Massachusetts Criminal Defense Lawyer Blog

California Supreme Court bars expert testimony on the scientific unreliability of breathalyzer tests

November 29, 2013 | by Michael DelSignore

A California trial judge presiding over the OUI trial of People v. Vangelder was recently affirmed by the California Supreme Court when he prevented a jury from listening to expert testimony on the general unreliability of scientific techniques underlying breathalyzer tests. If appealed to the U.S. Supreme Court, this decision could limit or exclude expert testimony on the scientific unreliability and inaccuracy of breathalyzer tests across all jurisdictions, abolishing what can be a strong defense against an OUI charge.

In the matter of People v. Vangelder, a state officer clocked Vangelder driving late into the night on a speeding on a state highway. After following Vangelder for a few miles without observing any signs of intoxication, the officer pulled Vangelder over to the shoulder of the road. Vangelder was fully compliant with all of the officer’s instructions. After being questioned, Vangelder told the officer that he had three glasses of wine at dinner, and that he was just goofing around on the road.

Vangelder passed all field sobriety tests, and then submitted to preliminary breathalyzer tests. The results came in at 0.095 and 0.086. After Vangelder was arrested (the state limit is 0.08) and transported to the station, he submitted to two more breathalyzer exams which returned a reading of 0.08. Vangelder was charged with two misdemeanors – a generic OUI offense, and the more specific offense of driving with a BAC reading above 0.08 percent – despite the inconsistencies in the BAC readings.

Challenging a Massachusetts OUI arrest by College Campus Police

November 26, 2013 | by Michael DelSignore

Massachusetts OUI arrests by College Campus police may raise legal defenses that an

experienced Massachusetts OUI attorney could raise in court. Campus police – or public safety officers – are limited by Massachusetts state law from many law enforcement duties of regular city and state police officers, and arrest made outside of these limitations could be defeated in court. The distinction between ordinary officers and campus police officers is critical because, as discussed in the case of Commonwealth v. Smeaton , it can make a difference in the outcome of the case.

College or university police officers are appointed as special State police officers under a Massachusetts statute (G.L. c. 22C, § 63) that grants them the same authority to make arrests as regular police officers for any criminal offense within their jurisdiction. Even though students on campus have fewer rights to privacy because of the college’s interest in keeping the community safe, campus police officers also have less authority to make traffic stops or to question individuals on campus.

Massachusetts School Zone Drug Law applies retroactively SJC rules in Commonwealth v. Bradley

November 22, 2013 | by Michael DelSignore

The Massachusetts Supreme Judicial Court ruled yesterday that the School Zone statute amendment applies to pending cases. Last year the legislature reduced the scope of the school zone statute by requiring the drug distribution crime to be within 300 feet of a school zone rather than a thousand feet from the school. The issue that arise for Brockton Criminal Defense Lawyers was whether this new law applied to pending cases brought before the change in the law. The SJC answered that it did in the case of Commonwealth v. Bradley.

In Massachusetts, a defendant charged with a drug possession crime could face severe violations if he or she was arrested within a “school zone,” as defined by G.L. c. 94C § 32J. Until last year, an individual charged with possession of a controlled substance within 1000 feet of a school could face at least two and a half years imprisonment under this “school zone” law. After an amendment was passed reducing the parameters of a school zone,

In the matter of Commonwealth v. Bradley, the defendant Bradley’s dorm room was searched by police officers pursuant to a warrant on November 8, 2010. During the search, police officers discovered marijuana, and Bradley was charged with possession with intent to distribute. However, because Bradley’s dorm was about 700 feet from a nearby preschool facility, Bradley was also charged with the school zone violation. The criminal complaints were filed on December 30, 2010, but Bradley’s case was not adjudicated as of August 2, 2012.

Wyoming Supreme Court addresses whether telephonic search warrants satisfy the Fourth Amendment Warrant Clause

November 15, 2013 | by Michael DelSignore

The Wyoming Supreme Court has upheld digitally transmitted court authorizations for search warrants as permissible under the Fourth Amendment. Some states, such as Wyoming, already allow judges and clerks to issue search warrants without a formal written application by the officer or prosecutor. As a Massachusetts Criminal Defense Lawyer, the use to telephonic warrants represents an erosion of the warrant requirement and its use should be limited in scope by the Court.

In the cases of Terry Smith v. Wyoming, and Dena Blomquist v. Wyoming, the defendants were individually arrested for an OUI offense. Both defendants were required to submit to a blood alcohol test after a judge remotely issued a warrant. The Supreme Court of Wyoming held that these remotely communicated warrants were lawful and afford the defendants the same protections as warrants that were formally applied for by written affidavit.

The Wyoming state legislature passed a statute authorizing officers to compel arrestees to submit to chemical tests once the officer has a search warrant issued on paper or one that is “remotely communicated.” The statute defines a “remotely communicated warrant” as a communication between a judicial officer and the police officer or prosecutor authorizing a search by voice transmission, image, or text as long as the communication is recorded. The communication may be recorded in writing, or by any other means.

Meaning of Sixth Amendment right to prior opportunity for cross examination raised in Supreme Court petition in Berkman v. Indiana

November 15, 2013 | by Michael DelSignore

For drunk driving defense lawyers in Massachusetts, the area of law that is most in flux and subject to changing court decisions is the Sixth Amendment Right of Confrontation. A recent case from Indiana addressed the meaning of a defense lawyer’s prior opportunity for cross examination that is required if testimony is presented at trial without the live testimony of a witness.

In a felony murder case, the Indiana Court of Appeals ruled that a defendant’s Sixth Amendment right was not violated when a trial judge allowed transcripts of witness testimony into evidence without the presence of the witnesses in court. A petition for writ of certiorari was filed in the United States Supreme Court and recently denied.

In the matter of Berkman v. Indiana, the appellate court affirmed the trial judge’s decision to allow the transcripts in lieu of the witnesses’ live testimony because the defendant had an opportunity to question the witnesses during earlier proceedings. Unfortunately, the Supreme Court recently denied the defendant’s application for review of the decision.

United States Supreme Court denied certiorari in petition regarding how a defendant invokes right to remain silent

November 12, 2013 | by Michael DelSignore

As an OUI Lawyer in Massachusetts, a common defense is to attempt to exclude statements from evidence based on the police department failing to provide an individual with their Miranda warnings.

The United States Supreme Court denied review of a Florida Supreme Court’s decision in Deviney v. State, 112 So. 3d 57 (Fla. 2013), reversing a conviction in a murder case on the grounds that the interrogating officers obtained a confession after the defendant had invoked his right to remain silent.

The Fifth and Fourteenth Amendments to the U.S. Constitution protect a defendant in a criminal proceeding from self-incrimination, and forbid the government from detaining the defendant without due process of law. In layman’s terms, these constitutional amendments protect the defendant from being required to testify against himself, and ensure that the defendant receives a fair and proper proceeding.

Can an officer testify that he thought you were drunk during an OUI trial, Massachusetts SJC addresses the issue in recent case

November 7, 2013 | by Michael DelSignore

The Massachusetts Supreme Judicial Court recently issued a ruling limiting the testimony of police officers during an OUI trial. The case of Commonwealth v. Canty, decided on November 6, 2013, involved whether a police officer’s testimony violated the rule of evidence that a witness cannot render an opinion on the ultimate issue that the jury must decide. As a this decision clarifies how an officer may testify at trial.

In the Canty case, the officer testified as follows:

Did you form an opinion as to the defendant’s sobriety?

Prior Opportunity for Cross Examination under the Sixth Amendment addressed in the case of Berkman v. Indiana

November 6, 2013 | by Michael DelSignore

The case of Berkman v. Indiana raised an interesting issue under the Sixth Amendment regarding the meaning of a prior opportunity for cross examination. As a Massachusetts OUI Lawyer, Sixth Amendment case law will continue to shape how drunk driving and other criminal charges are defended in Massachusetts.

The Indiana Court of Appeals ruled that a defendant’s Sixth Amendment right was not violated when a trial judge allowed transcripts of witness testimony into evidence without the presence of the witnesses in court. The Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees a defendant the right to face his accusers. In the matter of Berkman v. Indiana [976 N.E. 2d 68 (Ind. App. 2012), the appellate court affirmed the trial judge’s decision to allow the transcripts in lieu of the witnesses’ live testimony, holding that the defendant had an opportunity to question the witnesses during earlier proceedings.

Berkman was accused of murdering a drug dealer during a scheduled drug exchange in a supermarket parking lot. After the murder, Berkman allegedly brought the victim’s body in the victim’s car to a girlfriend, who later watched Berkman ignite the victim’s car on fire. Berkman was charged with murder and felony murder. The jury acquitted Mr. Berkman as to the murder charge, but was unable to reach a verdict on the felony murder charge.

Arizona Court Allows Partition Ratio Evidence In Impaired Driving Case

October 14, 2013 | by Michael DelSignore

As a Massachusetts OUI attorney, an issue that will arise in many cases will be the accuracy of the breathalyzer machine that displays a driver’s blood alcohol content. One of the main reasons this test is unreliable is because of the partition ratio which is used to convert alcohol on the breath into blood alcohol content. The big problem with this however is that a breathalyzer machine will use a standard partition ratio for every person who blows into the machine. However, the partition ratio may be different for every person which may cause the machine to read a much higher blood alcohol content then is actually present. The Arizona Supreme Court just weighed in on the admissibility of evidence of this partition ratio that is used to make the conversion.

The case of Arizona v. Cooperman had the defendant driver being charged with two drunk driving charges. The first charge was driving while impaired to the slightest degree. The other charge was a per se drunk driving charge meaning the defendant was driving with a blood alcohol of over .08. With this per se charge, all that is needed is to show that the defendant was driving within two hours of blowing the .08. In the impaired driving charge, there is no presumption of intoxication, but the breath test can be used as relevant evidence along with other factors to prove intoxication.

In this case, the Arizona court was ruling on the admissibility of partition ratio evidence and whether it was relevant. The court upheld the evidence and stated the evidence for the partition ratio should be allowed. The state argued that the prosecution was only using the breath test on the second charge of the per se violation and no the impaired driving charge so it was therefore irrelevant. The defendant wanted to introduce this evidence to prove he was not impaired even though the prosecution was only using the breathalyzer test to prove the per se violation. The court allowed the evidence stating that there is a strong correlation between blood alcohol and impairment. The evidence of the partition ratio is relevant as it can show the defendant had a lower blood alcohol content and therefore was not impaired. This evidence is still relevant even though the state was only using the blood alcohol content for the per se violation. The partition ratio could not be used as evidence for the per se violation because the per se violation is based solely on alcohol on the breath and the partition ratio will not come into play.

United States Supreme Court’s decision in Anonymous Tip case will have major impact in DUI cases across the country

October 6, 2013 | by Michael DelSignore

The United States Supreme Court agreed to hear two cases that will have a major impact on the prosecution of drunk driving cases in Massachusetts.

On October 1, 2013, the United States Supreme Court agreed to hear the appeal of two California brothers who were charged with drug possession and distribution after police officers pulled their truck over on an anonymous tip. The case is Navarette v. California, the filings can be found on the Scotus Blog.