Massachusetts Criminal Defense Lawyer Blog

When can an officer make an arrest outside of his jurisdiction?

May 17, 2013 | by Michael DelSignore

One question that comes up for a Massachusetts OUI Lawyer is “when can a police officer make an arrest outside of his or her jurisdiction?” Whether a police officer had a basis to stop you under the Fourth Amendment is one of the first lines of defenses that is pursued in defending an OUI charge.

The Supreme Judicial Court of Massachusetts answered the question of when a local police officer can pull and charge a driver over with an OUI outside his or her jurisdiction in Commonwealth v. Bartlett.

The defendant in Commonwealth v. Bartlett was facing his fifth OUI offense and was trying to suppress evidence citing that the officer pulled him over outside of his jurisdiction. The officer, in this case, was on patrol as a Merrimac police officer and crossed into the neighboring town of Amesbury during his shift. While returning to Merrimac, he witnesses defendant weaving and swerving. After defendant turned into a parking lot, the officer blocked the defendant and informed Amesbury police and then initiated a traffic stop. Unable to remove his license, bloodshot eyes and a failing of the sobriety test led the defendant to receive an OUI. The Merrimac officer made the original stop while Amesbury police administered the field sobriety test.

Do Police Need Warrants to Search Cell Phones? Florida Supreme Court says Yes!

May 14, 2013 | by Michael DelSignore

As technology advances, a slew of new legal issues have found their way into courts across America. Social media networks, email, texting, and other technological communications pose new questions surrounding citizens’ privacy, the 4th amendment, and search/seizures issues for police. Recently, a Florida Supreme Court ruled that police are required to obtain a search warrant before examining the contents of an arrestee’s cell phone.

In the case of Smallwood v. State, the defendant was arrested for allegedly committing an armed robbery of a convenience store. Upon his arrest, police confiscated and examined the contents of a cell phone in the defendant’s possession at the time of his arrest. Police discovered incriminating evidence on the phone, including images of a handgun, and photos of stacks of cash that were taken after the date of the robbery. However, the defendant argued that his 4th amendment right was violated.

According to the 4th amendment, United States citizens have the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Warrants can only be obtained with probable cause and should specifically describe the place to be searched, and the persons or things to be seized. Further, to have probable cause, police must have legally sufficient reasons to believe a search is necessary. Law enforcement cannot just seize property to use as evidence without first obtaining a warrant. While evolving technology that provides instant access to a person’s bank accounts, medical records, contacts, photos, and communications pose seemingly new questions on search/seizure, the courts have faced these issues historically.

United States Supreme Court hears oral argument in Salinas v. Texas: Is silence prior to arrest admissible into evidence under the 5th Amendment

April 22, 2013 | by Michael DelSignore

On Wednesday, the Supreme Court heard oral arguments for Salinas v. Texas. The issue in Salinas is whether the Fifth Amendment protects a defendant who remains silent during police questioning before being arrested or read his Miranda rights. As a Massachusetts OUI lawyer, I would expect that the Court will hold that the Fifth Amendment precludes the State from admitting evidence of pre-arrest silence. In additional to a Fifth Amendment argument, a defendant should argue under the rules of evidence that the silence is immaterial and irrelevant and should not come into evidence as having no relevance to whether a defendant committed the criminal offense.

The defendant was a suspect in a homicide investigation and voluntarily accompanied authorities to a police station for questioning. After about an hour of questioning, the defendant stopped answering questions and remained silent. Subsequent investigation linked the shotgun shells found at the scene of the murder to a shotgun found at the home of a defendant.

He was charged with murder and at trial the State sought to introduce the defendant’s silence in response to police questioning. The defendant objected to this evidence, claiming that the Fifth Amendment privilege should exclude the evidence regardless of the fact that he was not in police custody at the time of questioning. The trial court declined to extend Fifth Amendment protection to pre-arrest, pre-Miranda questioning.

Massachusetts Supreme Judicial Court affirms holding of Commonwealth v. Cruz in recent decision

April 18, 2013 | by Michael DelSignore

Since Commonwealth v. Cruz, the Supreme Judicial Court held that the smell of marijuana did not give an officer probable cause to conduct a search. Commonwealth v. Daniel, a recent decision by the Supreme Judicial Court, affirms the holding from Cruz. The Daniels decision may provide a defense to a drug stop for a Boston criminal defense lawyer based on the Fourth Amendment to the United States Constitution.

Boston police officer was patrolling Dorchester in the early hours of the morning when he observed a SUV without a driver’s side headlight make a left hand turn without signaling. The officer stopped the vehicle and when approaching the car noticed that the man sitting in the passenger’s seat was rocking back and forth. The officer could also smell marijuana when he approached the vehicle, and when he asked the driver if there was marijuana in the vehicle, the driver produced two small bags from her pockets. The driver also emptied all other possessions from her pocket.

Based on this behavior, the officer suspected that the defendant was concealing something more, so her ordered the driver to pull over further and ordered that the passenger and then driver exit the vehicle. The officer searched the passenger and subsequently the driver, finding no contraband on either person. The officer then searched the vehicle and found a firearm in the glove box.

Does Massachusetts OUI law provide a defendant the right to take a breath test after refusing one?

April 17, 2013 | by Michael DelSignore

As a OUI Lawyer , a case will often involve somebody who nhas refused to take a breathalyzer test after being pulled over. In some cases, a motorist may change their mind and request a breath test after refusing to submit to one. In a recent case, the issue was raised is whether a defendant can offer into evidence there request to take a breath test after an initial refusal.

The Massachusetts Supreme Judicial court recently answered this question in Commonwealth v. Jones. In Commonwealth v. Jones, the defendant was pulled over by two police officers after a truck was witnessed driving erratically. The defendant had blood shot eyes, had an open container of alcohol and was stumbling getting out of the car. After performing poorly on the field sobriety test, the defendant was arrested and brought to the police station.

At trial, the defendant made a motion to permit evidence that while at the police station, he originally refused a breathalyzer test but then “shortly afterwards” changed his mind and asked for the breathalyzer. The prosecution argued this had the potential of opening “a can of worms” of evidence that would be allowed and the judge rejected the motion and did not allow the evidence. The defendant was convicted of an OUI after trial.

On appeal, the SJC ruled that the judge at trial acted within the scope of his discretion in not allowing the testimony. The court explained that this evidence could only excuse the defendant to the extent it suggested a conscious innocence at the time of the request. In other words, the defendant had to be requesting the breathalyzer because he felt he was not drunk and it could prove his innocence. The SJC held that there are too many other reasons for the breathalyzer request and was most likely trying to avoid the automatic license suspension. The court felt allowing this evidence may mislead or confuse a jury, complicate the case or prolong the case. The evidence here was not allowed.

In Massachusetts if you are pulled over for an OUI and refuse a breathalyzer test, evidence that you later requested a breathalyzer and were denied is probably not admissible. However the SJC does seem to leave the door open to cases where defendants are requesting the breathalyzer because they consciously believe they are not drunk. The SJC in Commonwealth v. Jones felt he had other motives in requesting the breathalyzer. It may be hard to prove to a court, but if a defendant can in fact prove they were requesting the breathalyzer because they believed they were not above the legal limit of alcohol, that evidence may be admissible. A top OUI lawyer will argue that all potentially exculpatory evidence shall be admitted and that this falls within that category.
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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.