Massachusetts Criminal Defense Lawyer Blog

SJC heard argument to decide whether a CWOF is a conviction for purposes of CDL license revocation

May 23, 2015 | by Michael DelSignore

The Massachusetts Supreme Judicial Court heard oral argument in the case of Tirado v. Board of Appeals addressing the issue of whether a CWOF qualifies as a conviction for the purposes of CDL license suspensions. In Souza v. Registrar of Motor Vehicles, 462 Mass. 227 (2012), the SJC held that a CWOF could not count as a conviction for the purposes of calculating subsequent offense license suspensions. The SJC found that because the legislature did not explicitly state that a CWOF was a conviction it could not be used to enhance a license suspension by the RMV. The legislature quickly amended the statute to include CWOF as convictions.

The legislature however, never amended the CDL statute to address whether a CWOF was a conviction for the purposes of CDL license suspensions, leaving the SJC with an issue of great importance for Massachusetts OUI Lawyers.

Under Chapter 90F Section 1, a person is disqualified from holding a CDL license if he or she has certain convictions. The statute defines a conviction as follows:

Massachusetts Appeals Court rejects challenge to breath test results based on the Office of Alcohol Testing not providing a manual for breath test machine

May 21, 2015 | by Michael DelSignore

The Massachusetts Appeals Court in an unpublished decision ruled that the lack of an operator’s manual for the new breath test machine did not bar admission of the test results into evidence. The decision was an unreported decision. This decision has been anticipated for almost a year by Massachusetts OUI Lawyers as it was argued on June 5, 2014. The Court held that the power point presentation was sufficient as training for the officer and that the defendant did not claim that the officer lacked formal training to administer the breath test.

The Court held that the OAT was in compliance with the regulation and even assuming it was out of compliance the Court would not have suppressed the breath test result. The Appeals Court did not read the regulation pertaining to the breath test manual as requiring the Office of Alcohol Testing to create a manual.

Eyewitness Testimony in Massachusetts after Commonwealth v. Crayton

May 20, 2015 | by Michael DelSignore

In Commonwealth v. Crayton, 470 Mass. 228 (2014), the SJC issued an important decision regarding in court identification testimony. The SJC held that if there is no prior identification of the defendant by the witness prior to trial, then an identification for the first time in court is unnecessarily suggestive and the CW must file a motion in limine to admit the in-court identification.

The Court held that an in court identification is suggestive in the same way that a show up identification is and should require the Commonwealth to establish the same foundation to admit the identification. The Court held that it will treat an in court identification without any prior identification as an in-court show up and require the Commonwealth to show good reason for its admission. The Court listed a number of factors that would fall within the “Good Reason” category:

What to do if arrested at an OUI Roadblock in Massachusetts

May 9, 2015 | by Michael DelSignore

What happens if you are arrested at an OUI roadblock? In this Blog, I will explain the three things you need to know to confront the charge.

First, understand that your first court appearance will be for arraignment. This is not a date that the court expects you to resolve the case, but a date for you to be notified of the charge and you will receive another court date for a pretrial conference.

Second, many OUI Roadblocks are winnable at trial. With no evidence of erratic driving, but in fact evidence of safe driving that may assist you in your defense, the Government is at a substantial disadvantage in prosecuting the case against you.

Faulty Breath Test evidence in Massachusetts undermines the reliability of OUI convictions

April 25, 2015 | by Michael DelSignore

The news this week of errors with breath testing in Massachusetts has had a major impact on the prosecution of drunk driving cases and raises the potential of hundreds of wrongful convictions and or wrongful pleas that were not supported by accurate evidence. One reason this has occurred is the ease with which prosecutors can admit breath test evidence at trial. The Commonwealth can admit the results without calling any witness that knows anything about how the machine operates. At a trial, the breath test operator will typically testify that they are taught to push the button, wait for the machine to run its self checks and if the machine does not report any error, the results are fine. The officer will often admit to not understanding the science behind the machine.

The Commonwealth is not required to call any expert witness from the Office of Alcohol Testing to verify the accuracy of the results. In a case known as Commonwealth v. Zeininger, 459 Mass. 775 (2011), the Massachusetts Supreme Judicial Court said that breath test records can come into evidence without live testimony because the records are not testimonial, meaning that the Court was saying that the records do not accuse a person of a crime but report “neutral” data. The Court’s reasoning was flawed and allowed evidence to come in a trials without being properly tested through cross examination. In light of the disclosure of the problems with the machine, the SJC should reconsider its decision in the Zeininger case that is partly the cause of unreliable evidence being presented to jurors during OUI trials.

This bring us to the error that prompted many counties to hold off using breath test results, including Suffolk, Middlesex, Worcester, Essex, Northwestern, Barnstable County.

Breath Test Results in Massachusetts may be in jeopardy as report of faulty breath test machine in Essex County

April 22, 2015 | by Michael DelSignore

According to a news report in MyFoxBoston, Prosecutions in Essex County have stopped using breath test results as a problem has arisen with the calibration of the machine. This report was confirmed by several other media outlets. According to one report, the problem arose in a case out of the Lawrence District Court where a defendant accepted a plea but the machine read outside of the accepted range but produced a result anyway.

While I have not learned of the exact error at this point, I did experience a similar problem with a case out of the Attleboro District Court. In that case, the breath test machine appeared to produce a result, but when the machine self calibrated itself on a solution that was suppose to be .08, it read .071. When testing the calibration solution of .08, the machine is suppose to be within a range of .076 to .084. In this case, the machine was outside the range, but it produced a test result as if it was working properly. When the error was brought to the attention of the district attorney, the results were excluded from evidence.

There could be other ways that the machine provides a faulty calibration. Until further information about the problem is disclosed, it would be advisable as a Massachusetts OUI Lawyer to delay resolving any breath test case until the Commonwealth completes its investigation.

Aaron Hernandez convicted of murder where does the case against Carlos Ortiz and Ernest Wallace stand

April 19, 2015 | by Michael DelSignore

Where does the case against Ernest Wallace and Carlos Ortiz stand? While the prosecution did a great job proving that Aaron Hernandez orchestrated a murder, the charges against Ortiz and Wallace seem to be based on the fact that they were present with Hernandez at the time. Mere presence at a crime scene is insufficient to establish a conviction without evidence that they assisted and shared Hernandez’s intent.

The case against Hernandez showed that Hernandez, demanded Ortiz and Lloyd come up from Connecticut to go out with him. Throughout the 139 witness trial, there was little mention of the role of Ortiz and Lloyd. The only mention was the inference that Lloyd must have been pushed from the car by either Wallace or Ortiz and that both had a history of drug use and used PCP.

There does not appear to be a strong case against either for murder. Wallace’s DNA was not even tested indicating a lack of investigation as to his involvement. There was no testimony as to any relationship between Wallace, Ortiz and Lloyd. Had there been an adverse relationship, it would have been likely exploited by the defense as a possible motive.

Aaron Hernandez Found guilty of 1st Degree Murder in Murder of Lloyd

April 15, 2015 | by Michael DelSignore

In the end, the detail after detail that the prosecution provided convinced the jury beyond a reasonable doubt that Hernandez murdered Odin Lloyd. Jurors spoke after the verdict with one juror leading the discussion and indicating that the testimony of Robert Kraft was critical as Hernandez would not have known the time of death given the jury never leaned it after eight weeks of testimony.

Prosecutor William McCauley, made a very passionate closing a statement linking each piece of evidence and its significance to the jury over the 8 week trial, with 139 witnesses called and over – exhibits.

Here are some of the facts that may have convinced the jury to return a verdict of guilty.

How Strong is the Evidence in the Aaron Hernandez Trial as the Commonwealth has rested its Case

April 2, 2015 | by Michael DelSignore

The prosecution rested its case against Aaron Hernandez today after 39 days of trial.

Friday, the parties will address legal issues relating to a motion for required finding of not guilty by the defense, where the defense attorneys will argue to the judge that the Commonwealth has not presented enough evidence to allow the case to reach a jury. This motion will likely be denied by the judge, but is commonly filed in every criminal trial. The parties will also discuss jury instructions, with the defense presenting its case on Monday. The defense is expected to rest on Monday and the Court would likely have Closing Arguments on Tuesday.

Summary of the Highlights of the Commonwealth’s Case

Cross Examination by Aaron Hernandez Defense team discredits key evidence at murder trial

March 24, 2015 | by Michael DelSignore

Last week during the Aaron Hernandez trial there were a few great examples of cross examination issues that reoccur at criminal trials. One was impeaching a witness with a prior inconsistent statement. During the Cross Examination of Hernandez Lawyer Michael Fee, the witness, Kwami Nicholas continued to deny making any prior statements. The witness was particularly difficult in that even after being shown video and audio recording of his statement he continued to deny making that statement. As a Criminal Defense lawyer in Massachusetts, the Hernandez trial has raised many interesting legal issues that have been covered on this Blog.

Fee was careful in his impeachment of the witness because he wanted the jury to accept the prior version of events recorded at the police station. He avoided giving the witness any opportunity to minimize his statements at the police station. When the witness denied remembering the statement he moved on to his next statement, as any response from the witness would have been unpredictable. His final series of questions after establishing that the witness did not remember anything from the recorded interview, he asked the witness if he a poor memory, which he denied, but given his prior statement it would be difficult to conceive of the jury placing any weight on his testimony.

The other interesting cross examination example came from the cross examination of the Commonwealth’s footprint expert, Steven Bennett, from the Massachusetts State Police.