Massachusetts Criminal Defense Lawyer Blog

Which police departments have booking videos?

October 8, 2012 | by Michael DelSignore

As a Massachusetts OUI lawyer, one of the first things I look into with any new case is whether there is a booking video. There are three types of video that may be available in a Massachusetts OUI arrest:

cruiser camera video;
a booking tape,
or police surveillance cameras.

Police cruiser camera video is not widely used in Massachusetts, though it is used in other states. Many arrested for OUI expect from watching television shows like Cops to see a video of the entire arrest; unfortunately, most departments do not have police cruiser cameras.

In Bristol County, only the Mansfield Police Department has cruiser camera video; in Worcester County, the cruiser camera video is used by the Northborough police department. The Northborough police department cruiser camera video is very clear, capturing sound.

I used cruiser camera video recently at trial to show that my client’s performance on the field sobriety test when viewed on the video did not show any difficulty with balance and coordination and contradicted the officer’s claim of slurred speech. The video contradicted the officer’s claims in the police report and was critical to obtaining a not guilty verdict at trial.

The next type of video is the station booking video. This type of video comes in two forms, with and without sound. There are many police departments that have booking videos so I will only list a few here: These departments include New Bedford, Easton, Fairhaven and Medfield to name a few. I have found that booking videos appear most common in Worcester County.

The final type of video is police security video. Typically, the police report makes no mention of this type of video, unlike booking video, where most department state in the report that there is a video, police security video is typically not mentioned in the police report and only obtained if requested.

Departments that have security video, although with no sound, include Wrentham, Foxboro, Attleboro and Seekonk to name a few in this category. It is important to know that Seekonk only preserves its video for 15 days.

I have not come across any video among the State police, although I have heard from other lawyers that at least two barracks have booking videos.

Since video clearly demonstrates what occurred during an OUI arrest, it raises the obvious question, why does the State police refuse to video the arrest and why is video not more frequently used by police departments. The answer is that many police departments believe that video decreases the conviction rate.

Massachusetts OUI attorneys can argue to the jury that lack of video tape evidence, when video is so prevalent, found on all cell phones, should be held against the Commonwealth and factor into whether the Government has satisfied the burden of proof beyond a reasonable doubt. Since the burden of proof is on the Commonwealth, a defense lawyer can also argue that a lack of evidence raises a reasonable doubt.
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Breathalyzers in D.C. Are Back After 2-Year Hiatus

October 5, 2012 | by Michael DelSignore

Motorists in Washington D.C. may again face police departments armed with breathalyzers, following a two-year hiatus connected to inflated results that led to dozens of faulty convictions.

Our Massachusetts DUI lawyers understand that the previous machines were producing readings that were, on average, about 20 percent too high. About two dozen of those convicted sued the city, and received a settlement of about $130,000. Hundreds more convictions have been called into question.

Metro Police say they have addressed the issues, but we would argue that no machine is every guaranteed 100 percent of the time. That’s a serious issue because those arrested and convicted of a DUI may serve jail time, lose their jobs and be compelled to pay heft fines. Breathalyzer results are often the key piece of evidence used in convictions.

Police say one of the reasons they have taken their time before re-implementing the breathalyzer program was that they wanted to ensure the program they had in place would be scientifically viable and able to hold up in court. However, we anticipate further legal challenges, particularly given the tougher DUI penalties that the city council approved over the summer. The measures were formally adopted Aug. 1.

Among those changes:

Jail time has doubled for someone who has a blood-alcohol level of between 0.20 percent and 0.24 percent. It has gone from five days to 10 days.
For someone who is arrested with a blood alcohol content of 0.25 percent or higher, the minimum jail sentence has been bumped to 15 days.
Drivers who are deemed drunk with a child in the vehicle now face a minimum of five days in jail, with minimum fines more than tripling, from $300 to $1,000.
Maximum DUI sentences have doubled, from a three months to six months.
Commercial drivers, those behind the wheel of taxis or trucks, can be prosecuted for a DUI if they have a blood alcohol content over 0.04 percent (below the regular legal limit for everyone else, which is 0.08 percent).

Although these measures are only in place for D.C. motorists, those in neighboring states or who travel frequently to the city should take note. It’s illustrative of a trend throughout New England: law enforcement and lawmakers continue to work together to make laws tougher on those convicted of driving under the influence of alcohol or drugs.

Breathalyzers are frequently used by law enforcement agencies, both in Massachusetts and throughout the country, in DUI cases, and have been for years. During that time, numerous legal challenges have been raised regarding their accuracy.

For example, just this year in San Francisco, it was learned that the police department there had not been regularly testing the accuracy of breathalyzer machines. As such, hundreds and possibly thousands of DUI convictions handed out over the last six years could be overturned.

The problem is in the way these devices are designed. They measure the blood alcohol level as it can be found on your breath. This is essentially an estimate, and not an exact measure of what is in your blood. Plus, breathalyzers are designed to measure your BAC based on the average person. So your metabolism, sex, height and weight – which can each have an effect on whether are not you are actually intoxicated – are not taken into account.
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Tips for Law Students Preparing for Exams

September 28, 2012 | by Michael DelSignore

Law School can be stressful; one exam for the entire grade. Here are some tips on how to best prepare for exam day.

After having completed three years of law school at the University of Connecticut, I felt I got better understanding as I went along but it would have been helpful to know what I know now at the start of my first year.

Here is my advice to help you get off to a good start. While I believe it is important to outline your course material, read every case and the case notes, your exam will generally be applying the law to a new problem or issue that did not occur in any of the cases you have read. What you need to do is read current legal material related to the cases you are reading so you can see how the cases are being applied in court. If you try to expand your perspective beyond just memorizing the case law, your exam answer will have that extra insight that will make your exam stand out and earn you a better grade. What makes for an “A” exam, adding some flare to your answer that lets the professor know you understand the law and have something new and interesting way to apply it to the problem in the exam question.

Sixth Amendment confrontation clause case regarding statements to a child protection worker may reach the United States Supreme Court

September 10, 2012 | by Michael DelSignore

The case of Ricky Lee Allshouse v. Pennsylvania is on petition for certiorari before the United States Supreme Court raising the issue of whether the defendant was denied his right of confrontation under the Sixth Amendment by the admission into evidence at trial of his statements to a child protection worker.

Allshouse involves a case of child abuse on an infant where the infant’s brother told a child protection case worker about the abuse committed by the infant’s father. At trial, the State of Pennsylvania admitted the statements pursuant to a Pennslyvania statute authorizing the admission of the testimony as long as the judge finds it reliable.

The criminal defense lawyer objected arguing that the Sixth Amendment to the Constitution precludes the admission of these statements. The Pennsylvania Court affirmed holding that the purpose of the child protection worker was investigatory. The Pennsylvania Supreme Court held that the statements were nontestimonial because in response to an ongoing emergency.

Lab Flaws Leave Thousands of Massachusetts Criminal Cases in Jeopardy

September 6, 2012 | by Michael DelSignore

The bottom may have fallen out on thousands of criminal cases relying on drug testing analysis conducted at state labs, after a chemist was found flouting testing protocols. Both she and two of her supervisors have been placed on administrative leave, leaving thousands of convictions and ongoing criminal cases open to the possibility of dismissal.

Massachusetts criminal defense lawyers know that there are many criminal cases in which conviction may be contingent on whether drugs were found in a person’s system, what kinds of drugs and in what levels.

One example are DUI cases alleging prescription or illegal drug use.

Other times, laboratory results are used to determine whether a substance is an illegal narcotic. So if police find a white, powdery substance in a vehicle during a traffic stop, a conviction for a charge of possession of cocaine is going to be based largely on whether chemists proved that the substance was cocaine.

This is true for many aspects of a case. An experienced defense attorney will challenge evidence presented or allegations made by law enforcement officers, experts, alleged victims and other witnesses. One weak link can be enough to force a reduction or dismissal of charges, or at least a favorable plea deal. Failure to challenge the charges against you means the state is relieved of having to prove much of anything.

What happened here was that a single chemist, who has been working at the Massachusetts State Police crime lab since 2003, apparently had mishandled drug evidence and attempted to alter an evidence log. She reportedly failed to record the movement of drugs in and out of the evidence room. When supervisors discovered a problem, the errors were mysteriously fixed the following day.

The chemist resigned in March, and although she hasn’t been charged with anything, the state’s Attorney General’s Office has opened a criminal investigation into the matter. The woman’s husband was quoted by media as saying she is being used as a “scapegoat,” suggesting problems at the lab were far more widespread than the misdeeds of one person.

While officials believe 90 samples of drugs were jeopardized over the course of one day, the implications are that the problems may be systemic.

Police are working to gather a compilation of cases the chemist worked on during her time there. They and prosecutors will then be expected to go back and re-examine whether her work was central to the case. If so, they will need to inform defense attorneys, who can then either file a motion for a new trial or file a motion to vacate a guilty plea.

In addition to jeopardizing the prosecution in these cases, it also is likely to slow the progress of cases that are ongoing, as state officials work to sort through the mess. It also will no doubt allow defense attorneys to raise questions in the future with regard to the accuracy of state lab results.

Defense attorneys in Boston understand that many government crime labs, due to a lack of funding and lowered staffing levels, are working under difficult and high-pressure conditions. However, when a person’s freedom is on the line, we expect a higher standard.

At the end of the day, lab workers have an inherent bias because they are essentially working for law enforcement (in this case, the Massachusetts State Police). That’s why defense attorneys will often request an outside, independent source for testing in cases where that evidence is key. Those who work in the industry say that safeguards simply aren’t in place to ensure that lab bias doesn’t consistently skew in favor of prosecutors.
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Defending Drug Charges in Massachusetts involving anonymous 911 in light of recent court decision

August 24, 2012 | by Michael DelSignore

Drug crimes in Massachusetts can raise 6th Amendment Confrontation Clause issues just as in other types of criminal offense. A recent decision from the 5th Circuit Court of Appeals demonstrates the issues that arise for Massachusetts criminal defense lawyers in interpreting their client’s Sixth Amendment right of confrontation.

The case of United States v. Polidore, from the 5th Circuit involved a series of drug deals on the same street location, a nearby individual made two separate anonymous calls to 911 reporting the apparent drug activity and a description of a PT cruiser which appeared to be involved in the exchanges. Police were soon dispatched to the scene, where they found an unoccupied PT cruiser that fit the description given in the calls. Upon closer inspection, police noticed three unmistakable rocks of crack cocaine that had been placed in the driver’s side compartment. Police then watched the car until the owner returned. This instigated a short chase, which resulted in the eventual arrest of the cruiser owner.

During the trial, portions of the initial 911 calls were used to exemplify the caller’s responses when answering the operator’s questions for further details on the apparent drug activity. As it were the calls that lead to the defendant’s arrest, the defendant asked for this evidence to be inadmissible. The defendant claimed that his Confrontation Clause rights were being violated, as the anonymous caller was not present to testify at trial as a witness. However, the court found that the 911 calls were in fact, non-testimonial in nature and therefore did not violate the Confrontation Clause rights under Crawford v. Washington. The 911 operators did not possess any ulterior motives in their interrogation, they were simply performing their expected duties in answering an emergency call. The court claimed that:

Massachusetts DUI Watch: Route 24 Enforcement One Hot Spot this Labor Day Weekend

August 23, 2012 | by Michael DelSignore

At least six more OUI arrests in Massachusetts have occurred along Route 24 since authorities announced increased enforcement in the wake of a string of serious and fatal traffic accidents. Motorists can expect DUI roadblocks and other drunk driving enforcement measures through the upcoming Labor Day weekend.

The Boston Herald reported the arrests over the weekend raise to 33 the number of drunk driving arrests in Southern Massachusetts since the increased enforcement began a month ago.

As we reported recently on our Massachusetts DUI Attorney Blog, authorities increased enforcement after more than 630 crashes claimed 11 lives and injured countless others last year. That averages out to more than two crashes a day.

The Express-Times reports rising gas prices are not expected to impact Labor Day travel. AAA reports prices are up about 40 cents since July 1, though that’s still 22 cents a gallon lower than the peak price in April. Gas is expected to average $3.75 a gallon nationwide and more than 85 percent of travelers are expected to drive to their destination. The Boston Globe reports some 33 million travelers will hit the nation’s roads.

Labor Day is the last of the trio of summer holidays (Memorial Day and Fourth of July), that see the most travel, the most arrests for drunk driving, and the highest number of serious and fatal traffic accidents.

When law enforcement targets an area for drunk driving enforcement, or conducts increased enforcement periods around travel holidays, a number of consequences may result.

-Officers on the lookout for drunk drivers, typically find them. No surprise there. But the predisposition to making a stop or initiating a DUI arrest may give rise to an arrest even though the evidence would be insufficient to prove the case beyond a reasonable doubt if brought to trial. Increased enforcement means that police officer may arrest individuals who drank responsibly but simply could not perform balance and coordination test requested by the officer.

-Authorities may not conduct sobriety checkpoints or law enforcement roadblocks in accordance with the law. In fact, arrests in the wake of such stops typically provide more avenues of challenge for an experienced Brockton OUI attorney.

-Auxiliary, volunteer or part-time personnel may be put on active road duty. These officers may lack proper training and recency of experience, which can give rise to a host of legal challenges.

-Motorists may be unfairly targeted leaving concerts, venues or events.

Most motorists understand drunk driving is no longer a minor offense. However, those charged are also likely to have little experience with the criminal justice system. As such, they may fail to understand the seriousness of their situation. Job loss, jail time and lengthy driver’s license suspensions are all common results of a drunk driving conviction. And, financially, the cost of a drunk driving conviction nationwide can approach $20,000, counting skyrocketing insurance premiums, court costs, fines, supervision fees and other expenditures.

For repeat offenders, or for those involved in an accident, the consequences can be even more serious.

-OUI Serious Bodily Injury is punishable by up to 2.5 years behind bars and a mandatory two-year suspension of your driving rights.

-OUI Motor Vehicle Homicide is punishable by up to 15 years behind bars and a 15-year loss of your driver’s license.

Of course, your best option is to designate a driver, take public transportation, or find a sober ride home this weekend. But if you do end up under arrest, exercise your right to remain silent and contact an experienced defense lawyer in Massachusetts as soon as possible.
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Epstein Case Highlights Massachusetts Stalking Charges – Stranger Danger & Domestic

August 11, 2012 | by Michael DelSignore

A Massachusetts woman has been charged with two counts of felony stalking of the former general manager of the Boston Red Sox, now president of the Chicago Cubs.

Media reports indicate the Canton woman was arrested a few blocks from Theo Epstein’s home, where she told police she was seeking him out to invite him to church. In and of itself that wouldn’t be a crime, but the woman had reportedly been warned about stalking his home.

Massachusetts criminal defense lawyers know that despite the headlines often made in cases of celebrity or high-profile stalking incidents, which often involve an element of mental illness, the majority of stalking allegations stem from a break-up or divorce.

In many cases, it can be a misunderstanding or one person just has a hard time letting go.

And the fact of the matter is, it’s fairly common. The Bureau of Justice Statistics reports the following:

1. In the U.S., 14 out of every 1,000 people reported being victims of stalking;
2. For people who were divorced or separated, the rate of stalking was the highest – 34 out of every 1,000;
3. About 1 in 4 alleged stalking victims reported being the target of some form of cyberstalking, such as e-mail (more than 80 percent) or instant messaging (35 percent);

The penalties for a stalking conviction under Massachusetts law are serious.

Massachusetts law, specifically Part IV, Title I, Chapter 265, Section 43, addresses stalking and its punishments. This statute defines stalking as any willful and malicious engagement in a pattern of conduct or series of acts over a period of time that is directed at one person that either “seriously alarms” or “annoys” that person AND would cause a reasonable person to suffer emotional distress. The law also similarly encompasses threats that are intended to make the person fear either imminent physical injury or death.

This is a felony, and if convicted, a person can serve up to five years in prison and pay up to a $1,000 fine.

A lot of times when we think of stalking, collectively we’re picturing someone physically following another person around with binoculars. But of course, that’s an antiquated notion (although it would still count) and the law now addresses various forms of electronic communication too.

For example, the conduct that would be considered stalking under the law includes any actions carried out or threats made by mail, phone, e-mail, faxes, instant messages or any other electronic or digital communication.

So for example, if your girlfriend breaks up with you and you send her a series of Facebook messages meant to intimidate her or threaten her – even after you’ve been warned to stop – you can be charged with stalking, even if you never go near her.

It’s this misunderstanding about stalking laws that can sometimes get people in trouble.
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Massachusetts Domestic Violence Defense: Not Just for Spouses

August 3, 2012 | by Michael DelSignore

A Brockton women was recently jailed after an argument with her sister reportedly led to one slashing the other with a kitchen knife.

Our Massachusetts domestic violence defense lawyers can often help a defendant facing charges of assaulting a family member. Scant evidence can lead to an arrest — but whether you are convicted is another matter entirely.

While we typically think of domestic violence situations in terms of spouse-on-spouse, under Massachusetts General Law 209A, it can involve any family member or household member, and it includes violence against someone you may be dating or have dated.

Family or household member means:

1. Anyone to whom you are or were married;
2. Anyone with whom you are living in the same residence;
3. Anyone with whom you are related by blood or marriage;
4. Anyone with whom you have a child, regardless of whether you were ever married or in a long-term relationship with.

In some cases, an arrest will be made on the spot, while in others, officers will take more time to investigate and then return with a warrant to make an arrest. Regardless of the method, the end penalties are equally serious.

In this case, the sister who was slashed reportedly suffered minor injuries. No further details were given about the incident, as it is currently under investigation.

Domestic violence convictions are unique from other assault convictions because there is the potential to greatly disrupt your life, than a simple assault conviction. A conviction for domestic violence can impact not only your personal relationships, but potentially your professional relationships as well.

The alleged victim can also request an abuse protection order against you, which could prohibit you from all contact and even from being in certain places at certain times where it is likely the alleged victim might be. Violation of this order is considered an additional criminal offense.

With regard to your professional life, public employees are at particular are at risk. State employees, for example, are under a zero tolerance policy with regard to sexual assault and domestic violence. Executive Order 491, signed back in 2009, establishes that state employees can face disciplinary action from their employer if convicted of a domestic violence offense. This can range from an oral warning or reprimand to a suspension or even termination. This applies regardless of whether the alleged incident happened at work.

What’s more, the executive order allows that the employer can use a prior domestic violence conviction from within the last five years when deciding whether or not to hire a candidate. That’s a strike that many would-be employees can’t afford in this current economic climate.

Although the executive order only involves government employees, many companies have similar policies.

It’s not uncommon for disputes to arise among family members or those living in the same household. When police only have a limited amount of information to go on, they often get it wrong as to who was the aggressor or the exact facts of the case.

Simply pleading guilty to get it over with is not a smart move, and won’t help you put an unpleasant situation behind you any faster.
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Warning: Expect More Police on Rt. 24

August 2, 2012 | by Michael DelSignore

A series of serious and fatal crashes on Route 24 and I-195 have prompted state troopers to boost their patrol efforts on both highways, hoping to nab speeders, drunk drivers and careless motorists.

Massachusetts DUI lawyers know that more patrols are likely to equal more arrests. It’s important to understand the background of why law enforcement is targeting this area, as well as what you should do if you’re stopped.

A recent two-part series by The Enterprise newspaper detailed what has been a treacherous year, particularly on Route 24. Drivers spoke of how they drive defensively because they felt it often a matter of life or death on that stretch of highway.

In fact, the newspaper staff, after combing through four years worth of crash data, determined that it’s one of the most dangerous roads in the state. In the last year, there have been 630 crashes on Route 24, resulting in 11 deaths and many more injuries. That averages out to about two crashes a day.

Law enforcement say the reasons behind these crashes vary, but mostly put blame on certain dangerous driving habits, including speeding, impaired driving and wrong-way driving.

Certainly, reckless drivers are out there. However, Massachusetts DUI attorneys know that a lot of it also has to do with poor road design. Even the newspaper reported that when the road first opened back in 1952 as the Fall River Expressway, there were approximately 30 exits over a span of just 43 miles. Most of those ramps are abrupt, allowing motorists just a few car lengths to either speed up and merge or slow down and avoid a collision. Sure, some people go too fast, but poor road design can be a factor in a crash – and in some cases, a possible defense. Drivers could be doing everything right, but accidents will still happen.

Some motorists interviewed by the paper indicated that scofflaws were to blame, as was the lack of police enforcement. So now, law enforcement is answering that claim by tripling their patrols on both Rt. 24 and I-195, particularly on weekend nights through September. When increased enforcement is announced, it also means there is an increased probability of being stopped. When law enforcement is predisposed the make traffic stops and take enforcement action, motorists are also at increased risk of questionable or unfair arrest.

Of course, the best way to avoid a DUI is not to drink before you get behind the wheel. The legal limit in Massachusetts for blood alcohol content is 0.08 percent, but the problem is, many people have a hard time telling once they’ve reached that limit.

Because the chances of your getting pulled over and arrested on Rt. 24 and I-195 are increased, here are some things to keep in mind if you get stopped:

1. Reduce your chances of being pulled over by keeping your vehicle in good working condition. This means making sure your rear and headlights are working, you don’t have illegal window tint and your vehicle is generally well-maintained. Also, make sure that your license plate is properly renewed and your license, registration and insurance is current.

2. Remain calm and be polite. Almost everyone is nervous when getting pulled over, but try to maintain your composure. Remember too that being rude will probably get you nowhere.

3. Don’t be combative, but know that you have the right to decline to take a field sobriety test, take a breath test and to tell the officer whether you’ve been drinking. Understand that under the Massachusetts implied consent law, if you refuse a breath test, you will likely be arrested and lose your license for at least 180 days. This statute is found under Massachusetts General Laws 90-24(f). On the flip side, there will be less evidence to prosecute you for a DUI or OUI.

4. If you are arrested, do not make any statement to police or investigators without an experienced DUI attorney present. Contact an attorney as soon as possible.
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