Massachusetts Criminal Defense Lawyer Blog

United States Supreme Court decides Missouri v. McNeely finding that the natural dissipation of alcohol in a DUI arrest does not justify a warrantless blood draw under the Fourth Amendment

April 17, 2013 | by Michael DelSignore

The United States Supreme Court held today in the case of Missouri v. McNeely that the natural dissipation of alcohol by the body did not justify a blood draw without a warrant under the Fourth Amendment. As a , the Court decision to take a case-by-case approach is consistent with the protections of the Fourth Amendment and will ensure that officers make some efforts to obtain a warrant, leaving for the trial court the decision of whether the circumstances in any particular case rose to the level of exigent circumstances to excuse the warrant requirement.

In this case, the police officer took the defendant to the hospital to obtain a blood draw after the defendant indicated that he would refuse a breath test. The defendant’s breath test results were .154 and were excluded from evidence by the trial court and Missouri Supreme Court. The State appealed to the United States Supreme Court. You can read the decision of the United States Supreme Court by clicking on this link. .

The State argued that because the body eliminates alcohol over time that this creates an exigent circumstances that eliminates the need for a warrant under the exigent circumstances exception to the warrant requirement. The United States Supreme Court rejected this argument, for the following reasons:

Recent Iowa Supreme Court case discusses elements of proof in OUI prescription drugs charge

April 5, 2013 | by Michael DelSignore

Proving a charge of OUI drugs in Massachusetts is a difficult task for prosecutors; cases involving prescription drugs can be very difficulty as usually the Commonwealth does not have evidence of the time of ingestion and the impact on your ability to operate a motor vehicle.

The Supreme Court of Iowa recently discussed the issue of OUI charges when the driver is on prescription drugs in Iowa v. Schories.

In Iowa v. Schories, the defendant was pulled over by a police officer for erratic driving. When the officer approached the vehicle, he noticed the defendant had blood shot eyes, had trouble paying attention and had an empty needle in his car.

Massachusetts Supreme Judicial Court addresses whether gun owner properly stored gun in a lock container

March 31, 2013 | by Michael DelSignore

Massachusetts requires all firearms to be secured in a locked container when not in possession of the lawful owner. As a Boston criminal defense attorney, many are often confused on what is required to satisfy this statute. The recent case of Commonwealth v. Reyes decided by the Massachusetts Supreme Judicial Court discussed what is truly meant by this statute.

The defendant in this case owned a firearm lawfully with a class A license. On his way to work as a correctional officer the defendant had the gun on him and left it in his glove compartment going into work. His car was later searched and the gun was found with no lock or safety device attached to it. The defendant was charged and convicted of the storage status violation.

The defendant asked for the charge to be dropped because the law is unconstitutionally vague and also offended his second amendment right to bear arms. The court ruled this did not offend defendant’s second amendment rights as he still had a right to carry the gun. The discussion then turns to whether the “secured in a locked container” provided enough information for the law to be followed by gun owners.

Defining Constructive possession in Massachusetts gun charge, what does it mean to possess a firearm

March 24, 2013 | by Michael DelSignore

Often times, those charged with illegal possession of a firearm in Boston will be arrested when the police officer never saw them in possession of the firearm at all. When a suspect is arrested without actually being in possession of the firearm the prosecution will try to prove constructive possession.

As a Boston criminal defense attorney, it is important to fight this charge of constructive possession as often times it can be an abuse of police discretion when an officer arrests everybody on the scene where a gun was found. The Massachusetts Supreme Judicial Court recently answered what the prosecution needs to show to obtain a conviction for constructive possession in Commonwealth v. Romero.

In Commonwealth v. Romero, the defendant was parked in front of a friend’s house with three other men. The defendant was in the driver’s seat and he had seen one of the passengers with a gun earlier in the day. A police officer pulled behind the defendant’s car and observed the vehicle for several moments. It appeared that all four passengers were passing back an object back and forth. When the officer approached the vehicle he observed a gun in one of the passenger’s laps. The defendant was arrested and charged with possession of a firearm without a license. Since the defendant was not in physical possession of the weapon, the prosecution relied on constructive possession and the defendant was convicted.

Lawyers USA Article details trial tips for OUI lawyers in Massachusetts

March 22, 2013 | by Michael DelSignore

Julie Campanini recently published an excellent article in Lawyers USA offering a number of suggestions for improving trial skills. From her experiences during trials combined with years of speaking with jurors, she noticed that many lawyers tend to unknowingly act in ways which place them in a negative light for the jury. Below is a list describing some of the issues she noticed. As a Massachusetts OUI lawyer, I found these suggestions extremely helpful and encourage trials lawyers to read the recent article.

• Act genuinely- It is important for defense lawyers to be themselves in the courtroom and allow elements of their personality to show. Jurors are intimidated by overly formal lawyers, so it is good to relax and show the jury that they can relate to you on a personal level rather than just a “business” level. Jurors, like everyone else, are more likely to believe you if they can empathize and trust what you are saying.

• Act respectively- It is common for opposing counsel to subconsciously intimidate one another with statements and mannerisms which may come across as rude or disrespectful. Campanini mentions how the most successful lawyers are those who treat everyone in the courtroom with respect, so that their statements are taken more seriously and with higher levels of consideration. Over-zealous or short tempered lawyers are least likely to create a positive impression on the jury, as they simply appear arrogant or insecure.

What injuries constitute “serious bodily injury” when charged with an assault and battery in Massachusetts

March 16, 2013 | by Michael DelSignore

When facing an assault and battery charge in Massachusetts a defendant may face the more severe charge of assault and battery causing serious bodily injury if the evidence shows the assault caused a serious bodily injury. This turns the assault and battery from a misdemeanor to a felony and carries significantly harsher punishment. The recent case of Commonwealth v. Scott was decided by the Supreme Judicial Court and faced the issue of what injuries are sufficient to be a serious bodily injury under G. L. c. 265 §13A(b).

Commonwealth v. Scott involved a defendant who went to his ex-girlfriend’s home to confront her. Defendant became violent during the time in the victim’s home. Defendant punched the victim in the face, stomach, threatened her with a knife and beat her with a can of soda. The victim suffered several injuries, the worst being a lacerated liver.

The defendant was convicted of several crimes like kidnapping and assault and battery, but because of the lacerated liver defendant was also convicted of assault and battery causing serious bodily injury. To constitute a serious bodily injury, the injury had to result in either (1) a permanent disfigurement; (2) loss or impairment of a bodily function, limb or organ or; (3) a substantial risk of death. The only question on this appeal was if there was enough evidence to show the injury caused an impairment of an organ. The court held that there was no sufficient evidence for a jury to conclude that there was impairment.

How Does A Massachusetts Court Decide If A Police Stop Was Lawful under the Fourth Amendment

March 12, 2013 | by Michael DelSignore

As a Brockton criminal defense lawyer, a question that arises in many cases is did the officer conduct a legal stop under the Fourth Amendment. The Massachusetts Supreme Judicial Court just discussed this issue in the recent case of Commonwealth v. McKoy.

In Commonwealth v. McKoy, two Brockton police officers drove by the defendant and his brother walking down the street on a freezing snowy night. Moments later, the police officers received a call about a shooting that occurred about 100 yards from where they had seen the two men walking. The officers reversed direction and saw the two men continuing to walk with their hands in their pants. The officers got out of the vehicle and drew their weapons and ordered both suspects to the ground. One suspect got away but the defendant was handcuffed and searched. Officers found ammunition and a gun that the defendant had dropped on the ground. The defendant was arrested and found guilty of unlawful possession of firearm and ammunition.

The defendant contends that the search was unlawful and that the evidence of the gun and the ammunition should be suppressed. The SJC upheld the conviction and ruled that the search was legal and the evidence did not have to be suppressed. For the police officers to engage in a stop, they must have reasonable suspicion that the suspect has committed a crime. The court stated that reasonable suspicion is a twofold test; first was the original stop reasonable and second was the search justified under the circumstances. Reasonable suspicion is defined as would a reasonable officer given the facts of the situation find the actions appropriate? Furthermore an officer can take reasonable steps if they feel they are in danger.

What evidence does a Boston criminal lawyer look for in contesting a drug distribution charge

March 10, 2013 | by Michael DelSignore

A common question that frequently arises for a Boston criminal defense lawyer is: does a defendant have to be present at the scene of the drug transaction to be convicted of drug distribution?

A Massachusetts court of appeals decision recently answered this question in Commonwealth v. Mgaresh. The court held that if a defendant is aware of the transaction and in control of transaction, the defendant does not need to be physically present at the time of distribution.

In 2009, an undercover police officer contacted the defendant and arranged to purchase $200 of cocaine. When the detective arrived at the location, he met a women who was on the phone with the defendant during the transaction.The transaction of 1.95 grams of cocaine was completed and the detective arrested the woman..

New York Court of Appeals narrowly interprets Confrontation Clause, finding the right of Confrontation does not apply to breath test maintenance documents

March 7, 2013 | by Michael DelSignore

As a Massachusetts OUI attorney, challenges to breath test and blood test evidence based on the 6th Amendment Confrontation must be made in each case as the law continues to evolve in this area. Cases from the United States Supreme Court continue to define the scope of the right of confrontation.

Recently, the New York Appeals Court ruled on the issue of an alleged violation of the “Confrontation Clause” when records for a Breathalyzer test were presented at trial without the verbal testimony of the technicians whom completed the tests.

In State v. Pealer, a police officer stopped the defendant for suspicion of drunk driving. When the defendant failed all sobriety tests, he was arrested. At the station, he failed a Breathalyzer test.

How does the Commonwealth prove a charge of reckless endangerment of a child

March 4, 2013 | by Michael DelSignore

For those charged with reckless endangerment of a child in Massachusetts, it often involves defendants who have not personally subjected the child to danger, but have failed to protect a child from danger. The recent case of Commonwealth v. Figueroa was recently decided by the Massachusetts Appeals Court and answered some questions of when a defendant can be convicted of reckless endangerment and when they owe a duty to protect the child.

Commonwealth v. Figueroa involved child abuse of a six month old victim. The mother of the child lived with her mother, the defendant and the defendant’s boyfriend.

On February 29, 2008, the defendant’s boyfriend was shaking the baby and then droped the child on the floor causing a head injury. The child’s mother saw this and grabbed the baby and explained what happened to the defendant and asked for a ride to the hospital. Without looking at the infant, the defendant said he would be alright and threatened to call Social services if the child’s mother tried to bring him to the hospital.