvement with their new lifestyle practices and still struggle to lose weight. Such people may turn to weight-loss surgery. Weight-loss surgery is relatively common, the most notable being the gastric bypass. This surgery aims to shrink the stomach in an attempt to aide the patient in loosing weight. Although this surgery carries the risks associated with any surgery, it is relatively safe and has helped many people lose vast amounts of weight. However, few people may know of one risk relating to this surgery that is potentially dangerous – alcoholism.

Facebook Tag results in Jail time on Restraining Order Violation

January 29, 2016 | by Michael DelSignore

Facebook is frequently mentioned in Court cases involving violations of a 209A order in Massachusetts. Recently, I was in Marlborough District Court waiting for an OUI trial to be heard; in front of me were two trials regarding 209A violations allegedly involving Facebook posts. A case in New York illustrates how Facebook posts can lead to a violation of a restraining order.

Massachusetts Supreme Judicial Court to review accuracy of Field Sobriety Tests in OUI Marijuana cases.

January 27, 2016 | by Michael DelSignore

Field sobriety tests are commonly used in OUI alcohol cases. The Massachusetts Supreme Court will address, in the case of Commonwealth v. Gerhardt, whether these tests are accurate and reliable for when someone is arrested for OUI marijuana in Massachusetts.

The police have been using field sobriety tests to help them form an opinion as to whether someone is under the influence of marijuana. However, there is very little scientific evidence that these tests are accurate and reliable for someone impaired by marijuana. The tests were never studied to determine impairment with marijuana, rather they were studied only in relation to alcohol.

The case before the Massachusetts Supreme Court is going to review studies and literature showing that these tests are not very accurate for when someone is impaired by marijuana.

2016 Lawyer Forward Conference on Legal Marketing was a Great Event hosted by Michael Whelan

January 25, 2016 | by Michael DelSignore

For the last three days, I have been attending a great conference called the Lawyer Forward hosted by Michael Whelan in Austin, Texas. The seminar focused on improving legal services, raising fees and creating a better life for your law practice if you are a solo attorney. Mike hosts a podcast called lunch with lawyers. Mike had an excellent point that as lawyers we need to view our role as a teacher to change how the public views us as a profession.

One feature I liked about the seminar was the number of speakers and the short time provided to each speaker. I found this maximized the content by requiring the speaker to be precise and to the point.

Christina Hollwarth a Divorce Lawyer from Texas delivered a great speech about compassion for clients. She stressed that when we have compassion for clients it lowers our stress level and increases the reward we get from the profession. The point that struck me was that she started her talk with a quote from TS Elliot about the world ending not with a bang but a whimper. For our clients, the clang of the handcuffs can make it seem like their world is ending. Christina did a great job helping me to think of the emotion of the clients problem in a new light.

OUI Trial Techniques

January 19, 2016 | by Michael DelSignore

In Books on Trial practice, it is typically recommended to label things during the trial- to use names that fit your theory of the case.

Refocus how the Jury Looks At the Key Evidence in the case

In a recent trial I had, my client made many statements to the officer prior to the field sobriety tests which were not helpful to the defense. What I did to change the focus of the inquiry from my client not giving straight answers, being evasive and appearing not to know what was going on, was to count the questions. I would ask the officer a series of questions and ask if that was the sixth question he asked. Eventually, the officer agreed to ask 12 questions.

Massachusetts SJC finds stop permissible based on 911 call in recent Second Offense

January 12, 2016 | by Michael DelSignore

The content of a 911 call can be pivotal in the prosecution of a drunk driving case. This was evident last week in the second offense DUI case of Commonwealth v. John C. Depiero. The defendant in this case appealed his conviction, arguing that the appellate review erred in denying his motion to suppress evidence obtained during a stop. On January 4^th, the Supreme Court of Middlesex County, MA affirmed the Appeals Court denial, but for reasons different to those previously given. The Supreme Court’s decision raises issues surrounding the reliability of 911 calls and whether the caller’s report sufficed as reasonable suspicion for the officer to stop the defendant’s car.

What happened during the “stop”?

In August 2011, an anonymous 911 caller alerted authorities of erratic driving on a Cambridge road. According to the caller, a Mercedez Benz was showing signs of erratic driving, swerving and crossing the divider line. The caller offered the driver’s license plate number and car description, and also referred to the driver as being “drunk”. After running the car details, it became apparent that the driver in question was on probation for drunk driving, and a state trooper was sent to the defendant’s residential address.

Toward a Fair Jury Instructions for OUI Trials in Massachusetts

January 6, 2016 | by Michael DelSignore

The model jury instructions govern how judges will instruct a jury when a motorist is charged with OUI. It is remarkable that absent from the model instruction is anything saying that is not illegal to consume alcohol and drive in the Commonwealth. When I have asked for that instruction to be added, many judges will comply while some will indicate that the jury is told that at the start of the trial that is not illegal to consume alcohol and drive.

Shawn Anchor Great Author for Lawyers to Read to help deal with the stress

December 31, 2015 | by Michael DelSignore

The legal profession is known to have a high rate of alcoholism, depression and suicide. While I consider myself luck to have found happiness in my career path, many have had a difficult time with the practice of law as indicated by news reports stating lawyers tend to be unhappy in their profession. One author I enjoy listening to is Shawn Anchor who I discovered through reading Success Magazine. I thought this would be a great Blog post for the Start of the new year and wishing those in my profession a great year.

Shawn Achor is a researcher and speaker of positive psychology and happiness. In his Happiness Advantage CD set, he gives rewarding advice on how to increase happiness in the work life, family life, health, and more. Specifically, he explains how increasing your happiness and positivity will benefit you in your work life and allow you to be more successful.

Reviewing New Jersey v. Chun in Light of Massachusetts Source Code Challenge

December 27, 2015 | by Michael DelSignore

In 2008, the New Jersey Supreme Court decided, New Jersey v. Chun, which was the first case where the Court addressed whether the source code of the Alcotest 7110 was scientifically reliable. This is the leading case on the issue of the source code. Massachusetts OUI Lawyers are currently conducting a similar hearing for the newer Alcotest machine the 9510. In this Blog, we will review the findings of the Chun case as the decision will have an impact on how the judge rules in the Consolidated appeal being heard in the Concord District Court. Currently, the Source code reliability hearing is scheduled for March 14 and is scheduled to take until March 17th.

One of the major differences between Chun and the current hearing in Massachusetts, is that the hearing in Concord involves a different machine, the Alcotest 9510, which has a much more complex source code than the Alcotest 7110. There is currently a hearing in the Ayer District Court on the 7110 machine; this hearing will effect fewer cases as many case involving the 7110 have been resolved; however, it could result in new trial motions being filed should the court find the source code unreliable.

Breath Test consent for Spanish speaking motorist charged with OUI in Massachusetts

December 23, 2015 | by Michael DelSignore

The Massachusetts Supreme Judicial Court will decide whether evidence of an unsuccessful attempt to take a breath test was properly admitted into evidence, given the language barrier between the defendant andarresting officer. A non-English speaking woman is arrested for DUI and fails to pass the Breathalyzer – but is the language barrier a valid defense?

What happened in the case

A Spanish speaking woman is brought to a police station in Massachusetts after being pulled over for suspicion of driving under the influence of alcohol.