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“The whole DRE protocol isn’t scientifically reliable,” said defense attorney Michael DelSignore, who specializes in OUI cases. “It’s never been tested scientifically and the officers aren’t qualified to make the assessments they’re making. All they’re doing is checking the person’s pulse, testing their blood pressure. They’re not doctors.”
DelSignore said he’s had fewer than 10 cases involving a DRE evaluation in his decade of private practice. Sometimes, a DRE isn’t available after a driver is arrested, or more often, the person refuses the evaluation. Unlike refusing the breathalyzer, which leads to an automatic license suspension, there’s no penalty in Massachusetts for refusing a DRE evaluation.
Some U.S. Supreme Court decisions open up a few avenues, Stoughton criminal defense lawyer Michael DelSignore said.
“If the victim isn’t able to testify, then the only way they could prove the case is if the defendant made any admission, or if the victim made a statement in a state of emergency to somebody else,” he said.
By “state of emergency,” DelSignore is referring to statements uttered by a victim in an effort to get help. He gave as an example a victim of domestic violence who refuses to testify against her attacker at trial, but stated while trying to get help, shortly after the attack, that she had been beaten. Such statements, DelSignore said, can be used at trial without a victim testifying. But they would not be difficult for a defense lawyer to question and raise doubts about in jurors’ minds.
Michael A. DelSignore, a local DUI lawyer with offices in Westboro and Marlboro, said he recalled in 2013 a case in Attleboro that was thrown out because a calibration figure was off.
“I saw it in the ticket that it hadn’t calibrated correctly,” he said. “I’d never seen one.”
"The implication of this decision is that it will be very difficult to have a roadblock declared unconstitutional based on an argument that the data does not show a problem with the area," DelSignore writes in his blog.
According to DelSignore, when deciding where to set up sobriety checkpoints, the State Police are giving primacy to practical considerations, such as whether there's a nearby parking lot for vehicles to pull into safely. They then look for data to justify that site selection.
DelSignore said of the OUI cases he handles, only 1 in 15 involves marijuana and that they are “very hard to prove.” Carmichael insisted that police will continue to try and crack down on stoned driving, even if it means charging a driver with negligent or reckless operation of a motor vehicle.
We spoke with Massachusetts defense attorney, Michael Delsignore and asked him if he feels carters defense has a valid argument.
"I think it would probably go to the juvenile court on a lesser charge. But, I don't think the lead charge manslaughter should remain given the defense motion," he says.
Delsignore says if she was charged as a juvenile she would probably face a reckless endangerment charge instead of manslaughter. So she would be looking at probation. But, if convicted as a youthful offender on manslaughter charges, she could face 20 years in prison.
In his 25-page brief, DelSignore argues that police officers should not be allowed to testify as "lay persons" about the roadside tests because there is no scientific evidence to prove there is a correlation between someone's performance on the tests and detecting whether a person is impaired by marijuana.
"Marijuana impairment and alcohol impairment present different symptoms," DelSignore argued, adding that studies have shown that marijuana-influenced variations in driving behavior are often the opposite of the effects of drunken drivers.
"Tests used to detect a certain range of symptoms exhibited by someone under the influence of alcohol are not reliable or effective in detecting the very different symptoms exhibited by someone who has consumed marijuana," DelSignore wrote.
During the 1970s, DelSignore said, there were several studies to determine which roadside tests were best able to detect whether a driver was impaired by alcohol. None have been done to determine standardized tests for marijuana impairment.