Massachusetts DUI Attorney Blog

In Commonwealth v. Sanford, decided August 23, 2011, the Massachusetts Supreme Judicial Court recently addressed the issue of what remedy a Massachusetts OUI lawyer is entitled to when evidence is lost of destroyed by the Commonwealth. The Sanford case can be found on the social law library website and by following this link.

Although the Sanford case was not a drunk driving case, its reasoning would apply in the DUI context. Sanford involved a gun charge where a judge endorse and order that no test firing of the handgun be performed without the defendant's expert present. Despite the court order, the Boston police officers test fired the gun without the giving the defense expert an opportunity to be present.

In attempting to exclude any evidence of test firing from evidence, the defendant argued that he was deprived of potential exculpatory evidence by being denied his right to be present during the test firing of the handgun. The Massachusetts Supreme Judicial Court held that it will review claims of lost or destroyed evidence under the framework set forth in Commonwealth v. Williams, 455 Mass. 706 (2010). Under the Williams case, there are two methods to seek suppression of evidence based on a claim of lost or destroyed potentially exculpatory evidence. The first is that the defendant must demonstrate the exculpatory nature of the destroyed evidence, by establishing a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the evidence would have produced evidence favorable to the defense of the case. If the defendant meets this initial burden, the court will proceed to balance the potential prejudice to the defendant. The SJC in Sanford remanded the case back to the motion judge to make findings under the standard articulated by the court.

The issue of lost or destroyed evidence arises in Massachusetts OUI arrests when the police lose or fail to record the booking when there is a policy by the police department to record the booking. While there is no requirement that police record the booking procedure, when the police do record the booking it should be turned over to a Massachusetts OUI attorney to review for potentially exculpatory evidence.

If the police claim that the booking video was lost or inadvertently taped over, a motion to dismiss or exclude evidence, such as breathalyzer evidence under the Williams and Sanford case would be appropriate.