Massachusetts Criminal Defense Lawyer Blog

Massachusetts license suspension for breath test refusal: Steps to appeal the license suspension

March 15, 2012 | by Michael DelSignore

When your license is suspended for refusing a breath test in Massachusetts, there is a method to appeal that suspension. This blog addresses the issue of how you appeal a breath test refusal suspension. This blog addresses the arguments I have used in court to argue that the court should vacate a refusal suspension. At DelSignore Law, we have had numerous refusal suspensions vacated by the court.

As a Massachusetts OUI attorney, I typically am asked what arguments can be made to challenge a breathalyzer refusal suspension. In my prior post, I outlined the procedure for filing an appeal of a breathalyzer refusal suspension. In this post, I will discuss the arguments I have made before the RMV and in the District Court to attempt to vacate the suspension.

First, I look at the documents to make sure that the officer complied with Massachusetts general laws, Chapter 90 Section 24 in issuing the suspension. To comply with Massachusetts DUI law, the refusal must be witnessed by one other officer in addition to the officer requested the breathalyzer test. Some police officers are not aware of this requirement and I have seen reports of refusal omit this element.

The second issue is whether or not a motorist actually refused a breathalyzer test. In cases where a motorist attempted to submit to a breathalyzer test, but could not register an adequate sample, this raises the issue of whether the motorist constructively refused a breathalyzer test or could not deliver an adequate sample, due to medical conditions or to the condition of the breathalyzer machine.

A third argument, and one I use it every case, is that the report of refusal does not comply with Massachusetts DUI law as it is not signed under the pains and penalties of perjury.

Chapter 90 section 24 provides that a police officer shall “prepare a report of such refusal. Each report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by the police officer before whom such refusal was made.”

In every case that I have seen, the report of refusal has no signature of the officer and next to prepared under the pains and penalties of perjury, there is an indication of “Y” to indicate yes. On some forms, the officer will write yes. The reports of refusal also has a disclaimer that the registry reserves the right to correct any error or omission in the report of refusal. I have argued before the court that this report does not constitute a report prepared under the pains and penalties of perjury. An officer could not be prosecuted for perjury based on this preprinted form that has no indication that the officer reviewed it or check it for its accuracy.
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Massachusetts Drug OUI Cases On the Rise Due to Prescription Drug Abuse

February 26, 2012 | by Michael DelSignore

Police in New York are reporting that drug DUI cases are on the rise, which likely means that Massachusetts drug OUI cases are on the rise as well due to prescription drug abuse and an increased emphasis on enforcement.

The problem with this charge is that police are far behind in getting proper training to determine when someone is under the influence of drugs. Every law enforcement officer gets months of training to figure out when someone has been drinking and driving, but drugs are a different story. Drugs also stay in a person’s system longer than alcohol, making such training suspect at best.

Consulting with an experienced Massachusetts OUI attorney is critical in cases like this because law enforcement officers sometimes get cases like these wrong. In cases where a person has used prescription drugs and driven, officers often lack the ability to properly make the determination of whether they have broken state law.

Very few officers are trained in as drug recognition experts. In fact, the group in Florida that trains officers reports that there are just over 5,000 officers certified as drug recognition experts in the world. That means that less than 1/10 of 1 percent of all officers worldwide hold this distinction.

The odds of small towns throughout Massachusetts having these experts are low. And an experienced Massachusetts Drug OUI lawyer places as much faith in these “experts” as they do in common OUI testing like field sobriety tests and breathalyzers. Much of what is used to determine OUI in Massachusetts is flawed and that can be pointed out in defense of the client.

According to the story out of New York, there were 352 arrests in 2008 in a three-county area north of New York City. The number dropped to 326 in 2010. Numbers overall are on the rise compared to 2001, when there were 145 drivers charged with the crime.

The interesting thing about the statistics is that this is such a low number of cases. The population in the three-county area is nearly 1.4 million and yet only 300 people a year face these charges. This is either because few people in this area use prescription drugs, which is unlikely, or police just don’t know how to recognize and deal with the issue.

Officers quoted in the story say they are getting more and more training to recognize drug OUI cases, but they still aren’t at the point where they can properly spot it. One officer admits that while there are breath testing devices that can provide estimates of blood alcohol levels in drivers, there is no such device for drug OUI cases.

This means that a driver who is charged with drug OUI in Massachusetts is arrested solely based on an officer’s observations. If the person has balance problems and fails a field sobriety test, the officer could blame it on drugs, but that could be a defense. What happens if there are no drugs found in the vehicle and the driver doesn’t admit to taking any drugs? How can an officer legitimately file a charge without any evidence that a drug was consumed?

These are issues that must be addressed by an experienced Massachusetts OUI lawyer. A driver cannot leave this up to chance because there are many options and defenses that a suspect can put together.
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Marlborough Man Charged with 7th Massachusetts OUI is Held Without Bail After Dangerousness Hearing

February 16, 2012 | by Michael DelSignore

A Marlborough man facing, a repeat offense OUI charge in Massachusetts, a 7th offense, was found to be a danger to the public and was ordered to be held without bail until his trial. John Sawicki, 49, has a long record, according to the news account and was arrested last Tuesday after the stolen car he was driving was spotted by an officer. Sawicki was found in the driver’s seat with the keys in the ignition. The officer allegedly smelled alcohol, vomit, and urine in the vehicle. Sawicki appeared to be impaired and kept nodding off during questioning. His arrest came after state and local police officials received multiple reports that the stolen car was erratically weaving on Interstate 290 East. The Metrowest Daily News reported that Sawicki’s vehicle had several cold beer cans and assorted car parts. The vehicle was reported stolen by the DMV.

Police report that Sawicki swore at him and refused to take a sobriety test . The judge found Sawicki dangerous and ordered him held without bail. He is currently being charged with OUI (fifth offense or greater), receiving a stolen vehicle, possession of an open container of alcohol, and driving with a suspended Massachusetts license revoked for OUI .

A person in Massachusetts charged with a 4th OUI offense or greater may be required to attend a dangerousness hearing. This hearing is held to evaluate the defendant’s danger to the community at large. During the dangerousness hearing in Massachusetts , the judge will consider several factors. For instance, the judge will look at the nature of the crime, along with other factors to determine if the person should be detained or the conditions upon release. This hearing is typically held at the defendant’s first court experience, therefore it is crucial to hire an experienced Marlborough OUI attorney during this time. The attorney may request a continuance for a maximum of seven days to prepare a preliminary defense.

Dangerousness hearings differ from criminal hearings in that all the evidence is admissible when determining if the defendant is a danger to the community. The judge may also reopen the dangerousness hearing if new evidence comes to light that supports that the defendant poses a risk to society. The decision to hold a defendant will be made only after the hearing determines by clear and convincing evidence that the safety of the community will be at risk regardless of the conditions of release for the accused. The period of time that the court is allowed to detain a person in this situation, can not exceed 90 days.

A judge will look at a number of factors to determine whether or not bail should be granted when facing a multiple OUI charges in Massachusetts :
*The nature and seriousness of the danger that would be imposed upon the
community if the defendant were released
*The circumstances and the nature of the offenses charged *The potential sentence of the crime *History of mental illness and employment record *Conviction record and prior charges/bail violations *Reputation of the defendant and any family ties *Controlled substance dependence

Sawicki’s is being held without bail until his March 9th pre-trial hearing.
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Attleboro Police May Use Drug Testing to Snuff Out Bad Cops

January 20, 2012 | by Michael DelSignore

Attleboro’s police chief is pushing for drug testing of his officers after news broke that drugs went missing from the department’s evidence room, the Boston Herald reports, and he is asking for help on Beacon Hill.

No Attleboro drug arrests have been made yet, but the chief has been investigating, despite a “code of silence,” from within the department. The chief thinks drug testing could have prevented cocaine and other narcotics from being stolen and also will ensure it doesn’t happen again.

Our Attleboro criminal defense lawyers understand law enforcement officers are sometimes far from perfect. In this case, at least one officer is guilty of an Attleboro theft crime, and one involving drugs, no less.

It calls into question the ethics of the officers working in that department. The fact that some officers are potentially criminals and are being paid to investigate crimes is a big concern. Another issue concerns the credibility of the rest of the evidence in that locker room. How can defendants be sure that evidence intended to try to put them in jail or prison hasn’t been tampered with by officers?

The flip side of that coin is that, once accused, officers are even less likely to get the benefit of the doubt and an aggressive defense will be required. A conviction of any charge will almost certainly result in job loss and could end their career.

Drug testing for officers must be implemented through collective bargaining with unions. So the police chief is calling on lawmakers to create bills that would mandate random drug testing for public safety officials.

Attleboro and its police union are currently negotiating how to implement random drug testing. The police chief says officers are asking for pay raises if they are to submit to random drug testing, which is difficult to do.

Experts believe that unsolved police drug theft cases can ruin public trust in a police department, which can prove difficult for officers to overcome. In 2003, $80,000 worth of marijuana was stolen from a police storage facility in Dracut. Two officers were accused of being “intentionally deceptive” and were suspended last year. In 2006, Boston police found that in hundreds of cases drug evidence was stolen. Yet no one was arrested.

Some suggest that drug testing isn’t the issue, but rather theft in Attleboro at the police department should be the focus. While video surveillance and a better electronic coding system are positive steps in the right direction, the story shows that police can be just as culpable as the defendants they arrest.

If the drugs that were stolen were used, they are out of the users system by now. Drug testing won’t show who stole those drugs. The bottom line is that officers are stealing from their own department and evidence is being compromised. The Herald article also doesn’t state which evidence was stolen.

It will be interesting to see from what cases the drugs were stolen and what is happening to those cases.
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Framingham Man Faces Massachusetts Gun, Drug Trafficking Charges

January 15, 2012 | by Michael DelSignore

A 23-year-old Framingham man faces major Massachusetts gun charges and drug charges after a SWAT team raided his apartment recently, The MetroWest Daily News reports.

Gun crimes in Framingham are often attached to other charges, such as drug crimes, as it were in this case. This allows prosecutors to seek more penalties against defendants.

It also gives them an advantage during plea negotiations. The more charges that a defendant faces, the higher the possible penalties, especially if charges can be sentenced consecutively. So, when prosecutors approach the defense about a plea offer, they often start with the highest possible sentence and work their way down.

While every Framingham criminal defense attorney is going to use their time to prepare for trial, the fact is that in most areas, 95 percent of cases end in a plea deal. As a defense attorney prepares to go to trial, though, he can discover evidence, contradictions in police statements and unreliable witnesses that can make plea negotiations more beneficial for the defense. So, despite the charges being stacked against the defendant, good defense work can sometimes lead to a good plea offer. Negotiating from a position of strength never hurt anyone.

In this case, 23-year-old Tyrone Fleurimont recently appeared in Framingham District Court on charges of trafficking drugs and possessing drugs within a school zone. His 21-year-old girlfriend, Kaleen Hardison, was also charged.

Police say they obtained a search warrant to search the couple’s apartment and broke in looking for jewelry and a gun that they believed the man stole. During the search, officers also allegedly found heroin valued at $9,000 as well as $7,000 in cash.

The man allegedly has a warrant out of Dorchester charging him with gun charges and three prior drug charges, having a gun or ammunition without an FID card, carrying a loaded gun without a license, carrying a dangerous weapon and driving after a license suspension. Boston Police also have warrants out for the man on two counts of possession of a gun without an FID card, two counts of possession of a large capacity firearm, possession of a Class B substance with intent to distribute, trafficking in heroin, possession of heroin and possession of marijuana.

Fleurimont’s Framingham criminal defense attorney brought up a great point — that the search may have been flawed in the first place. The article makes no mention of the allegedly stolen jewelry and gun that the initial search warrant was for. If officers found nothing, yet knew that he had prior charges, they may have made a bad faith effort just to get into his apartment.

As for the man’s girlfriend, her Framingham criminal defense attorney said there’s no indication she knew there were drugs in the apartment, which is nearby a school.

The issue of search warrants is critical because in some cases, if police officers provided incorrect or inaccurate facts to a judge in order to get a warrant signed, the evidence that follows can be suppressed. If officers knew ahead of time that the defendant had a criminal history record and used that as motivation to try to get into his apartment, that could be a problem for the prosecution’s case.
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Duxbury OUI Driver Found to Be Dangerous, Held in Jail

January 12, 2012 | by Michael DelSignore

A Duxbury man with seven prior OUI convictions in Massachusetts and who was recently arrested on a new charge, was found to be dangerous by a judge and is being held in jail, the Patriot Ledger reports.

Being charged with OUI in Massachusetts is a serious offense, but a driver’s past can make a new charge even more difficult to deal with. That’s because in Massachusetts, prior OUI convictions can make future penalties for a drunken driver more severe.

Having past convictions affect a future sentence may not seem fair, but that’s how the laws are written. The tiered nature of the state’s drunk driving law make it critical to fight each charge. A first-offense DUI in Massachusetts is often the most beatable. Taking a plea today can put your future at risk tomorrow.

In order to prove a person is facing their eighth OUI charge in Massachusetts, the prosecution must be able to prove the past convictions. In many cases, a person may have been charged and convicted of a drunken driving related crime in a different state, many years ago. The court case recording system in many states wasn’t very good, so prosecutors sometimes have difficulty proving past convictions. In some cases, the documentation is lost, deleted or doesn’t show the necessary information to prove a conviction.

In this case, prosecutors believe a Duxbury man has seven prior OUI convictions and he was recently arrested on another OUI charge. The man will be held in a jail until his next court date in mid-February.

Mark Dirsa was ordered held in a Plymouth jail after a Plymouth District Court judge ruled that he’s “dangerous” and must be held in custody. He was arrested Dec. 28 in Kingston after police allege he crashed into a sedan.

He is next scheduled to appear in court Feb. 13 for a pretrial hearing. The newspaper reports that if he is convicted of OUI he would face a lifetime driver’s license suspension as well as more than two years in jail.

The newspaper reports that state records show the 54-year-old has an eight page-long driving infraction record. But his prior drunken driving convictions go back to the 1980s and 1990s. Based on the state’s lifetime look-back law, all previous convictions can be counted at sentencing.

Police say the man is dependent on oxycodone and told police that he took the drug on the morning of the crash. Police reported that they found 11 pill bottles in his truck’s glove compartment. He also faces charges of falsifying a prescription last year to obtain oxycodone.

The newspaper article doesn’t provide additional details about why police suspect he was under the influence of drugs or alcohol. Simply admitting to taking a pain pill the morning of an afternoon accident doesn’t rise to the standard of proof for an OUI conviction. Unless other testing was done to show this wasn’t simply an accident, the defendant may have an opportunity to fight this charge.
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Weston Man Charged With Massachusetts Restraining Order Violation

January 12, 2012 | by Michael DelSignore

A Weston man was recently arrested and charged after allegedly violating a Massachusetts restraining order his wife had gotten against him, The MetroWest Daily News is reporting.

Facing a restraining order in Westborough can be an embarrassing thing and typically derives from some type of Massachusetts domestic violence situation.

Westborough criminal defense lawyers recognize that these matters are private, yet can take a public turn once the issues get into the court system.

In this case, a 29-year-old man now faces criminal charges after he allegedly violated the restraining order and then forced a police cruiser off the road, The MetroWest Daily News reports.

According to the newspaper, the couple has had various domestic violence issues recently. The wife was arrested on Christmas Eve after she allegedly crashed a party at the man’s Aspen Road home, threw a chair through a widow and assaulted someone. The wife, who previously had a restraining order against her husband, renewed it recently and the man showed up at her house and entered, police said, in violation of the order.

The wife told him to leave and as he did, he reportedly drove down the center of a road without his headlights, which caused a police officer to drive off the road. The man was arrested at his home and charged with a restraining order violation, driving to endanger, speeding, driving without headlights and failing to keep right.

Prosecutors have asked that the man’s bail be revoked in a previous case where he is accused of assaulting his children. The man is being held on the probation violation, but no decision was made by a Framingham District Court judge on the prosecution request.

According to the Massachusetts Criminal Model Jury Instructions, in order to be convicted of violating an abuse prevention order (a 209A violation), the prosecution must show four things:

That a court had issued an order that required the person not abuse, not contact, stay away from, stay away from a household or workplace of another
That the order was in effect at the time of the alleged violation
That the defendant knew the terms of the order
That the defendant violated the order

These are very specific things the prosecution must prove beyond all reasonable doubt in order to ensure a person is convicted of this charge. And there are specific definitions in the law for what “abuse” and “contact” actually mean. Not every case is black and white and therefore an experienced Massachusetts criminal defense lawyer must be brought it to study the facts of the case and provide a sound defense.

These cases can tear apart families and friends as well as lead to significant criminal charges. They shouldn’t be taken lightly, but rather should be defended aggressively.
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Professor Facing Massachusetts Vehicular Homicide Charge after Fatal Plymouth Crash

December 29, 2011 | by Michael DelSignore

A Boston University professor is facing a charge of vehicular homicide in Plymouth in the wake of an Oct. 7 crash that claimed the life of a 26-year-old Plymouth man.

Criminal charges stemming from fatal accidents are always serious. But the issues are often exacerbated by allegations of drunk or drugged driving. These cases should always be handled by an experienced Plymouth criminal defense attorney. In many cases, ” accidents” really are “accidents.” While tragic, criminal charges are often unwarranted.

Robert Zelnick, 71, of Brookline, is accused of turning his SUV into the path of a motorcycle driven by Brendan Kennedy, of Plymouth. The accident occurred on Clark Road in the vicinity of the Route 3 on-ramp.

A magistrate in Plymouth District Court found probable cause to charge Zelnick with failure to yield to oncoming traffic and motor vehicle homicide. His driver’s license was immediately revoked by the Registry of Motor Vehicles.

Under Massachusetts law (Chapter 90, Section 24G), a conviction for motor vehicle homicide is punishable by up to 15 years in prison and a 15-year suspension of a defendant’s driver’s license.

In this case a Massachusetts defense attorney will carefully review the facts and circumstances of this accident. The National Highway Traffic Safety Administration reports failure to yield is one of the leading causes of fatal motorcycle accidents in the United States. Often, this can be because the motorcycle is traveling too fast. In other cases, the setting sun or other visual obstructions may contribute to the accident. Proving the defendant was not responsible for the accident would typically result in a dismissal of the charges. Proving he was not solely responsible, or that mitigating circumstances exist, may result in a reduction or dismissal of the charges.

In order to be convicted of vehicular homicide in Massachusetts, the state must prove that you were operating a motor vehicle under the influence of alcohol, or that you were operating recklessly or negligently, so that lives were endangered. And that as a result of such actions, a death occurred.

Applying the law requires a certain amount of common sense. After all, there is an at-fault party in every fatal accident. Theoretically then, in cases where an at-fault party survives a fatal accident, he or she could be charged with vehicular homicide. Yet that is not the case. These charges most often stem from drunk driving accidents — though there has been no public assertion that alcohol or drugs were involved in this case. In such cases, the defense attorney will work to defend a client from both the drunk driving charge and the allegation that he or she was responsible for causing the accident. If either can be disproven, a reduction or dismissal of the charges is possible.

Zelnick spent more than two decades working for ABC News before accepting a position at Boston University, where is is a professor of national and international affairs. The Boston Globe reports he is the author of four books and has worked as a reporter in Israel and Moscow and as a Pentagon correspondent.
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Brockton Couple Accused of Making Drug Distribution out of Minivan

December 24, 2011 | by Michael DelSignore

A Brockton couple was recently arrested in Whitman and now face charges of drug distribution from the back of their minivan, according to the Taunton Daily Gazette.

Charges of drug distribution or drug sales in Stoughton can be serious and can increase in severity based on many factors. Among them are the quantity of drugs allegedly sold, what type of drug, where the drugs are being sold and if there are other factors that may be used by police to enhance the penalties, such as if children are present, guns are used or the deal occurs in close proximity to a school.

Stoughton criminal lawyers understand that the government has been fighting the “War on Drugs” for decades and lawmakers are continuously updating and increasing drug crime penalties. A good portion of the number of people in our state prison system are there because of drug offenses. In some cases, treatment in lieu or jail is an option. In other cases, challenging evidence and preparing a case for trial offer the best options for a successful outcome.

There are defenses to these crimes, just like any other crime. In cases where an informant is used by law enforcement, there may be witness credibility issues that arise. If police don’t properly obtain a warrant to search a home or vehicle, evidence may be subjected to a suppression motion. Rules must be followed and if overzealous police officers break them, that could benefit the defendant.

In this case, the newspaper reports, police received a tip that a man was selling oxycodone out of his vehicle after he was convicted last year of a similar offense. Police obtained a search warrant for the Dodge Caravan and stopped him after he pulled into a restaurant’s parking lot.

Police allege that the driver, 43-year-old Kevin J. Connor, tried to run off, throwing a bag of oxycodone pills worth $400 onto the ground as he ran. Detectives found more pills, cash and two cell phones in the vehicle.

Last year, he received a suspended jail sentence for dealing oxycodone. Tina Foye, 42, a passenger in the minivan and who lives with Connor, was also arrested. The WEB Major Crimes and Drug Task Force — with officers from Whitman, West Bridgewater, East Bridgewater and Bridgewater — made the arrests.

The group has sought out oxycodone arrests, making it a focus of investigations the last 18 months, an officer said. Oxycodone is similar to morphine in its effect.

Connor recently pleaded guilty to a charge of possession with intent to distribute oxycodone after police raided his apartment and found 30 pills, plus marijuana and cash. He was sentenced to 18 months in jail, but the sentence was suspended by a judge in Brockton District Court.

The news article doesn’t make clear what charges the couple may face, though it implies Connor will face new charges of distribution of oxycodone. Charges for Foye, who was listed as a passenger in the minivan, are unclear.

For the passenger, who may have nothing to do with the drug sales, there may be a strong defense. For the driver, things may be different. But in a case such as this, the search warrant may be the most important factor. Finding out what officers based the affidavit for the search warrant on and how solid the information was will be key to fighting the initial stop and search.
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Nationwide Crackdown on Drunken Driving Leads to More Massachusetts First Offense OUI Arrests

December 23, 2011 | by Michael DelSignore

The While House has declared December National Impaired Driving Prevention Month; there is some irony given the fact that the President’s uncle being arrested in Framingham this year and charged with first offense OUI in Massachusetts, as we previously reported on our blog.

As the Buffalo True Crime Examiner reports, there is a full-court press underway nationwide to try to cut down on drunken driving, despite statistics showing that numbers are significantly down from the past few decades.

Massachusetts OUI lawyers know such enforcement efforts increase the risk of marginal and unfair arrests. There will be an increased presence of law enforcement officers — both local and state — attempting to make as many OUI arrests in Massachusetts as possible in the coming weeks.

As we head into the holiday season, this is a busy time for police officers anyway. There will be nearly 92 million people traveling this holiday season, Providence Business News reports, based on AAA travel predictions. That equals about 30 percent of the U.S. population who will travel 50 miles or more from home this year, a 1.4 percent increase from last year’s estimation.

About 91 percent of those travelers will be moving by vehicle, so the number of people on the highways will be staggering.

The National Highway Traffic Safety Administration has also thrown in its two cents, saying that it is conduction a nationwide enforcement of OUI laws. The agency is spending $7 million of taxpayer dollars on a “Drive Sober or Get Pulled Over” advertisement campaign that is expected to run during the last two weeks of the year and into the New Year.

In 2010, overall rates of drunken driving declined, however. Statistics released this December show that nationwide, there were more than 500 fewer alcohol-related traffic deaths in 2010 compared to 2009, good for a 5 percent drop.

Despite this, authorities still try to dig up statistics to try to justify the emphasis on pulling people over and trying to charge them with OUI. Operating a vehicle under the influence in Massachusetts is a serious offense and while it is still the most commonly charged crime in the state, the penalties continue increasing.

A person who faces a first-time offense with no prior criminal history can be subjected to major sanctions, including jail time, a one year driver’s license suspension, fines and fees, possible alcohol education program and the possibility of probation in lieu of, or in addition to, jail time.

Those are major penalties for a one-time mistake. That’s why it is important to fight the charges and look at all possible avenues of defense. A skilled Massachusetts OUI lawyer will examine all aspects of the case, but pay particularly close attention to the breath testing equipment and procedures used by law enforcement and the field sobriety test results.

It is sometimes possible to show that either the equipment used by police was faulty or the officer’s observations during field sobriety testing — walking heel-to-toe, maintaining balance on one leg or following an object with one’s eyes — contradict with what actually happened.
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