Massachusetts Criminal Defense Lawyer Blog

What are the penalties in Massachusetts for leaving the scene of an accident?

July 24, 2015 | by Michael DelSignore

What are the penalties for leaving the scene of an accident? This depends on whether the accident involved only property damage or personal injury. If only property damage is at issue, the case is easier to resolve.

In Massachusetts, anyone involved in a motor vehicle accident on a public road is required to stop and give his name, address, and car registration number to any other individual or vehicle operator involved in the collision.

If property is damaged in addition to the motor vehicles involved, or if people are injured in the collision, the operators are also required to give their information to the owner of the damaged property. Failure to do so can result in criminal charges, with hundreds to thousands of dollars in fines and years of confinement.

Supreme Court issues long-awaited Confrontation Clause ruling in Ohio v. Clark

June 21, 2015 | by Michael DelSignore

In a unanimous decision reached by differing concurring opinions, the Supreme Court of the United States finally resolved the question left open by Crawford asking whether statements made to persons other than law enforcement trigger the Confrontation Clause. Publishing its decision in Ohio v. Clark today, the Court unanimously voted that statements made to a teacher at a school program by a child suffering from domestic abuse were not testimonial, and so not barred by the Sixth Amendment Confrontation Clause.

The arguments before the court in this case were fierce, as the Court was poised to make a decision that would either limit a defendant’s Sixth Amendment right to Confrontation or restrict prosecutions of countless cases involving child abuse. You can click here to view a thorough outline of the facts of this case, the arguments, and the relevant law, in a prior posting on my blog.

The Majority decided this case primarily on its unique set of facts in this case, rather than by issuing a categorical legal rule. The Court explained that the record clearly reflected that abused child’s statements were not made with the primary purpose of furthering a criminal investigation or prosecution. Instead, the child spoke with the teacher with the primary purpose of addressing an ongoing emergency, and the teacher’s questions were targeted at eliminating the threat to the child’s life. The Court noted that the conversation was informal and spontaneous, and that even the child’s age (4 years old) calls to question the possibility that the child could appreciate the use of his responses in a criminal investigation while merely responding to his teacher.

Massachusetts Court orders hearing on Reliability of Breath Test Machine

June 13, 2015 | by Michael DelSignore

The Massachusetts Supreme Judicial Court is requiring the Court to hold an evidentiary hearing on the reliability of the breath test device the Alcotest 7110. The SJC held that the trial judge’s decision not to hold an evidentiary hearing addressing challenges to the reliability of the machine was wrong. The SJC clearly stated that a defendant who makes a proper showing addressing the reliability of the breath test machine is entitled to a hearing. In other words, the Court stated that trial judges are not permitted to assume that the breath test machine is accurate merely because the legislature approves breath testing under the law, but that breath test is scientific evidence that the Court should hold a hearing to address challenges to its reliability.

The SJC indicated it would retain jurisdiction of the case and require a report within 90 days. It appears that the SJC will review any decision of the district court and address the three issues that it indicated were raised by the case.

The hearing in Com. v. Kirk Camblin, will address the following issues:

Improper Closing Argument results in New Trial in Domestic Assault and Battery Trial

May 26, 2015 | by Michael DelSignore

In the case of Commonwealth v. Alphonse, the Massachusetts Court of Appeals awarded a new trial based on the improper argument of the prosecutor. One of the more common grounds to appeal a criminal conviction is based on improper arguments during closing.

In this case, the prosecutor argued that the defendant had the opportunity to tailor his testimony because he was present during the testimony of all the witnesses and not sequestered like other witnesses. This argument was improper because a defendant is Constitutionally required to be present during all testimony and must be present to be afforded the right to confront and cross examine witnesses.

In this case, the Judge cautioned the prosecutor that the argument was improper and indicated to the jury his displeasure regarding that type of argument. Additionally, the judge did grant a directed verdict regarding one of the counts of the criminal complaint.

How does Attorney DelSignore prepare for a DUI Trial?

May 24, 2015 | by Michael DelSignore

What are the steps to prepare an OUI case for trial? In this Blog, I would like to explain to you the process I go through to prepare for trial.

The process of preparing for trial starts when I get the case, but when the trial approaches I take the following steps for the final 2 days. Two days before the trial, I have all of the evidence, motions and exhibits ready to go, the cross examination written out and like to spend the time practicing out loud. I have attended many training seminars for lawyers and frequently go to the Gerry Spence trial college; you cannot replicate the benefit you get from practiving your closing on your feet out loud. It is when you are rehearinsing out loud, you think of new ideas, better ways to make your argument so it is crucial for delivering a great closing statement.

Study other Great Lawyers to Stimulate New Ideas

I also like to watch great closing arguments to help my preparation my two favorite include Johnnie Cohran’s Closing in the OJ Simpson trial and Mark O’Mara’s Closing in the George Zimmerman Trial. This month I will post a separate Blog on each of these closing arguments pointing out what I have found useful in watching them over the years.

My top tip for an OUI Lawyer just starting out with first trial is to practice out loud, you may hate to do it at first but when you hear the not guilty verdict you will know you really achieved it telling your closing to the walls in your office.
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SJC heard argument to decide whether a CWOF is a conviction for purposes of CDL license revocation

May 23, 2015 | by Michael DelSignore

The Massachusetts Supreme Judicial Court heard oral argument in the case of Tirado v. Board of Appeals addressing the issue of whether a CWOF qualifies as a conviction for the purposes of CDL license suspensions. In Souza v. Registrar of Motor Vehicles, 462 Mass. 227 (2012), the SJC held that a CWOF could not count as a conviction for the purposes of calculating subsequent offense license suspensions. The SJC found that because the legislature did not explicitly state that a CWOF was a conviction it could not be used to enhance a license suspension by the RMV. The legislature quickly amended the statute to include CWOF as convictions.

The legislature however, never amended the CDL statute to address whether a CWOF was a conviction for the purposes of CDL license suspensions, leaving the SJC with an issue of great importance for Massachusetts OUI Lawyers.

Under Chapter 90F Section 1, a person is disqualified from holding a CDL license if he or she has certain convictions. The statute defines a conviction as follows:

Massachusetts Appeals Court rejects challenge to breath test results based on the Office of Alcohol Testing not providing a manual for breath test machine

May 21, 2015 | by Michael DelSignore

The Massachusetts Appeals Court in an unpublished decision ruled that the lack of an operator’s manual for the new breath test machine did not bar admission of the test results into evidence. The decision was an unreported decision. This decision has been anticipated for almost a year by Massachusetts OUI Lawyers as it was argued on June 5, 2014. The Court held that the power point presentation was sufficient as training for the officer and that the defendant did not claim that the officer lacked formal training to administer the breath test.

The Court held that the OAT was in compliance with the regulation and even assuming it was out of compliance the Court would not have suppressed the breath test result. The Appeals Court did not read the regulation pertaining to the breath test manual as requiring the Office of Alcohol Testing to create a manual.

Eyewitness Testimony in Massachusetts after Commonwealth v. Crayton

May 20, 2015 | by Michael DelSignore

In Commonwealth v. Crayton, 470 Mass. 228 (2014), the SJC issued an important decision regarding in court identification testimony. The SJC held that if there is no prior identification of the defendant by the witness prior to trial, then an identification for the first time in court is unnecessarily suggestive and the CW must file a motion in limine to admit the in-court identification.

The Court held that an in court identification is suggestive in the same way that a show up identification is and should require the Commonwealth to establish the same foundation to admit the identification. The Court held that it will treat an in court identification without any prior identification as an in-court show up and require the Commonwealth to show good reason for its admission. The Court listed a number of factors that would fall within the “Good Reason” category:

What to do if arrested at an OUI Roadblock in Massachusetts

May 9, 2015 | by Michael DelSignore

What happens if you are arrested at an OUI roadblock? In this Blog, I will explain the three things you need to know to confront the charge.

First, understand that your first court appearance will be for arraignment. This is not a date that the court expects you to resolve the case, but a date for you to be notified of the charge and you will receive another court date for a pretrial conference.

Second, many OUI Roadblocks are winnable at trial. With no evidence of erratic driving, but in fact evidence of safe driving that may assist you in your defense, the Government is at a substantial disadvantage in prosecuting the case against you.

Faulty Breath Test evidence in Massachusetts undermines the reliability of OUI convictions

April 25, 2015 | by Michael DelSignore

The news this week of errors with breath testing in Massachusetts has had a major impact on the prosecution of drunk driving cases and raises the potential of hundreds of wrongful convictions and or wrongful pleas that were not supported by accurate evidence. One reason this has occurred is the ease with which prosecutors can admit breath test evidence at trial. The Commonwealth can admit the results without calling any witness that knows anything about how the machine operates. At a trial, the breath test operator will typically testify that they are taught to push the button, wait for the machine to run its self checks and if the machine does not report any error, the results are fine. The officer will often admit to not understanding the science behind the machine.

The Commonwealth is not required to call any expert witness from the Office of Alcohol Testing to verify the accuracy of the results. In a case known as Commonwealth v. Zeininger, 459 Mass. 775 (2011), the Massachusetts Supreme Judicial Court said that breath test records can come into evidence without live testimony because the records are not testimonial, meaning that the Court was saying that the records do not accuse a person of a crime but report “neutral” data. The Court’s reasoning was flawed and allowed evidence to come in a trials without being properly tested through cross examination. In light of the disclosure of the problems with the machine, the SJC should reconsider its decision in the Zeininger case that is partly the cause of unreliable evidence being presented to jurors during OUI trials.

This bring us to the error that prompted many counties to hold off using breath test results, including Suffolk, Middlesex, Worcester, Essex, Northwestern, Barnstable County.