Massachusetts Criminal Defense Lawyer Blog

Time lapse and admissibility of breath test evidence in DUI trial

June 1, 2014 | by Michael DelSignore

The Massachusetts Appeals Court addressed the issue of proving a motorist has a blood alcohol content over .08 under the per se law when there is a substantial time lapse between the time of the breath test and driving observations. This issues frequently arises as one of the many defenses in an OUI charge with breath test results.

The Appeals Court in Commonwealth v. Dacosta recently upheld a defendant’s conviction on the “per se” charge of operating a vehicle with a BAC level of .08 or greater when the defendant’s BAC level was tested approximately an hour after the traffic stop. According to the Court, no “retrograde extrapolation” evidence was required where a breathalyzer test was administered 55 minutes after the traffic stop. To learn about the science behind retrograde extrapolation see the attached Article by Kurt Dubowski.

The defendant was stopped when an officer noticed a faulty inspection sticker on the windshield. During the stop, the officer observed that the defendant had red glassy eyes and so administered two sobriety field tests. The defendant failed both tests, and so was arrested and transported to a nearby police station.

Confrontation Clause challenge in DUI case before the Supreme Court

May 27, 2014 | by Michael DelSignore

The United States Supreme Court will soon consider the case of Yohe v. Pennsylvania involving a DUI arrestee’s right to confront the lab technicians who analyzed his blood sample. The petition for writ of certiorari was filed by Attorney Justin McShane and is scheduled for conference later this week.

In the matter of Yohe, the defendant was arrested for operating under the influence during a traffic stop. The defendant subsequently provided a blood sample which was shipped to a 3rd party forensic lab for analysis for blood alcohol content. The lab then reported its findings to the prosecutor’s office, which offered them into evidence during trial through the testimony of an assistant director at the lab.

The forensic lab’s analysis consisted of three tests on three different portions of the defendant’s blood sample. The first analysis was an enzymatic assay test, conducted by one lab technician; another technician retrieved two more portions from the blood sample and conducted a Headspace Gas Chromatography test on each. The results of all three tests were reported to an assistant lab director who compared the results against certain lab protocols and electronically signed the reports certifying their accuracy.

United States Supreme Court reviews a Series of Sixth Amendment Confrontation Clause cases that may clarify the law after the Williams decision

May 25, 2014 | by Michael DelSignore

The United States Supreme Court has before it several pending petitions that could clarify the scope of the Sixth Amendment right of confrontation. Until today lower courts have been completely split in their reasoning in their attempts to resolve Confrontation Clause challenges.

In the case of Turner v. United States, the defendant is appealing his conviction in the United States District Court for a drug distribution charge based on the fact that the chemist that performed the analysis of the cocaine at issue did not testify.

To prove that the substance was cocaine, the Government called a lab supervisor who reviewed the report of the original forensic analyst and concluded that he would have reached the same conclusion even though he did not personally conduct any of the testing. In the Turner case, the technician who actually tested the cocaine was on maternity leave.

Legal Arguments in Hernandez’s attempt to dismiss Fall River Superior Court Indictment after new Indictment issued for Murder out of Suffolk County

May 18, 2014 | by Michael DelSignore

Aaron Hernandez was recently indicted on two additional murder charges arising out of an incident that predated the Fall River murder case. The Fall River murder case is also now set for the court to consider a motion to dismiss filed by Hernandez’s defense attorneys.

In the recent charges arising from Suffolk County, a grand jury issued indictments against Hernandez for two first degree murders that took place in South Boston in 2012. The victims of the double murder are 28-year-old Daniel Abreu and 29-year-old Safiro Furtado.

The 2012 double homicide is alleged to have occurred around 2am after the victims left a nightclub in a BMW. According to a detective’s investigation, Hernandez was also at the same nightclub before the victims were murdered. Witnesses alleged that Hernandez followed the victims in a light colored SUV, from which he fired multiple rounds at the BMW, killing Abreu and Furtado while injuring a backseat passenger.

Texas Judge under criticism for lenient sentence and suggesting the victim was promiscuous after plea in Rape case

May 9, 2014 | by Michael DelSignore

A Judge is under fire for sentencing a defendant who admitted to Rape to a 45 day jail sentence with probation. The judge from Texas Judge Jeanine Howard based her sentence in part on what she called the promiscuous nature of the victim and the fact that the defendant was not your typical sex offender. The media criticism of the judge has been on the fact that she denigrated the victim when the defendant admitted the Rape occurred. The story was reported on CNN in its Justice Section.

The Judge’s sentence suggests that she may not have believed there was a factual basis for the plea. The Judge should have declined to accept the plea; if a defendant admits to an offense, which the Court accepts, the facts have been determined and at that point the Court should not minimize the offense in imposing sentence and certainly should not be critical of the victim.

A recent case in the Attleboro District Court demonstrates what should have occurred in the Young case. Prosecutors sought a one year jail sentence while the defendant sought probation in what is known as a defendant capped plea, meaning that if the court exceeds the defendant’s proposed sentence, the plea can be withdrawn. The defendant was charged with a domestic assault and battery. The Judge in the Attleboro case refused to impose either sentence, ruling that he would give the defendant a two year jail term based on the nature of the facts.

Lawsuit by Former Cincinnati Bengals Cheerleader may define First Amendments Rights on the Internet

May 2, 2014 | by Michael DelSignore

The Sixth Circuit will decide an issue of major importance under the First Amendment arising out of the case of former Cincinnati Bengal’s Cheerleader, Sarah Jones. Jones was awarded a verdict of $ 338, 000 in her suit against a website called TheDirt.com. Jones prevailed in her lawsuit under the Communication and Decency Act and alleged that the website permitted defamatory posts about her. Fox News as well as other media outlets have reported on the story.

Key to her prevailing in the lawsuit is that the website itself responded to comments and tried to stir further defamatory comments about Jones on the website. For further commentary on this story, The USA Today posted an Article from Amber Hunt of the Cincinnati Enquirer, describing the lawsuit.

Lawsuit Seen as Creating a Dangerous Precedent

Anonymous 911 Calls and Traffic Stops Leading to DUI Arrests addressed by the United States Supreme Court

April 22, 2014 | by Michael DelSignore

The United States Supreme Court’s decision in Navarette v. California, decided today, diminishes Fourth Amendment protections of everyone on the road by allowing police to make stops based on uncorroborated 911 tips alleging erratic driving. While the goal of prosecuting drunk driving is worthy, it does not justify setting aside Constitution protections.

How do 911 Calls typically arise in an DUI case?

Anonymous 911 calls are extremely common in DUI cases and this decision provides for greater leeway among officer to make stops based on anonymous tips.

Recent SJC decision addresses Probation Violation issues raised in Brockton probation violation hearing

April 21, 2014 | by Michael DelSignore

A recent Brockton case raises issues surrounding probation violation hearings and exemplifies how the state can often fail to respect probation violation hearing standards.

In the recent Brockton case of Commonwealth v. Bukin SJC-11306, a defendant was inappropriately sentenced after being accused violating their probation by committing a new offense. As the violation involved an unrelated criminal charge, the defendant received a probation revocation hearing and a probable cause hearing for the new charge.

At the probation hearing, the court seeks to determine two facts:

SJC decision in Commonwealth v. Hearns addresses invocation of Miranda Rights

April 16, 2014 | by Michael DelSignore

The Massachusetts Supreme Judicial Court recently found that a Boston police officer during a murder investigation did not honor the defendant invocation of his right to remain silent. The Court found that the defendant invoked his right to remain silent and that the officer continued to question the defendant in hopes to persuade him to talk. Consequently, the Court suppressed the statements at trial.

In Commonwealth v. Hearns, decided April 8, 2014, the defendant was indicted in a gang related shooting. He went to the police station and was told that the Boston police had put together a strong case. The defendant admitted to being a gang member but denied being involved in any feud. The defendant asked the officers can you tell me how these cases go together; the officer responded that is something we will discuss in court. The defendant stated then, I do not want to talk. I got nothing to say. The officer than implied that the shooting may have been an accident at which time the defendant responded that he did not shoot anyone. The officer continued to ask questions until the defendant said if I am under arrest take me away. The full Hearns decision can be found by following this link.

Decision of the Massachusetts Highest Court

What does it mean to the defense in the Aaron Hernandez case that Ortiz and Wallace have been indicted for Murder?

April 13, 2014 | by Michael DelSignore

This week featured a new development in the Aaron Hernandez case with Carlos Ortiz and Ernest Wallace being indicted on murder charges.

Does this help the Hernandez defense team? From the start, Hernandez primary defense was likely to be that either Ortiz or Wallace committed the murder without his knowledge and that he was merely a bystander. Since no murder weapon was found and there is no evidence as to what happened in the industrial complex, Hernandez would argue that there is simply not enough evidence to prove that he committed the murder.

Massachusetts law does allow for a conviction of murder on what is referred to as a joint venture theory. Accordingly, if all three had the shared intent to murder, it would not matter who actually pulled the trigger; all three defendants could be convicted of first-degree murder.