Massachusetts Criminal Defense Lawyer Blog

Breath Test cases in Massachusetts could get dismissed as a result of serious discovery violation

August 24, 2017 | by Michael DelSignore

For the past two years, there has been extensive litigation about the reliability of the breath test. Judge Brennan consolidated all issues pertaining to the accuracy of the breath test in one hearing. Judge Brennan rejected all challenges to the scientific reliability of the machine, but found that the Office of Alcohol Testing did not have reliability procedures to conduct the annual certification. As a result he presumptively excluded two years of breath testing between 2012 and September 2014.

Some district attorneys office did not attempt to admit the results; while others, pursuant to the decision attempted to have the Office of Alcohol testing overcome the presumption of exclusion by testifying that they followed a reliability procedure at the time. In an article in the Boston Herald, by Bob McGovern discusses a motion that was recently filed to be heard by Judge Brennan that could result in exclusion of thousands of breath tests.

Following the litigation, attorneys continued to review the documents provided by the Office of Alcohol Testing to determine if all data was provided. Thomas Workman an expert of breath testing, reviewed the documents and discovered that the Office of Alcohol Testing did not provide all worksheets. Workman filed Freedom of Information Requests and discovered that all worksheets were not provided pursuant to Judge Brennan’s order. A motion filed in Concord District Court alleged that 89% of the withheld worksheets were exculpatory. The defense is arguing that by failing to provide the worksheets, that the Commonwealth undermined the ability of the defense to challenge the reliability of the breath test machine. The litigation took 2 weeks of court time and was a substantial cost to tax payers. To have evidence withheld that was ordered to be produced undermines the integrity of the Court process and litigation. I would expect Judge Brennan to schedule an evidentiary hearing to determine why the worksheets were not produced. This would involve further testimony by the Office of Alcohol Testing and possibly the district attorneys involved in handling the litigation.

Life sentence upheld for man involved in police chase that led to a fatal accident

August 22, 2017 | by Michael DelSignore

The Massachusetts Appeals Court ruled last Thursday to uphold the conviction of the Brockton man who killed a woman in a fatal car crash and injured nearly 8 others. In its decision, the court stated that the defendant should have known he was creating a strong likelihood of death of another person based on his mere actions; he led the police on a high-speed chase during rush hour through a busy area of town, and committed multiple major traffic infractions before ultimately running the red light at the intersection where Marianne Kotsipoulos was killed. The judge concluded the evidence was sufficient to prove a third prong theory of malice and therefore upheld the second degree murder conviction.

Following his conviction of second degree murder in 2014, Antwoin Moore moved to reduce the second degree murder verdict to a lesser offense, citing that the Commonwealth failed to prove the third prong of malice.

At the time of the incident, detectives of the Brockton Police Department were conducting a narcotics investigation, when they noticed a Chevrolet Trailblazer fail to stop at a marked stop sign. The detectives activated their blue lights, and the driver of the Trailblazer later identified as Antwoin Moore, fled the area; officers noting that the car was swerving in and out of lanes at a high rate of speed. The chase ultimately led to a major car accident at a Brockton intersection, where Marianne Kotsipoulos was killed as a result.

Michelle Carter Guilty of Manslaughter on Words Alone

June 16, 2017 | by Michael DelSignore

Judge Lawrence Moniz has found Michelle Carter Guilty of Involuntary Manslaughter after bench trial in Taunton Juvenile Court. Judge Moniz held that Ms. Carter’s actions and failure to act caused the death of Conrad Roy III.

Judge Moniz’s decision seemed to hinge on the text Carter had sent to her friend Sam Boardman which stated “Sam, Conrad’s death is my fault like honestly I could have stopped him I was on the phone with him and he got out of the [truck] because it was working and he got scared and I f—— told him to get back in Sam because I knew he would do it all over again the next day and I couldnt have him live the way he was living anymore I couldnt do it I wouldnt let him,”.

The Judge held that Carter’s statements, urging Mr. Roy to get back into his car, were wanton and reckless and that these statements created a situation where there was a high degree of likelihood that Mr. Roy would suffer death or serious injury. Judge Moniz further stated that when Carter told Mr. Roy to get back into the car she created a dangerous, likely deadly situation, and by creating the deadly situation, Carter had a duty to alleviate that danger. By failing to tell Roy to get out of the car or call for help she caused Mr. Roy’s death. The Judge cited Mr. Roy’s prior suicide attempt, where he had reached out to a friend who counseled him not to go through with it and contrasted that with Carter’s actions telling him to get back in the car.

Awaiting Verdict in Michelle Cater Manslaughter Trial: Psychiatrist Testifies critical for the defense

June 14, 2017 | by Michael DelSignore

As the Michelle Carter trial continues this week, her defense team presented expert witnesses; Dr. Peter Breggin took the stand testifying in regards to his knowledge on the effects felt by juveniles whom are prescribed antidepressants. This comes after the defense had their motion to dismiss the case, for lack of credible evidence, denied. A witness for the defense, Dr. Breggin has frequently testified in court cases, roughly 90 times since the 1980’s, and is commonly known for his opposition of anti-depressant medications.

For roughly four hours, Dr. Breggin described Michelle Carter as a person always willing to offer a helping hand who underwent changes after being prescribed the well known antidepressant Prozac and subsequently Celexa. Dr. Breggin painted a picture of a young adult who simply was suffering from the side effects of the medication she was placed on, noting that antidepressants, such as the medications listed above, have the ability to affect impulse control. He also pointed out some of the warnings, in plain view, on the side of the Celexa medication bottle itself; warnings such as potential for an increased risk of suicide for those taking the medicine.

After first being prescribed Prozac, Breggin noted that it was evident to Carters loved ones that she was becoming increasingly more vulnerable. He gave his expert opinion, citing the many common side effects patients that take similar drugs commonly feel. Prozac was the first medication that was prescribed to Carter whom later switched her medications in July of 2014. After switching her medication to Celexa, Carter began to exhibit more apathy, but this apathy was also coupled with bursts of anger and mania. Dr. Breggin highlighted the drugs effect on the frontal lobe, specifically in young adults, noting that the drug may negatively impact her ability to make proper choices and to fully understand the consequences of such choices.

Involuntary Manslaughter trial of Michelle Carter Motion to Dismiss Denied by Judge

June 12, 2017 | by Michael DelSignore

After prosecutors rested their arguments in the Michelle Carter case, Judge Lawrence Moniz denied the defenses motion to declare her not guilty based on the evidence or lack therof. Carter, a young woman from Plainville Massachusetts is currently on trial for convincing her high school boyfriend to commit suicide in 2014; prosecutors arguing that Carter persuaded her boyfriend to take his own life, an act that would not have been possible without the influence of his then-girlfriend Michelle Carter.

The Judge did not give a reasoning in regards to the denial of the motion, but with the motion for required finding denied, the defense team will be putting on their own case. A motion for required finding is a relatively easy hurdle for a prosecutor to satisfy as all of the evidence is viewed in the light most favorable to the Commonwealth. It is only when viewing all of the evidence in the light most favorable to the Commonwealth, and finding that no reasonable juror or judge in this case, could find the essential elements of the case proven that the motion be be allowed.

Carter’s defense team argued that there is simply insufficient evidence that Michelle Carter actually caused her boyfriend to take his life; the defense has argued from the start of the trial that this is a suicide case.

Defenses in Tiger Woods’ DUI Prescription drugs arrest

May 30, 2017 | by Michael DelSignore

Tiger Woods was charged with DUI drugs in Florida. According to the CNN news report, there was evidence of fresh damage to his car, he was found asleep at the wheel and failed field sobriety tests. Woods did submit to a breath test and registered a 0.00, revealing no alcohol in his system according to the breath test results.

In Massachusetts, an OUI drugs charge involves proving the following. That a person operated a motor vehicle, on a public way, while under the influence of a narcotic drug, depressant or stimulant. The Commonwealth has the proven of proving what particular drug an individual is alleged to be under the influence of. This is one of the more difficult elements of a DUI drugs charge for the Commonwealth to prove. Often, if there are no drugs found in the car, no smell such as in an OUI marijuana case, the evidence will be based on an admission or statement of the motorist.

According to multiple media reports, including the Boston Herald, Woods admits to taking several prescription medications, pain killers and Vicodin. The State will need expert testimony regarding the impact these medications would have on his ability to drive and will have to present evidence of the amount or quantity of the medication in his system.

Has Uber Really Lowered DUI Rates Across the Country?

May 22, 2017 | by Michael DelSignore

Recent studies have started to surface in regards to the number of OUI’s now that Uber has become a popular ride-sharing service. Uber operates in many cities across the country and has become increasingly more popular over the last couple of years. Young people and adults alike look to Uber to provide transportation after a night out; Uber is generally considered a safer option and is accessible to those who live outside the city.

What does this mean for OUI rates across the country? As Uber is still relatively new in the transportation world, there have been mixed finding’s depending on what study you look at. A study on drunk driving in the city of New York supported the idea that, boroughs that had wide-spread usage of Uber, had a 25%-35% decrease in the number of accidents where alcohol was a leading factor; these numbers can be compared to areas which do not offer Uber as a ride service to it’s residents.

The study, summarized by the New York Times here, illustrates that this results in about 40 fewer alcohol-related accidents per month. California, another state that conducted a similar study back in 2015, also found that there was a decrease in Drunk driving fatal crashes; more recently, West California conducted a study which produced shockingly similar results. However, some would argue that while New York and other popular cities have seen a decrease in OUI’s and alcohol related collisions, Uber is still a new company and these findings can not be applied country-wide.

SJC addresses whether Third Offense OUI can result in detention without bail under the Dangerousness statute of Chapter 58A

May 18, 2017 | by Michael DelSignore

The Massachusetts Supreme Court will soon decide the case of Commonwealth v. Dayton, which raises the issue of whether an individual charged with an OUI third offense can be held as a danger to the community. The dangerousness statute of Massachusetts General Laws Chapter 58a, provides that a defendant can be held for up to 120 days without bail if the Commonwealth can establish that the defendant is a danger to the community. To be held without bail under the dangerousness statute, the defendant has to be charged with an offense which falls under the statute.

OUI third offense may fall under the statute, however, the statute is ambiguous, as to whether an OUI third qualifies for detention under the dangerousness statute. Section 58a., provides that the Commonwealth may order pretrial detention on conditions of release for a felony offense, including when a defendant is arrested and charged with a third or subsequent conviction for a violation of Section 24 of Ch. 90.

Third offense is a felony offense, however the issue is whether it counts as a third or subsequent conviction. The defendant’s in the Dayton case argued that a person must would have to be charged with a fourth offense in order to meet the requirements of being held as a danger to the community. A person charged with a third offense only has two prior convictions, as a person charged with a fourth offense has a third more subsequent conviction.

Valor Act permits Massachusetts OUI Offense to be dismissed over the Commonwealth objection based on military service

April 18, 2017 | by Michael DelSignore

The Massachusetts SJC decided an important case for Massachusetts OUI Lawyers today. The SJC held in Commonwealth v. Morgan that the Valor Act permits a judge to dismiss a first or second offense OUI over the Commonwealth’s objection. The SJC held that the wording of the statute did not exclude dismissal as a remedy and that the legislature is presumed to know how a statute will impact existing laws.

The Valor Act was passed in 2012 in recognition of the service of military personnel in Afghanistan and Iraq. The Act permits someone who has been honorable discharged and has been in active duty to have a criminal charge of a misdemeanor, if the individual has no other record, dismissed under a diversionary program.

Once probation determines that an individual qualifies, the Court continues the arraignment for 14 days to allow the individual to receive a recommendation from the Veteran’s Administration that they meet the eligibility requirements for the pretrial diversion program. The case is then stayed for 90 days until the program is completed; after the completion of the program, the judge is authorized to dismiss the charge under the recent decision of the SJC today in Commonwealth v. Morgan.

Aaron Hernandez found not guilty in Boston Murder Trial

April 14, 2017 | by Michael DelSignore

Aaron Hernandez was found not guilty of a double murder from 2012 in Boston. The key piece of evidence leading to the not guilty verdict was that Alexander Bradley the only one directly linking Hernandez to the murder could not be trusted. There was evidence that he was lying, manipulative, had a long criminal history including gun charges and was a known drug dealer.

The Commonwealth did everything it could to distance itself from Bradley and in closing argument tried to suggest that Bradley’s testimony was not really necessary for a conviction. But in the end, the jury could not determine whether Bradley fired the shots. Given that Bradley had a gun related incident after his immunity deal, the jury concluded it was equally likely that Bradley fired the shots and Hernandez was nervous that he was associated with a shooting.

In his closing argument, the prosecutor spent about an hour addressing what the evidence was and how strong it was even without the testimony of Alexander Bradley. The prosecutor made compelling points in closing such as why was the car used in the murder stored at Hernandez’s cousin’s house, how would Bradley have known what the victim’s in the car would have claimed was said when the shots were fired. But Bradley claimed that Hernandez threw the murder weapon out the window of the car, which was not supported by the evidence. The prosecutor tried to argue that inconsistencies in the evidence indicate trustworthiness, but in the end for the jury it was reasonable doubt.