Massachusetts Criminal Defense Lawyer Blog

Repeat Offender Requires Attleboro Reckless Driving Defense

April 22, 2012 | by Michael DelSignore

A police chase prompted authorities to take drastic action in side-stepping normal procedure for license revocation for a motorcyclist eight-times convicted of driving to endanger in Attleboro.

Attleboro criminal defense attorneys know that it’s rare for police to make a direct request to the Massachusetts Registry of Motor Vehicles, requesting an immediate revocation. In this case, however, police have labeled the 33-year-old motorist a menace.

Prosecutors say his long record of traffic violations include eight prior convictions for driving to endanger.

Boston Sex Crimes: False Allegations Against Coach Bernie Fine

April 19, 2012 | by Michael DelSignore

There is no doubt that the accusations of Boston sex crimes can ruin a person’s life.

Massachusetts defense attorneys know that the potential is there to completely tarnish a person’s reputation, future employment prospects, living arrangements and personal relationships.

Of course, we also know that a great deal of the allegations aren’t true, or are some exaggeration of the truth. We may see a lot of this in cases where multiple plaintiffs come forward in the wake of a high-profile case.

This is what’s happened in the case of Bernie Fine, an ex-assistant coach at Syracuse University. Once having four allegations of sexual misconduct lodged against him, each and every single one has failed to stand up to the credibility test – including the most recent allegation, in which the accuser flat-out admitted he lied.

Fine was fired in November, in the wake of the allegations.

It seems one can hardly turn around without word of some new sex abuse allegation being lobbed at educators and coaches around the country. The case against former Penn State Coach Jerry Sandusky is one. Then there are the host of allegations that continue to be filed against coaches and teachers in California.

Some of the reasons have to do with the very nature of the job in working closely with children on a one-on-one basis. It leaves employees in these positions susceptible to false allegations – particularly those made years after the fact – because you’re left with a he-said-she-said scenario. Plus, children and youth may not understand the full scope of consequences of their false accusations. And accusers may believe there will be some form of eventual pay-out if the coach or teacher is high-profile — and they figure the odds are better if there is more than one accuser.

A skilled defense attorney who is aggressive in getting to the bottom of these accusations may be able to confront the accuser with a greater weight of evidence favorable to the defendant. Sometimes, this results in a full recanting of the original allegation.

This is what happened in the Bernie Fine case.

A 23-year-old man from Lewiston, Maine is currently preparing to serve more than three years in a Massachusetts prison on allegations that he sexually abused a teenaged boy. The defendant in that case is one of the four who accused Fine of sexual assault.

The defendant said that when he was 13-years-old, Fine fondled him in a Pittsburgh hotel room, and that he and the assistant coach had watched pornography together. He filed a civil lawsuit in December, but his attorney withdrew it several weeks later.

He now says that not only were the allegations untrue, but he had never actually met Fine, and that he “takes pride in lying.”

Then there was the accusation that came from another prison inmate who made allegations against Fine. Those reports were never published because media outlets deemed them not credible from the start.

Two other accusers, former ball boys for the Syracuse team, said they too were molested by Fine for a number of years. However, the statute of limitations on those allegations has expired.
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South Shore Drug OUI Difficult to Prove Without Drug Recognition Expert

April 12, 2012 | by Michael DelSignore

Those requiring South Shore OUI defense should be aware of recent news reported by Massachusetts state statute Chapter 90, section 24 to drive while intoxicated on any substance, proving a drug OUI, as opposed to an alcohol OUI, can be more difficult.

That’s because while measuring the alcohol in your blood involves taking a breathalyzer test, most drugs aren’t going to show up that way. Certain signs of drug impairment – like pupil size or heart rate – aren’t as easy for law enforcement to spot. What’s more, just because you have drugs in your possession doesn’t automatically prove that you took them.

In other words, you don’t need to necessarily be an expert to recognize when someone is drunk. However proving that someone is under the influence of drugs is tougher.

According to the law, in order to secure a conviction on a South Shore OUI charge, prosecutors need to show that you took drugs you were not legally authorized to take, that those drugs caused you to be impaired, that you were driving a motor vehicle and that you were on a public street. This may sound straightforward, but unless the agency has an expert to testify, proving you were impaired is not as simple as it seems.

So what many law enforcement offices do is hire or train Drug Recognition Experts (DRE’s). These are law enforcement officers who have gone through fairly intensive training to recognize whether an individual is under the influence of drugs. The testimony of these individuals can be quite compelling in court. That doesn’t mean you can’t beat the charge with the help of a skilled South Shore defense attorney, but it does make the job more challenging.

These so-called “experts” offer nothing more than their opinion about a driver’s state of intoxication — much like Massachusetts field sobriety test results, that opinion can be challenged.

The problem for many South Shore law enforcement agencies is that having a DRE is expensive.

In 1995, the state started a Drug Evaluation Classification program, which purported to give police the ability to identify the specific effects of drug intoxication. Right now, there are about 75 DRE’s in Massachusetts. Police don’t feel that’s enough.

The training takes a great deal of time. A certified DRE will have completed 80 hours of instruction in the classroom, and then conduct drug impairment examinations on at least 12 drugged individuals. Then, they must pass a five-hour written examination. Because the state hasn’t funded the courses for two years now, the cost must be absorbed by the agency, which, in addition to paying for the actual training, must cope with being short of that officer during the training period.

So while most departments think it would be ideal to have one or two employed on the force, it’s often just not feasible. Sometimes, agencies have resorted to reaching out to a DRE on a neighboring force. But there are issues with this because the effects of certain drugs don’t last long. By the time the DRE arrives, the effects may no longer be evident.
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Foxboro Larceny charge, Fraud Alleged Of Local Pastor

April 6, 2012 | by Michael DelSignore

A pastor has been charged with larceny in Foxboro after authorities say he tried to run a scam on four elderly individuals aimed at conning them out of their Social Security checks.

Foxboro criminal defense attorneys understand that larceny in Massachusetts is a serious crime, particularly for someone whose job requires the public trust. An accusation alone can do great damage to your reputation, and can impact your employment future. A conviction can be worse, and under The Sun Chronicle:

Investigators say that the pastor, who heads an Adventist church, chose the alleged victims at random. Reportedly, all four of the individuals are in their 70s and 80s. They are from New Mexico, Michigan and Arkansas. They reportedly offered up their personal information to the pastor after he told them they were lottery winners.

The pastor is accused of then contacting the Social Security Administration to have the individual’s checks sent to a local Massachusetts bank account that he controlled. Bank officials contacted police after becoming concerned that four separate Social Security checks were being funneled into the same account. Police were contacted by bank administrators after the pastor showed up to ask about the deposits, as he intended to make a withdrawal.

The investigation is ongoing, and officials are trying to determine whether there are additional victims in other states. The pastor’s Foxboro defense attorney has indicated that the pastor was recently a victim of a scam, and had sent more than $3,000 to an individual in Florida.

It appears the pastor may have had additional financial difficulty, as he was given loans that topped $60,000 at six separate financial institutions two years ago. He has since filed for bankruptcy.

The pastor further told investigators that he forwarded all the money to an account in Great Britain to help with an estate there that he reportedly inherited.
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Discussion on the arrest and Police Report of Rhode Island State Senator Ruggerio

March 31, 2012 | by Michael DelSignore

As a Massachusetts DUI lawyer, a frequent question surrounds the significance of statements contained in the police report. The arrest of Senator Ruggerio in Rhode Island resulted in his police report being published in the Providence Journal and provides a good opportunity to explain how I review DUI police reports.

According to the report, the officer is alerted to the car by a 911 call. If the police have the information for this witness and the witness testifies at trial, it makes for a more difficult case for the defense as the witness would probably be credited by a jury as being a neutral witness.

The officer attempted to stop Ruggerio immediately; in many Massachusetts OUI arrests, the driver will pull over immediately and there will be nothing in the report about how the car was stopped. When a police report does not mention how a driver pulled over, it is a strong point for the defense because it shows normal response in an emergency situation. One thing I look for in addition to what the officer alleges is the driving infraction that caused the stop, but how the driver responded to the emergency lights.

Massachusetts criminal attorney raises Double Jeopardy to contest mistrial in recent Supreme Judicial Court decision

March 23, 2012 | by Michael DelSignore

As a Massachusetts criminal attorney, one of the most common questions asked is what does double jeopardy mean under the Constitution. When people first hear the phrase “double jeopardy,” the first thing that comes to mind is the movie featuring Tommy Lee Jones and Ashley Judd. In true Hollywood fashion, the highly entertaining movie substitutes criminal and constitutional law with thrilling scenes where Ashley Judd searches for the truth about her supposedly dead husband. Still, Hollywood falls short in explaining Double Jeopardy in its true legal form.

Double jeopardy is an important concept for any client to understand – particularly when your case mirrors the facts in Cruz vs. Commonwealth, decided on March 15, 2012. Cruz was indicted for trafficking cocaine in June 2007. In October of that same year, his defense counsel filed a request for discovery. Nearly three years later, on the second day of trial, his’ Massachusetts criminal attorney discovered that the Commonwealth had failed to supply the defense attorney with at least 500 pages of information obtained during the police investigation – essentially, violating the discovery order.

In such a situation, a judge can either grant a Continuance (allowing the defense attorney to review the documents), grant a Motion to Dismiss, or declare a Mistrial. Given the extensive nature of the documents withheld, a continuance did not appear to be feasible. The defendant’s criminal attorney moved for a dismissal of the case. He also objected to a mistrial because a mistrial would only prolong the already financial and emotional burden on the defendant.

The lawyer representing Cruz argued that because this case had already spent three years in discovery and motion practice, the discovery order violation was extreme. In addition, the documents were highly relevant and could have assisted the defendant’s case. Although the judge found that the Commonwealth violated the discovery order, the violation was not intentional and therefore a mistrial was declared.

The double jeopardy clause comes from the Fifth Amendment of the Constitution and is also found in Article 12 of the Massachusetts Declaration of Rights. It states that no person may be twice placed in jeopardy for the same criminal offense. In
Massachusetts, once a defendant is placed in jeopardy, a judge can declare a mistrial if it is manifestly necessary. The Commonwealth has the burden to prove that manifest necessity exists. For a judge to declare a mistrial over the defendant’s objection, the judge must consider the defendant’s right to a trial. In addition, the court must give the objecting defense attorney the opportunity to be heard and the judge must consider any alternatives to a mistrial.

The high profile perjury prosecution of Roger Clemens raised the issue of Double jeopardy recently. The trial of Roger Clemens raised the issue of double jeopardy where a mistrial was caused by conducted of the prosecutor in violating a pretrial ruling of the judge. The judge has ruled that a second trial would not violate the Double Jeopardy Clause and the retrial is scheduled to resume; should Clemens be convicted, the Double Jeopardy issue would be raised on appeal.
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Massachusetts license suspension for breath test refusal: Steps to appeal the license suspension

March 15, 2012 | by Michael DelSignore

When your license is suspended for refusing a breath test in Massachusetts, there is a method to appeal that suspension. This blog addresses the issue of how you appeal a breath test refusal suspension. This blog addresses the arguments I have used in court to argue that the court should vacate a refusal suspension. At DelSignore Law, we have had numerous refusal suspensions vacated by the court.

As a Massachusetts OUI attorney, I typically am asked what arguments can be made to challenge a breathalyzer refusal suspension. In my prior post, I outlined the procedure for filing an appeal of a breathalyzer refusal suspension. In this post, I will discuss the arguments I have made before the RMV and in the District Court to attempt to vacate the suspension.

First, I look at the documents to make sure that the officer complied with Massachusetts general laws, Chapter 90 Section 24 in issuing the suspension. To comply with Massachusetts DUI law, the refusal must be witnessed by one other officer in addition to the officer requested the breathalyzer test. Some police officers are not aware of this requirement and I have seen reports of refusal omit this element.

The second issue is whether or not a motorist actually refused a breathalyzer test. In cases where a motorist attempted to submit to a breathalyzer test, but could not register an adequate sample, this raises the issue of whether the motorist constructively refused a breathalyzer test or could not deliver an adequate sample, due to medical conditions or to the condition of the breathalyzer machine.

A third argument, and one I use it every case, is that the report of refusal does not comply with Massachusetts DUI law as it is not signed under the pains and penalties of perjury.

Chapter 90 section 24 provides that a police officer shall “prepare a report of such refusal. Each report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by the police officer before whom such refusal was made.”

In every case that I have seen, the report of refusal has no signature of the officer and next to prepared under the pains and penalties of perjury, there is an indication of “Y” to indicate yes. On some forms, the officer will write yes. The reports of refusal also has a disclaimer that the registry reserves the right to correct any error or omission in the report of refusal. I have argued before the court that this report does not constitute a report prepared under the pains and penalties of perjury. An officer could not be prosecuted for perjury based on this preprinted form that has no indication that the officer reviewed it or check it for its accuracy.
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Massachusetts Drug OUI Cases On the Rise Due to Prescription Drug Abuse

February 26, 2012 | by Michael DelSignore

Police in New York are reporting that drug DUI cases are on the rise, which likely means that Massachusetts drug OUI cases are on the rise as well due to prescription drug abuse and an increased emphasis on enforcement.

The problem with this charge is that police are far behind in getting proper training to determine when someone is under the influence of drugs. Every law enforcement officer gets months of training to figure out when someone has been drinking and driving, but drugs are a different story. Drugs also stay in a person’s system longer than alcohol, making such training suspect at best.

Consulting with an experienced Massachusetts OUI attorney is critical in cases like this because law enforcement officers sometimes get cases like these wrong. In cases where a person has used prescription drugs and driven, officers often lack the ability to properly make the determination of whether they have broken state law.

Very few officers are trained in as drug recognition experts. In fact, the group in Florida that trains officers reports that there are just over 5,000 officers certified as drug recognition experts in the world. That means that less than 1/10 of 1 percent of all officers worldwide hold this distinction.

The odds of small towns throughout Massachusetts having these experts are low. And an experienced Massachusetts Drug OUI lawyer places as much faith in these “experts” as they do in common OUI testing like field sobriety tests and breathalyzers. Much of what is used to determine OUI in Massachusetts is flawed and that can be pointed out in defense of the client.

According to the story out of New York, there were 352 arrests in 2008 in a three-county area north of New York City. The number dropped to 326 in 2010. Numbers overall are on the rise compared to 2001, when there were 145 drivers charged with the crime.

The interesting thing about the statistics is that this is such a low number of cases. The population in the three-county area is nearly 1.4 million and yet only 300 people a year face these charges. This is either because few people in this area use prescription drugs, which is unlikely, or police just don’t know how to recognize and deal with the issue.

Officers quoted in the story say they are getting more and more training to recognize drug OUI cases, but they still aren’t at the point where they can properly spot it. One officer admits that while there are breath testing devices that can provide estimates of blood alcohol levels in drivers, there is no such device for drug OUI cases.

This means that a driver who is charged with drug OUI in Massachusetts is arrested solely based on an officer’s observations. If the person has balance problems and fails a field sobriety test, the officer could blame it on drugs, but that could be a defense. What happens if there are no drugs found in the vehicle and the driver doesn’t admit to taking any drugs? How can an officer legitimately file a charge without any evidence that a drug was consumed?

These are issues that must be addressed by an experienced Massachusetts OUI lawyer. A driver cannot leave this up to chance because there are many options and defenses that a suspect can put together.
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Marlborough Man Charged with 7th Massachusetts OUI is Held Without Bail After Dangerousness Hearing

February 16, 2012 | by Michael DelSignore

A Marlborough man facing, a repeat offense OUI charge in Massachusetts, a 7th offense, was found to be a danger to the public and was ordered to be held without bail until his trial. John Sawicki, 49, has a long record, according to the news account and was arrested last Tuesday after the stolen car he was driving was spotted by an officer. Sawicki was found in the driver’s seat with the keys in the ignition. The officer allegedly smelled alcohol, vomit, and urine in the vehicle. Sawicki appeared to be impaired and kept nodding off during questioning. His arrest came after state and local police officials received multiple reports that the stolen car was erratically weaving on Interstate 290 East. The Metrowest Daily News reported that Sawicki’s vehicle had several cold beer cans and assorted car parts. The vehicle was reported stolen by the DMV.

Police report that Sawicki swore at him and refused to take a sobriety test . The judge found Sawicki dangerous and ordered him held without bail. He is currently being charged with OUI (fifth offense or greater), receiving a stolen vehicle, possession of an open container of alcohol, and driving with a suspended Massachusetts license revoked for OUI .

A person in Massachusetts charged with a 4th OUI offense or greater may be required to attend a dangerousness hearing. This hearing is held to evaluate the defendant’s danger to the community at large. During the dangerousness hearing in Massachusetts , the judge will consider several factors. For instance, the judge will look at the nature of the crime, along with other factors to determine if the person should be detained or the conditions upon release. This hearing is typically held at the defendant’s first court experience, therefore it is crucial to hire an experienced Marlborough OUI attorney during this time. The attorney may request a continuance for a maximum of seven days to prepare a preliminary defense.

Dangerousness hearings differ from criminal hearings in that all the evidence is admissible when determining if the defendant is a danger to the community. The judge may also reopen the dangerousness hearing if new evidence comes to light that supports that the defendant poses a risk to society. The decision to hold a defendant will be made only after the hearing determines by clear and convincing evidence that the safety of the community will be at risk regardless of the conditions of release for the accused. The period of time that the court is allowed to detain a person in this situation, can not exceed 90 days.

A judge will look at a number of factors to determine whether or not bail should be granted when facing a multiple OUI charges in Massachusetts :
*The nature and seriousness of the danger that would be imposed upon the
community if the defendant were released
*The circumstances and the nature of the offenses charged *The potential sentence of the crime *History of mental illness and employment record *Conviction record and prior charges/bail violations *Reputation of the defendant and any family ties *Controlled substance dependence

Sawicki’s is being held without bail until his March 9th pre-trial hearing.
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Attleboro Police May Use Drug Testing to Snuff Out Bad Cops

January 20, 2012 | by Michael DelSignore

Attleboro’s police chief is pushing for drug testing of his officers after news broke that drugs went missing from the department’s evidence room, the Boston Herald reports, and he is asking for help on Beacon Hill.

No Attleboro drug arrests have been made yet, but the chief has been investigating, despite a “code of silence,” from within the department. The chief thinks drug testing could have prevented cocaine and other narcotics from being stolen and also will ensure it doesn’t happen again.

Our Attleboro criminal defense lawyers understand law enforcement officers are sometimes far from perfect. In this case, at least one officer is guilty of an Attleboro theft crime, and one involving drugs, no less.

It calls into question the ethics of the officers working in that department. The fact that some officers are potentially criminals and are being paid to investigate crimes is a big concern. Another issue concerns the credibility of the rest of the evidence in that locker room. How can defendants be sure that evidence intended to try to put them in jail or prison hasn’t been tampered with by officers?

The flip side of that coin is that, once accused, officers are even less likely to get the benefit of the doubt and an aggressive defense will be required. A conviction of any charge will almost certainly result in job loss and could end their career.

Drug testing for officers must be implemented through collective bargaining with unions. So the police chief is calling on lawmakers to create bills that would mandate random drug testing for public safety officials.

Attleboro and its police union are currently negotiating how to implement random drug testing. The police chief says officers are asking for pay raises if they are to submit to random drug testing, which is difficult to do.

Experts believe that unsolved police drug theft cases can ruin public trust in a police department, which can prove difficult for officers to overcome. In 2003, $80,000 worth of marijuana was stolen from a police storage facility in Dracut. Two officers were accused of being “intentionally deceptive” and were suspended last year. In 2006, Boston police found that in hundreds of cases drug evidence was stolen. Yet no one was arrested.

Some suggest that drug testing isn’t the issue, but rather theft in Attleboro at the police department should be the focus. While video surveillance and a better electronic coding system are positive steps in the right direction, the story shows that police can be just as culpable as the defendants they arrest.

If the drugs that were stolen were used, they are out of the users system by now. Drug testing won’t show who stole those drugs. The bottom line is that officers are stealing from their own department and evidence is being compromised. The Herald article also doesn’t state which evidence was stolen.

It will be interesting to see from what cases the drugs were stolen and what is happening to those cases.
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