Massachusetts Criminal Defense Lawyer Blog

Drunk Driving charges in 79 cases could be dismissed as a result of allegations that California police officer falsified police reports to justify DUI arrests

September 27, 2010 | by Michael DelSignore

A Sacramento police officer, Brandon Mullock, is accused of falsifying information on 79 DUI police reports. In some of these cases, the State has already obtained a conviction. The fabrication of the officer was discovered when a prosecutor noticed that the police dashcam differed substantially from the written police report of the officer.

DUI charges in Massachusetts, and throughout the country, are based primarily on the opinion of the arresting officer. In many Massachusetts DUI arrests, the police officer testifies to subjective factors that the officer claims shows an individual is under the influence. These factors include that the officer claims that the motorist was unsteady getting out of the car, spoke with slurred speech or had difficulty retrieving his or her license. Additionally, when an officer administers a field sobriety test, like the nine step walk and turn, the difference between an officer claiming that the defendant passed or failed is based on small details. Many officers will testify that they are unaware that missing heel to toe is a clue on the test only if there is more than a two inch gap. It is easy for an officer to claim on the report that the defendant failed to touch heel to toe either through not knowing how the test is scored or through embellishing to justify an arrest.

At an OUI trial in Massachusetts, cross examination can demonstrate that an officer overstated, embellished or exaggerated in the police report. The fact that so much of the evidence is opinion based evidence, which can be distorted, fabricated and misinterpreted by the officer demonstrates the importance of hiring an experienced Massachusetts OUI lawyer.

In Massachusetts, a defendant can challenge the basis for the stop at a motion to suppress which would require the officer to testify in court and can challenge the officer’s opinion at trial. These opportunities to confront witnesses granted by the Sixth Amendment to the United States Constitution are the only way that a motorist can challenge the opinion of the arresting officer.

In California, the corrupt police officer was discovered as a result of a prosecutor comparing the dashcam to the written police report. In Massachusetts, police departments vary as to whether they have any dashcam or even booking video. As a Massachusetts criminal defense lawyer, I have argued that a lack of video taped evidence should be held against the Commonwealth at trial and support reasonable doubt. Yet in many cases, there will be no video evidence to contradict the officer; the only way to challenge the officer’s opinion will be through cross examination at trial by a skilled Massachusetts DUI trial attorney.
Continue Reading ›

Lindsay Lohan case illustrates risks of probation violations after a First Offense Massachusetts OUI plea resulting in a CWOF

September 26, 2010 | by Michael DelSignore

Anyone facing Massachusetts OUI charges or probation for a similar offense can learn something from the case of Lindsay Lohan.

What is often lost in the ongoing saga of Lohan and her trips through jail and alcohol and drug rehabilitation centers is a simple, startling fact: All of her legal problems — which have included four bench warrants and several stints in jails and rehabilitation centers — stem from a conviction for DUI.

Clients are often surprised to learn that probationary conditions can be difficult to comply with and result in jail time if there is a violation. A Massachusetts criminal defense lawyer can assist a client in understanding the requirements of probation and may be able to argue against terms that are likely to trigger probation violations.

Massachusetts probation surrender hearings, unlike in California, do not allow for bail; Even if you receive a CWOF, or continuance without a finding, on a First Offense Massachusetts OUI, a violation of the terms of the probation can result in you being held in jail without bail as a result of a probation violation. Once you receive notice of a violation hearing, a preliminary surrender hearing is held where the judge determines whether there is a basis for the violation and if so whether the judge will exercise his or her discretion and detain the probation violator. On a first violation it would be unusual for a judge to detain an individual; however, it is within the judge’s discretion and will depend on a number of factors, including the severity of the violation, whether the violation is a result of new criminal charges or so called technical violation, like failing to comply with treatment, report to probation or pay money, whether the individual has a record of not appearing for court and the nature and seriousness of the underlying offense in which probation was ordered.

Ordered to jail on Friday for a failed drug test, the Hollywood Actress was set to sit behind bars until Oct. 22, when a hearing is set to determine whether she faces additional jail time for a probation violation. The judge has promised she would spend 30 days in jail for each violation. She was sentenced to 90-days in jail earlier this summer but spent just 14 days because of overcrowding. This time a new judge presiding over her case seemed determined to get the full 30 days by sending her to jail until the hearing.

Lohan managed to get that ruling overturned but was forced to post $300,000 bail. And many court watchers think her freedom is likely to come at the high cost of angering the judge who must rule and issue sentence next month on the probation violation. At that time, the judge will be within his rights to return her to jail.

The appeal of the no-bail decision was granted after a judge said Lohan’s underlying misdemeanor offense entitles her to bail. As the conditions of her release, she was ordered to wear an alcohol monitoring bracelet and stay out of bars.
Continue Reading ›

Judge denies right to public trial resulting in Massachusetts Appeals Court overturning conviction

August 31, 2010 | by Michael DelSignore

The Massachusetts Court of Appeals vacated a conviction in the case of Commonwealth v. Wolcott when the defendant was denied her right to a public trial as a result of the trial judge closing the courtroom. The Wolcott decision is an important decision as it emphasizes that Massachusetts criminal defense lawyers should object any time a judge closes the courtroom or denies access to a courtroom during any part of a trial. Additionally, the court’s decision invalidates the practice of some judge in Massachusetts criminal trials closing the courtroom during jury selection, limiting access during closing statements and jury instructions.

The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions the accused shall enjoy the right to a public trial. In the Wolcott case, defense counsel sought access for members of the public during jury selection. The judge denied that request stating that as space became available the public could take those seats. The defense counsel moved for a mistrial which was denied by the trial judge. The court found that the trial judge did not announce that when space became available that members of the public could enter the courtroom. The judge refused to allow members of the public into the courtroom and court officers asked members of the public to leave the courtroom without notifying members of the public that as space became available they could reenter the courtroom. Accordingly, the Appeals Court found that the judge closed the courtroom.

The Massachusetts Appeals court reviewed the case of Waller v. Georgia, 467 U.S. 39 (1984), from the United States Supreme Court addressing when a full closure of the courtroom can be justified under the United States Constitution. The Waller Court used a four part analysis:

1. The party seeking to close the court must advance an overriding interest that is likely to be prejudiced.
2. The closure must be no broader than necessary to protect that interest;
3. The trial court must consider reasonable alternatives to closing the proceeding;
4. the court must make adequate findings to support closure of the courtroom.

The United States Supreme Court recently addressed the issue of public trials in the case of Presley v. Georgia, 130 S.Ct. 721 (2010), where the court underscored that the right to a public trial is rooted in both the Sixth Amendment and is also guaranteed by the First Amendment. In Presley, the Court was also faced with a judge that denied the public access during jury selection and found that the judge did not consider whether there were reasonable alternatives to closing the court during jury selection. In applying the Presley case, the Massachusetts Court of Appeals found that the jury verdict had to be set aside based on the failure to provide the defendant a public trial and held that because the violation is a structural error, that the court would not apply harmless error analysis, but would vacate the conviction, providing the defendant with a new trial.
Continue Reading ›

FIRST COMPLAINT DOCTRINE IN MASSACHUSETTS SEX CRIMES CASES REVISITED IN RECENT APPEALS COURT DECISION

August 22, 2010 | by Michael DelSignore

The Massachusetts Appeals Court revisited the doctrine of the first complaint witness in the recent decision of Commonwealth v. Aviles, decided on August 16, 2010. In Aviles, the defendant appealed his conviction of rape and indecent assault and battery arguing that the trial judge committed error of law in admitting evidence of multiple complaint witnesses. This ruling represents an important decision for criminal defense lawyers, defending sex crimes.

As a Massachusetts criminal defense lawyer, charges of sexual assault generally raise an evidentiary issue known as the first compliant doctrine. Under the first complaint doctrine, defined by the Massachusetts Supreme Judicial Court, in Commonwealth v. King, 445 Mass. 217 (2005), the prosecutor is only permitted to have the first person to whom the victim told of the alleged assault to testify at trial.

The rationale for the doctrine is to refute the notion that silence is a sign of lack of credibility of the victim. In other areas of criminal law, a victim would not be permitted to testify that she told someone else about a crime as the testimony would be inadmissible hearsay. Accordingly, the first complaint doctrine is essentially a special exception to the hearsay rule. The SJC in King limited the evidence to one witness out of concern that permitting numerous complaint witnesses to testify would deprive the defendant of a fair trial and unfairly enhance the credibility of the victim.

Miranda warning and right to remain silent without presence of a Massachusetts criminal defense lawyer

August 14, 2010 | by Michael DelSignore

The U.S. Supreme Court continues to chip away at the Miranda warning, dialing back the landmark protections afforded criminal defendants since the 1960s, the Associated Press reported.

What is important for a defendant to remember is simply this: Never speak to authorities as the suspect in a criminal investigation without the physical presence of a Massachusetts criminal defense lawyer. There is absolutely nothing to be gained form it. You are not going to talk your way out of charges. And, all too frequently, the statements you make are going to be some of the strongest evidence used against you in court.

If you keep that in mind, changes to Miranda won’t impact your rights as the high court continues to water down what has become a defendant’s most basic right over the last four decades.

“It’s death by a thousand cuts,” said Jeffrey Fisher, co-chair of the National Association of Criminal Defense Lawyers. “For the past 20-25 years, as the court has turned more conservative on law and order issues, it has been whittling away at Miranda and doing everything it can to ease the admissibility of confessions that police wriggle out of suspects.”

The original ruling was issued in 1966 and emerged from police questioning of Ernesto Miranda in a rape and kidnapping case in Phoenix. Perhaps the court’s most famous ruling, it requires suspects to be told that they have the right to remain silent, that they have the right to an attorney, and that an attorney will be provided if they cannot afford one.

A trio of decisions issued this year have pruned back some of those rights. The court approved a warning used in parts of Florida that did not notify defendants of their right to an attorney during police questioning. In a separate ruling, the court found that Miranda rights are good for a period of 14 days after a defendant is released from custody. Previously, an assertion of Miranda rights was good forever. Now police can attempt to re-question a suspect after a period of 14 days, even if they asserted their right to remain silent or to have an attorney present. This has increasingly become an issue in cold-case homicide investigations, where law enforcement felt they were hampered by a suspect who asserted his rights decades ago.

Lastly, the court has ruled that a suspect must overtly respond in asserting the “right to remain silent,” just as they must tell police that they wish to have a lawyer present.

At least Justia Sonia Sotomayor found the irony.

“Criminal suspects must now unambiguously invoke their right to remain silent — which counter intuitively requires them to speak,” she said. “At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.”
Continue Reading ›

Massachusetts Supreme Judicial Court interprets the resisting arrest statute in two recent cases

June 28, 2010 | by Michael DelSignore

In two cases decided on June 15, 2010, the Massachusetts Supreme Judicial Court interpreted the resisting arrest statute of Massachusetts General Laws Chapter 268 Section 32B. The two cases were Commonwealth v. Quintos Q, involving a juvenile and Commonwealth v. Montoya.

In Montoya, police officers testified at trial that they saw the defendant fire three gunshots. The officers intended to take the defendant into custody, but the defendant fled on a bicycle. The defendant stopped and ran behind some stairs, was ordered to stop by the police, but continued to flee.

The defendant ran and jumped over a fence only to land in a canal. The officers did not follow the defendant over the fence but told him he was under arrest and the defendant made no further attempts to flee the police.

Under Massachusetts law, the Commonwealth must prove the following to obtain a conviction of resisting arrest. A person commits the crime of resisting arrest by knowingly preventing an officer from making an arrest or by using any other means that create a risk of substantial bodily injury to the police officer or another.

Monotoya’s Massachusetts criminal defense lawyer argued that since the police officer did not follow the defendant over the fence, that the defendant cannot be convicted of resisting arrest because his actions did not create a risk of substantial bodily injury to the officer.

The Massachusetts Supreme Judicial Court rejected this argument holding that the officers did not have to be exposed to the risk as long as the defendant created the risk of bodily injury to the officers. The court held that the trial judge properly denied the defense lawyer’s motions for required finding of not guilty as there was enough evidence for the defendant to be convicted of resisting arrest.

The second resisting arrest case, Quintos Q, involved a similar set of circumstances as Montoya. The defendant in Quintos Q, was a passenger in a car that was being followed by the police. The driver attempted to get away from the police, but crashed the car, at which time the defendant and the driver ran. The officer never had time to say anything to the defendant. Finally, another officer saw the defendant trying to climb a wall and yelled stop police. The defendant did not attempt to flee further as he was cornered.

The Massachusetts Supreme Court held that the defendant was not under arrest until he was cornered, trying to climb the wall. The court found that the officers never communicated to the defendant an intent to make an arrest. Accordingly, the SJC reversed the juvenile delinquency conviction.
Continue Reading ›

United States Supreme Court limits Miranda in the case of Berghuis v. Thompkins

June 4, 2010 | by Michael DelSignore

The United States Supreme Court further limited the holding of its landmark case of Miranda v. Arizona in the case of Berghuis v. Thompkins decided on June 2nd.

In Miranda v. Arizona, the United States Supreme Court held that police must advise a defendant of the defendant’s right to remain silent, right to attorney and the fact that statements could be used against the defendant prior to any custodial interrogation. In Thompkins’ case, the police began to interrogate the defendant about a shooting. The Michigan police read the defendant his Miranda rights from a preprinted form. Most police departments in Massachusetts also use preprinted forms to advise a defendant of their rights. The defendant refused to sign the form and was asked to read one of the rights by the police officer. During the interrogation, the defendant was silent throughout most of the 2 hour and 45 minute interrogation. The defendant was asked by the officer if he prayed for the victim and asked for God’s forgiveness for shooting that boy down. The defendant replied that he did. His confession was used against him at his trial, resulting in his conviction on the charges.

The defendant argued that his silence during most of the interrogation acted as an invocation of his right to remain silent and that the police should have stopped questioning him when he did not respond. The Supreme Court rejected this reasoning holding that a defendant must unequivocally invoke his right to remain silent.

The defendant next attacked the waiver of his right to remain silent by arguing that waiver of his rights under Miranda was not knowing, intelligent and voluntary. The majority opinion written by Justice Kennedy indicating that Miranda should not be interpreted to hold that a waiver of Miranda is difficult to establish absent a written or formal waiver. The Court held that there is no formalistic process that the State has to demonstrate to prove that a defendant waived Miranda rights other than that the accused made an uncoerced statement and understood his rights.

The Court found that Thompkins waived his rights under Miranda and understood those rights. Significantly, the court held that the fact that almost three hours passed from the time of the Miranda warnings to the incriminating statement did not mean that the statement should be suppressed. Further, the court held that the fact that the police appealed to religion did not make the confession coerced as the court held that the Fifth Amendment is not concerned with moral and psychological pressures to confess emanating from sources other than official coercion.
In a dissenting opinion, written by new Supreme Court Justice Sotomayor and joined by Justices Stevens, Ginsburg and Breyer, the dissent argues that the court’s decision represents a substantial retreat from the Constitutional protections recognized in Miranda.

The dissent argued that the State did not satisfy the heavy burden of showing that the defendant waived his right to remain silent. Additionally, the dissent would hold that a defendant that continuously remains silent invokes their Fifth Amendment rights and their actions cannot be interpreted in any way other than indicating a refusal to speak to the police.
Continue Reading ›

Lindsay Lohan makes bail on warrant for alleged violation of DUI probation

May 22, 2010 | by Michael DelSignore

A California judge issued an arrest warrant for Lindsay Lohan as she failed to appear in court for mandatory court hearing according to news accounts. The court date was to determine whether Lohan was complying with the conditions of her DUI probation. According to the news reports, it is alleged that Lohan missed alcohol counseling meetings.

As a Massachusetts DUI lawyer, Lohan’s situation is commonly faced among many charged with DUI in Massachusetts. If a person accepts a guilty plea or is found guilty after trial on a first offense OUI, as a condition of probation, the individual will have to complete the 24D alcohol education program. Attendance at the 24D alcohol education classes is a requirement to successful completion of probation. Similarly, if a motorist is found guilty of a second offense OUI in Massachusetts, the motorist will have to attend a 14 day in-patient program and complete the aftercare component. Completion of these courses is a requirement to avoiding jail time on a probation violation hearing.

Lohan faces in California what appears to be similar to a probation violation or probation surrender hearing in Massachusetts. If a motorist accepts a plea of a Continuance Without a Finding, also known as a CWOF in the court, the motorist will have to complete the 24D alcohol education program, pay fines and fees and avoid committing any new offenses. If there are any violation of probation, either the individual fails to pay the money or complete the 24D program or commits new criminal offenses, the case is brought back to court for a probation violation hearing, which proceeds in a two step process in Massachusetts.

On the initial court date, the probation department will inform the judge whether the probation department is seeking a detention pending the final surrender hearing. If the probation department seeks a detention, the probation officer must convince the judge that there is probable cause to find the defendant in violation and that the judge should detain the defendant pending the final surrender hearing. In a typical Violation on a First Offense OUI, the probation department will not ask for a detention but set the matter down for a final surrender date. Typically, the surrender is resolved if the defendant attends the alcohol education program and gets in compliance with probation. In Massachusetts, there is no right to bail on a probation warrant or probation detention. If a judge holds a defendant prior to a probation violation hearing, there is no possibility of bail.

At a probation violation hearing, a judge can revoke the CWOF given at the initial plea, and revoke the probation and impose a sentence upon to the 2.5 year maximum penalty for the OUI offense.
Continue Reading ›

President Obama criticizes United States Supreme Court prompting response from Chief Justice

March 13, 2010 | by Michael DelSignore

The Obama Administration is taking heat from Republican senators and the Chief Justice of the U.S. Supreme Court for remarks the President made during the State of the Union, which were critical of a recent Supreme Court decision regarding campaign finance reform.

The independence of the court is little debated and often taken for granted. But an independent court is vital to democracy and has a far-reaching impact, from national debate over abortion and gun control to future cases the court might hear regarding Massachusetts criminal defense.

The judicial branch must operate independently of the executive branch (White House) and the legislative branch (Congress), which is the primary reason why Supreme Court Justices are appointed to the bench for life.

FOX News is reporting that two senators (with no apparent acknowledgment of the irony of the legislative branch now becoming involved with court affairs) have called on Obama to stop criticizing the court. Chief Justice John Roberts took umbrage at the President’s criticism during his State of the Union address.

Utah Sen. Orrin Hatch said he agreed with Roberts, who also said it was “very troubling” that the annual speech has “degenerated into a political pep rally.”

“But the president was wrong on the law, he was wrong on the facts and I thought it was unseemly for him to criticize the Supreme Court while they’re sitting there … they’re a separate branch of government. They’re not there to be lectured to by the president of the United States.”

During the speech, at which six of the justices were in attendance, Obama criticized a 5-4 January decision that found government limits on corporate funded, independent political broadcasts during elections constitute a violation of free speech rights.

Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee, also chimed in to voice his criticism.

“I was disappointed and dismayed to hear the president of the United States mischaracterize the decision of the Supreme Court and scold the members of the court in his State of the Union address for something they didn’t do,” Sessions said.

Chief Justice Roberts, speaking on Tuesday at the University of Alabama, questioned whether justices should attend the address.

“To the extent the State of the Union has degenerated into a political pep rally, I’m not sure why we’re there,” said Roberts, who was nominated to the court by President George W. Bush and approved by the Senate in 2005.

Roberts said anyone is free to criticize the court and that some have an obligation to do so because of their positions.

White House spokesman Robert Gibbs stood by the President’s comments, saying the flood of corporate money is drowning out the voice of average Americans.

“The president has long been committed to reducing the undue influence of special interests and their lobbyists over government,” Gibbs said. “That is why he spoke out to condemn the decision and is working with Congress on a legislative response.”

The Washinton Post said the issue may be resonating with voters after 1,500 comments were posted on its website.

The Wall Street Journal said the incident may be the most overt criticism of the court by a sitting President since Franklin Roosevelt engaged in an epic battle with the court over New Deal initiatives.
Continue Reading ›

Massachusetts license suspension for out-of-state DUI conviction affirmed by Massachusetts court

February 13, 2010 | by Michael DelSignore

The Massachusetts Registry of Motor Vehicles suspended the Massachusetts license of a resident based on a DUI conviction that occurred in Colorado. Under Massachusetts General Laws Chapter 90 Section 22, the Massachusetts Registry of Motor Vehicles can suspend the Massachusetts license of a resident for a conviction in another state that would result in a suspension if it occurred in Massachusetts, as long as the out-of-state statute is substantially similar to the equivalent Massachusetts OUI statute.

In the case of the Bresten v. Registry of Motor Vehicles, Bresten was convicted of driving while impaired in Colorado and required to pay a fine as a result of the conviction. The statute that the defendant was convicted did not carry with it a license loss. The Massachusetts RMV suspended the defendant’s license for one year as a result of the Colorado impaired driving conviction. The defendant ultimately received a hardship license from the Board of Appeals, but appealed the RMV’s determination that the Colorado impaired driving conviction is similar to the Massachusetts OUI statute.

The Massachusetts Appeals Court affirmed the RMV license suspension decision, finding that the statutes were substantially similar.

The Colorado statute prohibited a defendant from operating a motor vehicle when to the slightest degree alcohol impaired the motorist’s ability to operate safely. Under Massachusetts OUI law, the Commonwealth has to prove that a defendant’s ability to operate a motor vehicle safely is diminished by alcohol. Accordingly, the Colorado statute appears to require a lower standard of proof to support a conviction than under Massachusetts DUI law, a judge would misstate the law by defining impaired with the slightest degree definition used under the Colorado law. Further, the difference in the statute can be discerned with the lower potential penalty under the Colorado law.

In a case called, Commonwealth v. Connolly, 394 Mass. 169 (1985), the Massachusetts Supreme Judicial Court held that a jury in a Massachusetts OUI trial should be instructed that alcohol must diminish a drivers ability to operate a motor vehicle safely. The SJC in Connolly found that the trial judge committed error of law in instructing the jury that a defendant could be convicted if alcohol impacted the defendant to a perceptible degree, or if alcohol made the defendant slightly light headed, or slightly depressed or slightly happier than the person would be in the absence of alcohol. Accordingly, the Colorado statute appeared to adopt a lower burden of proof that was rejected by the Massachusetts Supreme Judicial Court. The opinion of the Appeals Court indicates that the court is taking a broad view of the definition of substantially similar in interpreting whether out of state convictions qualify for an in-state suspension. If you are convicted of a DUI in another state, the Massachusetts RMV will likely suspend your license as if the offense happened in Massachusetts.
Continue Reading ›