Massachusetts Criminal Defense Lawyer Blog

Oral Arguments in Utah v. Strieff: The Future of the Exclusionary Rule

February 22, 2016 | by Michael DelSignore

The Supreme Court will be back in action next week, and will hear a case about the future of the exclusionary rule when it hears the arguments of Utah v. Strieff on February 22^nd. The specific question is whether evidence seized incident to arrest on a minor traffic warrant, discovered during a concededly unconstitutional detention, is inadmissible under the “attenuation” exception to the exclusionary rule.

Breaking the Chain of Events

Evidence seized after an illegal search or detention may be admitted under three exceptions to the exclusionary rule:

(1) the independent source exception,
(2) the inevitable discovery exception,
and (3) the attenuation exception.

The attenuation exception applies where the police engaged in unlawful conduct, but the unlawful conduct was not the proximate cause by which the police obtained the evidence, because of an intervening circumstance breaking the causal chain. Under the attenuation exception, the intervening act is one that was made voluntarily by the defendant, such as a confession or consent to search given after illegal police action. The defendant’s voluntary act is sufficiently independent to break the legal connection to the primary violation, and therefor the evidence will not be excluded.

The 5 AM Miracle and Why Lawyers should Read it

February 12, 2016 | by Michael DelSignore

I read self improvement and motivational books all of the time. I think it is easy to say that these books are all essentially the same. However, many times the author will remind you in a new way of helpful things to improve your life or work or have you think differently about your day and goals. That is what Jeff Sanders does in his book The 5 AM Miracle, Dominate your day Before Breakfast.

While he suggests the benefits of waking up at 5 AM, the point of the book is not about the time you wake up, but that once you are up you have a plan and immediately being to take charge of your most important goals.

Sanders suggests, having an plan for your entire day to get the most out of it. He suggests having a list of morning habits to start your day.

The DUI Breath Alcohol Per Se limit should not be lowered from .08

February 8, 2016 | by Michael DelSignore

Lowering the legal limit should be rejecting as punishing social drinking; it would not have any impact on reducing serious DUI accidents as these are not being caused by individuals with breath test results under .08.

New evidence supports correlation between gastric bypass and higher breath test readings

February 3, 2016 | by Michael DelSignore

The results of a sobriety test, such as the Breathalyzer or blood test, frequently play a crucial role in the outcome of a drunk driving case. When assessing how reliable the sobriety test results may have been, it is important to consider the medical background of the client and any conditions that may have impacted their results.

Scientific evidence shows that weight loss surgeries, such as the gastric bypass, can cause a a significant increase in blood alcohol content for someone stopped and arrested for DUI for a variety of reasons.

The health risks and associated conditions of obesity are well documented in the media- from diabetes to cancer, overweight individuals often turn to high intensity exercise programs and extreme dieting in their attempts to lose weight. Although this works for some, many people may see no improvement with their new lifestyle practices and still struggle to lose weight. Such people may turn to weight-loss surgery. Weight-loss surgery is relatively common, the most notable being the gastric bypass. This surgery aims to shrink the stomach in an attempt to aide the patient in loosing weight. Although this surgery carries the risks associated with any surgery, it is relatively safe and has helped many people lose vast amounts of weight. However, few people may know of one risk relating to this surgery that is potentially dangerous – alcoholism.

Facebook Tag results in Jail time on Restraining Order Violation

January 29, 2016 | by Michael DelSignore

Facebook is frequently mentioned in Court cases involving violations of a 209A order in Massachusetts. Recently, I was in Marlborough District Court waiting for an OUI trial to be heard; in front of me were two trials regarding 209A violations allegedly involving Facebook posts. A case in New York illustrates how Facebook posts can lead to a violation of a restraining order.

Massachusetts Supreme Judicial Court to review accuracy of Field Sobriety Tests in OUI Marijuana cases.

January 27, 2016 | by Michael DelSignore

Field sobriety tests are commonly used in OUI alcohol cases. The Massachusetts Supreme Court will address, in the case of Commonwealth v. Gerhardt, whether these tests are accurate and reliable for when someone is arrested for OUI marijuana in Massachusetts.

The police have been using field sobriety tests to help them form an opinion as to whether someone is under the influence of marijuana. However, there is very little scientific evidence that these tests are accurate and reliable for someone impaired by marijuana. The tests were never studied to determine impairment with marijuana, rather they were studied only in relation to alcohol.

The case before the Massachusetts Supreme Court is going to review studies and literature showing that these tests are not very accurate for when someone is impaired by marijuana.

2016 Lawyer Forward Conference on Legal Marketing was a Great Event hosted by Michael Whelan

January 25, 2016 | by Michael DelSignore

For the last three days, I have been attending a great conference called the Lawyer Forward hosted by Michael Whelan in Austin, Texas. The seminar focused on improving legal services, raising fees and creating a better life for your law practice if you are a solo attorney. Mike hosts a podcast called lunch with lawyers. Mike had an excellent point that as lawyers we need to view our role as a teacher to change how the public views us as a profession.

One feature I liked about the seminar was the number of speakers and the short time provided to each speaker. I found this maximized the content by requiring the speaker to be precise and to the point.

Christina Hollwarth a Divorce Lawyer from Texas delivered a great speech about compassion for clients. She stressed that when we have compassion for clients it lowers our stress level and increases the reward we get from the profession. The point that struck me was that she started her talk with a quote from TS Elliot about the world ending not with a bang but a whimper. For our clients, the clang of the handcuffs can make it seem like their world is ending. Christina did a great job helping me to think of the emotion of the clients problem in a new light.

OUI Trial Techniques

January 19, 2016 | by Michael DelSignore

In Books on Trial practice, it is typically recommended to label things during the trial- to use names that fit your theory of the case.

Refocus how the Jury Looks At the Key Evidence in the case

In a recent trial I had, my client made many statements to the officer prior to the field sobriety tests which were not helpful to the defense. What I did to change the focus of the inquiry from my client not giving straight answers, being evasive and appearing not to know what was going on, was to count the questions. I would ask the officer a series of questions and ask if that was the sixth question he asked. Eventually, the officer agreed to ask 12 questions.

Massachusetts SJC finds stop permissible based on 911 call in recent Second Offense

January 12, 2016 | by Michael DelSignore

The content of a 911 call can be pivotal in the prosecution of a drunk driving case. This was evident last week in the second offense DUI case of Commonwealth v. John C. Depiero. The defendant in this case appealed his conviction, arguing that the appellate review erred in denying his motion to suppress evidence obtained during a stop. On January 4^th, the Supreme Court of Middlesex County, MA affirmed the Appeals Court denial, but for reasons different to those previously given. The Supreme Court’s decision raises issues surrounding the reliability of 911 calls and whether the caller’s report sufficed as reasonable suspicion for the officer to stop the defendant’s car.

What happened during the “stop”?

In August 2011, an anonymous 911 caller alerted authorities of erratic driving on a Cambridge road. According to the caller, a Mercedez Benz was showing signs of erratic driving, swerving and crossing the divider line. The caller offered the driver’s license plate number and car description, and also referred to the driver as being “drunk”. After running the car details, it became apparent that the driver in question was on probation for drunk driving, and a state trooper was sent to the defendant’s residential address.

Toward a Fair Jury Instructions for OUI Trials in Massachusetts

January 6, 2016 | by Michael DelSignore

The model jury instructions govern how judges will instruct a jury when a motorist is charged with OUI. It is remarkable that absent from the model instruction is anything saying that is not illegal to consume alcohol and drive in the Commonwealth. When I have asked for that instruction to be added, many judges will comply while some will indicate that the jury is told that at the start of the trial that is not illegal to consume alcohol and drive.