Massachusetts Criminal Defense Lawyer Blog

How to get a Permanent Abuse Prevention order under 209A terminated and the standard used by the courts

April 10, 2014 | by Michael DelSignore

Under Massachusetts general law c. 209A, victims of family or household abuse can seek help from the State to prevent further abuse by orders prohibiting a defendant from abusing or contacting the victim, or requiring a defendant to stay away from the victim’s residence or workplace. Any party may seek to get a permanent abuse prevention order (“209A order”) terminated. If the party does not challenge the entry of a permanent 209A order on direct appeal it becomes a final equitable order. While a 209A order is a civil order, a violation is a criminal offense.

In MacDonald v. Caruso, the defendant had a permanent abuse prevention order against him. He did not challenge the permanent 209A order on direct appeal. However, as with the defendant, a party may seek termination of the order where it is no longer equitable that the judgment should have future application.

The standard applied by the court depends on which party is bringing the motion. Where a defendant seeks to terminate a 209A order, the defendant must show by clear and convincing evidence that there was a significant change in circumstances, and under the totality of the circumstances, the protected party no longer has a reasonable fear of imminent serious physical harm from the defendant. Mere passage of time and compliance of the order by the defendant do not constitute a significant change in circumstances. However, where the significant change in circumstances is not foreseen when the last order was issued, these two factors may be considered in deciding whether the defendant no longer poses reasonable threat of imminent serious physical harm to the plaintiff.

Why Hiring the Cheapest OUI Lawyer is not a good idea

April 6, 2014 | by Michael DelSignore

Finding a Massachusetts OUI Lawyer brings many choice, like hiring any professional. Looking for a Lawyer based on the lowest price is generally not a good idea. In most cases, you cannot get the things you value most by looking for the lowest price:

Many want the most vigorous representation, the highest quality of representation and willingness to fight the case through a long and difficult court process.

When the attorney is charging an unreasonably low price, often the lawyer assumes that you will accept a plea and admit to the charge. A low price is a sign that the lawyer is assuming the case will be resolved with a plea. Be very cautious in hiring a lawyer based on the lowest price. You may want to consider some of the following tips to select a lawyer. Most would not select a doctor based on price; the same logic should follow in your selection of a lawyer.

OUI Stop for Tinted License Plate Cover Ruled unlawful by the Massachusetts Appeals Court

March 26, 2014 | by Michael DelSignore

What happens when you are pulled over for a traffic infraction and then charged with OUI in Massachusetts. How does this impact the defense of your case?

This can occur when an officer patrolling the road pulls you over for driving above the speed limit or for a burned taillight, and then after pulling you over, suspects that you have been driving while intoxicated.

When it becomes clear to the officer that the driver is intoxicated, the officer may arrest the driver under criminal charges. However, such a driver may be acquitted or the charges dropped if he can prove that the initial stop was not lawful.

Why being a Lawyer is still a Great Career Choice

March 23, 2014 | by Michael DelSignore

Recently, there has been some depressing news about the legal job market. The number of lawyers claiming to be unhappy in their career choice is high. Law students have brought suits against law schools. Law schools are lowering tuition according to a report in the America Bar Journal, including an 18% cut by Roger Williams Law School with similar cuts by Arizona and Iowa University Law Schools.

But as I move into my 15 year as a lawyer and approach my 9th Anniversary of the opening of my law practice, dedicating to DUI and Criminal Defense, I could not be happier with my job.

Here are the three things that make it a joy to go to work.

Challenging evidence seized from your car during an arrest for drunk driving

March 12, 2014 | by Michael DelSignore

What happens if you are stopped for OUI in Foxboro after a Patriot’s game or concert and the police find alcohol in the car. How will finding alcohol in the car impact the defense of a drunk driving charge.

When the police find evidence in a car it is not automatically admissible at trial, it can be challenged on the basis that the evidence was illegally obtained and suppressed at a motion hearing. An example of a challenge to a car search is a recent case decided by the Massachusetts Appeals Court.

A similar set of events occurred in the case of Commonwealth v. Juan Torres, which began as a simple traffic stop but ended with a conviction for unlawful possession of a firearm.

Looking at the right of Self Defense in Massachusetts after the Dunn Trial

March 3, 2014 | by Michael DelSignore

The doctrine of self-defense is one of a few powerful defenses to the most serious crimes, which could lead to a not-guilty verdict if used by an experienced defense attorney. The recent Florida trial of Michael Dunn is one example of this defense successfully raised against a first-degree murder charge, although it caused a hung jury rather than a not guilty verdict.

The jury in “the loud music trial” of Michael Dunn recently reached a verdict of guilty on three counts of attempted murder and one count of shooting at a vehicle. The jury was unable to reach a verdict on the first degree murder charge, however, which could carry the death penalty in the state of Florida.

Dunn argued that he acted in self-defense when he shot 10 rounds into a Dodge Durango containing four individuals, fatally shooting teenager Jordan Davis. Dunn confronted the individuals in their vehicle in a convenience store parking lot because he disapproved of their loud music. During the confrontation, Dunn alleged that he became fearful for his life when he saw what he thought was a barrel of a gun in their vehicle. According to his lawyer, Dunn grabbed and fired his own weapon to protect himself and thwart off an attack rather than wait to become the victim.

Supreme Court to decide 4th Amendment question on warrantless cell phone searches

February 14, 2014 | by Michael DelSignore

The United States Supreme Court is scheduled to issue landmark decisions early this summer regarding the constitutionality of a warrantless search of a suspect’s cell phone under the Fourth Amendment. The nation’s highest court has recently announced that it will be hearing arguments and deciding on two criminal cases – one from Boston, Massachusetts, and the other from California – that touch on the issue of warrantless searches of mobile devices. Arguments are scheduled for April, and the court is set to issue its decisions in June.

One of the cases to be examined by the court is U.S. v. Brima Wurie, which was litigated here in the U.S. District Court in Boston, MA. In the matter of Wurie, police officers arrested Wurie after allegedly observing him sell two bags of crack cocaine out of his car. When the officers were booking Wurie, they seized more than one thousands dollars cash, keys, and two cell phones, all of which were found in Wurie’s pockets. One of the cell phones – a flip phone – was repeatedly receiving calls from a number labeled “my house.” The officers opened the phone and checked the call log for the phone number making the calls to Wurie, and copied the number from the phone. The officers did not access either cell phone again.

Instead, the officers entered the phone number corresponding with the “my house” label into an online directory and discovered a street address associated with the number. Wurie denied living at that address. The officers then obtained a search warrant and went to the address on the assumption that Wurie had lied to them in order to protect a stash of cocaine at the home. When they executed the warrant, the officers discovered more crack cocaine, marijuana, cash, a firearm, and ammo inside the house. Wurie was charged with three federal offenses – possessing a firearm and ammo, possessing cocaine with intent to distribute, and distributing cocaine.

Massachusetts SJC holds that police have no right to forcefully enter a home to execute an arrest warrant without concrete evidence that the arrestee is home

January 25, 2014 | by Michael DelSignore

Police officers often obtain evidence during the execution of an arrest warrant, but a Massachusetts criminal defense attorney can ask the court to exclude this evidence if it was obtained unlawfully or in violation of the defendant’s rights. That’s because the manner and circumstances in which an officer could forcefully enter a home to make the arrest are heavily regulated by the courts. The state’s high court in Commonwealth v. Gentile limited police power even further when it held that police officers did not have authority to forcefully enter a home to execute an arrest warrant if they had no concrete evidence that the arrestee was home at the time.

In the matter of Commonwealth v. Gentile, police officers forcefully entered the residence of Gentile in an effort to execute two outstanding arrest warrants against him. When the officers first approached the residence, Gentile was nowhere in sight, and a lady with her daughter answered the door. When asked whether defendant was at home, the lady replied that he was not.

The officer at the door alleged that the lady looked at the bedroom at the end of the house and appeared nervous when she was asked about Gentile. Based on these observations, the officer forcefully entered the residence and search the bedroom at the back of the house for Gentile. Gentile was found in the bedroom, near an antique musket that was left in plain view. The officers arrested Gentile and subsequently discovered several other firearms in the bedroom.

Sixth Amendment case involving surrogate expert testimony may be heard by the United States Supreme Court

January 17, 2014 | by Michael DelSignore

The United States Supreme Court is currently considering to hear another appeal that addresses the issue of whether surrogate expert testimony violates the Sixth Amendment Confrontation Clause. The appeal, titled Turner v. United States, was filed after a defendant was indicted and convicted in a federal drug distribution case on three counts. If the Court chooses to hear this appeal, the Justices may finally provide much needed direction and clarification following the Court’s problematic 2012 opinion in Williams v. Illinois.

Turner was indicted by a federal grand jury after he sold a mixture containing crack cocaine to an undercover police officer on three different occasions. Samples of the mixture obtained by the police officer from Turner were sent to the Wisconsin State Crime Lab, where an analyst issued a report identifying Turner and confirming the presence of crack cocaine in the mixture. The government initially notified Turner that the analyst would be called to testify to her findings on the compound, but then the government informed Turner that the analyst’s supervisor would testify in her place as the analyst was on maternity leave. This second notice came after the court’s deadline for expert witness discovery.

During trial, Turner’s counsel objected to admission of the supervisor’s testimony on the methods and procedures of the analyst who handled the cocaine mixture. The supervisor testified that although he did not conduct the analysis, he did review the data and notes generated by the actual analyst, and agrees with the analyst’s conclusion that the mixture contained crack cocaine. The supervisor also testified that it is the general practice and procedure of the Wisconsin Crime Lab for lab supervisors to review the work of their analysts and peers, and to sign off on final reports prior to release.

Appeals Court grants more discretion to judges to infer notice of license suspensions in OUI cases

January 16, 2014 | by Michael DelSignore

There are usually opportunities for first-time offenders in OUI cases to accept a lighter criminal punishment in exchange for some admission in court. But many people do not realize that there are always conditions and consequences of these court admissions – although they are not guilty pleas. As in the case of Commonwealth v. Oyewole, when a defendant fails to carefully comply with the conditions of the court orders pursuant to his admission, he will be considered to have committed a crime – whether or not he was actually aware and understood these conditions.

In the matter of Oyewole, the defendant was convicted by a trial judge for operating a vehicle after his license was suspended for an OUI. The initial trial judge in Oyewole’s OUI case continued the OUI conviction without a finding for one year, and ordered that Oyewole’s license be temporarily suspended.

During the suspension period, Oyewole was pulled over in the middle of the night for driving without his headlights. When the officer asked him for a license and registration, Oyewole fully complied and produced a license. The officer returned to the police cruiser to run the plate number and license number, and found that Oyewole’s license was suspended by a trial judge less than sixty days earlier. The officer confiscated the license and arrested Oyewole for driving with a suspended license under chapter 90, section 23 of the General Laws. When Oyewole was booked at the police station, he informed the booking officer that he was a “caregiver” – which is one of the qualifications for a hardship license.