Massachusetts Criminal Defense Lawyer Blog

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.
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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.
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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.
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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.
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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.
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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.
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Massachusetts criminal defense attorney comments on court decision involving voluntariness of statement, police agree is “off of the record”

July 25, 2011 | by Michael DelSignore

The Massachusetts Supreme Judicial Court in the case of Commonwealth v. Mark Tremblay addressed whether the defendant’s statement was voluntary when the police agrees that it would be off of the record. The issue before the court was not whether Miranda warning had been given, as the Massachusetts criminal lawyer conceded that the defendant was not in custody triggering the requirements of Miranda. Click here to read a copy of the SJC decision in Tremblay.

A criminal defense lawyer can typically challenge an incriminating statement on two separate but related grounds. First, whether an incriminating statement was obtained in violation of Miranda; or second, whether the police violated a defendant’s privilege against self-incrimination and infringed upon due process of law by coercing a statement from a defendant.

The SJC held that the test for whether a confession is voluntary is to view it in light of the totality of circumstances surrounding the making of the statement. The Court will consider whether the will of the defendant was overborne to the extent that the defendant’s statement was not the result of a free and voluntary act. The SJC stressed that relevant factors include, but are not limited to, promises or other inducements, conduct of the defendant, age, education, intelligence and emotional stability, experience with the criminal justice system, physical and mental condition. Further, the SJC will consider who initiates the discussion of a deal for leniency, whether the defendant or the police and the detail of the interrogation including the recitation of Miranda warnings.

The Massachusetts Supreme Judicial Court in Tremblay emphasized that police should use caution in using deception or trickery during an interrogation. The Court stressed that trickery does not compel suppress of the statements but is one factor for the court to consider. Further, the SJC noted that suggestions by the police that the defendant would benefit from the confession may raise issues of whether the confession is voluntary.

In viewing the Tremblay case, the Court said that the officer’s actions did not fall neatly into either category of trickery or making assurances that the defendant would benefit from confessing.

Key to the SJC determination that the officer did not use trickery was the fact that he agreed to the defendant suggestion that the comments would be off of the record and not included in the written portion of the statement, but never made any promises of protection or leniency. The SJC found no evidence of coercion of the officer as a result of his agreeing that statements be off of the record and held that the statements were properly admitted at trial.

In a dissenting opinion, two members of the Massachusetts Supreme Judicial Court, Justice Gants and Ireland disagreed with the majority of the Court and would have suppressed the statements and wrote separately in a dissenting opinion discussing their reasoning.

Justice Gants wrote that in Commonwealth v. DiGiambattista, the SJC recognized that police trickery during an interrogation may cast doubt on the voluntariness of a suspect’s statement. The DiGiambattista decision held that a Massachusetts criminal lawyer may request an instruction that a jury can view a confession that was not recorded on video tape with caution if the police do not electronically preserve the interrogation.

Justice Gants outlined three forms of police trickery that may undermine the voluntariness of a confession: false promises of leniency in return for a suspects statement, false representation regarding the right to represent himself during trial, and false promises that the statement will not be used against a suspect. Justice Gants notes that the majority indicated that an assurance that a statement will be off of the record should be avoided, but failed to find the statement involuntary despite case law from other jurisdictions where suppression was deemed appropriate.
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Discussion on attacking the one leg stand field sobriety test at a DUI trial

July 11, 2011 | by Michael DelSignore

This is Massachusetts DUI lawyer, Michael DelSignore Second blog on field sobriety testing as part of a five part blog series that will be published on this Blog.

The One Leg Stand field sobriety test is the most difficult test given by the police because many people cannot perform this test even if no alcohol is consumed. Accordingly, the idea that failure on this test means someone is under the influence of alcohol is flawed from the start. Even when given under ideal conditions, the test is only 65% reliable according to the studies regarding this exercise. I have attached a link to a field sobriety test student manual used by police officers.

The One Leg stand has the following clues that the officer is suppose to observe:

Sways while balancing
Using arms for balance
Hopping
Puts foot down

If a person exhibits two or more clues, that is considered a failure. Though not listed as clues, an experienced Massachusetts OUI attorney will also point out other factors showing good mental ability and coordination.

Like the nine step walk and turn, the one leg stand has an instruction phase. Accordingly, when a person maintains balance during the instruction phase, and starts the test at the appropriate time, those factors showing that the motorist can follow instructions demonstrating, a normal mental ability. Typically, there is no mention of any difficulty maintaining balance during the instruction phase. The idea behind this test is to stress for the jury that the motorist had normal balance other than when required to perform the difficult exercise of balancing on one leg.

While the test requires someone to balance until the count of 30, most jurors probably would consider the test as successfully completed with someone who balances for a much shorter period of time. Further, the inaccuracies of the scoring can be pointed out as typically the officer will not put the details in the report that justified the conclusion. One of the clues on the one leg stand is that a person cannot use their arms for balance; however, the training of the officer states that the arms have to be more than six inches from the body. In many cases the details of how someone performed are missing from the police report.

If you read your police report and see that the officer found you failed the one leg stand, your case can still be won. In almost all cases, the police will claim that a motorist failed field sobriety tests. The one leg stand is the most difficult exercise to perform; even the police training manual, states that some people cannot perform the test, including someone over 50 pounds overweight or over the age of 65. As a result, the officer would have to admit that the test is easier for someone younger and in shape, then for someone older, who has been working throughout their life and may have physical injuries. In fact, the early versions of the police training manual stated that some people could not perform the one leg stand test even without consuming any alcohol; this language has since been removed from the manual.

Techniques to minimize the one leg stand at trial:

Point out that the motorist had no trouble with balance when on two feet, listening to the instruction to the one leg stand, no trouble with balance getting out of the car, did not stumble when walking on the nine step walk and turn, and had no difficulty with balance during booking.
Stress that this is a physical fitness test and is one size fits all, the officer gives the same test to a college student as a carpenter who has spent years working doing manual labor. The older person, with physical aliments, is disadvantaged from the start.
underscore that even the Government study indicates that the test is only 65% reliable, under perfect conditions. A 35% failure rate should raise a reasonable doubt.

The Nine Step Walk and turn field sobriety test

July 1, 2011 | by Michael DelSignore

Fighting a Massachusetts DUI charge at trial often involves contesting the reliability of field sobriety tests. To help readers better understand how these tests should be performed, what clues to look for and way to challenge these exercises at trial, I am going to write a series of blogs on the three standardized field sobriety tests, the nine step walk and turn, one leg stand, horizontal gaze test, other non-standardized tests that are used by police. The final Blog in this series will discuss what the police training manuals tells the officer to look for when observing your driving and making the initial contact with you at the scene of the motorist vehicle stop. In this Blog, I will discuss the nine step walk and turn field sobriety test.

The walk and turn field sobriety test is an exercise that many people perform very well on even when arrested for drunk driving in Massachusetts. While the officer will likely say you failed, the purpose of this blog is to explain to you what the officer should have been looking for and how the results of this test can be used in front of a jury to argue that you were not under the influence of alcohol and to achieve a not guilty verdict.

A police officer is suppose to score the nine step walk and turn according to his police training, which is based on the National Highway and Detection Field Sobriety Test Manual. I have a copy of these manuals for the various officer; there are about four different manuals depending on when an officer was trained; however, the testing procedure is basically the same for each manual. Click here to see a copy of a police training manual.

What does an officer look for on the nine step walk and turn.

Cannot keep balance during the instructions; this is maintaining the heel to toe stance during the instruction phase
Starts before the instructions are finished
Stops while walking
Does not touch heel to toe: This is an important clue because some officers make the test more difficult to perform by not recognizing that the feet do not have to touch. The training manual of the officer indicates that there can be a one-half inch space. Most officer do not recall from their training that the heel and toe do not have to touch for the test to be performed correctly.
Steps off of the line
Uses arms for balance: This is another clue that requires the arms to be more than 6 inches from the body. The arms do not have to be glued to the person’s body. Most officers do not tell the suspect that the arms do not have to be stuck to the person’s side.
Improper turn
Incorrect number of steps

It is considered a failure on the nine step walk and turn if two or more clues are present. However, the test is only deemed 68% reliable if given under ideal conditions. There are many ways to attack the reliability of the exercise based on medical conditions, weather conditions or conditions of the roadway where the test was performed, but for the purpose of this Blog Post, I will discuss how taking the officer’s training, this exercise can be used to help demonstrate normal coordination and mental ability, which is vital to winning a DUI trial.

In using this test at trial, one common method for a Massachusetts DUI lawyer is to change the jury view of the scoring on the test. Many reports do not contain any details of a motorist stepping off the line. Typically, there is no designated line, making the test harder. Given there are nine steps forward and nine back, one way to look at the scoring is to divide up each of the clues and base the scoring on a maximum of 18 points for each part of the test done correctly. This method of changing the scoring on the field sobriety tests is stressed at conferences held by the National College of DUI Defense.

Missing heel to toe: in some reports the officer states that the person missed heel to toe on 2 or 3 steps; if this is the case, the idea is to show the jury that overall the motorist did very well, scoring 16 for 18, on an unfamiliar test, under difficult conditions.

Taking the correct number of steps is also a good opportunity to demonstrate good mental ability, because it requires the person to count while performing a physical exercise.

Since the nine step walk and turn has so many different components and potential places for a defendant to make a mistake on the exercise, it provides a DUI lawyer with many opportunity to stress positive aspects of the performance that demonstrate good ability to follow instruction, to think clearly and to demonstrate good coordination.

When looking at your police report in your case, it is important to understand how the exercise is to be scored, what other clues the officer could have found, to evaluate how this exercise will be used at trial.
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