Massachusetts Criminal Defense Lawyer Blog

Discussion on recent laws pertaining to Driving under the influence of marijuana

June 15, 2013 | by Michael DelSignore

Decriminalizing and making marijuana legal is a growing trend throughout many states. However, even when legal, it is still an offense to drive under the influence of marijuana. As a Massachusetts OUI Defense Attorney, this creates problems as it is much more difficult to measure the presence of marijuana in the system opposed to alcohol. With an alcohol OUI charge, registering a .08 or higher will create a presumption that the driver was operating under the influence. There is not really a “magic number” such as this for marijuana and has created difficulty in OUI cases involving drugs. Colorado has recently taken on the challenge of trying to create a threshold for marijuana.

The effects marijuana have on driving is not as clear as the effect alcohol has which was a problem for Colorado law makers. However, they were determined to find a number to put on the amount of marijuana in a drivers system in order to make it more like an alcohol OUI. Colorado concluded that a driver will be assumed to be impaired if a blood test shows THC in five or more nanograms per milliliter. When a blood test shows this amount of TCH, it will be the same as blowing a .08 in a drunk driving charge.

Similar bills creating a standard like this for marijuana use have been met with some resistance. This is due to the small amount of research done on the effect marijuana has on driving and the intrusive nature of taking a suspect in for a blood test. Research has shown that the more marijuana used, the worse a driver will be performed. This is really the only data available and more will be available late this year.

Comments on the proposed reduction in the legal limit for drunk driving offenses to .05

June 9, 2013 | by Michael DelSignore

As a Massachusetts OUI defense lawyer, often an argument made at trial is that a motorist drank responsibly and only had one or two drinks with dinner. The proposed reduction of the presumptive legal limit would have potentially impose criminal penalties on those who drink responsibly. Fortunately, the proposal is not likely to be adopted.

The National Transportation Safety Board, or NTSB has recently recommended that states modify the legal limit of alcohol allowed while driving. This modification would mean that a driver would be considered to be driving under the influence of alcohol at a .05 blood alcohol content opposed to the current legal limit of .08. As a Massachusetts OUI attorney, it seems like this change would create a disadvantage to drivers and punish drivers who were once considered responsible.

The NTSB argues that this change is necessary to ensure the safety of the citizens. NTSB argues that alcohol related deaths are on the rise and this is the best way to stop it. Deborah Hersman, the chair of the NTSB states that a .05 blood alcohol content has been implemented as the legal limit in many nations which have safer roads and it is time for this change in America. One example of where NTSB believes the .08 legal limit seems unjust is the death of Sergeant Douglas Weddelton, a Massachusetts state trooper. While pulling someone over, Sergeant Weddelton was slammed into by a pickup truck and killed. The driver who hit him however only had a blood alcohol content of .07 and was not legally drunk.

Westborough criminal defense lawyer explains witness intimidation law

June 3, 2013 | by Michael DelSignore

One of the most common charges when a defendant is charged with a domestic assault and battery in Westborough, Massachusetts, is that the charge will also be accompanied by a charge of Witness Intimidation. The Massachusetts Appelals Court recently addressed the issue of what constitutes witness intimidation in the case of Commonwealth v. Rosario, decided on May 22, 2013. The case can be found by visiting the social law library website.

In the Rosario case, the defendant was facing charges of assault and battery with a dangerous weapon and four months after this incident confronted victim in the hallway of the courthouse. This encounter led to the additional charges of intimidation of a witness and threat to commit murder. Following a jury trial, the defendant was convicted of witness intimidation.

On appeal, the defendant concedes that the evidence was sufficient for the jury to find that he threatened the victim and that victim was to be a witness against him in a criminal proceeding. He claims that this motion for a required finding of not guilty should have been allowed because the Commonwealth failed to establish that he possessed requisite intent “to impede, obstruct, delay, harm, punish or otherwise interfere” with a criminal proceeding.

Florida Police officer under investigation for targeting women in DUI arrests

May 26, 2013 | by Michael DelSignore

Are women targeted when officers make DUI arrests? The answers may be yes, at least in Florida. A Florida State Trooper, Melvin Arthur, is under investigating for targeting women in making DUI arrests, according to the Herald Tribune.

Trooper Arthur is believed to have arrested an unusually high number of women. Statistics of his arrests compared to other officers support this conclusion. His recent arrest of Sally Adams is noteworthy because it is on video. It is hard to understand why Adams was arrested from looking at the video or why she was even asked to perform field sobriety tests and not simply given a citation for the alleged equipment violation.

Adams blew significantly below the legal limit, but even if she had refused the breath test, this would have made a strong case for the defense at trial. The article was reported in the Herald Tribute and can be found by clicking the attached link.

Is the right to counsel invoked under the 6th Amendment when a suspect speaks to the police when their lawyer cannot be reached?

May 21, 2013 | by Michael DelSignore

We are familiar with Miranda Rights-the preventive criminal procedure rule that law enforcement is required to dictate to suspects in custody before interrogation. The Miranda warning protects the individual in custody from self-incrimination, protecting their 5th amendment rights. Typically, when law enforcement fails to administer Miranda Rights, anything said by the suspect in custody cannot be used at a criminal trial. However, what happens when a suspect has been read their Miranda Rights, attempts to contact counsel, but when they are not successful at reaching their attorney- continues to answer police interrogations without them?

In the recent case of Berghuis v. Moore, a suspect asked a police officer to call an attorney listed on a business card. The officer called the number but reached an answering machine, not the attorney. However, after this attempt, the suspect did not refuse to speak to police without their counsel present. In fact, the suspect signed a Miranda waiver and then proceeded to confess to a brutal murder.

However, before trial, the defendant sought to have his statement to law enforcement suppressed as involuntary, even though he agreed to speak without counsel after the officer attempted to contact his attorney, and even though he signed a Miranda waiver. The trial court ruled that the defendant had validly waived his rights, and denied the motion to suppress. A jury then convicted the defendant to first-degree premeditated murder. The defendant appealed, arguing that the trial court erred in denying his motion to suppress. The Michigan Court of Appeals affirmed the trial court decision, ruling there was no error. The defendant sought review by the Supreme Court, contending his fifth amendment rights were violated.

When can an officer make an arrest outside of his jurisdiction?

May 17, 2013 | by Michael DelSignore

One question that comes up for a Massachusetts OUI Lawyer is “when can a police officer make an arrest outside of his or her jurisdiction?” Whether a police officer had a basis to stop you under the Fourth Amendment is one of the first lines of defenses that is pursued in defending an OUI charge.

The Supreme Judicial Court of Massachusetts answered the question of when a local police officer can pull and charge a driver over with an OUI outside his or her jurisdiction in Commonwealth v. Bartlett.

The defendant in Commonwealth v. Bartlett was facing his fifth OUI offense and was trying to suppress evidence citing that the officer pulled him over outside of his jurisdiction. The officer, in this case, was on patrol as a Merrimac police officer and crossed into the neighboring town of Amesbury during his shift. While returning to Merrimac, he witnesses defendant weaving and swerving. After defendant turned into a parking lot, the officer blocked the defendant and informed Amesbury police and then initiated a traffic stop. Unable to remove his license, bloodshot eyes and a failing of the sobriety test led the defendant to receive an OUI. The Merrimac officer made the original stop while Amesbury police administered the field sobriety test.

Do Police Need Warrants to Search Cell Phones? Florida Supreme Court says Yes!

May 14, 2013 | by Michael DelSignore

As technology advances, a slew of new legal issues have found their way into courts across America. Social media networks, email, texting, and other technological communications pose new questions surrounding citizens’ privacy, the 4th amendment, and search/seizures issues for police. Recently, a Florida Supreme Court ruled that police are required to obtain a search warrant before examining the contents of an arrestee’s cell phone.

In the case of Smallwood v. State, the defendant was arrested for allegedly committing an armed robbery of a convenience store. Upon his arrest, police confiscated and examined the contents of a cell phone in the defendant’s possession at the time of his arrest. Police discovered incriminating evidence on the phone, including images of a handgun, and photos of stacks of cash that were taken after the date of the robbery. However, the defendant argued that his 4th amendment right was violated.

According to the 4th amendment, United States citizens have the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Warrants can only be obtained with probable cause and should specifically describe the place to be searched, and the persons or things to be seized. Further, to have probable cause, police must have legally sufficient reasons to believe a search is necessary. Law enforcement cannot just seize property to use as evidence without first obtaining a warrant. While evolving technology that provides instant access to a person’s bank accounts, medical records, contacts, photos, and communications pose seemingly new questions on search/seizure, the courts have faced these issues historically.

United States Supreme Court hears oral argument in Salinas v. Texas: Is silence prior to arrest admissible into evidence under the 5th Amendment

April 22, 2013 | by Michael DelSignore

On Wednesday, the Supreme Court heard oral arguments for Salinas v. Texas. The issue in Salinas is whether the Fifth Amendment protects a defendant who remains silent during police questioning before being arrested or read his Miranda rights. As a Massachusetts OUI lawyer, I would expect that the Court will hold that the Fifth Amendment precludes the State from admitting evidence of pre-arrest silence. In additional to a Fifth Amendment argument, a defendant should argue under the rules of evidence that the silence is immaterial and irrelevant and should not come into evidence as having no relevance to whether a defendant committed the criminal offense.

The defendant was a suspect in a homicide investigation and voluntarily accompanied authorities to a police station for questioning. After about an hour of questioning, the defendant stopped answering questions and remained silent. Subsequent investigation linked the shotgun shells found at the scene of the murder to a shotgun found at the home of a defendant.

He was charged with murder and at trial the State sought to introduce the defendant’s silence in response to police questioning. The defendant objected to this evidence, claiming that the Fifth Amendment privilege should exclude the evidence regardless of the fact that he was not in police custody at the time of questioning. The trial court declined to extend Fifth Amendment protection to pre-arrest, pre-Miranda questioning.

Massachusetts Supreme Judicial Court affirms holding of Commonwealth v. Cruz in recent decision

April 18, 2013 | by Michael DelSignore

Since Commonwealth v. Cruz, the Supreme Judicial Court held that the smell of marijuana did not give an officer probable cause to conduct a search. Commonwealth v. Daniel, a recent decision by the Supreme Judicial Court, affirms the holding from Cruz. The Daniels decision may provide a defense to a drug stop for a Boston criminal defense lawyer based on the Fourth Amendment to the United States Constitution.

Boston police officer was patrolling Dorchester in the early hours of the morning when he observed a SUV without a driver’s side headlight make a left hand turn without signaling. The officer stopped the vehicle and when approaching the car noticed that the man sitting in the passenger’s seat was rocking back and forth. The officer could also smell marijuana when he approached the vehicle, and when he asked the driver if there was marijuana in the vehicle, the driver produced two small bags from her pockets. The driver also emptied all other possessions from her pocket.

Based on this behavior, the officer suspected that the defendant was concealing something more, so her ordered the driver to pull over further and ordered that the passenger and then driver exit the vehicle. The officer searched the passenger and subsequently the driver, finding no contraband on either person. The officer then searched the vehicle and found a firearm in the glove box.

Does Massachusetts OUI law provide a defendant the right to take a breath test after refusing one?

April 17, 2013 | by Michael DelSignore

As a OUI Lawyer , a case will often involve somebody who nhas refused to take a breathalyzer test after being pulled over. In some cases, a motorist may change their mind and request a breath test after refusing to submit to one. In a recent case, the issue was raised is whether a defendant can offer into evidence there request to take a breath test after an initial refusal.

The Massachusetts Supreme Judicial court recently answered this question in Commonwealth v. Jones. In Commonwealth v. Jones, the defendant was pulled over by two police officers after a truck was witnessed driving erratically. The defendant had blood shot eyes, had an open container of alcohol and was stumbling getting out of the car. After performing poorly on the field sobriety test, the defendant was arrested and brought to the police station.

At trial, the defendant made a motion to permit evidence that while at the police station, he originally refused a breathalyzer test but then “shortly afterwards” changed his mind and asked for the breathalyzer. The prosecution argued this had the potential of opening “a can of worms” of evidence that would be allowed and the judge rejected the motion and did not allow the evidence. The defendant was convicted of an OUI after trial.

On appeal, the SJC ruled that the judge at trial acted within the scope of his discretion in not allowing the testimony. The court explained that this evidence could only excuse the defendant to the extent it suggested a conscious innocence at the time of the request. In other words, the defendant had to be requesting the breathalyzer because he felt he was not drunk and it could prove his innocence. The SJC held that there are too many other reasons for the breathalyzer request and was most likely trying to avoid the automatic license suspension. The court felt allowing this evidence may mislead or confuse a jury, complicate the case or prolong the case. The evidence here was not allowed.

In Massachusetts if you are pulled over for an OUI and refuse a breathalyzer test, evidence that you later requested a breathalyzer and were denied is probably not admissible. However the SJC does seem to leave the door open to cases where defendants are requesting the breathalyzer because they consciously believe they are not drunk. The SJC in Commonwealth v. Jones felt he had other motives in requesting the breathalyzer. It may be hard to prove to a court, but if a defendant can in fact prove they were requesting the breathalyzer because they believed they were not above the legal limit of alcohol, that evidence may be admissible. A top OUI lawyer will argue that all potentially exculpatory evidence shall be admitted and that this falls within that category.
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