Massachusetts Criminal Defense Lawyer Blog

Governor Deval Patrick Aide Charged With OUI In Brookline

October 9, 2011 | by Michael DelSignore

A longtime top aide and adviser to Gov. Deval Patrick has been suspended by the Governor after being arrested recently for drunken driving in Brookline, the Enterprise News reports.

The report shows that even the most experienced and professional people can be labeled criminals with an OUI charge. While it’s not a charge that people plan to commit, it’s the most commonly charged crime in the United States.

Everyone from school teachers to firefighters to police officers have been charged. It’s not as if this is a planned, sophisticated crime. Other crimes, like thefts or even battery charges can be planned out and executed and those defendants face less serious penalties.

It is important when facing a charge of OUI in Massachusetts to plan out a strategic defense to the charges. As this case illustrates, the social consequences, including job loss, can be as serious as the criminal penalties. An experienced Massachusetts DUI defense lawyer will scrutinize every aspect of the case and help the client fend off the allegations they face.

In the case of the Governor’s aide, despite denying that he was driving while intoxicated, his boss decided to put him on unpaid leave after his arrest. While this may be more of a political move, it isn’t an uncommon reaction from employers.

Many employees face suspension or firing after being arrested, even though an arrest isn’t proof a crime was committed. While many employers may realize that, they tend to do what may be most acceptable in the public eye and get rid of the employee. More companies tend to operate in an “act first, ask questions later” mindset about their employees picking up OUI charges, which is unfortunate.

Ron Bell was pulled over one early Sunday in Brookline by police who say he was driving erratically. They charged him with OUI, speeding and marked lane violations. He denied the charges, but was still suspended until the investigation is completed.

The Boston Herald reported that Bell failed several field sobriety tests and was released on personal recognizance after his arraignment. His gout condition may have contributed to an alleged failed field sobriety test. He also is recovering from a March heart attack.

Medical issues are certainly a factor in OUI cases in Massachusetts. While police may not listen to someone who they have pulled over if they tell the officer about an existing medical condition, a judge or jury might.

Police officers are trained to be suspicious of what people say to them. Surely, they have heard every excuse in the book about why you are not really drunk. But existing medical conditions, such as imbalance issues, foot or leg issues or even weather conditions can make performing field sobriety tests difficult.

That’s why all of these issues must be brought up once the case gets into the criminal justice system. While people would rather avoid an arrest and not have to deal with that embarrassment, sometimes they must be patient and wait for the true facts to come out at trial.
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President Obama’s Uncle Giggles in Framingham Court During OUI Hearing

October 7, 2011 | by Michael DelSignore

President Barack Obama’s uncle, charged last month in Framingham, appeared amused in Framingham District Court by the number of journalists there to cover his OUI hearing, the Boston Herald reports.

Onyango Obama, 67, was arrested last month and charged with OUI after he allegedly nearly hit a police cruiser with his SUV after making a rolling stop through a stop sign. As the Massachusetts DUI Attorney Blog reported, some media outlets have asserted that Obama’s uncle is in the country illegally. When it comes to immigrants, the smart move would be to check whether a DUI conviction — either through a plea or a conviction at trial — will affect a person’s right to live in the country.

Either way, you should aggressively fight an OUI charge in Framingham or throughout the Boston area because a conviction has many consequences beyond the court penalties.

Onyango Obama made a brief appearance recently in Framingham District Court, where his judge set a Nov. 17 pre-trial conference in the case. Neither Obama nor his attorneys would comment to the media before or after the hearing.

The Herald reports that he and a friend giggled while sitting in the front row of the court as media members assembled for the hearing. The courtroom was packed, but mainly with other defendants awaiting arraignment.

The Herald reports that Onyango Obama had a valid driver’s license and Social Security card at the time of arrest, but was in the country illegally having faced a 1992 deportation order. Immigration officials have told him to “check in” with them.

He is charged with suspicion of drunken driving; it was reported that his first call was to the White House. But one of the President’s spokesman said the call was never made. Rather, it went to his boss at Conti’s Liquors in Framingham.

While courtroom behavior and attire shouldn’t make or break a defendant’s case, it can influence how a judge treats a defendant. In this case, it appears Obama was chuckling at the thought that all those television and newspaper cameras were there to document a simple, unexciting 5-minute hearing for a DUI charge.

When the media are involved in covering a court hearing, it can put undue pressure on defendants judges and attorneys alike. It is important that defendants act and dress respectfully at all times in front of the cameras and the judge.

While the judge is called on to make decisions based on the facts and the law, they are human, too. If a defendant is acting inappropriately or in a way that tends to mock the criminal justice system or the judge, it can be bad for the defendant. While a judge can’t sentence someone to more than the law allows, they do have enough discretion to make a defendant’s life miserable.

This may not always happen, but courtroom behavior and attitude are important. A defendant should not speak in court unless their attorney advises them to speak and they should not react negatively to what prosecutors, the judge or witnesses say.

Being in court can be an emotional time. But it is best to remain calm and allow your Massachusetts DUI lawyer guide you through the process.
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CWOF in Massachusetts Can Still Lead to Jail Time if Violation Occurs

September 23, 2011 | by Michael DelSignore

In Massachusetts, a continuance without a finding — or CWOF — is equivalent to a “no-contest” plea in other states. It’s an admission that the Commonwealth would be able to prove the charges in court, but it’s in the defendant’s best interests to simply end the case. After entering this plea to the court, however, the defendant must prove through conditions of probation in the court where the case was resolved that they haven’t slipped up.

If they have a probation violation, they can be sentenced to the maximum sentence allowable for the charge, which is a big reason to complete the conditions of probation without any problems. An experienced criminal defense lawyer can properly advise you on what may be the best path to take in your criminal case. The prospect of future violations and the conditions of probation are two excellent reasons why consulting an experienced attorney is best done before accepting a plea offer.

With probation or other non-incarceration conditions, a defendant can slip up and miss reporting to their probation officer, skip an alcohol-based program if the charge is OUI or another misstep that can result in being back in front of the judge who just sentenced you.

DNA Database Another Reason for Experienced Criminal Defense Attorney in Massachusetts

September 15, 2011 | by Michael DelSignore

A Provincetown man is suing amid claims his privacy rights were violated after authorities allegedly kept records in connection with a voluntary DNA sample he submitted during an investigation into the killing of a fashion writer, the Boston Globe reports.

Massachusetts criminal defense attorneys are seeing an increasing number of criminal charges being brought in cold cases after hits from the DNA database link defendants to the crime. In addition to the state system, samples are submitted to the Combined DNA Index System (CODIS), which compiles and compares samples from defendants and unsolved crimes nationwide.

While seldom discussed as a reason to fight a conviction on felony charges in Massachusetts, keeping your DNA out of such databases can be critical to protecting your privacy rights.

In this case, Keith Amato sued after trying for two years to get his sample back from law enforcement. He claims the submission was voluntary and that authorities told him he would get the sample back if his DNA did not match a sample collected at the scene of the killing of Christa Worthington. While the sample was returned in October 2008, he claims the state crime lab has held his DNA profile, along with records and samples provided by other men.

Last week, the Massachusetts Appeals Court ruled his lawsuit can go forward; it had been tossed out by a lower court.

“The allegations that the defendants have retained Amato’s highly sensitive DNA records without his consent and made them available for nonconsensual use in other criminal investigations are sufficient to constitute an unreasonable, substantial, and serious interference with Amato’s privacy,” the court ruled.

Worthington’s trash collector, Christopher McCowen, was convicted in 2006 of her rape and murder and is serving life in prison. Worthington lived in Cape Cod at the time of the crime. Investigators solicited samples from numerous men who knew the victim. Amato was a relative by marriage of the father of Worthington’s 2 1/2 year old daughter.

The lawsuit claims as many as 200 men gave samples and that Amato was assured any samples that did not match the crime scene would not become part of any state or federal database. McCowen also provided a sample before being arrested in 2005.

Amato was unsuccessful in retrieving his sample, despite requesting its return on numerous occasions from the Cape & Islands District Attorney’s Office. The office said state lab protocol requires retaining evidence in murder cases for 50 years.

Such DNA dragnets are an example of law enforcement operating in a gray area. The “voluntary” collection of samples comes perilously close to unreasonable search and seizure and must be aggressively challenged by a Cape Cod criminal defense lawyer.

Unfortunately, such tactics have been around since the advent of DNA. The first use of DNA in a criminal case occurred in England after the rape and murder of two girls. “Mass screening” of male subjects was used to solve the crime. The case is recounted in “The Blooding: The True Story of the Narborough Village Murder,” by Joseph Wambaugh.

Wambaugh is a former detective with the Los Angeles Police Department.
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Brockton gun charge brought to the Massachusetts Appeals Court challenging lawfullness of the stop

September 12, 2011 | by Michael DelSignore

The Massachusetts Appeal Courts addressed the issue of when police may make an investigatory stop based on 911 tips. The case of Commonwealth v. Alfredo Perez arose from an appeal of the defendant’s conviction in the Brockton District court of possession of a firearm without an FID card in violation of Massachusetts General Laws Chapter 269 Section 10. As a Brockton gun crime lawyer, charges of unlawful possession of a firearm often raise Constitutional defenses.

In the case, Brockton police received a report of guns shots fired. A police officer responded within minutes to the call. The police then received a second dispatch claiming to seeing a car leave the area where the shots were heard. The police were able to identify the vehicle and made a motor vehicle stop.

In assessing whether the police had reasonable suspicion for the stop, the Massachusetts Appeals Court applied the decision of the United States Supreme Court in Florida v. J.L., 529 U.S. 266 (2000), which addressed the issue of what type of evidence the police need to make an investigatory stop based on an anonymous tip. The Perez Court held that the Commonwealth had to establish both the indicia of reliability of the transmitted information and the particular description of the motor vehicle.

To establish particularity the Court held that the Commonwealth must show that the description provided sufficient detail to allow a police officer relying on the dispatch reasonably to suspect that the motor vehicle matched the description and was occupied by the person under investigation. To establish reliability the Commonwealth must show the basis of knowledge of the source of the information and the underlying circumstances demonstrating the source of the information was credible or the information reliable, which is known as the veracity test.

The Court found that the basis of knowledge test was satisfied with regard to both calls based on first hand observation. The Appeals Court next addressed the issue of whether the veracity component was satisfied. The Court noted greater reliability is assigned to those whose identity is known. The Court held that both calls were anonymous, with one callers identity never being known while the other caller’s identity was only known after the motor vehicle stop. The Court stated that the fact that the officers went back to the scene to speak to the first caller supports a reasonable inference that they were able to do so because the caller either identified herself or could be traced by reasonable means.

The Court found that there was no additional evidence of police investigation to corroborate the veracity of the caller. However, the court noted that it could consider the imminent nature of the threat in assessing whether there was reasonable suspicion as well as the proximity between the call, the location of the incident and place of the stop. Accordingly, the Court found that the stop was permissible under Article 14 and the Fourth Amendment of the United States Constitution.
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Breathalyzer Test Results Often Challenged in Massachusetts Drunk Driving Defense

September 8, 2011 | by Michael DelSignore

Authorities in Florida are facing higher costs of prosecuting DUI offenders because of questionable breath test results and aggressive defense of clients tested by the Intoxilizer 8000.

Massachusetts DUI defense attorneys know how unreliable breathalyzer tests can be. Currently, high-profile examples include Washington D.C. (authorities quit using their machines altogether), California (thousands of cases are being reviewed or dismissed because of questionable test results) and Florida, where judges have ruled that a defendant’s right to confront his accuser permits defense lawyers to review the computer code that generates the Intoxilizer results.

CMI Inc., the Kentucky manufacturer of the machine, continues to ignore subpoenas to turn over the computer code — a move that has forced prosecutors to hire experts to testify in contested DUI cases.

Fighting a DUI charge in Massachusetts can be done on any number of fronts: Reasonable suspicion for the traffic stop can be questioned, as can the basis for ordering you from the car to request that you submit to field sobriety examinations. And the results of those tests can be challenged — as can the training and conduct of officers involved. As this issue illustrates, simply challenging your case may be enough to induce the state to offer you a deal to move your case through the system. Discussing your options with an experienced criminal defense attorney at the earliest possible stage of your case is the best option for a successful resolution.

The Sarasota Herald-Tribune reports the cost is about $3,000 for an expert’s flight from Georgia, cost of the hotel, and two days of testimony. That might buy prosecutors resolution on four or five cases — less than a week’s worth. Costs for the year could total $156,000. The five-year battle over the Intoxilizer 8000 has caused prosecutors to drop cases, offer pleas to lesser charges and take other actions to move cases through the system.

Nor can departments go buy another machine — the Intoxilier is the only machine approved for use by the Florida Department of Law Enforcement.

As we recently reported on our Massachusetts DUI Attorney Blog, police in Washington D.C. were told to abandon use of the breathalyzer altogether after a whistleblower came forward to claim the machines were not producing accurate results.

Instead, police are using urine samples. Defense lawyers and the police union report cases are routinely being dismissed.

The breathalyzers had not been officially certified and may not have been producing accurate results since 2008.

In California, the Supreme Court issued a ruling earlier this summer that makes it easier for those charged with drunk driving to challenge breathalyzer results, according to the L.A. Times.

In the unanimous decision, the court ruled defendants can present evidence to show the breathalyzer failed to accurately reflect blood alcohol levels.
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Lowell Man Caught Napping After Allegedly Stealing in Natick

September 7, 2011 | by Michael DelSignore

A man on probation for stealing $11,000 in Beanie Babies more than 10 years ago allegedly went on a shopping spree recently, stealing a minivan, breaking into a truck and stealing two televisions before taking a nap and getting caught by police, The MetroWest Daily News reports.

Theft charges in Natick typically get more serious depending on the value of the items taken. Yet, the value must be proven and that’s after the prosecution can even prove the defendant committed the crime.

Hiring an experienced and aggressive Framingham Criminal Defense Attorney to defend against similar allegations is the right first step. An attorney must be consulted in order to ensure justice is done and the rights of the defendant are upheld.

According to the newspaper, 41-year-old Brian William Doubleday already had warrants out for his arrest in Lowell District Court and Framingham District Court, though the newspaper doesn’t say what the warrants are for. The report also states that upon his arrest, the New Hampshire Probation Department issued an arrest warrant because he was serving time on probation from 1999, when he was convicted of stealing the Beanie Babies there.

Natick Police said an officer was on patrol when a minivan parked in a hotel parking lot caught his attention. After running the New Jersey plates through databases, the officer found it was stolen.

Inside, Doubleday was sleeping and after officers woke him up, he got out. Inside the minivan, they found a laptop and other items they believe were stolen from a U-Haul truck in Natick recently, police said. Police also believe video surveillance shows Doubleday stealing two 32-inch televisions from a hotel, but those televisions haven’t been found. The man faces charges of receiving a stolen vehicle, receiving stolen property worth more than $250 and larceny of property worth more than $250.

In this case, a defense lawyer may challenge probable cause.

The Fourth Amendment to the United States Constitution gives every American the right to not be subjected to illegal search and seizure. That means that police officers can’t just knock on a person’s door and force themselves in looking for evidence of a crime. The same goes for when you’re driving in your vehicle. You can’t get stopped for no good reason just because the police want to go on a fishing expedition.

So, it will be interesting to see if police have any real reason for why they walked up to the vehicle Doubleday was in and determined they should question him. They also cited video surveillance as proof that he stole televisions, yet they found no televisions.

Video surveillance, as well as eye witness accounts, can be unreliable. People fudge details or don’t really remember what they saw in the first place. And sometimes, video cameras show fuzzy pictures or only the back of a person’s head. Rarely do the cameras really capture what a person looks like and zooming in makes the image more difficult to see.

It’s important to fight all aspects of a larceny or theft case because the penalties include years in prison as well as thousands of dollars in fines. They are serious and must be aggressively fought. This case also illustrates the consequences of long probation sentences — which can result in additional legal hassles long after a defendant has paid for his crime.
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OUI Penalties in Massachusetts Go Beyond the Legal System

September 2, 2011 | by Michael DelSignore

Were you charged with OUI in Massachusetts? It is possible that you are facing the reality of being charged with a criminal offense. People are quick to judge; court information is public access and family members and loved ones often find out as well. Companies are quick to fire someone when they are arrested, even before the person has made their way into a courthouse to face the charges.

A person can be arrested one night and be fired the next. And with jobs so scarce and the economy in a tough spot, losing a job can be very difficult for many people out there. But there are instances when aggressively defending against the charges with an experienced OUI Lawyer, and getting an acquittal or charges dropped, can lead to a job being restored.

The penalties for OUI in Massachusetts are more severe than other similarly unsophisticated, minor crimes. A person who steals something from a store or house can sometimes get less serious penalties than a person who is accused of driving over the legal limit.

Eyewitness Testimony Requires Aggressive Challenge of Massachusetts Criminal Attorney

August 31, 2011 | by Michael DelSignore

Defendants, at least in New Jersey, will be less likely to be convicted based on faulty eye-witness testimony, thanks to a sweeping new set of rules handed down by the New Jersey Supreme Court. The decision is New Jersey v. Henderson and can be found by clicking this link. The decision of the New Jersey Supreme Court is a landmark decision that hopefully will be followed by other state and federal courts. The success in this case of the defendant in this case was based on large part on the work of the Innocence Project in bringing the problems with eye witness identification to the attention of the Court.

Massachusetts criminal defense lawyers understand eyewitness testimony can sometimes be difficult to overcome at trial. Often believed by juries, it remains among the most unreliable forms of testimony the state can produce in securing a conviction. Trial defense in Massachusetts requires aggressively challenging the recollections and other evidence presented by witnesses to a crime.

The New Jersey Supreme Court ruled a judge must hold a special hearing on the issues whenever the defense presents evidence that a witness may have been influenced by police or by other means. Other factors could include lighting, the passage of time between the crime and recollection, or whether the victim was under stress at the time of the identification.

Imagine a crime. Whether robbery, burglary or assault. The recollection of eyewitnesses is just one piece of a prosecution’s case. Having a defense attorney in Massachusetts who understands the issues and knows what it takes to challenge the evidence can have a drastic impact on a defendant’s case.

The court ruled when such disputed evidence is admitted, the judge must give detailed instructions to jurors on factors that could result in misidentification. While the new rules are only applicable in New Jersey, court watchers say the ruling could begin having an impact nationwide.

The New Jersey high court has long been at the forefront of criminal law. The 134-page unanimous decision was penned by the court’s chief justice, Stuart J. Rabner. It called for a revision of the 34-year-old U.S. Supreme Court decision that outlined the test of reliability for eyewitnesses.

A special master assigned to study the issue estimated there have been more than 2,000 studies about the reliability of eyewitness testimony since the Supreme Court decision in 1977.

“Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country,” Rabner wrote.”

Factors a judge should consider in establishing the credibility of an eyewitness include:

-Whether a weapon was visible during a crime.

-The amount of observation time.

-Distance between witness and suspect.

-Witness alcohol or drug use.

-Length of time between incident and identification.

-Whether the eyewitness and suspect are of different races.
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President Obama’s Uncle Charged with OUI in Framingham, Massachusetts

August 30, 2011 | by Michael DelSignore

The uncle of President Barack Obama was recently arrested and charged with DUI and is now being held without bail on an ICE detainer, Fox News reports

Being arrested and charged with OUI in Framingham can be frightening for anyone, especially an illegal immigrant.

One of the more important tasks facing any noncitizen is to understand the immigration consequences of a criminal conviction. Generally, a first offense Massachusetts OUI will not be a bar for citizenship for someone lawfully in the country. However, it is always important to individually assess any immigration consequences of a plea to a drunk driving charge and to understand those consequences if convicted after trial.

Onyango Obama, 67, was arrested in Framingham after police allege he nearly hit a police cruiser with his SUV after making a rolling stop through a stop sign.

Onyango Obama is originally from Kenya and is the half brother of the president’s late father. He has pleaded not guilty and yet is being held on a U.S. Immigration and Customs Enforcement detainer. Court documents cited by Fox News state that he previously had a removal order or a deportation order active.

Fox News could not determine his immigration status, but removal orders are typically for people living in the country illegally. Few government sources are commenting on the situation.

According to police, Obama was charged with operating under the influence of alcohol, failure to yield the right of way and negligent operation of a motor vehicle. According to police, the officer barely avoided the SUV and was forced to slam on his brakes to avoid a wreck. The 67-year-old allegedly told police at first that he hadn’t had anything to drink but later said he had two beers.

Police said he failed several field sobriety tests and blew a 0.14 on a breath test, nearly twice the state’s .08 legal limit.

In any case of OUI in Framingham, regardless of the status of the driver, there are many defenses. They start with the police officer or law enforcement officer who made the stop. First off, what an officer observes, if witnesses or dash camera footage can dispute it, can go a long way to showing the Commonwealth doesn’t have proof beyond a reasonable doubt that the crime occurred.

Other factors, such as weather conditions or human error, can also affect an OUI case in Boston. Breathalyzers, devices that are designed to give a blood-alcohol level output of a driver, have been known to be faulty and can be affected by weather conditions. Condensation that builds up inside can alter a reading. Manufacturing defects or uncalibrated machines can also lead to arrest, but be exposed at trial for an acquittal.

There are many ways for a case to be fought in court. The public sometimes believes that an arrest is proof positive that a crime has been committed, but that’s only the beginning.
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