Massachusetts DUI Attorney Blog

One questions that comes up for Massachusetts OUI Lawyers is when can a police officer make an arrest outside of his 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 recently answered the question of when and 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, blood shot 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.

The defendant rested his defense on the common law that states an officer may only conduct police powers in their jurisdictional limits. However, there is an exception to this as an officer is allowed to work outside their jurisdiction to the extent authorized by a statute. Here, there were two potential statutes. The first allows an officer to leave their jurisdiction when an officer requires backup in apprehending a suspect in order to keep the peace. Here, the Merrimac officer initiated the stop and no Amesbury officer requested backup so this did not work. However, here, there was an agreement between Amesbury and Merrimac that allowed full police powers for officers even outside their jurisdiction if it requires an immediate response for the good of public safety.

The SJC upheld that this stop was lawful. They ruled that because the defendant was driving in such a reckless manner, this required the officer to act immediately in order to protect public safety. Had the officer not acted immediately, it could have put the public in danger so it was authorized. Furthermore, had this agreement between the two police departments not been in existence, this stop would not have been warranted.

Police officers are authorized to make stops and arrests outside their jurisdiction, however this power is limited to when a statute authorizes it. If a police officer is outside of his jurisdiction and makes an arrest, this provides a Massachusetts OUI attorney the opportunity to create a defense the stop was unauthorized. In most situations, it will have to either be an emergency or there will have had to been a request for backup. If this is lacking, the evidence of the entire pull over can be suppressed and the charge will be thrown out.

The most common field sobriety tests used in Massachusetts OUI arrests are the nine step walk and turn test, one leg stand, horizontal gaze test and reciting the alphabet. As a Massachusetts OUI attorney, it is often apparent that these field sobriety tests are unreliable.

One main reason why these tests can be unreliable is medical issues of the driver. These tests that are administered are often difficult to perform for somebody in perfect health who hasn't been drinking. Chronic leg or back pain or other condition that affects walking can surely affect a driver's performance on the walk and turn. Performance on a field sobriety test may be poor, but often times it is due to a medical condition or simply not being coordinated or in great shape to take a field sobriety test.

Another reason a field sobriety test can be unreliable are the surrounding circumstances of the test. First of all, getting pulled over for any reason is nerve racking. Realizing you may face an OUI charge will increase this anxiety. Certainly the pressure of the situation can make even a sober person lose their balance or stumble over their words. An aggressive police officer will increase the pressure and will take any slipup of the test to arrest the driver. Also, performing these tests in front of people the driver knows or in front of the passing cars can embarrass or distract the driver and have them perform even more poorly on the test. Weather conditions can also play a role in how a driver performs. Since these outside conditions can affect the tests so much, it turns into an unreliable test.

Finally, the police officer administering the test can make the field sobriety test unreliable. Many times, the police officer will give improper instructions on the tests. When not receiving the proper instructions it can make a driver perform poorly. If the police officer forces a driver to put his arms in the wrong position, their balance will be harder to maintain then it should be. When this happens, the driver may have done much better had been given the correct instructions. Finally, it may be an issue of the officer scoring the test wrong. If a police officer doesn't not score correctly, the cumulative score may look poor when in fact the driver scored very well on each test.

For these reasons, a field sobriety test can be very unreliable. This is very important in many cases as an officer will rely solely on the results of the field sobriety tests in arresting a defendant. If this evidence is unreliable, it can become inadmissible and a defendant will likely win his or her case.

A recent case from the Kansas Supreme Court raises an issue of interest to Massachusetts OUI lawyers: should breath test documents be excluded from evidence as violating the sixth amendment confrontation clause. The confrontation clause states that a defendant shall have the opportunity to confront the witnesses against him.

The Kansas case that raised this issue was the 2012 case of Kansas v. Benson. The defendant in this case was stopped during a routine DUI checkpoint and took an intoxilyzer 5000 breath test where he registered a .087, just above the legal limit of .08. This was defendant's third OUI charge and was charged with a felony OUI.

Before trial, Benson attempted to have the breath test results excluded from the testimony. The defendant claimed that the certificate of calibration claiming the breathalyzer was in working order was inadmissible. He further claimed that under the confrontation clause, the employee who conducted the calibration needed to testify at trial for the certificate of calibration to be admissible. The court denied the motion, the certificate was allowed as evidence and the defendant was convicted of the OUI.

The Supreme court of Kansas in this case upheld this decision that the certificate claiming the breathalyzer was working properly should be allowed without the testimony of the employee who issued it. The court relied on the Supreme Court case of Crawford v. Washington in stating that only testimonial evidence is subject to the confrontation clause. The court ruled that the certificate of calibration was not testimonial evidence and upheld the conviction.

The court also had to deal with the Supreme Court decision of Massachusetts v. Melendez-Diaz. In that case, the Supreme Court ruled that sworn statements of laboratory analysts made in contemplation of litigation were testimonial and subject to the confrontation clause. Here, the court ruled that the Melendez-Diaz case did not apply because the certificate was not testimony that was in contemplation of any litigation against this specific defendant. The Melendez-Diaz case involved drugs that were taken from the defendant and tested. In that case, the certificates of the test on the drugs were not enough because it involved evidence of testing for drugs specific to that defendant. Here, the certificate of the calibration was just assurance that the breathalyzer was working correctly. It was done three weeks before the defendant's arrest and because the certificate had nothing to do with proving a specific element of the crime, the confrontation clause did not apply according to the court.

Although the court ruled this evidence was inadmissible, Crawford, and Melendez-Diaz still give defendant's a wide range of witnesses to confront. The holding Kansas v. Benson is limited to witnesses who are not involved in proving an element of the crime against a defendant. Massachusetts OUI Lawyer should continue to attempt to expand Sixth Amendment Confrontation Clause protections to ensure the reliability of breath test evidence at OUI trials.

As a DUI attorney in Massachusetts, a case will often involve somebody who has 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.

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

As a Stoughton OUI lawyer, I have seen an increase in the number of Roadblocks being conducted by the Massachusetts State police and Canton, Massachusetts police departments. This leads many who are charged to have questions about the process; some common questions include:

• 1. Are Roadblocks Constitutional in Massachusetts?
• 2. What are the defenses to a Roadblock arrest at trial?
• 3. What is the court process in defending an OUI when the arrest occurs at a Roadblock?

I have answered these questions in a Special Report that you can download that goes into as much detail as you may want regarding defending a Roadblock case. In this Blog, I want to answer these three common questions.

First, a Roadblock or Sobriety Checkpoint is permitted under the Massachusetts Constitution and the Fourth Amendment to the United States Constitution. However, the police must comply with very specific requirements to satisfy the demanding standards established by the Court. A hearing called a motion to suppress is scheduled to determine whether the State police complied with the standards set forth in Massachusetts OUI case law.

Second, there are many defenses to an arrest at an OUI Roadblock. One of the primary defense is that there is no evidence of erratic driving in most cases. Another defense is to challenge the reliability of field sobriety tests. With a Roadblock arrest, often, the only evidence at trial is based on field sobriety tests. Many jurors recognize that these are flawed tests and do not satisfies the standard of proof beyond a reasonable doubt.

Third, the court process for a roadblock arrest would involve the following steps:

• entering a not guilty plea at arraignment,
• gathering necessary information at a pretrial conference,
• challenge the Constitutional basis of the roadblock at a motion to suppress
• trial stage.

Proving a charge of OUI drugs in Massachusetts is a difficult task for prosecutors; cases involving prescription drugs can be very difficulty as usually the Commonwealth does not have evidence of the time of ingestion and the impact on your ability to operate a motor vehicle.

The Supreme Court of Iowa recently discussed the issue of OUI charges when the driver is on prescription drugs in Iowa v. Schories.

In Iowa v. Schories, the defendant was pulled over by a police officer for erratic driving. When the officer approached the vehicle, he noticed the defendant had blood shot eyes, had trouble paying attention and had an empty needle in his car.

The officer proceeded to give the defendant a field sobriety test and the defendant did show some signs of intoxication and the officer found methadone pills in the defendant's pocket. The defendant had a prescription for the methadone but the officer arrested him and brought him to the station. The defendant did not have any alcohol in his system but did test positive for the methadone but no other drugs. The amount of methadone in the defendant's system was not disclosed, but defendant was convicted for an OUI.

The Iowa Supreme Court overturned this conviction. The court ruled that to obtain an OUI for a drug that a defendant has to use a prescription drug in a way or in excess to what the Dr. prescribed and then drive. The evidence and testimony from the defendant's Dr. shows that he never ran out of pills early and followed all directions by the Dr. and pharmacist.

The prosecution relied on three things to shows that the defendant was not using the methadone as prescribed by the doctor: The erratic driving, the warning on the drug and the needle in the car. The first argument was that the driving was so reckless and performed so poorly on the tests that the defendant must have had excess methadone than the usual dose. However, the amount of methadone was not brought into evidence so there was not enough evidence to show the defendant took more methadone than prescribed.

Next, the prosecutor argued there was a warning on the drug not to drive until feeling ready because of the side effects like dizziness. The prosecution stated because his driving was so poor the defendant clearly wasn't ready to drive. The court ruled that this was not enough evidence to show the defendant abused the prescription as many people drive in the manner that the defendant did with or without drugs.

Finally, the prosecution argued the needle shows the defendant injected the drugs which is not a manner allowed by the Dr. However, the court ruled that the existence of a needle does not prove injection. It was no defendant's car and the needle could have been for a variety of reasons because there was no proof what drug was in the needle.

The decision of the Iowa Supreme Court is helpful authority for a Massachusetts OUI drugs lawyer defending a charge based on ingestion of prescription drugs. These cases are often difficult to prove and present substantial hurdles for the Commonwealth in overcoming the standard of proof beyond a reasonable doubt.

A recent Massachusetts OUI stop in Amherst raised the issue of whether the officer had reasonable suspicion under the Fourth Amendment to conduct a traffic stop. In this Amherest OUI case, the officer claimed he stopped the car because the license plate was partially covered in snow. The defense lawyer challenged the stop arguing that the motorist had not committed a traffic infraction.

In Commonwealth v. Hackett, the issue was decided by the Appeals Court, which held that the stop was appropriate in this case.

In the Hackett case, the officer claimed that from two car lengths away he could not read the last three numbers on the license plate because it was covered in snow. He pulled the car over because he believed Chandler was in violation of Massachusetts General Law chapter 90, section 6, which states that while traveling a driver must keep the plates of his or her vehicle clean and legible. If this traffic violation does occur, then a police officer is warranted to stop the vehicle.

The issue is whether the stop was lawful.

The Appeals Court of Massachusetts held that officer lawfully stopped Hackett. In his defense, Hackett relied on Commonwealth v. Brazeau, a case in which an officer incorrectly pulled over a driver because of items hanging from his review mirror.

In Brazeau, the officer believed that the items hanging from his review mirror impaired his driving and was therefore a traffic violation pursuant to Massachusetts General Law, chapter 90, section 13. The Court held that the officer lacked an objective basis for suspecting a traffic violation and that the law did not specifically prohibit items hanging in a driver's review mirror while driving.

In Hackett, the Court distinguished the alleged traffic violation from that of Brazeau. This is because both officers were unable to fully read the license plate of Hackett, establishing an objective basis for the traffic violation. Also, the law specifically states that a driver's license plate must be clean and legible.

The Hackett case shows that any claim that an officer witnesses a technical traffic violation can be challenged in court. It was a discretionary call of the judge in determining whether the officers stop was appropriate. This was based on how the testimony came out at the motion hearing. It is always worth challenging the lawful basis of a stop particularly when the stop is a technical violation as in the Hackett case.

In most cases, when a stop is made for a pure technical violation, the motorist will have a strong case for trial. This because the Commonwealth lacks any evidence of erratic driving. If you have further questions about when the police have the authority to stop a driver, you can call me at 781-686-5924. I would be happy to explain what Constitutional defenses you have in an OUI arrest.

Julie Campanini recently published an excellent article in Lawyers USA offering a number of suggestions for improving trial skills. From her experiences during trials combined with years of speaking with jurors, she noticed that many lawyers tend to unknowingly act in ways which place them in a negative light for the jury. Below is a list describing some of the issues she noticed. As a Massachusetts OUI lawyer, I found these suggestions extremely helpful and encourage trials lawyers to read the recent article.

• Act genuinely- It is important for defense lawyers to be themselves in the courtroom and allow elements of their personality to show. Jurors are intimidated by overly formal lawyers, so it is good to relax and show the jury that they can relate to you on a personal level rather than just a "business" level. Jurors, like everyone else, are more likely to believe you if they can empathize and trust what you are saying.

• Act respectively- It is common for opposing counsel to subconsciously intimidate one another with statements and mannerisms which may come across as rude or disrespectful. Campanini mentions how the most successful lawyers are those who treat everyone in the courtroom with respect, so that their statements are taken more seriously and with higher levels of consideration. Over-zealous or short tempered lawyers are least likely to create a positive impression on the jury, as they simply appear arrogant or insecure.

During an OUI trial, this advice means we do not always have to attack the police officer. In many cases, we can argue the officer did his job, but did not have the difficult job of the jury in deciding if there is proof beyond a reasonable doubt. While typically most attorneys are respectful with opposing counsel, it is important to make sure the jury is on your side with the manner of your attack on a police officer.

• Act honestly- From her personal research, Campinini has found the best lawyers to be those who admit to their mistakes. Too many lawyers fear the jury will lose respect for their defense if they realize a mistake was made, but everyone in the courtroom is human so if anything, the jury will relate to you further if you are confident enough to be honest. Putting this into practice means we must acknowledge the obvious weakness in our cases.

• Engage the jury- Many lawyers have the tendency to overly complicate their stories. Instead of stating things in a simple, personable way, they use too much legal terminology and lose the jury as an engaged audience. It is important to remember that jurors already know that you are smart, there is no need to prove your intelligence to them for an influential story. The best told stories are those which maintain the jury's attention, with clear, concise and logical statements that are easy to follow.

For other great resources on improving trial skills, I would recommend reading Gerry Spence's book, win your case or visiting his Trial College Website which lists live seminar events and has featured articles. Any lawyers in Massachusetts interested in attending a national seminar or local one on trial skills, can contact me I would be happy to share with you my experience at some recent events.

If you are facing an OUI charge in Massachusetts with a breathalyzer test result of 0.8, you are probably wondering: what are my defenses? In answer to this question, there are actually a number of challenges that could be made in court. I have prepared a YouTube video describing the factors that can be challenged when facing a .08 breathalyzer result.

Breathalyzer tests are very scientific, so it is important to outline the primary factors that can influence its results. There are many arguments that can be used for your defense. Such arguments may consider the following factors:

• Margin of error for the machine - This could lead to inaccurate results, whereby a .08 is actually a .07. The government must acknowledge this margin of error, and will have to consider it when testifying about the machine at trial.

• Reliability of the machine- The breathalyzer is not a reliable measurement of blood-alcohol percentage. The result is impacted by the temperature, personal medical condition and the volume of breath breathed into the machine- all of which can cause error in the results given.

• Police field report- Another important factor to note when challenging a .08 result, is whether the observations of the arresting police officer are consistent with the breathalyzer results. By comparing the police field report with the breathalyzer result, it is possible to highlight inconsistencies that suggest the inaccuracy of the breathalyzer results. This in turn will help create a number of arguments which can be used to defend your case. Physical factors such as good balance, good co-ordination and appropriate communication with the police officer will all contradict the breathalyzer assumption that you are over the legal limit of .08.

As an experienced OUI lawyer, I have had many clients who have been faced with OUI charges involving a breathalyzer result of 0.8. If you have questions regarding defenses for a Massachusetts OUI charge with a .08 breathalyzer test result, you can watch my recently uploaded video on YouTube to help answer those questions. There are many defenses to the scientific reliability of breath test evidence. These questions regarding breath test evidence comes up frequently so if you have further questions after watching this video, do not hesitate to contact me directly at 781-686-5924.

As a Massachusetts OUI attorney, challenges to breath test and blood test evidence based on the 6th Amendment Confrontation must be made in each case as the law continues to evolve in this area. Cases from the United States Supreme Court continue to define the scope of the right of confrontation.

Recently, the New York Appeals Court ruled on the issue of an alleged violation of the "Confrontation Clause" when records for a Breathalyzer test were presented at trial without the verbal testimony of the technicians whom completed the tests.

In State v. Pealer, a police officer stopped the defendant for suspicion of drunk driving. When the defendant failed all sobriety tests, he was arrested. At the station, he failed a Breathalyzer test.

At trial, prosecutors introduced the inspection, maintenance, and calibration records of the Breathalyzer machine to the court to establish the device was working properly at the time of arrest. However, Defendant argued that presentation of this evidence without additional testimony from the technicians who prepared the analysis was a direct violation of the Confrontation Clause. Specifically, it violated the Confrontation Clause because it did not provide Defendant with the opportunity to cross-examine.

Under the Confrontation Clause of the Sixth Amendment to the United States Constitution, in criminal prosecutions, the accused have the right to confront witnesses against them. This right is typically demonstrated at trial with the use of cross-examination pertaining to testimonial evidence.

However, the key in determining violation of the Confrontation Clause is to define what type of evidence is deemed testimonial or non-testimonial. For example, in Crawford v Washington (541 U.S. 36) testimonial evidence was found to violate the Confrontation Clause. The defendant was charged with assault and attempted murder. The State sought to introduce a recorded statement of the defendant's wife made during the police investigation as evidence that the defendant was not exercising self-defense during the alleged stabbing. However, due to Washington's Marital Privileged rights, defendant's wife would not testify at trial. Therefore, because she was not available for cross-examination in regards to her recorded statements, it was held to be a direct violation of the Confrontation Clause.

However, in the present case, New York courts ruled differently. The Breathalyzer documents demonstrating the records of inspection, maintenance and calibration were not testimonial. Instead, they are merely records demonstrating the machine is working properly vs the witness testimony of defendant's wife in Crawford. Therefore, it was ruled that the records did not violate the Confrontation Clause. The decision of courts to admit breath test evidence without live testimony should be viewed as a violation of the confrontation clause.

Issues of violation of constitutional rights often come up in OUI cases. If you have any further questions, you can find additional information on constitutional violations and Breathalyzer tests in many of my past blogs including:

OUI drug charges in Massachusetts are on the rise. What does the Commonwealth have to prove to secure a conviction?

In prosecuting an OUI drugs case, the police report will typically look very similar to an arrest for OUI alcohol, with the officer administering field sobriety tests. What typically compels an officer to bring an operating under the influence of drugs charge is an admission to ingesting drugs or the officer finding them during a search of the car. If no admission is made or no drugs found, an officer will only consider the charge after ruling out that alcohol is not the cause of the impairment.

In Massachusetts, if an officer pulls someone over who is suspected of operating under the influence of drugs, then there are certain procedural steps the officer should take to have a strong case of OUI drugs. Many officers who are not trained as a DRE will simply make an arrest and bring the charge; however, without the evaluation, there is a strong argument that there will be insufficient evidence to sustain a conviction.

First, the officer who is trained as a drug recognition expert (DRE) must evaluate the suspected motorist. The evaluation consists of:

• Ruling out alcohol: if the motorist blows below .08 and the officer still suspects that the motorist is impaired.
• Interview the arresting officer: the arresting officer tells the DRE officer why he pulled the motorist over and if there is evidence of drug use, such as pill bottles or admissions of the motorist.
• HGN and VGN test: a test preformed where an officer requests that the motorist follow an object with his or her eyes. The officer is looking for these impairments that indicate drug use:
the eye cannot follow a moving object smoothly,
there is exaggerated deviation when the eye is at maximum deviation,
and the angle of jerking is within 45 degrees of the center of the eye.
• The divided attention test: this is the same test as the field sobriety test for OUI alcohol offenses.
• Vital signs: the DRE checks the motorist's blood pressure, temperature, and pulse.
• Dark room examination: The DRE checks the motorist's pupil's in three different lights to determine drug use.
• Examination of muscle tone.
• Check for injection sites and third pulse.
• Statements or other observations.
• Analysis and opinion of the DRE.
• Toxicological examination.

To read an excellent blog about DRE exams in DUI drug cases see the following blog by Attorney Justin McShane.

The second step in the process is for the Commonwealth to prove the identity of the drug that caused the impairment. The definition of what the Commonwealth considers to be a "drug" is contained in Massachusetts General Law, chapter 94, section 1.

There is a possibility that the police arrested a motorist with the suspicion that he or she was under the influence of drugs, but the drug is not clearly defined under Massachusetts General Law, chapter 94, section 1.

This situation occurred in Commonwealth. v. Green, 556 N.E.2d 387, 389 (Mass. 1990). The defendant was arrested for operating under the influence of narcotic drugs. There was evidence that the defendant has consumed codeine, for which he had a prescription.

Massachusetts General Law, chapter 94, section 1, did not directly define codeine as a narcotic drug. The law did specifically state that opium, from which codeine is derived, is a narcotic drug. But the Court held that this was not enough to show that the law encompassed codeine.

When charged with an OUI drug charge in Massachusetts, there are two issues that frequently come up, is the drug alleged you were under the influence covered by the statute and can the Commonwealth prove you were under the influence at the time of operation. By understanding the issues at play in an OUI drugs charge, you can have better confidence that your case can be successfully defended in court.

Recently, the New York Times Opinion Pages posted an article titled, "Why Police Lie Under Oath". Police lying under oath is both surprising and dangerous.

While the New York Times Article discusses the issue regarding drug cases, which is particularly current in light of the Massachusetts drug lab scandal, police deception also can occur in other types of cases, such as drunk driving arrests. In a Massachusetts OUI arrest, a police officer lying could take one of two forms; a complete fabrication of what occurred or an embellishment, adding a few details in the report that cannot be verified, that someone appeared unsteady or had trouble with balance getting out of the car. Both types of fabrication undermine the integrity of police officers and it is the job of the defense attorney to point out these fabrications to the jury.

Typically, many people often equate the word "defendant" with "guilty" by the mere notion that a defendant is charged with allegedly violating the law, something for which they need to defend. Likewise, we view and trust our law enforcement officers to serve and protect-to uphold their oaths of fairness and justice. In a court setting, it is not unreasonable to suspect that a jury and a judge will take the side of the uniformed officer under oath vs. the defendant allegedly accused of a violation of law. This is what makes police lying so dangerous. One lie can ruin a life. So, why would a law enforcement officer lie?

The New York Times article suggests that lying has a financial incentive for police. Often, police departments are rewarded for their number of stops, searches, and arrests. The more arrests, the more grant money is awarded to their departments-even when these arrests lack sufficient evidence. For example, according to the NYT article, federal grant programs such as the Edward Byrne Memorial Justice Grant Program encourages law enforcement to boosts drug arrests as they compete for millions of dollars in funding. Additionally, police are often pressured to boost arrests for basic productivity and quota systems at their departments.

In 2011, Brian D. Fitch, PhD, Lieutenant, Los Angeles, California, Sheriff's Department, wrote an article titled "Understanding the Psychology of Police Misconduct" in which he explored why police lie. Mr. Fitch offers more insight, far beyond the federal grant money incentives. He demonstrates a broken system, where officers lie for several psychological reasons including:

1. Victims of Circumstance: Due to peer pressure or unethical supervision, they engage in misconduct.

2. Higher Cause: They break the rules due to a higher calling. In their eyes, what's wrong with one lie if they are taking a felon off the streets?

3. Blaming the Victim: The view that the defefndent "got what they deserved" because they broke the law in the first place.

Just as there is police pressure to make drug arrests, Massachusetts OUI lawyers face officers testifying in court as to the number of OUI arrests they have made; Mother's Against Drunk Driving has awards for officers who make high numbers of OUI arrests. While it is difficult for a defendant to receive a fair trial when a police officer lies, it is crucial that defense lawyers point out an officers demeanor, level of detail in the police report and any inconsistent statements in order to undermine the credibility of the officer. While it would be rare to say during trial that the officer is lying, it is common strategy to suggest that the report exaggerates, overstates and distorts what occurred to serve the officer's goal of justifying the arrest and proving the case in court.

For those charged with OUI in Massachusetts, one of the more common questions, is what happens if the police officer does not advise you of your Miranda rights. Miranda warnings are well known to the general public through television shows featuring lawyers and police officers.

The Miranda warnings originated in the case of Miranda v. Arizona, 384 U.S. 436 (1966) a decision of the United States Supreme Court.

This case held that it order to protect a defendant privilege against self-incrimination, a police officer must advise the defendant of his or her Miranda rights prior to custodial interrogation.

The issue of when the rights under Miranda rights are triggered depends on whether the individual is in custody as defined by court decisions.

In the context of a Massachusetts OUI arrest, a motorist is not in custody in most cases until placed under arrest.

Court decision defining custody in the Miranda context have held that routine roadside questioning is not custodial under the Miranda decision.

Court decisions defining custody in the Miranda context have held that routine roadside questioning is not custodial under the Miranda decision. The Supreme Court came to this conclusion in Berkemer v. McCarty, where the defendant was stopped for a traffic violation and admitted to the officer that he consumed two beers and smoked marijuana prior to driving.

The Court held that Miranda rights are not invoked in this situation because roadside stops are usually a brief, a driver can expect a citation, and then a driver can expect release. Also, if there is questioning it occurs in a public space that is not police dominated, as opposed to an interrogation at a police station.

Although police do not need to recite Miranda rights during a roadside stop, if there is a custodial interrogation then Miranda rights are invoked regardless of whether the crime was a misdemeanor or a felony.

It is important to understand that your Miranda rights are invoked when you are arrested and a custodial interrogation occurs. If police do not advise you of your Miranda rights and question you, it is possible to exclude your responses from being admitted in a court of law. The procedure to challenge any statements you made during an OUI arrest is referred to as a motion to suppress hearing and is essentially a mini-trial on a selected legal issue that is heard by a judge. The judge hears testimony relating only to the legal issue of whether your rights under the Miranda decision were violated.

Massachusetts criminal defense lawyers will receive an answer to the question as to whether Miranda rights apply prior to a formal arrest. The cases that raises this issue
Salinas v. Texas was recently grant certiorari by the United States Supreme Court. The filings of the Salinas case cane be found on the Scotus Blog.

The issue in the case is whether the Fifth Amendment protects a defendant who refused to respond to police questioning before being arrested or read his Miranda rights.

The defendant voluntarily accompanied authorities to a police station for questioning in regards to a double-homicide investigation. After about an hour of questioning, the defendant stopped answering questions and remained silent.

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 Court allowed the evidence in and the defendant was convicted of murder.

The Court of Criminal Appeals of Texas held that the pre-arrest, pre-Miranda silence was admissible because it was not compelled, which means that if a person is not yet arrested or read his or her Miranda rights then the interaction is voluntary. Thus, the Fifth Amendment privilege is not triggered.

While the Court of Criminal Appeals of Texas decided that the defendant could not assert his Fifth Amendment privilege, not all federal courts agree with this reasoning. In Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000), the Court held that the Fifth Amendment privilege extends beyond a person in custody or a person who has been charged with a crime, and applies to a suspect who is questioned during an investigation.

A case that may help the defendant before the United States Supreme Court is
Kastigar v. U.S., 406 U.S. 441 (1972), where the Court held that the Fifth Amendment privilege can "be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory." If the Supreme Court maintains a scope of liberal application as it did in Kastigar, then there is a possibility that the holding in Salinas will include pre-arrest and pre-Miranda silence as part of the Fifth Amendment privilege. Regardless of whether the Supreme Court finds for the defendant or the State, the decision will provide constitutional clarity for the lower courts.

As a criminal defense lawyer in Massachusetts, I would expect the court to find that pre-arrest silence is included within the scope of the Fifth Amendment and that it should have been excluded in the Salinas trial.

As a Massachusetts DUI attorney, the issue of police officers unlawfully obtaining blood samples for persons suspected of driving intoxicated often comes up during defense. The act of not obtaining a warrant prior to obtaining a blood sample in routine DUI stops is a direct violation of the 4th amendment.

This issue was recently brought to the Missouri Supreme Court in the case of Missouri v McNeely. During last week's hour long hearing for this pending case, the Justices weighed the potential outcomes for ruling on this controversial issue. If there is any indication of how this case will prevail based on the hearing discussions, it is that the United States Supreme Court will most likely conclude that police across the nation are not allowed to order, on their own authority, the taking of blood samples from those suspected of drunk driving. They will need to obtain a search warrant, with few exceptions.

In McNeely, a Missouri driver was pulled over for allegedly driving while intoxicated. After failing all field sobriety tests and refusing a Breathalyzer, the police officer drove him to the local hospital. The driver verbally refused a blood sample, but the officer told the lab technician to proceed. In court, the officer stated he did not think he needed a warrant because he read that Missouri law allows an officer to obtain a blood sample if consent is merely "implied". However, when the trial court judge ruled in favor of the defendant, Missouri officials took the case to the Supreme Court, arguing that there is a split between state and federal courts on the issue of when officers may obtain blood samples without a warrant.

The issue of obtaining search warrants for blood samples is not new. Typically, courts have viewed this act as intrusive and a direct violation of the 4th amendment. The 4th amendment requires that proper search and seizures can only be performed with warrants supported by probable cause. However, in 1966, in the case of Schmerber v California, the court ruled that in "exigent circumstances" it did not violate the 4th amendment. Specifically, "exigent circumstances" defined in this case pertained to car accidents/emergency situations in which a driver was suspected to be intoxicated. It was concluded that police did not have time to get a warrant because they had to take the suspect to the hospital for injuries and they needed to investigate the scene of the accident.

However, the courts have often used the ruling in Schmerber to further define "exigent circumstances." For example, police have long argued that there is little time to obtain a warrant because blood alcohol levels drop dramatically as time progresses. Therefore, police miss the opportunity to obtain true blood alcohol levels. They further argue that often, these cases arise in the middle of the night, making it difficult to get a warrant in the allotted time necessary. Many states have therefore ruled that because alcohol levels quickly dissipate, that this fact is an "exigent circumstance" that justifies getting a blood sample without a warrant.

However, at the oral argument, the Justices pointed out that the Schmerber case provides a strict exception that is limited to accident/emergency situations only, and not to the quick dissipation of blood levels. The Supreme Court further stated that the Schmerber ruling was not a general relaxation of warrant requirements.

Based on this hearing, it appears evident that the United States Supreme Court strongly feels that obtaining a warrant is the preferred approach and I would expect the Court to affirm the decision of the Missouri Supreme Court.