Massachusetts Criminal Defense Lawyer Blog

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.

Refusing a breath test: Can it result in criminal penalties, the United States Supreme Court will address this question

December 19, 2015 | by Michael DelSignore

The United States currently has thirteen states which have criminalized drunk driving test refusal, allowing police officers to arrest and charge individuals for refusing the Breathalyzer or blood test. Unlike these thirteen states, it is not a crime to refuse such tests in Massachusetts. Although there will be a license suspension, drivers in Massachusetts can refuse a breath test without incurring any criminal penalty or adverse inference during an OUI trial; however, the driver will face a license suspension depending on the number of OUI convictions they have in their lifetime.

While the ruling of the United States Supreme Court will not directly impact Massachusetts drivers, it is an important decision for DUI attorneys. The decision would impact DUI convictions from Rhode Island. Currently under Rhode Island DUI law, a second offense refusal to submit to a breath test is a criminal offense, even though a first offense refusal is only civil. This decision would invalidate this provision of Rhode Island law criminalizing a second offense refusal.

United States Supreme Court may address reasonableness of scope of seizure in Nevada v. Torres

December 13, 2015 | by Michael DelSignore

A Nevada case brings up an important question – is it acceptable for a police officer to stop someone on the street due to a suspicion of alcohol consumption? More importantly, is it right for an officer to make these judgements based on how the person is walking? Finally, is evidence acquired by this [seemingly] unwarranted stop and seizure admissible in a court of law? These questions are presented in The State of Nevada vs. Ralph Torres.

Massachusetts SJC to consider whether anonymous 911 call justifies a seizure under Article 14

November 18, 2015 | by Michael DelSignore

Many OUI stops originate from a report of someone on the road claiming that another driver is driving erratically. In many cases, the officer will follow the motorist and make independent observations justifying the stop. In some cases the stop may be solely the result of the 911 caller. The SJC addressed this issue on October 26^th of 2015 in Commonwealth v. John Depiero. The Court heard oral arguments in this case with a decision expected within three or four months.

Protective Sweep found Unconstitutional by Massachusetts Appeals Court

November 17, 2015 | by Michael DelSignore

Search and Seizure that occur in the home are subject to the highest scrutiny by the Court. The case of Commonwealth v. Colon addresses whether a protective sweep complies with the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights.

What happened in the Colon Case?

Officers arrived at the home of Robert Colon and knocked on the door, waiting for the defendant to open it. Upon opening the door, the officers identified a “strong odor” of fresh marijuana. This prompted the officers to handcuff the defendant and preform a protective sweep of his apartment.

A protective sweep a search done when there is a reasonable belief based on “specific and articulable facts that the area could harbor a dangerous individual”.

DNA evidence results in SJC granting new trial after Rape Conviction

November 14, 2015 | by Michael DelSignore

New evidence from a DNA test may get a man a second chance at freedom, after already spending around ten years in prison for a rape charge.

Bias in Jury Selection in Criminal Trials

November 11, 2015 | by Michael DelSignore

The Supreme Court is reconsidering a death row conviction from 30 years ago after the prosecution’s notes from the jury selection process were found to contain multiple indicators of racial bias. Despite the evidence showing illegal racial discrimination, the State of Georgia is disputing the case, alluding to the brutality of the murder and suggesting that the racial references were done to “prepare” the prosecution for future cases where racial bias may occur.

Defenses to an OUI Drugs Arrest in light of recent changes to the law regarding possession of marijuana

October 18, 2015 | by Michael DelSignore

Police officers in Massachusetts and in particular State police officers have increased the number of arrests for OUI drugs, including marijuana. Massachusetts law prohibits a person from driving under the influence of marijuana, but it is difficult for the Commonwealth to prove this in Court. Recent case law, also may provide further defenses for those charged based on a violation of their Article 12 rights under the Massachusetts Constitution.

Making Closing Argument more Effective by Using Charts and Graphics

September 22, 2015 | by Michael DelSignore

One of my passions as a lawyer is to become the best communicator I can be. I am interested in learning new communication methods, to become better at giving closing arguments. I offer these comments to share my knowledge on the issue.

In Closing argument, I want the jury to learn something about me or try to find different ways to regain the attention of the jury. One way to do this is with charts or personal stories.

I try to create an analogy about my family, often my daughter to tell a lesson in the case. In DUI cases, often the officer has a perception that everything is a sign of DUI. Cannot find your license, because you are under the influence, not because you are nervous or found it in 5 seconds instead of 2 as the officer thought you should. Cannot balance on one leg, it is the alcohol, not that you just do not have great balance. Sometimes perception is an issue. This is an opportunity to make this point with a story.