Massachusetts Criminal Defense Lawyer Blog

Vermont Supreme Court upholds heightened DUI penalties for refusing a breathalyzer test for repeat offenders

January 13, 2014 | by Michael DelSignore

In Massachusetts, as in many other states, a driver’s prior DUI conviction could increase the severity of any subsequent DUI offenses charged by the district attorney. Many states have laws that enhance penalties for repeated DUI offenders, and even make it a crime to refuse to take a breath test in certain circumstances. As in the case of the recent Vermont Supreme Court decision, courts may even use the same prior conviction both to enhance the penalty for subsequent charges, and to criminalize a BAC test refusal.

The high court of the state of Vermont has ruled that any prior DUI conviction could be used to criminalize a refusal to submit to a BAC test, in addition to enhancing a penalty for refusal. Refusing to submit to a BAC test ordinarily results in license restrictions or suspensions in many states if the driver has no prior DUI record. Under the amended Vermont state statute, however, a refusal by a driver with a prior DUI conviction automatically becomes a criminal violation that is punishable by fees, imprisonment, and community service.

Many states, such as Vermont and Massachusetts, also enacted laws that increase the severity of the punishment for repeated offenders of DUI laws. As the number of past convictions increases, the penalty becomes more severe. Click here to see my webpage on the different OUI penalties in Massachusetts.

College and University Police Authority to Search and Arrest in Massachusetts

January 1, 2014 | by Michael DelSignore

As a Massachusetts criminal defense attorney, I defend students arrested by college or university police on criminal charges. Clients are often surprised to learn that campus police – or public safety officers – are limited by Massachusetts state law from many law enforcement duties of regular city and state police officers. This blog will discuss several important factors that an experienced criminal defense attorney would consider when litigating a campus police search and arrest.

College or university police officers are appointed as special State officers under a Massachusetts statute (G.L. c. 22C, § 63) that grants them the same authority to make arrests as regular police officers for any criminal offense within their particular jurisdiction. But although students have more limited rights to privacy because of the college’s interest in keeping the community safe, this does not necessarily translate into more police power for campus police. In fact, the courts have consistently held that campus police officers are more restricted in making arrests and searching a student’s dorm room or possessions.

A good example of the statutory limits on a campus officer’s search and arrest authority is discussed in a case that involved Boston University police officers situated outside the University’s property and near an interstate highway. In Commonwealth v. Hernandez, two BU officers observed Hernandez pumping gas on a public road near an interstate highway outside the university grounds, and decided to check his registration. When the officers discovered that an arrest warrant was issued for Hernandez on a misdemeanor, they stopped and arrested Hernandez and conducted an inventory search of his vehicle. The officers discovered evidence of drug possession and distribution. Hernandez moved to suppress the evidence discovered in his vehicle, and the trial judge excluded them from admission.

Reckless endangerment statute used in Connecticut to impose criminal liability for preventing DUI fatality involving teens

December 12, 2013 | by Michael DelSignore

Two tragic DUI related accidents have resulted in charges in Connecticut for reckless endangerment as a result of failing to prevent the minor from driving drunk, causing the fatalities. As a Massachusetts DUI Lawyer, these cases raise issue of national significance and could set precedent for prosecuting failing to prevent a drunk driving accident and for the expansion of these types of statutes by legislatures.

The first set of charges were filed as part of the investigation of the death of 17 year old Jane Modlesky, according to numerous news accounts of the investigation. The arrests of the two teenage boys came after the local district attorney charged another 17 year old teen with permitting the victim and other minors to possess alcohol during her house party earlier that evening.

Police investigators stated that Modlesky was heavily intoxicated after leaving an party late into the night with four teenage boys in a car belonging to the host of the party. Police arrested the two boys who are alleged to have been the last people to see Modlesky after they drove themselves home with the car, leaving Madlesky to drive away while intoxicated.

Appeals Court upholds Massachusetts OUI conviction despite improper police testimony

December 12, 2013 | by Michael DelSignore

Building on the state high court’s recent decision in Commonwealth v. Canty, the Massachusetts Court of Appeals held a booking officer’s testimony in an OUI trial inadmissible to the extent that the officer stated his opinion about a defendant’s inability to safely operate a vehicle. This decision affirms the restrictions on police testimony in OUI trials, while also reminding Massachusetts OUI attorneys of their duty to take proper procedural measures to raise objections and claims on behalf of their clients.

Background

In the matter of Commonwealth v. Saulnier, No. 12-P-931 (Mass. App. Dec. 6, 2013), the Appeals Court heard the case of a driver who was arrested on OUI charges after totaling a vehicle that was travelling in another lane. One of the witnesses to the accident was the owner and a passenger in the vehicle totaled by the defendant. The witness allegedly saw Saulnier pull out of a liquor store and travel diagonally across traffic lanes colliding into her own vehicle. The officer responding to the scene subsequently arrested Saulnier after detecting evidence of alcohol intoxication.

United Supreme Court reviews Confrontation Clause challenge to surrogate expert testimony in trial on federal drug charges

December 9, 2013 | by Michael DelSignore

The United States Supreme Court in Turner v. U.S. may soon decide on the constitutionality of admitting surrogate expert testimony against a defendant in a drug federal drug case. Massachusetts criminal defense attorneys should expect this decision to clarify earlier Supreme Court precedent in Williams v. Illinois on the question of whether the Confrontation Clause bars expert testimony by a lab supervisor premised on a lower analyst’s findings.

After successfully petitioning the Supreme Court on a related issue, Turner has filed another appeal before the Court alleging violation of his constitutional right of confrontation. Turner was charged and convicted of distributing crack cocaine, a federal offense (21 U.S.C. sec.841(a)(1)). During the jury trial, the trial judge allowed the federal prosecutor to call an expert witness who supervised a state crime lab where certain substances seized during Turner’s arrest were analyzed. At the crime lab, a lower ranking lab analyst allegedly conducted the required analysis and issued a one-page report concluding that the seized substances had traces of crack cocaine. During the lab analysis, the lab supervisor conducted a peer review of the results and signed off on the report.

At the time of the trial, the lower analyst that conducted the actual analysis was on maternity leave, and so was not unable to testify. This analyst did, however, leave behind several hand-written notes created during the process. At the request of the federal prosecutor, the trial judge allowed the lab supervisor to testify in the analyst’s place with the understanding that the lab supervisor would rely only on his own findings and conclusions. Turner objected heavily to the court’s admission of the supervisor testimony because the supervisor frequently mentioned the written notes and conclusions of the lower analyst. More specifically, the supervisor testified that he relied on the notes and findings of the lower analyst in forming his opinion, and that he agreed with the analyst that the seized substances was cocaine-based.

Recent Massachusetts Court decision allows criminal defense lawyers in Brockton to challenge possession with intent to distribute charges based on lack of probable cause

December 4, 2013 | by Michael DelSignore

The Supreme Judicial Court of Massachusetts has just ruled that the mere existence of marijuana stored in individual bags on a juvenile does not necessarily establish probable cause for a possession and distribution charge. Massachusetts criminal defense attorneys may use this case to challenge charges of possession with intent to distribute that are over charged and should be charged as mere possessory crimes.

Under state case law, a court may dismiss a complaint if the allegations in the complaint do not establish the identity of the suspect and/or do not show probable cause to charge the suspect. In other words, a complaint must demonstrate reliable information to warrant a reasonable person to believe that the defendant has committed the alleged offense. Although Massachusetts law allows school administrators to invade a student’s privacy and search his belongings without probable cause, the SJC in Commonwealth v. Humberto H. [SJC-11297 (November 26, 2013)] required the State to establish facts in a delinquency complaint supporting probable cause on each essential element of the offense.

The issue in Commonwealth v. Humberto H. was whether there was sufficient information in the complaint to establish probable cause that the juvenile possessed marijuana with the intent to distribute. Unlike mere possession of marijuana – which is only a civil infraction (if not more than an ounce) – possession with intent to distribute is a criminal offense punishable by law. In Humberto H.’s case, a school administrator and a school police officer stopped Humberto when they detected an odor of marijuana as he entered the school late one day. They then searched Humberto and found five small plastic bags of marijuana. Humberto was arrested complaint charged with possession with intent to distribute. Humberto’s attorney moved to dismiss the complaint before the arraignment so that Humberto’s record would remain clean. The trial judge dismissed the complaint, but only after the charges were recorded in the arraignment.

California Supreme Court bars expert testimony on the scientific unreliability of breathalyzer tests

November 29, 2013 | by Michael DelSignore

A California trial judge presiding over the OUI trial of People v. Vangelder was recently affirmed by the California Supreme Court when he prevented a jury from listening to expert testimony on the general unreliability of scientific techniques underlying breathalyzer tests. If appealed to the U.S. Supreme Court, this decision could limit or exclude expert testimony on the scientific unreliability and inaccuracy of breathalyzer tests across all jurisdictions, abolishing what can be a strong defense against an OUI charge.

In the matter of People v. Vangelder, a state officer clocked Vangelder driving late into the night on a speeding on a state highway. After following Vangelder for a few miles without observing any signs of intoxication, the officer pulled Vangelder over to the shoulder of the road. Vangelder was fully compliant with all of the officer’s instructions. After being questioned, Vangelder told the officer that he had three glasses of wine at dinner, and that he was just goofing around on the road.

Vangelder passed all field sobriety tests, and then submitted to preliminary breathalyzer tests. The results came in at 0.095 and 0.086. After Vangelder was arrested (the state limit is 0.08) and transported to the station, he submitted to two more breathalyzer exams which returned a reading of 0.08. Vangelder was charged with two misdemeanors – a generic OUI offense, and the more specific offense of driving with a BAC reading above 0.08 percent – despite the inconsistencies in the BAC readings.

Challenging a Massachusetts OUI arrest by College Campus Police

November 26, 2013 | by Michael DelSignore

Massachusetts OUI arrests by College Campus police may raise legal defenses that an

experienced Massachusetts OUI attorney could raise in court. Campus police – or public safety officers – are limited by Massachusetts state law from many law enforcement duties of regular city and state police officers, and arrest made outside of these limitations could be defeated in court. The distinction between ordinary officers and campus police officers is critical because, as discussed in the case of Commonwealth v. Smeaton , it can make a difference in the outcome of the case.

College or university police officers are appointed as special State police officers under a Massachusetts statute (G.L. c. 22C, § 63) that grants them the same authority to make arrests as regular police officers for any criminal offense within their jurisdiction. Even though students on campus have fewer rights to privacy because of the college’s interest in keeping the community safe, campus police officers also have less authority to make traffic stops or to question individuals on campus.

Massachusetts School Zone Drug Law applies retroactively SJC rules in Commonwealth v. Bradley

November 22, 2013 | by Michael DelSignore

The Massachusetts Supreme Judicial Court ruled yesterday that the School Zone statute amendment applies to pending cases. Last year the legislature reduced the scope of the school zone statute by requiring the drug distribution crime to be within 300 feet of a school zone rather than a thousand feet from the school. The issue that arise for Brockton Criminal Defense Lawyers was whether this new law applied to pending cases brought before the change in the law. The SJC answered that it did in the case of Commonwealth v. Bradley.

In Massachusetts, a defendant charged with a drug possession crime could face severe violations if he or she was arrested within a “school zone,” as defined by G.L. c. 94C § 32J. Until last year, an individual charged with possession of a controlled substance within 1000 feet of a school could face at least two and a half years imprisonment under this “school zone” law. After an amendment was passed reducing the parameters of a school zone,

In the matter of Commonwealth v. Bradley, the defendant Bradley’s dorm room was searched by police officers pursuant to a warrant on November 8, 2010. During the search, police officers discovered marijuana, and Bradley was charged with possession with intent to distribute. However, because Bradley’s dorm was about 700 feet from a nearby preschool facility, Bradley was also charged with the school zone violation. The criminal complaints were filed on December 30, 2010, but Bradley’s case was not adjudicated as of August 2, 2012.

Wyoming Supreme Court addresses whether telephonic search warrants satisfy the Fourth Amendment Warrant Clause

November 15, 2013 | by Michael DelSignore

The Wyoming Supreme Court has upheld digitally transmitted court authorizations for search warrants as permissible under the Fourth Amendment. Some states, such as Wyoming, already allow judges and clerks to issue search warrants without a formal written application by the officer or prosecutor. As a Massachusetts Criminal Defense Lawyer, the use to telephonic warrants represents an erosion of the warrant requirement and its use should be limited in scope by the Court.

In the cases of Terry Smith v. Wyoming, and Dena Blomquist v. Wyoming, the defendants were individually arrested for an OUI offense. Both defendants were required to submit to a blood alcohol test after a judge remotely issued a warrant. The Supreme Court of Wyoming held that these remotely communicated warrants were lawful and afford the defendants the same protections as warrants that were formally applied for by written affidavit.

The Wyoming state legislature passed a statute authorizing officers to compel arrestees to submit to chemical tests once the officer has a search warrant issued on paper or one that is “remotely communicated.” The statute defines a “remotely communicated warrant” as a communication between a judicial officer and the police officer or prosecutor authorizing a search by voice transmission, image, or text as long as the communication is recorded. The communication may be recorded in writing, or by any other means.