Massachusetts Criminal Defense Lawyer Blog

Rhode Island Superior Court Judge refuses to sever trial of defense lawyer

September 20, 2013 | by Michael DelSignore

The Trial of two Rhode Island Criminal Defense Lawyers charged with conspiracy, bribery and obstruction of justice raises the issue of when two defendants can be tried together. As an Attleboro criminal defense lawyer, this trial has raised interesting issue of the joint trial of two defendants and when a judge should recuse himself from hearing a case.

The Providence Superior Court found itself addressing these very same circumstances after the Grand Jury indicted a stabbing suspect, his defense attorney, and a second defense attorney with obstructing administration of justice, conspiracy to obstruct the judicial system, bribery of a witness and conspiracy to bribe a witness. After sentencing one of the attorneys to six years imprisonment for his role in the conspiracy on September 11, the court refused to sever the second attorney’s proceedings from the stabbing suspect.

Defense attorney Donna Uhlmann is now preparing to stand alongside stabbing suspect Jamaal Dublin during the trial scheduled for September 23, 2013. Ms. Uhlmann and Mr. Dublin are accused of conspiring to bribe a witness that Mr. Dublin allegedly stabbed to prevent him from testifying against Mr. Dublin. Mr. Dublin’s lawyer urged the court to sever his trial from Ms. Uhlmann’s because he anticipates that much of the evidence that will be raised would be against the defense attorney, Ms. Uhlmann, and so would confuse the jurors from being able to differentiate between the actions of the defense attorney and the actions of Mr. Dublin.

Massachusetts Supreme Court holds that ineffective assistance of counsel claims based on failure to advise defendant of immigration consequences can be brought for case decided prior to Padilla

September 17, 2013 | by Michael DelSignore

The Massachusetts Supreme Judicial Court held in Commonwealth v. Sylvain that ineffective assistance of counsel claims based on the failure to advise a defendant of the immigration consequences of a criminal conviction can be brought prior to the Padilla decision under Article 12. The SJC declined to follow the recent decision of the United States Supreme Court holding that ineffective assistance of counsel claims could only be made for case decided after Padilla. Since Padilla, it has been the obligation of every Massachusetts criminal defense lawyer to advise any defendant of the immigration consequences of any plea in a criminal case.

SJC Rejects the reasoning of Chaidez.

The U.S. Supreme Court issued a decision in Chaidez v. United States finding that the right to counsel on the deportation consequences of a guilty plea expressed in Padilla was in fact a “new” rule, and so applies only to convictions finalized after the Padilla decision (after 2010). Thus, according to Chaidez, Mr. Sylvain is not eligible for the relief under Padilla since he was convicted and sentenced in 2007.

Connecticut Drivers facing OUI charge in Massachusetts will have assignment to Connecticut Diversionary Program count as a conviction for purposes of breath test refusal suspension

September 16, 2013 | by Michael DelSignore

The Massachusetts Court of Appeals addressed an important question for Connecticut Drivers charged with DUI in Massachusetts in the case of Thomas Scheffler v. Board of Appeals. The Appeals Court held that a driver’s assignment to a diversionary program, which is not considered a DUI Conviction in Connecticut, does count as a like offense for the purposes of determining whether the Massachusetts Registry of Motor Vehicles will issue a license suspension.

In 2009, Mr. Thomas Scheffler was charged in Connecticut for operating under the influence of liquor, in violation of a Connecticut statute. Because Mr. Scheffler refused a breathalyzer test, his license was suspended for six months. However, the OUI charge was dismissed upon Mr. Scheffler’s completion of a pretrial alcohol education diversion program, in compliance with another state statute.

Almost two months later, the RMV notified Mr. Scheffler that his license would be suspended for one year based on the Connecticut OUI charge. Despite being later informed that Mr. Scheffler’s license was actually suspended for refusing a breathalyzer, and that the OUI charge was dismissed following completion of the diversion program, the RMV did not clear Mr. Scheffler’s record. Instead, his record now reflects both the breathalyzer refusal and the OUI dismissal, in addition to the completed alcohol education program.

Massachusetts drug distribution conviction upheld despite Sixth Amendment Confrontation Clause Challenge

September 13, 2013 | by Michael DelSignore

The Massachusetts Supreme Judicial Court recently ruled in the case of Commonwealth v. Robert Lezynski, decided on August 2, 2013, that the defendant’s conviction of possession of Class B drug with the intent to distribute was not influenced by an improperly admitted toxicology report in violation of the Sixth Amendment. As a Massachusetts Criminal Defense Lawyer, the Sixth Amendment demands face to face confrontation and this right must be vigorously safeguarded when the Commonwealth tries to admit testimonial evidence through another witness.

In the matter of Commonwealth v. Lezynski, prosecutors sought to convict Mr. Lezynski of possession and distribution of fentanyl patches at a party. The prosecutors presented eye witnesses who testified to having observed Mr. Lezynski with the patches and giving some to one of the guests, who died shortly thereafter. The victim had smoked marijuana before the party and was heavily intoxicated from drinking that night, causing acute fentanyl and alcohol intoxication. The prosecutors also presented toxicology reports of the victim’s blood, and sought to admit them into evidence through the director of forensic toxicology at one of the labs that analyzed the victim’s blood. Mr. Lezynski’s attorney did not object.

Mr. Lezynski was indicted on manslaughter and possession with intent to distribute a class B controlled substance. The jury convicted Mr. Lezynski of possession and distribution, and Mr. Lezynski subsequently appealed.

Challenge to Accuracy of Breath Test Results in Pennsylvania heading to the State Supreme Court

September 10, 2013 | by Michael DelSignore

Unlike under Massachusetts OUI Law, in some jurisdictions, the statutory penalties of driving under the influence vary depending on blood-alcohol measurements as determined by a breathalyzer exam or blood test. While trial courts across the nation are becoming increasingly skeptical of breathalyzers, the Pennsylvania Superior Court recently reversed a trial judge’s decision to dismiss a heightened DUI charge on a finding that breathalyzers are inaccurate. In Massachusetts, the statutory penalties are essentially the same regardless of the breath test results other than for drivers under 21 and other than the additional requirement of an alcohol assessment; of course, a judge is likely to impose a harsher punishment with a higher breath test result.

Last December a trial judge in Pennsylvania rejected a prosecutor’s attempts to prove the defendant, in the case of State v. Schildt, guilty of a heightened DUI statutory charge by presenting results from a breath test as evidence of the defendant having a BAC reading of 0.16 percent. A reading of 0.16 percent or greater qualifies a defendant in Pennsylvania for the maximum penalty under the DUI statute, with increased prison time and fines.

After hearing arguments from both parties, Judge Lawrence Clark Jr. ruled that breathalyzers are not scientifically accurate beyond a 0.15% blood-alcohol reading. Judge Clark Jr. then concluded that without an accurate blood-alcohol reading, the State will not be able to prove beyond a reasonable doubt that the defendant Schildt was so intoxicated so as to qualify him for the heightened statutory sentence. He therefore dismissed the charge.

What is the look back for prior OUI offenses in Massachusetts?

September 8, 2013 | by Michael DelSignore

Under Massachusetts OUI law, there is a lifetime look back for prior OUI offenses. This simply means that the level of offense you will be charged with will be based on the total number of OUI convictions you have in your lifetime. It is important when you speak to an OUI Lawyer in Massachusetts that you tell your attorney about all prior convictions you have even if unknown to the district attorney.

Those convictions can be taken from Massachusetts or from any other state where the conviction is for a DUI. The only issue is whether the offense for a DUI in another state is similar to our statute, which we refer to as an OUI. For Example, if a motorist was convicted of DWI in Georgia 7 years ago, but this fact is unknown to the district attorney, even though the offense would be considered a first offense by the court, the RMV would treat the offense as a second offense.

Some states have a look back for prior offenses, meaning that in those states those courts will only consider a prior offense if it happened within a certain time period. The time period varies with the State, it could be five years, some states use 10 or 15 years.

Understanding the Court Procedure in Massachusetts Superior and District Court in the Aaron Hernandez Case

September 4, 2013 | by Michael DelSignore

The case of Aaron Hernandez reveals some interesting aspects of Massachusetts’s court procedures. For example, many people wonder why Hernandez is being arraigned again in superior court. The reason lies in the fact that there are typically two arraignments in any superior court charge. Hernandez was initially arraigned in the Attleboro district court, as all cases most cases start in district court. As an Attleboro criminal defense lawyer, Hernandez’s case proceed through the district court in the normal fashion, with typically one or more continuance of the probable cause hearing which occurred in this case. On September 6th, Hernandez will be arraigned in the Fall River Superior Court where the case will remain until a verdict or plea on the charges or on amended charges.

As there was enough probable cause to issue a criminal complaint against him and the charges consisted of allegations that could not remain in district court, an arraignment in superior court is the next step. This is because the district court simply has no final jurisdiction over a charge of first degree murder.

What jurisdiction does the district court have?

Will there be video of an OUI Arrest in East Bridgewater, Massachusetts

August 29, 2013 | by Michael DelSignore

If you were arrested for OUI in East Bridgewater, there should be video of your OUI arrest. the video that the police have will be referred to as a booking video. The East Bridgewater police department does not have a police cruiser camera video. There are a few departments that have cruiser camera, but the majority do not. As an East Bridgewater OUI Lawyer, there was a recent case of interest if a video is lost by the Government.

Police cruisers tare equipped with video recording devices to capture police stops and patrols. When the driver of a vehicle is facing OUI charges, a recording of the stop and arrest may be presented in court by the defendant to challenge the arrest. In such circumstances, the video is considered exculpatory evidence since it may clear the defendant of guilt.

Dismissal Upheld in Recent case where video is lost:

Ohio Ruling finding breath test evidence unreliable

August 26, 2013 | by Michael DelSignore

As a , anytime a person comes into the office after having failed the breath test, I know that I will have to explain to them why the breath test machine can be unreliable and ways the case can be won despite the breath test results. While breath test evidence must be challenged, these results do not mean the case cannot be won in court. In this Blog, we will review a decision from Ohio finding the breath test machine unreliable.

A prominent trial judge in Ohio has just decided that the results of the Intoxilyzer 8000 “are not scientifically reliable.”

On August 14, 2013, in the matter of State v. Lancaster, Judge Teresa Liston concluded proceedings that lasted over the span of several months challenging the reliability of the Intoxilyzer 8000 in the Marietta Municipal Court in Ohio. Judge Liston, a well-respected retired judge, was called to the bench specifically to hear several cases combined by the court for the purposes of challenging the Intoxilyzer 8000 alone.

License consequences of a first offense OUI in Massachusetts: When can you get your license back?

August 14, 2013 | by Michael DelSignore

As an OUI Lawyer in Massachusetts, I have met many individuals, parents, spouses and family members who come to my office unsure about what to do in response to a recent arrest for OUI. There are three things that anyone charged should understand about the license consequences of a First Offense OUI. In this Blog, I outline these issues.

1. First question always asked is when can I get my license back. There are three different option you need to understand.

You took a breath test and the results was over .08: you can get your license back in 30 days by paying the $ 500.00 reinstatement fee. You will have your license while the case is pending and you attempt to contest the OUI charge. If you admit to the charge prior to the expiration of the thirty days, you would be eligible for a hardship license if the court assigned you to the 24D program. I would not recommend a plea within the thirty days.

You refused the breath test: If you refused a breath test, the suspension is for six months. You can get your license back before six months, but it is difficult. The benefit of having refused the breath test is that there is a good chance you can avoid an OUI conviction with a not guilty verdict; the downside is that you will be without a license for at least three months while pursuing your appeals of a refusal suspension. Many will serve the full six month refuse suspension; there is no eligibility for a hardship license while the OUI case is pending; the third option discusses how you can obtain a hardship license, but requires a plea on the underlying OUI charge and admitting to the elements of the offense as outlined in the statute.

There are two paths to get your license back early.

Path 1: Appeal the breath test refusal suspension and have the district court reinstate your license. For this option, you would appeal the breath test refusal suspension within 15 days, the RMV would likely deny your request and you would appeal to the district court. This process does take probably three months. If the district court judge reinstated your license, you would have it back prior to the six months. I recently had a judge order reinstatement, finding that the police officer did not comply with the law in suspending my client’s license. This client received her license back in three months. While I have had refusal suspensions overturned, many breath test refusal suspension are affirmed.

Path 2: The second way to get your license back prior to six months is if we can obtain a not guilty verdict on the charge and the judge enters an order reinstating your license. It is difficult to get a trial within six months for a number of reasons, making it more difficult to get your license back prior to the six months with this option. Often, there are documents or motions we would want heard that would delay scheduling the case for trial. In all most all courts, it will take at least four to five months to get a trial date, so this option could save one or two months of the suspension.

If you refused a breath test and you want to avoid an OUI conviction, you should plan on having a suspension for six months. After the six months you can get your license back. You should also pursue an appeal of the refusal suspension, but understand that many of those appeals are denied.

Path 3: Admitting to the OUI charge and receiving the 24D program would provide hardship license eligibility for the 45 days license loss imposed by the court and the duration of the six month refusal suspension. While you can get your license back, assuming you can satisfy the hardship criteria, a letter from work, the downside is that you have admitted to the OUI charge.

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