Massachusetts Criminal Defense Lawyer Blog

Fourth Amendment challenge to breath test refusal statute rejected by Appellate Court

November 14, 2014 | by Michael DelSignore

Most drivers don’t realize that every state requires a driver suspected of drunk driving submit to a blood-alcohol test or face mandatory license suspension. This requirement is outlined in “implied-consent statutes.” Although the U.S. Supreme Court has partially addressed the constitutionality of these statutes, a recent defendant in Illinois unsuccessfully appealed with the state Appellate Court challenging the constitutionality of such statutes under the Fourth Amendment.

The Arrest

The case of the People of Illinois v. Gaede involved a defendant who was arrested for drunk driving associated with a hit-and-run incident. The defendant was operating a motorcycle when he was stopped by an officer responding to reports of a hit-and-run. After failing field sobriety tests, the defendant was arrested for an OUI and transported to the county jail where he was read his rights and warnings. The defendant then chose to refuse the required chemical breath test, and as a result, his license was immediately suspended. The jury found the defendant guilty of the OUI, and the defendant appealed.

ACLU Petition for Improved Response to Annie Dookhan drug lab cases

November 10, 2014 | by Michael DelSignore

Surpreme Judicial Court Justice, Associate Justice Margot Botsford, has requested that state’s highest court dismiss thousands of the drug convictions that Annie Dookhan had handled evidence for. Based on a petition filed by the American Civil Liberties Union (ACLU), Botsford submitted a five-page report, in which she also describes the need for a more ‘systematic approach’ to the convicted cases tied to Dookhan. Supported by the ACLU, Botsford believes the Dookhan case needs to be taken more seriously, and that the issue of mishandled evidence is more profound than the court believes.

Background Annie Dookhan was arrested and charged in 2012 with a total of 27 charges- including counts of obstruction of justice, tampering with evidence and perjury. In November 2013, the chemist pleaded guilty and was sentenced to 3-5 years jail time. Responsible for over 40,000 cases during her 10 year career at the Boston lab, Massachusets govenor Deval Patrick closed the entire lab and ordered prosecutors to reevaluate cases tied to her work.

The ACLU Petition

Tips for being a Top DUI Trial Lawyer

November 3, 2014 | by Michael DelSignore

One of the most important qualities of a successful trial attorney is the ability to present the client’s case in a manner that enables jurors to adopt the attorney’s arguments as the truth. But doing so requires more than mere persuasion. According to a recent article by prominent trial attorney Paul Luvera, clever and persuasive arguments may in fact be counterintuitive if the attorney is not authentic – not authentic about the weaknesses in his case, and not authentic about his own weaknesses as well.

Authenticity as the Key to Acceptance

Attorney Luvera, who was inducted into the American Trial Attorneys Hall of Fame, refers to the research of Professor Brene Brown at the University of Houston on how relationships are formed, and the role of vulnerability, courage, worthiness and shame on people’s ability to relate to others. Professor Brown states that one of the most important keys to a successful relationship is the ability of one individual to relate to another, which is only possible if each party is able to identify with another’s beliefs, values, characteristics, or qualities. But it is impossible to truly accept and identify with another without each party being honest with the other and themselves.

Can Medical Reports be used in a Massachusetts OUI Trial?

November 1, 2014 | by Michael DelSignore

An OUI trial in Massachusetts is governed by rules and laws that allow and prohibit certain statements, reports, and objects from admission into evidence. Once a statement or item is admitted into evidence, it may be considered by the judge or jury for the purposes of reaching a verdict. In Com. v. Schutte, the MA Court of Appeals considered the admissibility of a doctor’s report which corroborated the defendant’s own testimony that he was suffering from an impairment that caused him to fail his sobriety tests.

The defendant in this case was pulled over after the officer observed him driving erratically on the road. The officer testified that he had smelt alcohol, and asked the defendant whether he had been drinking. The defendant replied that he a couple of bears. The officer then decided to conduct field sobriety tests.

The officer administered the alphabet test, and then asked the defendant to perform the one-legged stand and the walk-and-pivot test. The defendant passed the alphabet test, but before taking the remaining two tests, informed the officer that he had thirteen ear operations which effect his equilibrium. Despite this admission, the officer allowed the defendant to take the remaining two tests – and the defendant lost his balance in both.

John Goodman testifies in the retrial of his OUI Manslaughter trial

October 25, 2014 | by Michael DelSignore

The owner of the International Polo Club Palm Beach, Mr. John Goodman, recently took the stand to testify in his own criminal trial on an OUI manslaughter charge in Florida. Goodman was operating his Bentley in 2010 when he collided with the 23 year old man Scott Wilson in his motor vehicle, causing Wilson’s death.

Goodman testified that he was not intoxicated at the time of operation, although he admitted to having drank multiple alcoholic beverages immediately before the collision. According to Goodman, he was at a party where he consumed alcohol, purchased alcohol for his friends, but was nonetheless sober when he got behind the wheel of his Bentley to purchase a frosty from a local Wendy’s restaurant. Rather, what caused him to lose control of the vehicle colliding with Wilson was faulty breaks in the Bentley.

Goodman was tested following the accident, and had a BAC level of twice the legal limit. Goodman explained that he actually became intoxicated after the accident, when he left the scene of the accident and drank heavily at a nearby location throughout that night. And in his second trial, he offered witness testimony corroborating this explanation. The bartender of the bar where Goodman was drinking before the accident may also be called to testify as to Goodman’s sobriety at the time of the accident.

United States Supreme Court hears arguments on Fourth Amendment violations where police mistakenly conduct traffic stop

October 20, 2014 | by Michael DelSignore

On October 6, the U.S. Supreme Court heard arguments from defense counsel, the North Carolina State Attorney General, and the U.S. Solicitor General regarding the matter of Heien v. North Carolina. The question initially posed before the Court was whether a traffic stop premised on an officer’s mistaken understanding of a state statute violates the defendant’s Fourth Amendment rights. But as arguments proceeded, the issue became much more complicated, leaving some Justices concerned that this case raises more serious implications than initially anticipated.

The defendant in this case was a passenger in his own vehicle as it was operated by a friend down an interstate highway in North Carolina. A highway patrol officer noticed that only one of the defendant’s two brake lights was functioning. While the state statute only requires that vehicles have only one functioning break light, the officer interpreted the statute incorrectly and stopped the defendant’s vehicle to issue a warning to the defendant. The defendant then consented to the officer’s request to search the vehicle. And after forty minutes, the officer discovered a plastic sandwich bag containing cocaine. The defendant was charged and convicted on the charge of trafficking cocaine.

ISSUES BEFORE THE COURT

Attorney General appeals Illinois court decision to U.S. Supreme Court arguing traffic stop did not violate Fourth Amendment

October 15, 2014 | by Michael DelSignore

Often times, what initially begins as a traffic stop for a civil offense (such as speeding) unexpectedly becomes an investigation into a criminal offense, ultimately leading to criminal charges. Under Fourth Amendment law, police officers conducting a traffic stop can investigate for criminal activity so long as the investigation was reasonably derived from the officer’s initial suspicion that a traffic offense had been committed. Very recently, the Illinois State Attorney General filed an appeal with the U.S. Supreme Court to determine whether an officer can continue to hold the defendant even after the officer’s initial suspicion had already dissipated.

The case of Illinois v. Cummings

The petition for appeal was filed under Illinois v. Derrick Cummings, earlier this past summer. This case arose out of a traffic stop where a driver was charged with operating a vehicle without a license. The officer who conducted the traffic stop testified that he initially suspected the vehicle registration had expired. But after running the registration number through the database, the officer discovered that the registration was not expired but that the car was registered under a woman who had an arrest warrant issued against her. The officer then pulled the vehicle over and approached the driver. The driver was not a woman, but was the defendant, Mr. Derrick Cummings.

Ohio Supreme Court rules in favor of DUI defendant challenging breathalyzer

October 12, 2014 | by Michael DelSignore

DUI defense attorneys in Ohio have recently won a substantial victory in the Ohio Supreme Court that will allow defendants to bring stronger challenges to the validity of breathalyzer tests. The Ohio court’s decision will require states to comply with discovery requests by the defendant, and produce critical data and records relating to their breathalyzer devices.

In the case of Cincinnati v. Ilg, the defendant was questioned and tested for intoxication after he lost control of his vehicle and struck a fence, sign, and pole. The officer who responded to the accident administered a breath test using the state’s device, the Intoxilyzer 8000. The device revealed that the defendant had a BAC reading that was almost twice the legal limit. The defendant was subsequently charged with an OUI.

Before trial, the defendant’s attorneys requested that the prosecutor produce records of the defendant’s test, as well as test data, maintenance records, and results produced by the Intoxilyzer 8000 machine used to test the defendant. The purpose of this request was to compile enough evidence to demonstrate the inaccuracy of the defendant’s breath test on the night of the accident, and so to prevent his BAC results from being introduced in trial. The defendant requested records from his own test, as well as for tests conducted three years prior to his arrest, and three months following.

First Degree Homicide conviction overturned in a Georgia Hit-and-Run case

October 11, 2014 | by Michael DelSignore

Under state statute (G.L. c. 90 § 24), all drivers in Massachusetts have a legal obligation to stop and identify themselves whenever they know that their vehicle has collided with another vehicle, property, or a person. If the driver collides with another person, leaving them dead or unconscious, the driver must stay at the scene and provide information to another motorist or officer, or leave the scene to find a telephone to report the accident to authorities. Failure to do so could result in license suspension or criminal offenses.

Other states, such as Georgia, also require drivers to provide injured parties “reasonable assistance,” including providing, or arranging for, transportation of the injured parties for medical attention. Under Georgia statutes OCGA 40-6-270, a driver could be charged with a felony hit-and-run for failing to provide such assistance. Another statute, OCGA 40-6-393, also allows for a driver who fails to stop as required under 40-6-270 to be charged with first degree vehicular homicide if he injures a person and that person subsequently dies. Under the second statutory provision, a person could be sentenced to up to 15 years in prison, in comparison to the five years under the hit-and-run provision.

The case of Henry v. State, heard by the Court of Appeals of Georgia, demonstrates the different legal issues that come into play in such hit-and-run cases. In Henry v. State, the defendant was operating a vehicle with a passenger down a public road in Georgia after midnight, when he struck two fourteen year-old boys walking in the grass along the road. The passenger testified that he felt an impact and saw one boy’s head hit the hood of the defendant’s pickup truck, and screamed to the defendant: “You just killed somebody. Stop Henry.” The passenger also testified that he was certain that this boy died on impact. Rather than stop to provide assistance as the statute requires, the defendant sped home and later abandoned the truck in a field with the intention of reporting it stolen.

Judge in Aaron Hernandez murder trial excludes evidence obtained from house search in violation of the Fourth Amendment

October 7, 2014 | by Michael DelSignore

In a recent hearing before the Bristol County Superior Court, Judge Garsh ruled that she will not be allowing the prosecutor to introduce evidence obtained during a police house search in the murder trial of former NFL player Aaron Hernandez. According to a local news reporter, the judge explained that the application for the warrant authorizing the search was defective, and so police had no authority to execute a search using that warrant.

Searching Aaron Hernandez’s Home

The warrant was for the search of Aaron Hernandez’s home in Franklin, MA. Law enforcement applied for a search warrant in order to seize the cell phone of Carlos Ortiz, a co-defendant of Hernandez in the Bristol County murder trial. And since the cell phone of Ortiz was known by authorities to be at Hernandez’s Franklin home, authorities applied for a warrant to search that location for the cell phone. During the search, police also seized several other pieces of evidence, including dozens of ammunition rounds for various firearms, lease and rental agreements under Hernandez’s name, receipts, mail and checks written to Hernandez, and even keys to a Hummer SUV.