Massachusetts Criminal Defense Lawyer Blog

Special Report on Massachusetts OUI conviction rates released by the Supreme Judicial Court

November 1, 2012 | by Michael DelSignore

The Massachusetts Supreme Judicial Court released today the Special Report it had a major Boston law firm prepare on OUI convictions rates following a three part series published by the Boston Globe. The special report makes numerous recommendations geared toward increasing the conviction rate for OUI offenses.

As a Massachusetts OUI lawyer, the most remarkable part of the report is that the highest Court in Massachusetts is seeking recommendations geared toward increasing a result in a particular type of case. The report undermines the idea that the Court should be neutral and about protecting Constitutional rights. While a report like this would be appropriate for a district attorney or journalist, it is disturbing that the Court would sanction a report to investigate the outcomes in a particular charge.

The Supreme Court hired a major Boston law firm to conduct this research addressing the issues raised by the Boston Globe. Apparently, the attorneys at the firm reviewed OUI cases looked at police reports, and in the report state that they agreed with some not guilty verdicts, thought other cases could have gone either way and disagreed with other verdicts. There is a clear difference between reading a police report and even listening to testimony on a CD as compared to seeing it live at trial. Communication experts teach that over 70% of communication is nonverbal so the way it is communicated in court and its value and impact on a judge listening to the testimony cannot be measured by reading the report or listening to a transcript.

Hall of Fame Red Sox Catcher Carlton Fisk Arrested and Charged with DUI in Illinois

October 27, 2012 | by Michael DelSignore

Hall of Fame catcher Carlton Fisk was arrested and charged with DUI in Illinois this week.

ESPN Chicago reported police found Fisk passed out behind the wheel of his vehicle in the middle of a cornfield. New Lenox Deputy Chief Bob Pawlisk said Fisk was charged with a lane violation, driving under the influence and illegal transportation of alcohol.

Police say an open vodka bottle was found in his vehicle. As a Massachusetts DUI defense lawyer more information is needed to determine the best course of action. Did Fisk submit to a breathalyzer or was he given a blood test? Did he perform field sobriety tests? Is there a medical condition involved that could help explain how he ended up in the middle of the field? The fact that he was found on private property could also complicate things for prosecutors.

“They contacted local paramedics in New Lenox, had him examined, and the officers had reason to believe he was under the influence,” Pawlisk said. Fisk was transported to the local hospital.

The 64-year-old Fisk posted bond and was released. He is due back in court on Nov. 29.

Fisk played for the Red Sox upon entering the major league in 1969 and was a member of the 1975 World Series team. His last game was in 1980. Ironically, his arrest came just one day after the 37th anniversary of his game-clinching home run in Game 6 against the Cincinnati Reds. The Reds went on to win Game 7. Fisk signed with the Chicago White Sox in 1981 and retired from baseball in 1993.

Thus, Pudge was a Sox of one sort or another for his entire career. He was the first player to be unanimously voted American League Rookie of the Year when he took the award in 1972. At the time of his retirement, he held the record for most home runs all-time by a catcher (351). Until July 2009, he held the record for most consecutive games as a catcher (2,226).

He is still the American League record holder for most years behind the plate (24). Also known as a fierce competitor and a superb handler of pitchers, Fisk was an 11 time All-Star.

He was inducted into the Hall of Fame in 2000.

In Illinois, a first-offense DUI is punishable by a one-year suspension of your driver’s license. Massachusetts DUI Law (MGL c.90, s.24) also outlines possible penalties that include license suspension, as well as fines and jail time. A typical disposition for a first-time offender is a 45-day license suspension, completion of an alcohol-education class, fines and court costs.

Fisk now lives in New Lenox, Illinois. However, many times an out-of-state charge can pose additional hassle for the defendant. And Boston is a frequent tourist destination. Fighting an out-of-state DUI charge is just as important. With increasing frequency, such cases are being used to enhance future charges in a driver’s home state should a subsequent arrest occur. An experienced defense attorney can work to reach a favorable resolution in your case without you ever returning to appear in court. Even in the worst case scenario, these cases can be properly defended with a single court appearance arranged to meet a defendant’s schedule.
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United States Supreme Court to address whether indigent defendant was deprived of his right to speedy trial by delay in receiving counsel

October 24, 2012 | by Michael DelSignore

A recent case pending a decision from the United States Supreme Court has raised issues concerning a defendant’s constitutional right to a speedy trial. In Boyer v. Louisiana, the indigent defendant was not offered any form of defense counsel until five years after the charges were brought fourth. The state of Louisiana has suffered a severe lack of funding, resulting in many cases involving indigent defendants being delayed due to a lack of counsel. The United States Supreme Court granted certiorari on the issue of whether the delay in the defendant receiving appointed counsel should count against the State in determining whether the defendant’s 6th Amendment right to a speedy trial was violated. The complete court filings before the United States Supreme Court can be found on the Scotus Blog.

The trial resulted in the defendant being convicted by a jury of second-degree murder. Although the defendant appealed a variety of issues, his main concern was that his right to a speedy trial was violated by the state of Louisiana.

The Sixth Amendment to the United States Constitution contains the speedy trial clause, along with other fundamental rights, such as the right to confront and cross examine witnesses and the right to an impartial jury.

Which police departments have booking videos?

October 8, 2012 | by Michael DelSignore

As a Massachusetts OUI lawyer, one of the first things I look into with any new case is whether there is a booking video. There are three types of video that may be available in a Massachusetts OUI arrest:

cruiser camera video;
a booking tape,
or police surveillance cameras.

Police cruiser camera video is not widely used in Massachusetts, though it is used in other states. Many arrested for OUI expect from watching television shows like Cops to see a video of the entire arrest; unfortunately, most departments do not have police cruiser cameras.

In Bristol County, only the Mansfield Police Department has cruiser camera video; in Worcester County, the cruiser camera video is used by the Northborough police department. The Northborough police department cruiser camera video is very clear, capturing sound.

I used cruiser camera video recently at trial to show that my client’s performance on the field sobriety test when viewed on the video did not show any difficulty with balance and coordination and contradicted the officer’s claim of slurred speech. The video contradicted the officer’s claims in the police report and was critical to obtaining a not guilty verdict at trial.

The next type of video is the station booking video. This type of video comes in two forms, with and without sound. There are many police departments that have booking videos so I will only list a few here: These departments include New Bedford, Easton, Fairhaven and Medfield to name a few. I have found that booking videos appear most common in Worcester County.

The final type of video is police security video. Typically, the police report makes no mention of this type of video, unlike booking video, where most department state in the report that there is a video, police security video is typically not mentioned in the police report and only obtained if requested.

Departments that have security video, although with no sound, include Wrentham, Foxboro, Attleboro and Seekonk to name a few in this category. It is important to know that Seekonk only preserves its video for 15 days.

I have not come across any video among the State police, although I have heard from other lawyers that at least two barracks have booking videos.

Since video clearly demonstrates what occurred during an OUI arrest, it raises the obvious question, why does the State police refuse to video the arrest and why is video not more frequently used by police departments. The answer is that many police departments believe that video decreases the conviction rate.

Massachusetts OUI attorneys can argue to the jury that lack of video tape evidence, when video is so prevalent, found on all cell phones, should be held against the Commonwealth and factor into whether the Government has satisfied the burden of proof beyond a reasonable doubt. Since the burden of proof is on the Commonwealth, a defense lawyer can also argue that a lack of evidence raises a reasonable doubt.
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Breathalyzers in D.C. Are Back After 2-Year Hiatus

October 5, 2012 | by Michael DelSignore

Motorists in Washington D.C. may again face police departments armed with breathalyzers, following a two-year hiatus connected to inflated results that led to dozens of faulty convictions.

Our Massachusetts DUI lawyers understand that the previous machines were producing readings that were, on average, about 20 percent too high. About two dozen of those convicted sued the city, and received a settlement of about $130,000. Hundreds more convictions have been called into question.

Metro Police say they have addressed the issues, but we would argue that no machine is every guaranteed 100 percent of the time. That’s a serious issue because those arrested and convicted of a DUI may serve jail time, lose their jobs and be compelled to pay heft fines. Breathalyzer results are often the key piece of evidence used in convictions.

Police say one of the reasons they have taken their time before re-implementing the breathalyzer program was that they wanted to ensure the program they had in place would be scientifically viable and able to hold up in court. However, we anticipate further legal challenges, particularly given the tougher DUI penalties that the city council approved over the summer. The measures were formally adopted Aug. 1.

Among those changes:

Jail time has doubled for someone who has a blood-alcohol level of between 0.20 percent and 0.24 percent. It has gone from five days to 10 days.
For someone who is arrested with a blood alcohol content of 0.25 percent or higher, the minimum jail sentence has been bumped to 15 days.
Drivers who are deemed drunk with a child in the vehicle now face a minimum of five days in jail, with minimum fines more than tripling, from $300 to $1,000.
Maximum DUI sentences have doubled, from a three months to six months.
Commercial drivers, those behind the wheel of taxis or trucks, can be prosecuted for a DUI if they have a blood alcohol content over 0.04 percent (below the regular legal limit for everyone else, which is 0.08 percent).

Although these measures are only in place for D.C. motorists, those in neighboring states or who travel frequently to the city should take note. It’s illustrative of a trend throughout New England: law enforcement and lawmakers continue to work together to make laws tougher on those convicted of driving under the influence of alcohol or drugs.

Breathalyzers are frequently used by law enforcement agencies, both in Massachusetts and throughout the country, in DUI cases, and have been for years. During that time, numerous legal challenges have been raised regarding their accuracy.

For example, just this year in San Francisco, it was learned that the police department there had not been regularly testing the accuracy of breathalyzer machines. As such, hundreds and possibly thousands of DUI convictions handed out over the last six years could be overturned.

The problem is in the way these devices are designed. They measure the blood alcohol level as it can be found on your breath. This is essentially an estimate, and not an exact measure of what is in your blood. Plus, breathalyzers are designed to measure your BAC based on the average person. So your metabolism, sex, height and weight – which can each have an effect on whether are not you are actually intoxicated – are not taken into account.
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Tips for Law Students Preparing for Exams

September 28, 2012 | by Michael DelSignore

Law School can be stressful; one exam for the entire grade. Here are some tips on how to best prepare for exam day.

After having completed three years of law school at the University of Connecticut, I felt I got better understanding as I went along but it would have been helpful to know what I know now at the start of my first year.

Here is my advice to help you get off to a good start. While I believe it is important to outline your course material, read every case and the case notes, your exam will generally be applying the law to a new problem or issue that did not occur in any of the cases you have read. What you need to do is read current legal material related to the cases you are reading so you can see how the cases are being applied in court. If you try to expand your perspective beyond just memorizing the case law, your exam answer will have that extra insight that will make your exam stand out and earn you a better grade. What makes for an “A” exam, adding some flare to your answer that lets the professor know you understand the law and have something new and interesting way to apply it to the problem in the exam question.

Sixth Amendment confrontation clause case regarding statements to a child protection worker may reach the United States Supreme Court

September 10, 2012 | by Michael DelSignore

The case of Ricky Lee Allshouse v. Pennsylvania is on petition for certiorari before the United States Supreme Court raising the issue of whether the defendant was denied his right of confrontation under the Sixth Amendment by the admission into evidence at trial of his statements to a child protection worker.

Allshouse involves a case of child abuse on an infant where the infant’s brother told a child protection case worker about the abuse committed by the infant’s father. At trial, the State of Pennsylvania admitted the statements pursuant to a Pennslyvania statute authorizing the admission of the testimony as long as the judge finds it reliable.

The criminal defense lawyer objected arguing that the Sixth Amendment to the Constitution precludes the admission of these statements. The Pennsylvania Court affirmed holding that the purpose of the child protection worker was investigatory. The Pennsylvania Supreme Court held that the statements were nontestimonial because in response to an ongoing emergency.

Lab Flaws Leave Thousands of Massachusetts Criminal Cases in Jeopardy

September 6, 2012 | by Michael DelSignore

The bottom may have fallen out on thousands of criminal cases relying on drug testing analysis conducted at state labs, after a chemist was found flouting testing protocols. Both she and two of her supervisors have been placed on administrative leave, leaving thousands of convictions and ongoing criminal cases open to the possibility of dismissal.

Massachusetts criminal defense lawyers know that there are many criminal cases in which conviction may be contingent on whether drugs were found in a person’s system, what kinds of drugs and in what levels.

One example are DUI cases alleging prescription or illegal drug use.

Other times, laboratory results are used to determine whether a substance is an illegal narcotic. So if police find a white, powdery substance in a vehicle during a traffic stop, a conviction for a charge of possession of cocaine is going to be based largely on whether chemists proved that the substance was cocaine.

This is true for many aspects of a case. An experienced defense attorney will challenge evidence presented or allegations made by law enforcement officers, experts, alleged victims and other witnesses. One weak link can be enough to force a reduction or dismissal of charges, or at least a favorable plea deal. Failure to challenge the charges against you means the state is relieved of having to prove much of anything.

What happened here was that a single chemist, who has been working at the Massachusetts State Police crime lab since 2003, apparently had mishandled drug evidence and attempted to alter an evidence log. She reportedly failed to record the movement of drugs in and out of the evidence room. When supervisors discovered a problem, the errors were mysteriously fixed the following day.

The chemist resigned in March, and although she hasn’t been charged with anything, the state’s Attorney General’s Office has opened a criminal investigation into the matter. The woman’s husband was quoted by media as saying she is being used as a “scapegoat,” suggesting problems at the lab were far more widespread than the misdeeds of one person.

While officials believe 90 samples of drugs were jeopardized over the course of one day, the implications are that the problems may be systemic.

Police are working to gather a compilation of cases the chemist worked on during her time there. They and prosecutors will then be expected to go back and re-examine whether her work was central to the case. If so, they will need to inform defense attorneys, who can then either file a motion for a new trial or file a motion to vacate a guilty plea.

In addition to jeopardizing the prosecution in these cases, it also is likely to slow the progress of cases that are ongoing, as state officials work to sort through the mess. It also will no doubt allow defense attorneys to raise questions in the future with regard to the accuracy of state lab results.

Defense attorneys in Boston understand that many government crime labs, due to a lack of funding and lowered staffing levels, are working under difficult and high-pressure conditions. However, when a person’s freedom is on the line, we expect a higher standard.

At the end of the day, lab workers have an inherent bias because they are essentially working for law enforcement (in this case, the Massachusetts State Police). That’s why defense attorneys will often request an outside, independent source for testing in cases where that evidence is key. Those who work in the industry say that safeguards simply aren’t in place to ensure that lab bias doesn’t consistently skew in favor of prosecutors.
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Defending Drug Charges in Massachusetts involving anonymous 911 in light of recent court decision

August 24, 2012 | by Michael DelSignore

Drug crimes in Massachusetts can raise 6th Amendment Confrontation Clause issues just as in other types of criminal offense. A recent decision from the 5th Circuit Court of Appeals demonstrates the issues that arise for Massachusetts criminal defense lawyers in interpreting their client’s Sixth Amendment right of confrontation.

The case of United States v. Polidore, from the 5th Circuit involved a series of drug deals on the same street location, a nearby individual made two separate anonymous calls to 911 reporting the apparent drug activity and a description of a PT cruiser which appeared to be involved in the exchanges. Police were soon dispatched to the scene, where they found an unoccupied PT cruiser that fit the description given in the calls. Upon closer inspection, police noticed three unmistakable rocks of crack cocaine that had been placed in the driver’s side compartment. Police then watched the car until the owner returned. This instigated a short chase, which resulted in the eventual arrest of the cruiser owner.

During the trial, portions of the initial 911 calls were used to exemplify the caller’s responses when answering the operator’s questions for further details on the apparent drug activity. As it were the calls that lead to the defendant’s arrest, the defendant asked for this evidence to be inadmissible. The defendant claimed that his Confrontation Clause rights were being violated, as the anonymous caller was not present to testify at trial as a witness. However, the court found that the 911 calls were in fact, non-testimonial in nature and therefore did not violate the Confrontation Clause rights under Crawford v. Washington. The 911 operators did not possess any ulterior motives in their interrogation, they were simply performing their expected duties in answering an emergency call. The court claimed that:

Massachusetts DUI Watch: Route 24 Enforcement One Hot Spot this Labor Day Weekend

August 23, 2012 | by Michael DelSignore

At least six more OUI arrests in Massachusetts have occurred along Route 24 since authorities announced increased enforcement in the wake of a string of serious and fatal traffic accidents. Motorists can expect DUI roadblocks and other drunk driving enforcement measures through the upcoming Labor Day weekend.

The Boston Herald reported the arrests over the weekend raise to 33 the number of drunk driving arrests in Southern Massachusetts since the increased enforcement began a month ago.

As we reported recently on our Massachusetts DUI Attorney Blog, authorities increased enforcement after more than 630 crashes claimed 11 lives and injured countless others last year. That averages out to more than two crashes a day.

The Express-Times reports rising gas prices are not expected to impact Labor Day travel. AAA reports prices are up about 40 cents since July 1, though that’s still 22 cents a gallon lower than the peak price in April. Gas is expected to average $3.75 a gallon nationwide and more than 85 percent of travelers are expected to drive to their destination. The Boston Globe reports some 33 million travelers will hit the nation’s roads.

Labor Day is the last of the trio of summer holidays (Memorial Day and Fourth of July), that see the most travel, the most arrests for drunk driving, and the highest number of serious and fatal traffic accidents.

When law enforcement targets an area for drunk driving enforcement, or conducts increased enforcement periods around travel holidays, a number of consequences may result.

-Officers on the lookout for drunk drivers, typically find them. No surprise there. But the predisposition to making a stop or initiating a DUI arrest may give rise to an arrest even though the evidence would be insufficient to prove the case beyond a reasonable doubt if brought to trial. Increased enforcement means that police officer may arrest individuals who drank responsibly but simply could not perform balance and coordination test requested by the officer.

-Authorities may not conduct sobriety checkpoints or law enforcement roadblocks in accordance with the law. In fact, arrests in the wake of such stops typically provide more avenues of challenge for an experienced Brockton OUI attorney.

-Auxiliary, volunteer or part-time personnel may be put on active road duty. These officers may lack proper training and recency of experience, which can give rise to a host of legal challenges.

-Motorists may be unfairly targeted leaving concerts, venues or events.

Most motorists understand drunk driving is no longer a minor offense. However, those charged are also likely to have little experience with the criminal justice system. As such, they may fail to understand the seriousness of their situation. Job loss, jail time and lengthy driver’s license suspensions are all common results of a drunk driving conviction. And, financially, the cost of a drunk driving conviction nationwide can approach $20,000, counting skyrocketing insurance premiums, court costs, fines, supervision fees and other expenditures.

For repeat offenders, or for those involved in an accident, the consequences can be even more serious.

-OUI Serious Bodily Injury is punishable by up to 2.5 years behind bars and a mandatory two-year suspension of your driving rights.

-OUI Motor Vehicle Homicide is punishable by up to 15 years behind bars and a 15-year loss of your driver’s license.

Of course, your best option is to designate a driver, take public transportation, or find a sober ride home this weekend. But if you do end up under arrest, exercise your right to remain silent and contact an experienced defense lawyer in Massachusetts as soon as possible.
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