Massachusetts Criminal Defense Lawyer Blog

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.

Review of the Cross Examination of Bradley in the Aaron Hernandez Double murder trial

March 24, 2017 | by Michael DelSignore

The Cross Examination of Alexander Bradley had many points where as a criminal defense lawyer I intend to borrow from Attorney Baez’s style. This was a perfect example of a cross examination of a confrontational and difficult witness who would not want to concede anything to the defense. While at times it was objected to, I thought Baez commentary, before asking question, such as, I want to be very precise with my questions conveyed to the jury, that this is someone very slick answering questions. I thought Bradley undermined his own credibility by rather than answering a question, would sometime request to see the document. It was clear that he had his testimony well planned out. He conceded that he was very successful as a drug dealer with very few arrests.

Bradley testified that he was a witness to the double murder that occurred on the night of July 16, 2012 in the South End of Boston; Bradley was driving the car that Hernandez allegedly shot out of, killing Daniel De Abreu and Safiro Furtado.

During the direct examination on Monday, Bradley provided the jurors with a detailed and explicit account of what happened. After having a drink spilled on Hernandez at a local Boston nightclub, Bradley exemplified for the jury the anger and agitation Hernandez showed.

Breath Test evidence in Massachusetts excluded for cases prior to September 14, 2014 while Judge finds the Breath Test Scientifically Reliable

February 18, 2017 | by Michael DelSignore

It was a partial victory for Massachusetts OUI Lawyers as the judge overseeing the Stateside breath test litigation, ruled that the breath results shall be excluded if the machine was calibrated prior to September 14, 2014, based on lack of standards and procedures for conducting the annual certification. The Judge found that the lack of written guidelines and documented notes regarding how the machines were certified means that the Court could not find that these breath tests results were scientifically reliable. The Judge found that since there were not standard procedure for calibrating the machines, that the court could not find that it was done properly based on the testimony from the Office of Alcohol Testing that procedures were followed in an informal way and were followed despite lack of documentation. The Court found that the Commonwealth did not provide evidence that OAT had a reliable lie way to calibrate the breath test device as part of the annual certification prior to September 14, 2014 when it promulgated the Certification and Calibration Procedures. Accordingly, the judge held that any breath test device certified prior to September 14, 2014 cannot be said to be scientifically reliable. The judge did leave open the possibility that the Commonwealth could demonstrate to a judge that a particular machine was accurately calibrated.

While this aspect of the ruling was in favor of the defense, the Judge sided with the Commonwealth on the major challenges to the breath test. The judge found that the Alcotest source code was scientifically reliable, rejecting numerous challenges by the defense to its accuracy. Since the judge’s findings regarxines the credibility of witnesses was a factual finding, the Massachusetts Supreme Judicial Court would likely give those findings deference and uphold the trial judge.

Breath test cases in Massachusetts have been stayed since the litigation began in August of 2015. The split ruling may make an appeal less likely, though I would still expect an appeal. Since the judge’s ruling does not impact pending cases and hold that the machine is reliable, the ruling excluding breath test results is limited to a confined number of cases. I think the SJC would uphold the decision as the portion excluding the results was based on a complete lack of evidence of certification procedures. The judges in the district court have been anxious to get the breath test cases resolved; and did not seem to be contemplating months more of delay in this litigation.

Judge denies bail for the widow in the pulse nightclub shooting

February 11, 2017 | by Michael DelSignore

The Orlando shooter’s widow, Noor Salman was denied bail pending her upcoming trial. Often, in a serious case involving death, a defendant will be held without bail as the Court concludes no amount of money will ensure the person’s appearance in court. Since bail is not meant to punish someone prior to trial, given the presumption of innocence, in a high profile case it put a judge in a difficult position as to whether to set a bail.

Her attorneys are planning to argue that Salman is not a public safety threat, and is not at a risk of fleeing before her trial date approaches. In this case, family members have offered their homes as collateral in desperate hopes to get Salman out on bail.

Oman Mateen was the gunman and husband to Salman who walked into a Florida nightclub and shot and killed 49 people, wounding an additional 53 individuals. The upcoming trial is in regards to Salman’s alleged claim that she supported her husband’s terroristic plans; Salman was originally arrested back in November after authorities suspected that she helped her husband plan the attack on Pulse Nightclub. While the prosecution has not released a bulk of the evidence they have collected on Salman, an attorney on her case, Haitham Amin, noted that it appears as if Salman is going to be charged with being present when her husband was planning the attacks.

Massachusetts SJC outlines process for dealing with Annie Dookhan Drug lab scandal

February 4, 2017 | by Michael DelSignore

Recently, the Massachusetts Supreme Judicial Court addressed a plan to handle the numerous potentially-tainted drug cases that are a result of Annie Dookhans mishandling of evidence. Originally, there were several indications that the criminal justice system would adopt a blanket approach to handling the cases; many people called for complete and utter dismissal of all convictions tied to Annie. However, the Supreme Judicial Court ultimately declined this method, and outlined a process to put the scandal in the past.

Massachusetts District Attorneys are going to have the responsibility of sorting through and dismissing any cases that would not be able to be re-prosecuted in a court of law. In accordance, District attorneys across the state will have 90 days to accomplish this task, and notably have to follow a three-step process in doing so; defendants whose cases would not be dropped will be alerted, and will have an opportunity to obtain counsel if they want to dismiss their plea or request a new trial. If you want to stay informed make sure to read the latest news on the Annie Dookan case at the Bostonherald.com.

Dookhan was a chemist at a Boston Laboratory utilized frequently by the Massachusetts State Police, the Hinton State Laboratory Institute; where she was eventually caught and admitted to faking drug results, forging paperwork and mixing false samples. There are allegedly more than 24,000 defendants that, through a process, have been linked to Dookhan.

Can Anxiety and depression be a defense to a DUI charge in Massachusetts?

January 29, 2017 | by Michael DelSignore

When a person is pulled over and ultimately arrested for a drunk driving called OUI in Massachusetts and DUI in most parts of the country, most people would inherently draw a link between drinking and driving. Teenagers, especially, are quick to be stereotyped and labeled for this “behavior”. What if they were exhibiting symptoms of being drunk, while actually suffering from anxiety or depression? While anxiety and depression symptoms range from person to person, often times the many symptoms are nearly identical to the symptoms that someone under the influence could exhibit.

Anxiety disorders, time and time again, have proven to be the most common mental illness among Americans; many Americans fail to seek treatment for their illness and end up suffering from a host of devastating symptoms. The ADAA, or The Anxiety and Depression Association of America reported that if a person suffers from anxiety, it is definitely not uncommon for them to simultaneously suffer from depression. For this reason, it makes sense that the symptoms a person exhibits could be significant enough for a law enforcement officer to mistake a person as being drunk.

Mayoclinic.org has a list of the numerous symptoms that are typically seen in patients suffering from such mental illness; nervousness or being tense, trouble concentrating, feelings of weakness or just simply being tired are a few of the many. These are not dissimilar to the symptoms an individual enduring field sobriety tests may exhibit. For example, when a person is first pulled over, they may act exceptionally nervous or tense. Additionally, when the officer orders a person to do a field sobriety test such as the 9 step walk and turn they may have extreme difficulties concentrating. Nervousness can impact a person performance on the nine step walk and turn; you can read about the clues that officers look for when administering a nine step walk and turn on my website.

Massachusetts Recreational Marijuana Laws May Face Changes

January 20, 2017 | by Michael DelSignore

Back in November of 2016, Massachusetts voters ultimately voiced their opinion and voted for the legalization of recreational marijuana. Supporters of such legalization have argued that the new law would take marijuana out of the ‘black market’ and would be subjected to applicable tax; marijuana would produce tax dollars for the state and would employ hundreds of local citizens. However, as recreational marijuana is a complex and hot topic circulating around Massachusetts, the Senate has declared that the law itself needs to be clarified and refined. Ultimately, this means changes, and supporters of its legalization are not on board with this.

Fox 25 news reported that Senate President Stanley Rosenberg, on addressing the voters who voiced their support for the legalization, mentioned that advocates should been prepared for such changes to happen. As of now, there is a 6-month delay for anyone attempting to open recreational marijuana stores for consumers. However, the legislature has been pondering many other changes, including but not limited to raising the legal age from 21 for possession, purchase and use, an increase on the marijuana tax rate, as well as lowering the amount of plants that can be grown in any given household.

In relation to the push for an increased tax rate, legislators argue that the current proposed law is simply too low and will more than likely not be enough to even cover regulatory costs. As of right now the maximum (and total) tax rate proposed is 12%. Other states where legalized recreational marijuana has made waves has tax rates as high as 37% (Washington) and 29% (Colorado). The hesitancy to allow home growers to have up 12 plants produces fear for the legislature, as they believe the more plants a person is able to grow, the more likely they will sell their products to consumers illegally.

Review of SJC oral argument in Gerhardt case regarding admissibility of field sobriety tests in OUI marijuana arrests

January 13, 2017 | by Michael DelSignore

The Massachusetts Supreme Judicial Court heard oral argument in the case of Commonwealth v. Thomas Gerhardt raising the issue of whether field sobriety tests should be admissible for an OUI marijuana arrest.

While it is difficulty to predict how judges will decide from questions, here are my thoughts.

The Justice stated that it would be improper with an objection for an officer to testify that a defendant passed or failed field sobriety tests in an OUI alcohol or marijuana case. It appeared as though the Justice seemed to think that because an officer can testify that someone stumbled getting out of the car, that it is not significantly different to say that the individual could not follow instructions on a field sobriety test.