Massachusetts Criminal Defense Lawyer Blog

Massachusetts drug distribution conviction upheld despite Sixth Amendment Confrontation Clause Challenge

September 13, 2013 | by Michael DelSignore

The Massachusetts Supreme Judicial Court recently ruled in the case of Commonwealth v. Robert Lezynski, decided on August 2, 2013, that the defendant’s conviction of possession of Class B drug with the intent to distribute was not influenced by an improperly admitted toxicology report in violation of the Sixth Amendment. As a Massachusetts Criminal Defense Lawyer, the Sixth Amendment demands face to face confrontation and this right must be vigorously safeguarded when the Commonwealth tries to admit testimonial evidence through another witness.

In the matter of Commonwealth v. Lezynski, prosecutors sought to convict Mr. Lezynski of possession and distribution of fentanyl patches at a party. The prosecutors presented eye witnesses who testified to having observed Mr. Lezynski with the patches and giving some to one of the guests, who died shortly thereafter. The victim had smoked marijuana before the party and was heavily intoxicated from drinking that night, causing acute fentanyl and alcohol intoxication. The prosecutors also presented toxicology reports of the victim’s blood, and sought to admit them into evidence through the director of forensic toxicology at one of the labs that analyzed the victim’s blood. Mr. Lezynski’s attorney did not object.

Mr. Lezynski was indicted on manslaughter and possession with intent to distribute a class B controlled substance. The jury convicted Mr. Lezynski of possession and distribution, and Mr. Lezynski subsequently appealed.

Challenge to Accuracy of Breath Test Results in Pennsylvania heading to the State Supreme Court

September 10, 2013 | by Michael DelSignore

Unlike under Massachusetts OUI Law, in some jurisdictions, the statutory penalties of driving under the influence vary depending on blood-alcohol measurements as determined by a breathalyzer exam or blood test. While trial courts across the nation are becoming increasingly skeptical of breathalyzers, the Pennsylvania Superior Court recently reversed a trial judge’s decision to dismiss a heightened DUI charge on a finding that breathalyzers are inaccurate. In Massachusetts, the statutory penalties are essentially the same regardless of the breath test results other than for drivers under 21 and other than the additional requirement of an alcohol assessment; of course, a judge is likely to impose a harsher punishment with a higher breath test result.

Last December a trial judge in Pennsylvania rejected a prosecutor’s attempts to prove the defendant, in the case of State v. Schildt, guilty of a heightened DUI statutory charge by presenting results from a breath test as evidence of the defendant having a BAC reading of 0.16 percent. A reading of 0.16 percent or greater qualifies a defendant in Pennsylvania for the maximum penalty under the DUI statute, with increased prison time and fines.

After hearing arguments from both parties, Judge Lawrence Clark Jr. ruled that breathalyzers are not scientifically accurate beyond a 0.15% blood-alcohol reading. Judge Clark Jr. then concluded that without an accurate blood-alcohol reading, the State will not be able to prove beyond a reasonable doubt that the defendant Schildt was so intoxicated so as to qualify him for the heightened statutory sentence. He therefore dismissed the charge.

What is the look back for prior OUI offenses in Massachusetts?

September 8, 2013 | by Michael DelSignore

Under Massachusetts OUI law, there is a lifetime look back for prior OUI offenses. This simply means that the level of offense you will be charged with will be based on the total number of OUI convictions you have in your lifetime. It is important when you speak to an OUI Lawyer in Massachusetts that you tell your attorney about all prior convictions you have even if unknown to the district attorney.

Those convictions can be taken from Massachusetts or from any other state where the conviction is for a DUI. The only issue is whether the offense for a DUI in another state is similar to our statute, which we refer to as an OUI. For Example, if a motorist was convicted of DWI in Georgia 7 years ago, but this fact is unknown to the district attorney, even though the offense would be considered a first offense by the court, the RMV would treat the offense as a second offense.

Some states have a look back for prior offenses, meaning that in those states those courts will only consider a prior offense if it happened within a certain time period. The time period varies with the State, it could be five years, some states use 10 or 15 years.

Understanding the Court Procedure in Massachusetts Superior and District Court in the Aaron Hernandez Case

September 4, 2013 | by Michael DelSignore

The case of Aaron Hernandez reveals some interesting aspects of Massachusetts’s court procedures. For example, many people wonder why Hernandez is being arraigned again in superior court. The reason lies in the fact that there are typically two arraignments in any superior court charge. Hernandez was initially arraigned in the Attleboro district court, as all cases most cases start in district court. As an Attleboro criminal defense lawyer, Hernandez’s case proceed through the district court in the normal fashion, with typically one or more continuance of the probable cause hearing which occurred in this case. On September 6th, Hernandez will be arraigned in the Fall River Superior Court where the case will remain until a verdict or plea on the charges or on amended charges.

As there was enough probable cause to issue a criminal complaint against him and the charges consisted of allegations that could not remain in district court, an arraignment in superior court is the next step. This is because the district court simply has no final jurisdiction over a charge of first degree murder.

What jurisdiction does the district court have?

Will there be video of an OUI Arrest in East Bridgewater, Massachusetts

August 29, 2013 | by Michael DelSignore

If you were arrested for OUI in East Bridgewater, there should be video of your OUI arrest. the video that the police have will be referred to as a booking video. The East Bridgewater police department does not have a police cruiser camera video. There are a few departments that have cruiser camera, but the majority do not. As an East Bridgewater OUI Lawyer, there was a recent case of interest if a video is lost by the Government.

Police cruisers tare equipped with video recording devices to capture police stops and patrols. When the driver of a vehicle is facing OUI charges, a recording of the stop and arrest may be presented in court by the defendant to challenge the arrest. In such circumstances, the video is considered exculpatory evidence since it may clear the defendant of guilt.

Dismissal Upheld in Recent case where video is lost:

Ohio Ruling finding breath test evidence unreliable

August 26, 2013 | by Michael DelSignore

As a , anytime a person comes into the office after having failed the breath test, I know that I will have to explain to them why the breath test machine can be unreliable and ways the case can be won despite the breath test results. While breath test evidence must be challenged, these results do not mean the case cannot be won in court. In this Blog, we will review a decision from Ohio finding the breath test machine unreliable.

A prominent trial judge in Ohio has just decided that the results of the Intoxilyzer 8000 “are not scientifically reliable.”

On August 14, 2013, in the matter of State v. Lancaster, Judge Teresa Liston concluded proceedings that lasted over the span of several months challenging the reliability of the Intoxilyzer 8000 in the Marietta Municipal Court in Ohio. Judge Liston, a well-respected retired judge, was called to the bench specifically to hear several cases combined by the court for the purposes of challenging the Intoxilyzer 8000 alone.

License consequences of a first offense OUI in Massachusetts: When can you get your license back?

August 14, 2013 | by Michael DelSignore

As an OUI Lawyer in Massachusetts, I have met many individuals, parents, spouses and family members who come to my office unsure about what to do in response to a recent arrest for OUI. There are three things that anyone charged should understand about the license consequences of a First Offense OUI. In this Blog, I outline these issues.

1. First question always asked is when can I get my license back. There are three different option you need to understand.

You took a breath test and the results was over .08: you can get your license back in 30 days by paying the $ 500.00 reinstatement fee. You will have your license while the case is pending and you attempt to contest the OUI charge. If you admit to the charge prior to the expiration of the thirty days, you would be eligible for a hardship license if the court assigned you to the 24D program. I would not recommend a plea within the thirty days.

You refused the breath test: If you refused a breath test, the suspension is for six months. You can get your license back before six months, but it is difficult. The benefit of having refused the breath test is that there is a good chance you can avoid an OUI conviction with a not guilty verdict; the downside is that you will be without a license for at least three months while pursuing your appeals of a refusal suspension. Many will serve the full six month refuse suspension; there is no eligibility for a hardship license while the OUI case is pending; the third option discusses how you can obtain a hardship license, but requires a plea on the underlying OUI charge and admitting to the elements of the offense as outlined in the statute.

There are two paths to get your license back early.

Path 1: Appeal the breath test refusal suspension and have the district court reinstate your license. For this option, you would appeal the breath test refusal suspension within 15 days, the RMV would likely deny your request and you would appeal to the district court. This process does take probably three months. If the district court judge reinstated your license, you would have it back prior to the six months. I recently had a judge order reinstatement, finding that the police officer did not comply with the law in suspending my client’s license. This client received her license back in three months. While I have had refusal suspensions overturned, many breath test refusal suspension are affirmed.

Path 2: The second way to get your license back prior to six months is if we can obtain a not guilty verdict on the charge and the judge enters an order reinstating your license. It is difficult to get a trial within six months for a number of reasons, making it more difficult to get your license back prior to the six months with this option. Often, there are documents or motions we would want heard that would delay scheduling the case for trial. In all most all courts, it will take at least four to five months to get a trial date, so this option could save one or two months of the suspension.

If you refused a breath test and you want to avoid an OUI conviction, you should plan on having a suspension for six months. After the six months you can get your license back. You should also pursue an appeal of the refusal suspension, but understand that many of those appeals are denied.

Path 3: Admitting to the OUI charge and receiving the 24D program would provide hardship license eligibility for the 45 days license loss imposed by the court and the duration of the six month refusal suspension. While you can get your license back, assuming you can satisfy the hardship criteria, a letter from work, the downside is that you have admitted to the OUI charge.

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Commonwealth v. Higgins holding that refusal of field sobriety tests can be used to establish probable cause

August 12, 2013 | by Michael DelSignore

For one facing an OUI charge in Massachusetts, the first hearing will be an arraignment and then the next hearing will be a pretrial. This pretrial will be the defendants first opportunity to raise issues of evidence or even raise a motion to dismiss the charges. The purpose of this hearing will usually be for the judge to decide whether or not there is evidence that needs to be suppressed or to rule on any other motions by the defendant. If there is no probable cause for the charges and the defendant raises a motion to dismiss, the case should be dismissed at this point. The recent case of Commonwealth v. Huggins examines what evidence can be examined when determining if there is probable cause or not.

In Commonwealth v. Huggins, the defendant was arrested and charged with a second offense OUI. This is after police found the defendant off the road, facing the woods, stuck on rocks. After asking for his license and registration, the defendant had trouble finding it and the officer noticed a strong smell of alcohol on the defendant’s breath. After finally getting out of the vehicle, the defendant refused to take a field sobriety test and was arrested for an OUI. At the pretrial, the judge looked at the totality of the circumstances including the position of the car, the smell of alcohol and the defendant’s refusal to submit to the field sobriety test in determining if there was probable cause to continue the action. The judge denied the defendant’s motion to dismiss and the case proceeded to trial where the defendant was convicted. On appeal, the defendant raises the sole issue of whether the judge erred in concluding there was probable cause to support the charge of OUI.

The main issue here that the defendant raises is that the judge relied on the refusal of taking the field sobriety test in determining whether there was probable cause. The Supreme Judicial Court upheld the conviction and stated that a judge can use this refusal in determining whether there is probable cause. When a judge is determining this, she will have to look at the totality of the circumstances which is what the judge did when denying the defendant’s motion. The defendant also brought up the fact that there was a disagreement over the witnesses who brought forward the complaint, this being the officer. The court ruled that in the pretrial, a defendant will not have the right to cross-examine witnesses or call his own witnesses to show whether or not there is probable cause. This probable cause hearing is essentially a paper trial i.e. the judge will look at the facts as brought forth in the complaint and determine whether there is probable cause. Debates over facts and witnesses will be handled at the trial.

Comments On George Zimmerman Case from Brockton criminal lawyer

July 31, 2013 | by Michael DelSignore

The George Zimmerman case, which was one of the most publicized court decisions in the last decade, has been met with great opposition and protest. This protest has been calling for a potential change in the self-defense laws in Florida and possibly re-trying the defendant in federal court. Furthermore, some have questioned the beyond a reasonable standard that must be met in order to convict a defendant. However, these ideas seem to go against the very ideas of the judicial system and the protection that is granted to those convicted of a crime.

One of the issues in this case originally was the stand your ground law that is in Florida. The stand your ground law states that one who is defending themselves does not have to retreat before using deadly force. In most states, one will have to attempt to escape the confrontation before resorting to deadly force. Many have been calling for a change to this law suggesting that it can lead to deadly confrontations when there is an easy means for escape. However, this law although talked about a lot in the early going, this law did not play much into this decision. It seems unlikely that Zimmerman would have been unable to flee from the altercation as all evidence tends to lead to the conclusion he was pinned to the ground. Furthermore, changing of this law would lead to more arrests as people who were in fear of their life and used force could be arrested for not first trying to escape.

Others are calling for Zimmerman to be charged with federal crimes in connection with the killing of Trayvon Martin. In criminal cases, the double jeopardy rule protects defendants from being on trial for the same actions multiple times. This is the reason why the prosecution cannot appeal the decision to a higher court. However, the Supreme Court ruled in 1959 in the case Bartkus v. Illinois that prosecution in state followed by prosecution in federal court does not violate double jeopardy. It traditionally is not used as people feel this gives the government too much power. The double jeopardy law protects defendants and this should not be ignored just because of the emotion of this case.

When does an Anonymous 911 Call justify an officer making a stop for OUI in Massachusetts

July 19, 2013 | by Michael DelSignore

The Fourth Amendment of the United States Constitution protects citizens from unreasonable search and seizure. Part of this requires a police officer to have a reasonable suspicion of criminal activity in order to conduct a vehicle stop or any other search of a suspect. As a Massachusetts OUI attorney, this often becomes an important issue because if a police officer does not have this reasonable suspicion and conducts a vehicle stop or search, all evidence collected from this illegal search will have to be thrown out and will usually end in a dismissal of the case. Without a reasonable suspicion, a stop of a vehicle or search of a person will be considered illegal and unconstitutional.

Determining whether an officer’s stop was conducted under reasonable suspicion is often a topic that is difficult to determine. The Iowa Supreme Court recently took on the issue of whether an anonymous tip about a potential drunk driver can create this reasonable suspicion in Iowa v. Kooima. This case involved the defendant who was at a steakhouse for over an hour with several other gentlemen after a day of golf. Another patron recognized the men as prominent businessmen from the area. He proceeded to call 9-1-1 and describe the car and reported the license plate number. The anonymous caller told the operator that all the men were drunk and were going to leave but never gave any information about what they drank or how he knew the men were intoxicated. Despite the lack of details and not seeing the men drive, the dispatcher told officers in the area to be on the lookout for the car.

The officers followed the defendant and he never made any traffic violations or mechanical violations. Based solely on the tip, the police conducted a stop, gave the defendant a breathalyzer and field sobriety test and arrested the defendant on drunk driving. The defendant claimed the stop was not authorized but was convicted of drunk driving. The Supreme Court disagreed and ruled the stop was not authorized.