Massachusetts Criminal Defense Lawyer Blog

Massachusetts DUI Roadblocks Common Throughout Holiday Season

November 27, 2012 | by Michael DelSignore

Roadblocks were a regular sight throughout Massachusetts over the holiday weekend – and they will continue to be through the end of the year.

Massachusetts State Police reported that over the Thanksgiving weekend –Friday and Saturday evenings in particular — the agency mounted an aggressive series of saturation patrols and checkpoints throughout the Commonwealth.

Canton OUI lawyers understand there were 21 OUI arrests issued at that one location alone, and another 350 citations were issued by roving patrols on routes 195 and 24.

The officers who were patrolling in that area reportedly arrested an additional 13 drivers for DUI, as well as eight other arrests made for offenses not related to impaired driving.

Some of those offenses included operating vehicles at speeds in excess of 90 miles per hour. There were even a handful who were allegedly traveling faster than 100 miles per hour. One was traveling 125 miles per hour, according to troopers.

One allegedly intoxicated driver was hurt in a head-on collision Friday evening. We don’t know if anyone else was hurt, but he was allegedly driving in the wrong direction.

Troopers were quoted by local media in Canton and in Boston as saying they plan to be out again this coming weekend with another planned sobriety checkpoint, and we can likely expect several more through the end of the year.

What’s important for motorists to understand is that an arrest is not a conviction. And even if you had consumed alcohol or some other substance before you got behind the wheel, the case is not a slam dunk for prosecutors. Here’s why:

During a Massachusetts roadblock, officers don’t have the benefit of observing your driving. They can’t say you were being erratic or reckless – because you have been funneled into a line along with all the other motorists. There is no probable cause for your stop.

As a result of this, these checkpoints tend to rely heavily on field sobriety test results, which are notoriously unscientific and inaccurate. Cases involving drug use are also more difficult to prove. That’s because drugs can’t be measured in a standard, alcohol breathalyzer test, and substances tend to have varied effects on people.

And finally, roadblocks must adhere to very strict rules, or risk running afoul of the Fourth Amendment, which protects against unreasonable search and seizure. When agencies fail to follow these guidelines to the letter, resultant arrests may not stand up in court. For example, officers have to determine ahead of time what strategy they will use to stop cars. They can’t simply do it at random. If they do end up pulling over cars at random, your attorney can argue that it’s a form of unreasonable search and seizure.

Given all of this, simply pleading guilty – without the advice of an experienced attorney – shouldn’t even be an option. Many drunk driving arrests result in not guilty verdicts, and this is never truer than when dealing with charges stemming from a law enforcement roadblock or sobriety checkpoint in Massachusetts.
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Bailey decision from the Second Circuit being challenged in the United States Supreme Court raising the issue: when can police detain an individual prior to executing a search warrant

November 27, 2012 | by Michael DelSignore

As a Massachusetts criminal lawyer, search and seizure issues frequently arise in defending drug crimes. One issue is when can the police detain individual when executing a search warrant. The case of Bailey v. United States raises this issue and the defense lawyers are seeking review in the United States Supreme Court. You can read the filings of the Bailey case on the Scotus Blog.

In 1981 the United States Supreme Court decided the case of Michigan v. Summers, 452 U.S. 692 (1981) and held that individuals in a house that is being lawfully searched may be detained, without arrest, for the duration of the search.

The Bailey case involved the following facts. Prior to the execution of a search warrant, police waited outside the premises and observed two men leaving the home, both of which fit the description they had of a suspect. The officers followed the men as they drove off. Upon stopping the men five minutes later, the men were brought back so that they were present during the search. At the motion hearing, the defense lawyer sought to suppress all evidence found on the defendant as well as statements he made as the fruit of the unlawful detention in violation of the Fourth Amendment.

The Second Circuit Court of Appeals found that the search was proper under Summers and interpreted the case as not imposing a bright line rule as to whether the defendant leaves the premise, but allows for a detention if it is made as soon as practical. The Second Circuit relied on decisions from the Fifth, Sixth and Seventh Circuits which reached similar holdings. The Second Circuit also stated that the intrusion is permissible as a de minimis intrusion. The Second Circuit acknowledged contrary rulings from other circuits but found those decisions misinterpreted the holding of Michigan v. Summers.

In Michigan v. Summers, it was determined that individuals in a location that is being lawfully searched may be detained, without arrest, for the duration of the search. (452 U. S. 692) The detainment in Summers was allowed based on three reasons:

To prevent individuals from fleeing once paraphernalia is seized;
to provide safety for the officers
and to aid in the search, an individual may be detained.

The Bailey case does not involve any of these three situations. The individuals were off of the premises, therefore could not be a threat to the officers; they did not know the location was being searched and therefore, would not have fled upon the discovery of contraband.

As a Massachusetts criminal defense lawyer, the Second Circuit improperly expanded the scope of the Summers decision and should be reversed by the United States Supreme Court. I would expect the Court to grant certiorari given the split of authority among the Circuit Courts of Appeal.

The Court’s statement that the detention is a de minimis intrusion is inconsistent with the Fourth Amendment that protects an individuals liberty interest from being infringed without reasonable suspicion or probable cause by a police officer. To transport an individual back to the location of the search has only one purported purpose to obtain incriminating statements during the search, as which occurred in the Bailey case.
Since the justification for the seizure present in Summers was not present in Bailey, I would expect the Court to reject the Second Circuit’s expansion of Summers which allows for a seizure if done as soon as practical.
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Brawl Outside Mount Ida College Talent Show Results in Criminal Charges

November 21, 2012 | by Michael DelSignore

A display of talent erupted in a display of violence at Mount Ida College recently, as more than 100 people were involved in a brawl following a talent show being held in Carlson Hall.

Our Massachusetts criminal defense lawyers understand one man was arrested for assault on a police officer, while several others were issued citations for disorderly conduct.

We don’t know what sparked the disturbance, but we do know that police officers from five agencies were called to respond, due to the large number of people involved. At least one K-9 unit was called to help break up the crowd, following the event held by the school’s Office of Diversity and Inclusion.

Police reported pepper spray was used on at least one person.

In cases like these, it can be difficult for prosecutors to prove beyond a reasonable doubt that the person arrested is the person who actually committed the crime.

Barring video surveillance evidence, what you have is a scene of mass chaos. You have a situation where officers are focused on calming an unruly crowd. In the midst of that, it can be tough for any person to definitively say one person committed the crime over the 99 others present.

This is something defense attorneys could use to a client’s benefit, particularly if the individual facing charges has never been in any trouble before. Officers frequently make arrests to bring an end to the disturbance — with little regard for the challenges of proving the case in court.

According to school officials, it’s not clear whether those who were cited or arrested were students. A separate investigation has been launched by the school to make that determination and determine whether suspension or further disciplinary action is warranted.

Assault charges can result in serious consequences even when they don’t involve a police officer. However, the punishment is amplified, according to Massachusetts General Law Part IV, Title I, Chapter 265, Section 13D, if the alleged crime involves “a public employee when such person is engaged in the performance of his or her duties.” While the crime carries a maximum of 2.5 years in prison regardless, an assault or battery against a public employee is supposed to garner a minimum of 90 days (or three months) behind bars.

This is not only a major disruption to your life, it’s a permanent scar on your criminal record.

That’s why it’s so critical to not automatically just plead guilty. A good attorney can often work to have such charges dismissed before the case gets anywhere near the trial stage.

With a disorderly conduct citation, the defendant is not actually “arrested,” but it is given a notice to appear in court. People think that because these are misdemeanor charges that it isn’t necessary to hire a lawyer, and they simply pay the fine. Prosecutors count on this, because otherwise, he or she has to prove that you:

Recklessly or purposely created a risk of public harm or annoyance, AND
You engaged in fighting or threatening, violent behavior or created a hazard or physically offensive condition with no legitimate purpose.

Particularly in cases like this, where you have literally dozens of people involved in a chaotic disturbance, it will be tough for prosecutors to prove that one person caused more of a problem than the next.

At the very least, these individuals – and anyone facing similar allegations – should consult with an attorney to review their options.
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K-9 Dogs, Drug Searches in Massachusetts, Await Supreme Court Ruling

November 12, 2012 | by Michael DelSignore

Law enforcement have been using trained canines for decades in drug cases throughout the country.

Our Boston criminal defense lawyers understand the wide latitude granted these search dogs and their handlers may finally be curbed by the nation’s high court.

The U.S. Supreme Court will look at two cases decided in favor of the defendants by the Florida Supreme Court. Previous rulings found the pooches breached privacy rights and were unreliable.

Oral arguments were concluded last week, and a decision is expected sometime in June.

The issue arose amid rulings in two cases, coincidentally out of Florida, in which drug dogs were used – once in a home search, and once in a vehicle search.

In one case, the dog was used during a traffic stop in Liberty County. The officer pulled over the driver, and the dog was brought to the vehicle to sniff the exterior. This is a common practice that was upheld in a 6-2 decision by the U.S. Supreme Court in 2005. Justices ruled that in the course of a lawful traffic stop, a drug dog sniff does nothing more than indicate to the officers were the unlawful substance is located, and therefore does not breach the individual’s Fourth Amendment rights.

In this case, the dog alerted for drugs when the vehicle was sniffed. Drugs were found and the driver was arrested and released on bail. This happens all the time, and would not have made headlines, except for what happened next. Two months later, the driver was again pulled over. The same officer stopped him. The same dog was with him. The dog alerted in the same manner. However, this time, a search of the vehicle revealed no drugs.

It was on this basis that the court tossed evidence collected in the first search. Although the initial stop may have been lawful, the court ruled, the dog’s sniff clearly could not constitute probable cause to search when the dog had been deemed unreliable.

Attorneys for the state argued that extensive testimony regarding a dog’s training should not become part of every criminal trial. Attorneys for the defense countered that because dogs are animals, they are prone to mistakenly alert for almost anything – a tennis ball or other animals, for example.

Alongside this issue is one of privacy, specifically home privacy. In the second case, an officer acting on a tip approached the home of a suspected marijuana grow house operator. His canine was in tow. The canine positively alerted for marijuana, and on that basis, the officer obtained a search warrant. Officers did indeed find marijuana inside the home. However, a judge suppressed all evidence relating to that search, as he concluded officers had trampled on the defendant’s Fourth Amendment rights by approaching his door with a trained dog.

The risk here is if the Supreme Court justices decide in favor of the prosecutors in this case, there would be nothing to stop officers from going up and down streets with canines and approaching homes at random, on a fishing expedition for drugs. Police agencies say they haven’t the time for that, but barring laws that would specifically ban them, we can’t rule it out as a possibility.

In one indication that the defense may receive a favorable ruling, Justice Sonya Sotomayor cited an Australian study, which indicated that drug-sniffing dogs had an accuracy rate of only about 12 percent.

Massachusetts criminal cases involving drug dogs should always be handled by a defense attorney experienced in challenging search warrants and probable cause.
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Police Sergeant Arrested on Massachusetts Assault and Battery Charges

November 7, 2012 | by Michael DelSignore

A police sergeant for the Manchester-by-the-Sea Police Department was arrested recently for domestic violence and weapon charges, after an altercation with a female.

Massachusetts criminal defense attorneys understand that when officers in Beverly responded to a domestic violence and shots fired call, they reportedly discovered a cache of weapons, including 11 rifles, 16 handguns, eight shotguns, four samurai swords and a large stash of ammunition.

As a police officer, he would have almost certainly had a state license to carry a firearm. However, the gun charges (aside from the discharge of a firearm within 500 feet of a dwelling and assault with a dangerous weapon) are specifically related to his storage of those weapons.

Massachusetts General Law, Part 1, Title XX, Chapter 140, Section 131L, it’s against the law to keep or store any firearm, shotgun, rifle or machine gun in any place unless it’s secured in a locked container or equipped with some form of tamper-resistant mechanical lock or safety device. It has to be locked in such a way that the weapon will be inoperable except by the owner or other authorized user.

The law doesn’t apply if you are physically carrying it, in which case it’s not deemed “stored” or “kept.” It also doesn’t apply to any weapon with a matchlock, flintlock, percussion cap or some similar type of ignition system made in or prior to 1899 or any replica of such a gun.

Penalties for violating this statute vary, depending on the type of weapon. For guns that aren’t considered large-capacity weapons, you face a year in jail and a $500 fine. For large capacity weapon, the maximum fine is increased to $10,000 and you face imprisonment of up to 10 years.

This officer is facing three such charges.

According to The Salem News, officers responding to a domestic disturbance call found the sergeant for a nearby department on the sidewalk, shouting to a woman who was inside a home. Officers indicated that upon investigation, they learned that the pair had been fighting. At one point, the sergeant left the room and returned with a handgun. The alleged victim would later say that the sergeant first pointed the gun at her, and then to the dog, which he threatened to kill.

The woman made her way out of the room, out the front door and walked to the neighbor’s home. As she was walking, she said she heard a gunshot behind her. The sergeant later explained to the responding officers that the gun had accidentally discharged when he was attempting to put it away.

He was nonetheless arrested, and in addition to the weapons charges, he is facing charges of assault and battery and witness intimidation.

It’s likely that the officer will also be placed on leave from work, pending the outcome of the criminal investigation, as well as the likely internal investigation. In both cases, he will require legal services from an experienced criminal defense attorney with proven results.
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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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