Massachusetts Criminal Defense Lawyer Blog

Police Chief Questioned For $30k in OT For OUI Operations

October 24, 2011 | by Michael DelSignore

The Record in New Jersey is reporting that a police chief has come under fire for earning $30,000 in overtime in two years for DUI enforcement operations.

As the Massachusetts DUI Attorney Blog recently reported, OUI roadblocks have little value in actually catching drunk drivers. In fact, police view the purpose as a way to keep drunken driving in the minds of drivers. Yet, they cost tens of thousands of dollars — provided by state and federal grants typically — to operate.

And a big chunk of that money goes to pay police officers overtime so they can stand around and watch passing cars. Police officers are just like any other worker when they are working a job. They want it to go by quickly and they want to get paid.

When officers set up operations to target OUI in Taunton or elsewhere in Massachusetts, they are looking for common traffic violations, such as speeding, swerving, improper lane change, stopping and starting or other ways to initiate a traffic stop. During a checkpoint, no such probable cause is necessary.

When a driver is stopped by officers, they should remain calm and answer the questions politely. If you believe you are being investigated for OUI, don’t make any statements and tell them you wish to speak with a Taunton OUI lawyer immediately. Everyone has a right to not say anything if they are suspected of a crime.

According to the news article, the police chief in Elmwood Park New Jersey earned about $30,000 in overtime that payroll records show was paid out for drunken-driving operations.

Between Jan. 1, 2010 and Oct. 6, the chief got $29,436 on top of his $205,000 annual salary. Officials are investigating whether the chief was entitled to get that pay and if other department heads also got overtime pay.

The newspaper reports that the chief’s contract has no provision for overtime pay, while other police officers’ contracts clearly outline when they should be paid overtime and at what rate.

The chief told city council recently that he supervised OUI posts, making sure roadblocks were in the proper place and that procedures were followed. These roadblocks are typically covered by state or federal grants. Yet, police chiefs and other officials typically are salaried and can’t earn overtime pay.

While city officials are investigating, it seems on the surface like a bad deal for taxpayers. A chief of a town of 19,000 with a small force of only 37 gets $200,000 per year. And on top of that, he’s bringing in thousands in overtime?

And his excuse is that he had to supervise OUI roadblocks, which have little value anyway?

OUI roadblocks are typically set up in an area near bars or where patrons would drink and then later drive. Officers will usually set up barriers to funnel traffic so they can stop each vehicle and question each driver.

Their goal is to see if people are intoxicated — or might (in the opinion of the officer) be intoxicated. Some people get pulled over and others just get to drive through and there typically is no reason why some drivers are put through this process and others get to go by. The decision is made by officers working the post.

In most situations, very few drivers are actually arrested. Most pass through and go on their way, yet police departments nationwide are spending millions of dollars on these operations with few results.
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Woman Allegedly Conspired to Trade Guns For Drugs in North Attleboro

October 21, 2011 | by Michael DelSignore

Police have accused two women of a conspiracy during which they faked a housebreak to steal guns and trade them for heroin, The Sun Chronicle reports.

Charges of theft in Attelboro as well as drug and gun offenses can add up to jail time, possible probation and fines and fees.

But whether a shoplifting or a serious theft crime such as a burglary or robbery, it can sometimes be difficult to prove for police. Without credible eye witnesses or some type of caught-in-the-act moment, police sometimes have a hard time fingering who committed a crime.

Even if they make an arrest, Massachusetts criminal attorneys will challenge the case put together by prosecutors and work toward the best outcome possible in a client’s case. When evidence is scarce, there is plenty of reasonable doubt to show the accused isn’t the criminal. And even if it appears there is an abundance of evidence, some can be thrown out with an experienced lawyer.

In this case, 38-year-old Shannon E. Wilson called authorities to tell them that her house on 87 Smith St. had been broken into. Police quickly turned against her and began considering that there was no break-in at all.

The Sun Chronicle reports that the woman then allegedly confessed that she made up the incident so that she and longtime friend Robert Delaney of Franklin could sell her husband’s .22-caliber and .45-caliber pistols for heroin.

Both have been arrested, but there is a wrinkle in the case. Police haven’t recovered the weapons. The suspects allegedly told police that the .22-caliber gun was sold to a drug dealer in Taunton and the .45-caliber gun was taken to Providence and sold to a drug dealer there.

Both defendants are allegedly blaming each other, with neither admitting to who committed the break-in or who took them from the storage locker and completed the drug deals.

Because both have pending cases in Wrentham District Court, a judge in Attleboro District Court held them without bond.

Wilson is charged with armed robbery and larceny in Wrentham, while Delaney has a prior drug case that is pending.

In this case, both face charges of larceny of a firearm, conspiracy, conspiracy to violate narcotics laws and unlawful possession of firearms with large capacity feeding devices. In addition, Wilson faces a charge of filing a false police report and Delaney is charged with breaking and entering.

Without an eyewitness to say who broke into the house, it may be difficult for the state to prove. And the fact that police don’t have any evidence of where the weapons are or that they were actually traded for heroin casts doubt on some of the charges.

Delaney is charged with breaking and entering, but do the police really know he did that? If each defendant is blaming each other, it could be difficult for investigators and prosecutors to sort through what they have and ensure that they can prove beyond all reasonable doubt each of these charges. That’s another reason why simply remaining silent is so often to a client’s advantage.
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Detroit Pistons Player Avoiding Jail Time Shows Disparity in DUI Sentencing

October 12, 2011 | by Michael DelSignore

Detroit Pistons player Ben Wallace may end up avoiding jail time in a drunken driving case because of an odd twist — he had a gun on him, the Detroit Free Press reports.

The article goes on to state that Wallace may have gone before the same judge who sentenced former NBA player Jalen Rose this summer to jail time for his first DUI, which Massachusetts DUI Attorney Blog commented on at the time.

But because of the unlawfully carrying of a concealed weapon charge, a potential five-year felony in Michigan, it’s likely his case will be taken to a circuit court judge, who are less likely to sentence first-time offenders to jail time. Rose was a first time offender whom the judge used to send a “message” about the dangers of driving while intoxicated.

The sentencing for OUI in Massachusetts is based largely on a judge’s discretion. While there are guidelines for punishment, the argument of an experienced Massachusetts OUI attorney, coupled with favorable facts for the defendant, can help a client avoid serious jail time.

This is an odd case because under normal circumstances, a person charged with DUI would go before judge Kim Small, who has a reputation of sentencing first-time offenders to lengthy jail time — a reputation which became more widespread this summer when she sent Rose, a former NBA basketball player, to jail for DUI.

But because Wallace also faces the gun charge, that case will likely be sent to a court that handles felony cases and not low-level misdemeanors. An analysts believe that may actually benefit him.

Provided a defendant is adequately defended, judges who handle felony cases are sometimes less likely to sentence first-offenders to jail or prison time for minor felonies. In most court systems, if the defendant faces both felonies and misdemeanors, the case is taken to the court that handles felonies. Typically, judges who preside over misdemeanor cases aren’t allowed to hear felony cases.

Because Wallace will be sent to a judge who is described as handing out “temperate and measured sentences,” it’s likely he will face probation and fines, whether he goes to trial and is convicted or enters a plea agreement. Of course, that assumes he will be convicted.

According to the news report, Wallace was in a 2007 Cadillac Escalade when he was pulled over for “driving erratically.” Investigators found a magazine of bullets for a .28-caliber semiautomatic pistol that was in a backpack and registered to his wife. Police reported that Wallace’s blood-alcohol level was 0.14 percent, nearly twice the state’s 0.08 legal limit.

In most situations, defendants aren’t allowed to pick their judge. The situation in the metro Detroit area has been heavily reported based on the high-profile cases there.
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Governor Deval Patrick Aide Charged With OUI In Brookline

October 9, 2011 | by Michael DelSignore

A longtime top aide and adviser to Gov. Deval Patrick has been suspended by the Governor after being arrested recently for drunken driving in Brookline, the Enterprise News reports.

The report shows that even the most experienced and professional people can be labeled criminals with an OUI charge. While it’s not a charge that people plan to commit, it’s the most commonly charged crime in the United States.

Everyone from school teachers to firefighters to police officers have been charged. It’s not as if this is a planned, sophisticated crime. Other crimes, like thefts or even battery charges can be planned out and executed and those defendants face less serious penalties.

It is important when facing a charge of OUI in Massachusetts to plan out a strategic defense to the charges. As this case illustrates, the social consequences, including job loss, can be as serious as the criminal penalties. An experienced Massachusetts DUI defense lawyer will scrutinize every aspect of the case and help the client fend off the allegations they face.

In the case of the Governor’s aide, despite denying that he was driving while intoxicated, his boss decided to put him on unpaid leave after his arrest. While this may be more of a political move, it isn’t an uncommon reaction from employers.

Many employees face suspension or firing after being arrested, even though an arrest isn’t proof a crime was committed. While many employers may realize that, they tend to do what may be most acceptable in the public eye and get rid of the employee. More companies tend to operate in an “act first, ask questions later” mindset about their employees picking up OUI charges, which is unfortunate.

Ron Bell was pulled over one early Sunday in Brookline by police who say he was driving erratically. They charged him with OUI, speeding and marked lane violations. He denied the charges, but was still suspended until the investigation is completed.

The Boston Herald reported that Bell failed several field sobriety tests and was released on personal recognizance after his arraignment. His gout condition may have contributed to an alleged failed field sobriety test. He also is recovering from a March heart attack.

Medical issues are certainly a factor in OUI cases in Massachusetts. While police may not listen to someone who they have pulled over if they tell the officer about an existing medical condition, a judge or jury might.

Police officers are trained to be suspicious of what people say to them. Surely, they have heard every excuse in the book about why you are not really drunk. But existing medical conditions, such as imbalance issues, foot or leg issues or even weather conditions can make performing field sobriety tests difficult.

That’s why all of these issues must be brought up once the case gets into the criminal justice system. While people would rather avoid an arrest and not have to deal with that embarrassment, sometimes they must be patient and wait for the true facts to come out at trial.
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President Obama’s Uncle Giggles in Framingham Court During OUI Hearing

October 7, 2011 | by Michael DelSignore

President Barack Obama’s uncle, charged last month in Framingham, appeared amused in Framingham District Court by the number of journalists there to cover his OUI hearing, the Boston Herald reports.

Onyango Obama, 67, was arrested last month and charged with OUI after he allegedly nearly hit a police cruiser with his SUV after making a rolling stop through a stop sign. As the Massachusetts DUI Attorney Blog reported, some media outlets have asserted that Obama’s uncle is in the country illegally. When it comes to immigrants, the smart move would be to check whether a DUI conviction — either through a plea or a conviction at trial — will affect a person’s right to live in the country.

Either way, you should aggressively fight an OUI charge in Framingham or throughout the Boston area because a conviction has many consequences beyond the court penalties.

Onyango Obama made a brief appearance recently in Framingham District Court, where his judge set a Nov. 17 pre-trial conference in the case. Neither Obama nor his attorneys would comment to the media before or after the hearing.

The Herald reports that he and a friend giggled while sitting in the front row of the court as media members assembled for the hearing. The courtroom was packed, but mainly with other defendants awaiting arraignment.

The Herald reports that Onyango Obama had a valid driver’s license and Social Security card at the time of arrest, but was in the country illegally having faced a 1992 deportation order. Immigration officials have told him to “check in” with them.

He is charged with suspicion of drunken driving; it was reported that his first call was to the White House. But one of the President’s spokesman said the call was never made. Rather, it went to his boss at Conti’s Liquors in Framingham.

While courtroom behavior and attire shouldn’t make or break a defendant’s case, it can influence how a judge treats a defendant. In this case, it appears Obama was chuckling at the thought that all those television and newspaper cameras were there to document a simple, unexciting 5-minute hearing for a DUI charge.

When the media are involved in covering a court hearing, it can put undue pressure on defendants judges and attorneys alike. It is important that defendants act and dress respectfully at all times in front of the cameras and the judge.

While the judge is called on to make decisions based on the facts and the law, they are human, too. If a defendant is acting inappropriately or in a way that tends to mock the criminal justice system or the judge, it can be bad for the defendant. While a judge can’t sentence someone to more than the law allows, they do have enough discretion to make a defendant’s life miserable.

This may not always happen, but courtroom behavior and attitude are important. A defendant should not speak in court unless their attorney advises them to speak and they should not react negatively to what prosecutors, the judge or witnesses say.

Being in court can be an emotional time. But it is best to remain calm and allow your Massachusetts DUI lawyer guide you through the process.
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CWOF in Massachusetts Can Still Lead to Jail Time if Violation Occurs

September 23, 2011 | by Michael DelSignore

In Massachusetts, a continuance without a finding — or CWOF — is equivalent to a “no-contest” plea in other states. It’s an admission that the Commonwealth would be able to prove the charges in court, but it’s in the defendant’s best interests to simply end the case. After entering this plea to the court, however, the defendant must prove through conditions of probation in the court where the case was resolved that they haven’t slipped up.

If they have a probation violation, they can be sentenced to the maximum sentence allowable for the charge, which is a big reason to complete the conditions of probation without any problems. An experienced criminal defense lawyer can properly advise you on what may be the best path to take in your criminal case. The prospect of future violations and the conditions of probation are two excellent reasons why consulting an experienced attorney is best done before accepting a plea offer.

With probation or other non-incarceration conditions, a defendant can slip up and miss reporting to their probation officer, skip an alcohol-based program if the charge is OUI or another misstep that can result in being back in front of the judge who just sentenced you.

DNA Database Another Reason for Experienced Criminal Defense Attorney in Massachusetts

September 15, 2011 | by Michael DelSignore

A Provincetown man is suing amid claims his privacy rights were violated after authorities allegedly kept records in connection with a voluntary DNA sample he submitted during an investigation into the killing of a fashion writer, the Boston Globe reports.

Massachusetts criminal defense attorneys are seeing an increasing number of criminal charges being brought in cold cases after hits from the DNA database link defendants to the crime. In addition to the state system, samples are submitted to the Combined DNA Index System (CODIS), which compiles and compares samples from defendants and unsolved crimes nationwide.

While seldom discussed as a reason to fight a conviction on felony charges in Massachusetts, keeping your DNA out of such databases can be critical to protecting your privacy rights.

In this case, Keith Amato sued after trying for two years to get his sample back from law enforcement. He claims the submission was voluntary and that authorities told him he would get the sample back if his DNA did not match a sample collected at the scene of the killing of Christa Worthington. While the sample was returned in October 2008, he claims the state crime lab has held his DNA profile, along with records and samples provided by other men.

Last week, the Massachusetts Appeals Court ruled his lawsuit can go forward; it had been tossed out by a lower court.

“The allegations that the defendants have retained Amato’s highly sensitive DNA records without his consent and made them available for nonconsensual use in other criminal investigations are sufficient to constitute an unreasonable, substantial, and serious interference with Amato’s privacy,” the court ruled.

Worthington’s trash collector, Christopher McCowen, was convicted in 2006 of her rape and murder and is serving life in prison. Worthington lived in Cape Cod at the time of the crime. Investigators solicited samples from numerous men who knew the victim. Amato was a relative by marriage of the father of Worthington’s 2 1/2 year old daughter.

The lawsuit claims as many as 200 men gave samples and that Amato was assured any samples that did not match the crime scene would not become part of any state or federal database. McCowen also provided a sample before being arrested in 2005.

Amato was unsuccessful in retrieving his sample, despite requesting its return on numerous occasions from the Cape & Islands District Attorney’s Office. The office said state lab protocol requires retaining evidence in murder cases for 50 years.

Such DNA dragnets are an example of law enforcement operating in a gray area. The “voluntary” collection of samples comes perilously close to unreasonable search and seizure and must be aggressively challenged by a Cape Cod criminal defense lawyer.

Unfortunately, such tactics have been around since the advent of DNA. The first use of DNA in a criminal case occurred in England after the rape and murder of two girls. “Mass screening” of male subjects was used to solve the crime. The case is recounted in “The Blooding: The True Story of the Narborough Village Murder,” by Joseph Wambaugh.

Wambaugh is a former detective with the Los Angeles Police Department.
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Brockton gun charge brought to the Massachusetts Appeals Court challenging lawfullness of the stop

September 12, 2011 | by Michael DelSignore

The Massachusetts Appeal Courts addressed the issue of when police may make an investigatory stop based on 911 tips. The case of Commonwealth v. Alfredo Perez arose from an appeal of the defendant’s conviction in the Brockton District court of possession of a firearm without an FID card in violation of Massachusetts General Laws Chapter 269 Section 10. As a Brockton gun crime lawyer, charges of unlawful possession of a firearm often raise Constitutional defenses.

In the case, Brockton police received a report of guns shots fired. A police officer responded within minutes to the call. The police then received a second dispatch claiming to seeing a car leave the area where the shots were heard. The police were able to identify the vehicle and made a motor vehicle stop.

In assessing whether the police had reasonable suspicion for the stop, the Massachusetts Appeals Court applied the decision of the United States Supreme Court in Florida v. J.L., 529 U.S. 266 (2000), which addressed the issue of what type of evidence the police need to make an investigatory stop based on an anonymous tip. The Perez Court held that the Commonwealth had to establish both the indicia of reliability of the transmitted information and the particular description of the motor vehicle.

To establish particularity the Court held that the Commonwealth must show that the description provided sufficient detail to allow a police officer relying on the dispatch reasonably to suspect that the motor vehicle matched the description and was occupied by the person under investigation. To establish reliability the Commonwealth must show the basis of knowledge of the source of the information and the underlying circumstances demonstrating the source of the information was credible or the information reliable, which is known as the veracity test.

The Court found that the basis of knowledge test was satisfied with regard to both calls based on first hand observation. The Appeals Court next addressed the issue of whether the veracity component was satisfied. The Court noted greater reliability is assigned to those whose identity is known. The Court held that both calls were anonymous, with one callers identity never being known while the other caller’s identity was only known after the motor vehicle stop. The Court stated that the fact that the officers went back to the scene to speak to the first caller supports a reasonable inference that they were able to do so because the caller either identified herself or could be traced by reasonable means.

The Court found that there was no additional evidence of police investigation to corroborate the veracity of the caller. However, the court noted that it could consider the imminent nature of the threat in assessing whether there was reasonable suspicion as well as the proximity between the call, the location of the incident and place of the stop. Accordingly, the Court found that the stop was permissible under Article 14 and the Fourth Amendment of the United States Constitution.
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Breathalyzer Test Results Often Challenged in Massachusetts Drunk Driving Defense

September 8, 2011 | by Michael DelSignore

Authorities in Florida are facing higher costs of prosecuting DUI offenders because of questionable breath test results and aggressive defense of clients tested by the Intoxilizer 8000.

Massachusetts DUI defense attorneys know how unreliable breathalyzer tests can be. Currently, high-profile examples include Washington D.C. (authorities quit using their machines altogether), California (thousands of cases are being reviewed or dismissed because of questionable test results) and Florida, where judges have ruled that a defendant’s right to confront his accuser permits defense lawyers to review the computer code that generates the Intoxilizer results.

CMI Inc., the Kentucky manufacturer of the machine, continues to ignore subpoenas to turn over the computer code — a move that has forced prosecutors to hire experts to testify in contested DUI cases.

Fighting a DUI charge in Massachusetts can be done on any number of fronts: Reasonable suspicion for the traffic stop can be questioned, as can the basis for ordering you from the car to request that you submit to field sobriety examinations. And the results of those tests can be challenged — as can the training and conduct of officers involved. As this issue illustrates, simply challenging your case may be enough to induce the state to offer you a deal to move your case through the system. Discussing your options with an experienced criminal defense attorney at the earliest possible stage of your case is the best option for a successful resolution.

The Sarasota Herald-Tribune reports the cost is about $3,000 for an expert’s flight from Georgia, cost of the hotel, and two days of testimony. That might buy prosecutors resolution on four or five cases — less than a week’s worth. Costs for the year could total $156,000. The five-year battle over the Intoxilizer 8000 has caused prosecutors to drop cases, offer pleas to lesser charges and take other actions to move cases through the system.

Nor can departments go buy another machine — the Intoxilier is the only machine approved for use by the Florida Department of Law Enforcement.

As we recently reported on our Massachusetts DUI Attorney Blog, police in Washington D.C. were told to abandon use of the breathalyzer altogether after a whistleblower came forward to claim the machines were not producing accurate results.

Instead, police are using urine samples. Defense lawyers and the police union report cases are routinely being dismissed.

The breathalyzers had not been officially certified and may not have been producing accurate results since 2008.

In California, the Supreme Court issued a ruling earlier this summer that makes it easier for those charged with drunk driving to challenge breathalyzer results, according to the L.A. Times.

In the unanimous decision, the court ruled defendants can present evidence to show the breathalyzer failed to accurately reflect blood alcohol levels.
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Lowell Man Caught Napping After Allegedly Stealing in Natick

September 7, 2011 | by Michael DelSignore

A man on probation for stealing $11,000 in Beanie Babies more than 10 years ago allegedly went on a shopping spree recently, stealing a minivan, breaking into a truck and stealing two televisions before taking a nap and getting caught by police, The MetroWest Daily News reports.

Theft charges in Natick typically get more serious depending on the value of the items taken. Yet, the value must be proven and that’s after the prosecution can even prove the defendant committed the crime.

Hiring an experienced and aggressive Framingham Criminal Defense Attorney to defend against similar allegations is the right first step. An attorney must be consulted in order to ensure justice is done and the rights of the defendant are upheld.

According to the newspaper, 41-year-old Brian William Doubleday already had warrants out for his arrest in Lowell District Court and Framingham District Court, though the newspaper doesn’t say what the warrants are for. The report also states that upon his arrest, the New Hampshire Probation Department issued an arrest warrant because he was serving time on probation from 1999, when he was convicted of stealing the Beanie Babies there.

Natick Police said an officer was on patrol when a minivan parked in a hotel parking lot caught his attention. After running the New Jersey plates through databases, the officer found it was stolen.

Inside, Doubleday was sleeping and after officers woke him up, he got out. Inside the minivan, they found a laptop and other items they believe were stolen from a U-Haul truck in Natick recently, police said. Police also believe video surveillance shows Doubleday stealing two 32-inch televisions from a hotel, but those televisions haven’t been found. The man faces charges of receiving a stolen vehicle, receiving stolen property worth more than $250 and larceny of property worth more than $250.

In this case, a defense lawyer may challenge probable cause.

The Fourth Amendment to the United States Constitution gives every American the right to not be subjected to illegal search and seizure. That means that police officers can’t just knock on a person’s door and force themselves in looking for evidence of a crime. The same goes for when you’re driving in your vehicle. You can’t get stopped for no good reason just because the police want to go on a fishing expedition.

So, it will be interesting to see if police have any real reason for why they walked up to the vehicle Doubleday was in and determined they should question him. They also cited video surveillance as proof that he stole televisions, yet they found no televisions.

Video surveillance, as well as eye witness accounts, can be unreliable. People fudge details or don’t really remember what they saw in the first place. And sometimes, video cameras show fuzzy pictures or only the back of a person’s head. Rarely do the cameras really capture what a person looks like and zooming in makes the image more difficult to see.

It’s important to fight all aspects of a larceny or theft case because the penalties include years in prison as well as thousands of dollars in fines. They are serious and must be aggressively fought. This case also illustrates the consequences of long probation sentences — which can result in additional legal hassles long after a defendant has paid for his crime.
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