Massachusetts Criminal Defense Lawyer Blog

President Obama’s Uncle Charged with OUI in Framingham, Massachusetts

August 30, 2011 | by Michael DelSignore

The uncle of President Barack Obama was recently arrested and charged with DUI and is now being held without bail on an ICE detainer, Fox News reports

Being arrested and charged with OUI in Framingham can be frightening for anyone, especially an illegal immigrant.

One of the more important tasks facing any noncitizen is to understand the immigration consequences of a criminal conviction. Generally, a first offense Massachusetts OUI will not be a bar for citizenship for someone lawfully in the country. However, it is always important to individually assess any immigration consequences of a plea to a drunk driving charge and to understand those consequences if convicted after trial.

Onyango Obama, 67, was arrested in Framingham after police allege he nearly hit a police cruiser with his SUV after making a rolling stop through a stop sign.

Onyango Obama is originally from Kenya and is the half brother of the president’s late father. He has pleaded not guilty and yet is being held on a U.S. Immigration and Customs Enforcement detainer. Court documents cited by Fox News state that he previously had a removal order or a deportation order active.

Fox News could not determine his immigration status, but removal orders are typically for people living in the country illegally. Few government sources are commenting on the situation.

According to police, Obama was charged with operating under the influence of alcohol, failure to yield the right of way and negligent operation of a motor vehicle. According to police, the officer barely avoided the SUV and was forced to slam on his brakes to avoid a wreck. The 67-year-old allegedly told police at first that he hadn’t had anything to drink but later said he had two beers.

Police said he failed several field sobriety tests and blew a 0.14 on a breath test, nearly twice the state’s .08 legal limit.

In any case of OUI in Framingham, regardless of the status of the driver, there are many defenses. They start with the police officer or law enforcement officer who made the stop. First off, what an officer observes, if witnesses or dash camera footage can dispute it, can go a long way to showing the Commonwealth doesn’t have proof beyond a reasonable doubt that the crime occurred.

Other factors, such as weather conditions or human error, can also affect an OUI case in Boston. Breathalyzers, devices that are designed to give a blood-alcohol level output of a driver, have been known to be faulty and can be affected by weather conditions. Condensation that builds up inside can alter a reading. Manufacturing defects or uncalibrated machines can also lead to arrest, but be exposed at trial for an acquittal.

There are many ways for a case to be fought in court. The public sometimes believes that an arrest is proof positive that a crime has been committed, but that’s only the beginning.
Continue Reading ›

Massachusetts OUI Lawyer explains drunk driving defenses based on police training

August 26, 2011 | by Michael DelSignore

In this series of Blogs, I have attempted to describe all aspects of a Massachusetts drunk driving charge and how the case will be defended by a Massachusetts DUI lawyer. Prior blogs, have addressed the HGN test, nine step walk and turn, one leg stand test and nonstandard field sobriety tests. This post will address the driving factors and observations that the officer is looking for and how these can be used to form your defense. This is the final post in this series.

A critical part of defending your case will involve the reasons why the officer stopped your car. If there was no dangerous or erratic driving, you already have the framework for a strong defense of your case. The reason is that the purpose of the field sobriety tests is to determine your ability to drive safely and if there is no erratic driving than your driving itself provides part of the proof that you were not under the influence of alcohol.

What are some of the clues that a police officer looks for regarding the driving that will be used to demonstrate you were under the influence of alcohol:

The National Highway Traffic Safety Administrations lists the driving clues that officer may find. I have attached a link to a police field sobriety testing training manual.

Of significance regarding this list, is that speeding is not a sign that a motorist is under the influence of alcohol.

Here are a list of the driving clues:

weaving
straddling a lane line
turning with a wide radius
drifting
almost striking a vehicle or object
stopping problems, too far, too short, or jerking
accelerating or decelerating rapidly
driving too slow
slow response to traffic signals

I generally break up the driving between the initial observations of the officer and the driving once the police officer puts on the blue lights. Police officers are trained to think of these two incidents as separate driving sequences.

The officer’s training when the blue lights go on is referred to as the stop sequence. The officer is taught to view this as an important point during the encounter to determine whether a motorist is under the influence of alcohol. The signal to stop divides a motorist’s attention between paying attention to the blue lights to stop and pulling over safely. The idea is that the signal to stop divides a driver’s attention. The field sobriety tests, like the nine step walk and turn and one leg stand are designed to achieve a similar purpose of dividing a driver’s attention. Even though the officer may claim you failed field sobriety tests, the driving itself is evidence of good mental ability and good coordination skills necessary for driving.

Accordingly, when a police report reads that a driver pulled over immediately after the blue lights go on, an effective cross examination by a Massachusetts DUI attorney will emphasize that this demonstrates that the motorist was not under the influence of alcohol. To listen to a further explanation of this defense, click here for a video explaining how this idea is used at trial.
Continue Reading ›

Swansea Man Faces Retrial in 2003 Beating Death of 4-Year-Old

August 16, 2011 | by Michael DelSignore

A Swansea man once convicted of killing his girlfriend’s 4-year-old son will get a new trial after his most recent retrial was interrupted by the alleged victim’s father, The Herald News reports.

The situation happened recently at Fall River District Court, where Eric Durand of Swansea faces a charge of first-degree murder. He was convicted in 2006, but the Massachusetts Supreme Judicial Court overturned the conviction on appeal. During jury selection recently, the boy’s father disrupted the process, leading to his arrest. But the trial will go on.

Murder charges in Boston and throughout Massachusetts are the most serious a person can face in the Commonwealth. According to the laws of Massachusetts, Chapter 265, Section 1, murder is carried out with “deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life.”

While Massachusetts abolished the death penalty in 1984, murder is punishable by life in prison without parole.

Whether murder, or other serious felony charge, this case shows the importance of the appeals process and of the guarantee that every defendant has the right to a fair trial. That’s why hiring an experienced Fall River Criminal Defense Attorney is essential. In the event a conviction occurs, an experienced defense lawyer will understand the importance of preserving various issues for appeal. In some cases, a defendant can’t get a fair trial — and the impartiality of the appeals court will be critical in seeking justice.

According to the news article, Durand was convicted of killing Brendon Camara by crushing his stomach to the point that his small intestine detached from his stomach and his pancreas split. Durand was allegedly babysitting the boy and his twin brother at the time.

After being convicted in 2006, the high court overturned it and granted him a new trial after ruling a doctor shouldn’t have been allowed to be an expert witness because he hadn’t performed an autopsy on the child. Expert witnesses are deemed so by a judge at trial after hearing proof of such qualifications presented by an attorney — in this case the prosecution. The importance of having an expert witness is they are able to give opinions and tend to have more weight with jurors.

So, Durand is scheduled to go to trial a second time, despite interruption by the boy’s father, who was recently arrested on a charge of criminal contempt for entering the courtroom during jury selection despite a judge ordering him to leave, the newspaper reports. He was being held on $2,000 bail and if he makes bail he won’t be able to attend the trial. He will also have to wear a GPS tracking device and won’t have to leave his Fall River home. Camara was part of a group protesting outside the courthouse, according to the report.

Cases involving allegations of child abuse are among the most high-profile and high-emotion cases that occur in our justice system. And because of the attention they get in the news media, an experienced lawyer must be hired in order to fend off the allegations in court as well as in the public eye. While the defendant is only tried in the courtroom, media attention can influence prospective jurors and the opinions of the general public.
Continue Reading ›

Six Enter Innocent Pleas in Connection With Mansfield Beating

August 4, 2011 | by Michael DelSignore

The alleged attackers of a man beaten at the Comcast Center in Mansfield entered innocent pleas in Attleboro District Court recently, The Sun Chronicle.

The newspaper reports that the 19-year-old victim was beaten so badly he was initially put into a medically induced coma at Boston Medical Center to aid his breathing.

Doctors also removed a spleen ruptured from repeated punches and kicks, the article states. The six suspects are charged with felony assault charges.

Felony assault charges in Attleboro are typically filed when a weapon was used or when the defendant suffers serious injuries.. How charges are filed can have a big impact on a sentence. An experienced Attleboro Criminal Defense Attorney can sometimes succeed in arguing for lesser charges.

According to the news article, the beating happened during a Tim McGraw concert and one witness described the beating as being so loud she could hear it over the music. The victim said he made a comment to a woman about her tattoo before he was attacked by several people he didn’t know. Witnesses allegedly pointed out the suspects.

All six are charged with aggravated assault and battery with disorderly conduct. Anderson is also charged with aggravated assault and battery by means of a dangerous weapon — a shod foot — according to the article.

Some of the suspects say witness accounts vary, which may make the case tough for prosecutors. Another says they may have been involved in a fight, but not the larger beating alleged by police. Self-defense is being alleged as well.

In cases where there are many witnesses and many suspects, the facts can be difficult to prove. Being able to show, beyond a reasonable doubt, that each particular suspect was involved, can be a tall order.

Many times, the state will try to convince some of the least-culpable defendants to enter into a plea agreement in exchange for a lighter sentence so that prosecutors can use their testimony against the co-defendants. If the alleged suspects didn’t provide statements to police, it only bolsters their case because they haven’t implicated each other in the crime.

Assault and battery charges in Massachusetts can be punished by up to 2 1/2 years in prison and a $1,000 fine. Assault or battery with a dangerous weapon is a felony punishable by up 10 years in prison. It’s obvious that these charges are serious and can have long-term implications.

In this case, one of the defendants is charged with using his foot as a dangerous weapon. It can be debated whether or not a person’s foot should be considered a “dangerous weapon.” If not, it’s possible to have the charge downgraded to a less-serious charge or have it thrown out altogether.

That’s why hiring an experienced attorney is critical. Debating the issues, investigating the facts and finding holes in the state’s cases can make a big difference in whether a defendant is convicted and the potential penalty he serves.
Continue Reading ›

Massachusetts Supreme Judicial Court applies “primary purpose” test in recent Domestic Assault and Battery Confrontation Clause decision

August 1, 2011 | by Michael DelSignore

The Massachusetts Supreme Judicial Court applied the “primary purpose test” articulated by the United States Supreme Court in Michigan v. Bryant, 562 U.S. ___ (February 28, 2011) in its recent decision of Commonwealth v. Beatrice. The Beatrice case demonstrates the dangerous erosion of the Sixth Amendment right of confrontation in domestic assault and battery cases. Click here to read the SJC opinion in Beatrice.

The Beatrice decision involved a very common circumstance in Massachusetts domestic assault cases where at the time of trial the alleged victim no longer wishes to testify and asserts either a Fifth Amendment privilege against self incrimination or exercises their martial privilege.

In cases with 911 calls, the Commonwealth can attempt to proceed with the case despite the noncooperation of the victim. The outcome of the trial will largely depend on the judge’s ruling as to the admissibility of the 911 call and the application of the United States Supreme Court decision in Bryant and Davis v. Washington, 547 U.S. 813 (2006).

Jalen Rose Sentence Shows Disparity Between States for DUI Convictions

July 31, 2011 | by Michael DelSignore

As the Massachusetts DUI Attorney Blog recently reported, former NBA player and ESPN analyst Jalen Rose was sent to jail for 20 days in response to a March 11 DUI accident in Michigan.

His attorneys argued that the sentence was more excessive than sentences handed down in other DUI cases, both in Michigan and throughout the nation. A new report by USA Today shows that the attorneys are correct — where a person is arrested for DUI makes a huge difference about what type of sentence a person may receive.

But also, who the person hires is important. Hiring an experienced Attleboro OUI Attorney who knows the system and has been defending clients for years can be a critical factor in how a case is handled and the sentence a defendant receives. Obviously, the facts of the case vary, but the penalties for OUI in Quincy and throughout Massachusetts can be steep:

Up to two and a half years of incarceration
Up to one year driver’s license suspension
Fines and fees
Completion of a self-funded alcohol education course

But it’s different in Massachusetts than in other states, the USA Today article reveals that not only do judges use their discretion on a case-by-case and city-by-city basis, but that states vary in the penalties for even first-time DUI defendants.

Experts cited in the article believe that jail time is less of a deterrent for repeat offending than sanctions such as the ignition interlock device, which includes a tube that convicts must blow into in order to start the vehicle. If the device measures higher than the state’s .08 blood-alcohol level content, it won’t start.

Rose was arrested in March in the Detroit suburb of West Bloomfield. Research shows that had he been arrested in other area cities he likely wouldn’t have faced any jail time. Rose crashed his Cadillac Escalade on March 11 and was arrested that day.

The case shows how different sentences can be for DUI, a crime that was responsible for 12,744 traffic deaths in 2009, according to the National Highway Traffic Safety Administration. FBI statistics show that DUI is easily the most commonly filed charge, with 1.4 million people arrested each year for it.

Alaska, Tennessee and Georgia are among the states with mandatory jail time for first offenders, locking up defendants for three, two and one day, respectively. California, Connecticut and Indiana, however, don’t require jail time for first-time offenders.

In Wisconsin, a first-time offense for DUI isn’t even a crime. It’s a civil infraction that results in a ticket.

“There are no set guidelines on this. There’s no national standard on this,” said Alex R. Piquero, a criminology professor at the University of Texas-Dallas, who has studied drunken driving for more than 20 years. “There is a lot of discretion. It’s like a ref on the football field. Everyone holds on every play. Which one is the most egregious of the offense?”

Yet the trend is evident: Politicians continue to pass tougher DUI laws each year. We don’t know what the penalty for conviction will be next month or next year. But we can assume the sanctions will be more severe than they are today. Just one more reason it’s critical to fight DUI charges.
Continue Reading ›

Seven Charged in Drug Buying/Selling Sting in Framingham

July 30, 2011 | by Michael DelSignore

Seven people, including a man the Commonwealth believes has a history of drug offenses, were recently arraigned in Framingham District Court on charges they were buying and selling heroin and cocaine, The MetroWest Daily News reports.

Drug charges in Framingham and throughout Massachusetts are serious crimes that can subject defendants to penalties that can range from months in jail to years in prison.

Quickly hiring an experienced and aggressive Framingham Drug Defense Attorney is the best strategy to combat the charges and protect a defendant’s rights.

According to the story, prosecutors say detectives followed Luis Hernandez, 41, of Natick and saw him complete what they believed was a drug deal in the parking lot of his apartment with co-defendant Gina Stucchi, 32. In the car with Stucchi were co-defendants Jennifer Mackey, 36, and Maria Woods, 35.

When detectives followed the vehicle, they allegedly found the three people in the car, about to inject themselves with cocaine. One of the defendants told police they had just purchased cocaine from Hernandez.

Police then followed Hernandez, who was riding in an SUV containing his roommate Geraldine Martinez and Alisha Conti, 24. They dropped Conti off at Lowe’s in Framingham and after Hernandez sold drugs to an unknown man in Natick, the vehicle returned to Lowe’s, where Hernandez met another co-defendant, William Roberts, 47, of Natick.

Police say they witnessed another drug deal and when they approached to make an arrest; they said they saw Hernandez swallow what appeared to be a plastic bag of cocaine.

Martinez allegedly admitted there were drugs in the car and told police Hernandez kept drugs in a safe in their apartment. Conti allegedly told police she got heroin from Hernandez. Police searched the safe and found heroin, cocaine and drug paraphernalia.

Hernandez was charged with distributing heroin, possessing heroin with the intent to distribute, conspiring to violate the state’s drug laws and resisting arrest.
Martinez was charged with possessing heroin with intent to distribute, possessing cocaine with intent to distribute, distributing cocaine and conspiring to violate drug laws.
Stucchi, of 107 Concord St., Holliston, was charged with distributing cocaine (subsequent offense) and conspiring to violate state drug laws.
Woods, of 260 Union Ave., Framingham, was charged with possessing cocaine with intent to distribute, possessing cocaine, intimidating a witness, providing police with a false name and conspiring to violate drug laws.
Roberts, of 3 Lake St., Natick, was charged with possessing heroin, resisting arrest and conspiring to violate drug laws.
Mackey, of 28 Dana Road, Framingham, was charged with distributing cocaine and conspiring to violate drug laws.
Conti, of 31 McAlee Ave., Framingham, was charged with possessing heroin.

This case will likely come down to police observations, if they were well-documented, as well as the statements of the co-defendants. First off, the defendants would have been better off had they not talked to police. Providing a statement to police is dangerous because it can be used against the defendant in court and it almost always hurts them.

In these cases, it is sometimes possible to refute the charges if a person is simply inside a vehicle at the time of an arrest. But admitting fault to an officer will have a negative effect on the probability of winning a case.

There are times when a statement and other evidence in drug cases can be tossed out. So, consult with an experienced Framingham Criminal Defense Attorney before doing anything else. Reviewing your case and being by your side from the beginning gives the best chance at a positive resolution.
Continue Reading ›

ESPN Analyst, Former NBA Player Jalen Rose Sent to Jail for DUI

July 29, 2011 | by Michael DelSignore

Jalen Rose, a 13-year NBA guard and current analyst, was sentenced to 20 days in a Michigan jail recently following a March DUI crash, the Detroit Free Press reports.

It seems like celebrities charged with crimes sometimes get lenient sentences compared to everyday people. But in this case, the judge went out of her way to send a message, knowing that the media would be picking up the story.

And in more in more cases, DUI defendants are facing serious penalties — regardless of who they are. OUI penalties in Massachusetts can be complicated by accidents, previous convictions or other charges. Unlike other misdemeanor offenses, OUI in Massachusetts carries a range of penalties most misdemeanor charges don’t require. And that’s why hiring an experienced Massachusetts OUI Attorney is critical.

Consider the possible penalties for even a first-time DUI offender in Massachusetts:

Up to two and a half years in the House of Correction
Up to one year driver’s license suspension
Completion of an alcohol education program
Possible 1 year probation sentence

And a conviction is expensive. By some estimates, a drunk driving conviction can cost as much as $20,000, counting fines, lost work, court costs, jail time, treatment, probation and skyrocketing insurance premiums. Most misdemeanor charges are penalized by days to months in jail without all the other possible penalties. But lawmakers have used their positions to continually enhance the penalties against these those accused of driving under the influence of alcohol or drugs. .

According to the news article, Rose was arrested March 11 after he crashed his Cadillac Escalade in a town outside Detroit. He registered a .08 blood alcohol content level on a preliminary breath test at the scene and later registered a .12 blood alcohol content in a blood test.

Under Michigan law, .08 is legally drunk. He pleaded guilty in May to one count of driving while under the influence, a misdemeanor in Michigan. Rose’s attorneys believe the judge abused her power because a newspaper analysis showed that most judges in metro Detroit and nationwide sentence first-time offenders to time served or a few days in jail if their blood-alcohol level is about .17.

What should be noted are a mistake Rose made as well as a possible area of defense. According to the article, Rose blew a .08 when given a breathalyzer test. In Massachusetts, refusing a breath test can result in a driver’s license suspension, but it also denies the prosecution some key evidence against the defendant.

There are several defenses to a breath test. A breathalyzer is a device that has a tube at the end and is supposed to measure a person’s blood-alcohol content level. But the devices can only estimate a person’s BAA because the devices are inherently faulty. There have been problems nationwide regarding reliability of these devices.

The article also states he was given a blood test. It’s possible for a defendant to refuse to provide these tests, but law enforcement officers will sometimes seek a warrant from a judge in order to force the test. This is particularly true when an accident is involved. An experienced and aggressive Massachusetts OUI attorney can fight to keep this evidence from making its way to trial.
Continue Reading ›

HGN field sobriety test

July 27, 2011 | by Michael DelSignore

In defending charges of DUI in Massachusetts, one of the field sobriety tests that appears frequently in police reports and causes the most confusion for people arrested for drunk driving is the Horizontal Gaze and nystagmus field sobriety test, sometimes referred to by those arrested as the pen test.

It is understandable why this test causes some much confusion because it does not appear to have an scientific basis or reliability. You are on the side of the road, cars going by, and the officer is waiving a pen quickly in front of your face. If you stopped and asked most officers what they are looking for, many probably could not correctly explain the correct procedure in administering the test.

Fortunately, the HGN test is typically not admitted into evidence at a Massachusetts DUI trial as a result of the decision of the Massachusetts Supreme Judicial Court in Commonwealth v. Sands. The HGN test can be admitted; however most prosecutors do not attempt to admit the test into evidence.

In some cases, I have used the HGN test to discredit the officer and demonstrate that the investigation was not properly conducted, so what are the signs that someone exhibits nystagmus.

The first clue that the officer looks for is lack of smooth pursuit. The officer is suppose to start with the pen in the center and move it to the left, taking two seconds out and two seconds back for a complete pass and following the same procedure for the right eye. The idea is that the officer is looking to detect any involuntary jerking of the eye, called nystagmus of which alcohol is one of many causes. Click here to read about court decisions regarding the HGN test.

The second clue is referred to as distinct and sustained nystagmus at maximum deviation. For this clue, the officer is suppose to move the pen until the eye has gone as far to the side as possible. The officer is then required to hold the pen in this position for a minimum of four seconds and observe to determine if there is an involuntary jerking of the eye. In many cases, the officer does not recall that the correct administration of this part of the test requires that the pen be held for four seconds at maximum deviation.

The final clue on the HGN test is called onset of nystagmus prior to 45 degrees. The officer is suppose to start with the stimulus in the middle and move it toward the right shoulder at a speed that would take four seconds to reach the edge of the left shoulder. In many cases, when officer perform this test, they are rapidly moving the stimulus contrary to the clear instruction of the police training manual.

With this clue, the officer is looking to see if there is any involuntary jerking of the eye prior to 45 degrees and is suppose to hold the stimulus to verify that it continues.

Although this test is rarely used in Massachusetts, according to the National Highway Traffic Safety Administration Study, the HGN test is the most accurate of the field sobriety tests at 77% reliable, as compared to 68% for the nine step walk and turn and 65% for the one leg stand. The head Police officer for the Massachusetts State police who speaks occasionally at drunk driving seminars for lawyers has repeatedly indicated his confidence in the reliability of the test. I have had an officer testify that he has never had a suspect fail the HGN test who was under the legal limit. During that hearing, the officer demonstrated how he conducts the test and did it in a very rapid fashion contrary to the careful and deliberate process outlined in the police manual.
Continue Reading ›

Man Charged With Trying to Kill Girlfriend in Marlborough Domestic Violence Incident

July 27, 2011 | by Michael DelSignore

A Franklin man has been charged with trying to kill his girlfriend in a Marlborough domestic violence incident, The MetroWest Daily News recently reported.

Domestic violence charges in Marlborough require an experienced Massachusetts Criminal Defense Attorney be immediately consulted to sort out the real facts.

In this case, Richard Waters, 26, was arraigned Wednesday in Marlborough District Court on 14 charges: attempted murder, assault with intent to intimidate, assault and battery, assault with a dangerous weapon, reckless endangerment of a child, car theft, threatening to commit a crime, vandalizing property, driving with a suspended license, failing to stop for police, negligent driving, using a car without authority, a marked lanes violation and speeding, police said.

According to police, the couple and their child spent the day together at Hopkinton State Park one day in early July. When they got home, the couple allegedly got into a fight, with Waters allegedly choking the woman three times, punching a hole in the wall and making several threats.

After the alleged outburst, he took her car keys and left, leading police on a high-speed chase. He was driving 70 mph in a 30 mph zone at times; the chase lasted until he drove off the road and ran into the woods. After officers searched the area using a police dog, they called off the search. An arrest warrant was issued and he was later detained.

The newspaper later reported that he was being held without bond after a dangerousness hearing. Prosecutors allege the man is a member of the Framingham street gang the Kendall Street Thugs.

In domestic violence cases, law enforcement officers typically have very little evidence on which to bring charges. But because of the stigma attached to these events, they are sometimes worried that not making an arrest could lead to further violence.

So, sometimes, they listen to the person who claims to be the victim and make an arrest with little evidence. With little corroborating evidence, a person is sometimes carted off to jail, has their mug shot published by the media and suffers other consequences.

Defense to domestic violence-related charges that an aggressive Massachusetts Domestic Violence Attorney will pursue, include:

Self defense. In this type of defense, an attorney can seek to suggest the alleged victim in fact perpetrated the violence. It’s possible to show they are the aggressor.

Fabrication by the victim. In cases of divorce, a break-up, or other situations, alleged victims will lie to police as a form of revenge or pay back.
Ulterior motivation. Sometimes, alleged victims believe that a partner picking up an arrest record or conviction can benefit them financially or otherwise and will stretch the truth.
Continue Reading ›