Massachusetts DUI Attorney Blog

Massachusetts OUI lawyer Michael DelSignore has published a book that explains Massachusetts drunk driving laws for those recently charged with drunk driving. This book is intended to answer commonly asked questions for those who are charged with driving under the influence of alcohol. You can order a free copy of the book by clicking on this link, Understanding Massachusetts Drunk Driving Laws.

The Book answers common questions, such as explaining the court process, court terminology and common defenses used in defending DUI cases. The book also answers questions regarding the license consequences when you are charged and explains the different consequences when you refuse the breathalyzer test or take the test and fail. I would appreciate any feedback or comments on the book and can be found on Facebook at DelSignore Law. You can click on this Link to LIKE the facebook page. You can also find the book for sale on Amazon but I would be happy to provide a free copy if you request one through my website.

You can contact me directly at 781-686-5924 for questions regarding Massachusetts OUI laws or to request a copy of the book.

Massachusetts DUI patrol will be increased over the Thanksgiving holiday weekend. Massachusetts, likes States throughout the country, will put additional state and local police officers on the streets to ensure that drunk drivers are caught.

While the Thanksgiving Day holiday provides a great opportunity to take time off, relax with friends and enjoy the company of family, as a Massachusetts OUI lawyer, I encourage everyone to make sure you drink responsibly, consider taking a taxi cab to any event or party and or consider staying overnight.

A Massachusetts DUI charge, even if it results in a not guilty verdict at trial, will put an enormous stress on your life, jeopardize your job and require time out of work to attend court. The best way to avoid these consequences is to ensure you do not drink too much before driving.

I wish everyone a safe and happy holiday.

In response to the Boston Globe Special Report on OUI bench trials in Massachusetts, the Globe reported that prosecutors are seeking legislation requiring prosecutors to consent to a bench trial. Assuming this report is accurate, this legislation would have to apply to every type of criminal case as legislation relating to criminal procedure cannot be crime specific. This legislation if proposed would be an unconstitutional violation of a defendant's right to a fair trial under the Sixth Amendment.

The apparent aim of the legislation is to combat the perceived high rate of not guilty verdicts in Massachusetts OUI bench trials. This legislation would clearly be unconstitutional under the Sixth Amendment. The Sixth Amendment provides that a defendant in a criminal case enjoys certain rights: These rights include the right to a speedy trial and the defendant enjoys a right to a trial by jury. The use of the word "enjoys" in the Constitution provides strong textual support for the argument that a defendant can waive this right.

The right to a trial by jury was added to the Bill of Rights because the Framers of the Constitution feared that judges would not be impartial to defendants because their salary depended on the rule of the King. The original intent of the jury trial was to limit the power of Government and ensure that citizens judged citizens. The right to a jury trial is not Constitutionally required in all cases; in minor offense, with no possibility of jail time, there is no Constitutional right to a jury trial.

The United States Supreme Court discussed the historical origins of the right to a jury trial in the case of Duncan v. Louisiana, 391 U.S. 145 (1968). This case held that a State could not deny a defendant a right to a jury trial because the 14th Amendment due process clause makes the right to a jury trial applicable to the States. The language of the Duncan decision clearly indicates that right to select a bench or jury trial is solely that of the defendant.

Constitutional rights are granted to defendant's in criminal case to ensure that the power of the Government is limited and that the rights of citizens are protected through an enduring Constitutional right and not made subject to the political climate of the time. Though the Constitution does not speak of a right to a bench trial, the right has been part of this country since its formation.

Similarly, while the Constitution grants a defendant a right to counsel, the United States Supreme Court held in Faretta v. California, 422 U.S. 806 (1975) that a defendant has the negative Constitutional right, that to waive counsel and represent himself pro se. Other Constitutional rights, like the right to a speedy trial, can also be waived by a defendant.

The historical context of the right to jury trial indicates that it has always included the negative right to waive a jury trial. Additionally, the history of the jury trial right has been in attempting to expand its application, to a greater number of offenses and to make it applicable to the States. Accordingly, there is strong historical support and textual support in the Constitution that the right to a jury or bench trial is the exclusive right of a defendant.

Further, in considering the Constitutionality of legislation, courts consider the intent of the legislature. The motivation for the legislation would be the Boston Globe Special report on OUI cases which signaled out a few judges for criticism based on statistics and the political agenda of district attorneys who were unhappy with decisions by selected judges. As a Massachusetts DUI lawyer, any legislation requiring prosecutors to consent to a bench trial would be a clear violation of the Sixth Amendment.

The Massachusetts Supreme Judicial Court announced that it would investigate the Boston Globe report to determine if the acquittal rate for Massachusetts OUI bench trials is above the national average and higher than in other Massachusetts criminal cases, according to a report released in the Boston Globe.

This is a shocking announcement given that the Massachusetts Supreme Judicial Court should have no concern over conviction rate statistics. Simply put, there is no way for a court to second guess the decision of a trial justice finding a defendant not guilty. As the judge that hears live testimony, the trial judge is in a unique position to judge credibility and to determine whether the burden of proof has been satisfied.

The SJC investigation sends a clear message that judges should find a certain percentage of OUI defendants guilty. This is a serious threat to the independence of the judiciary. Of course, the report states that it is just an investigation, but the message is clear, with the charge of OUI in Massachusetts, the rate of not guilty verdicts from particular judges will be monitored.

This is a clear example of the independence of the judiciary being influenced by the political agenda of prosecutors, who likely urged the Boston Globe investigation. Would the highest court of Massachusetts investigate a judge whose rate of granting defense motions was below the State average or some national average. The clear signal is that judges with strong views of Constitutional protections and the meaning of proof beyond a reasonable doubt will be disfavored by the State's highest Court.

The standard of what is proof beyond a reasonable doubt, proof to a near moral certitude, is a subjective standard where different judges could reasonable reach different conclusions in the same case. Many standards in the law are subjective, such as what constitutes reasonable suspicion for a car stop, probable cause to arrest and what constitutes testimonial evidence under the Sixth Amendment.

While the Boston Globe report raised many issues, the Massachusetts Supreme Judicial Court simply should have no interest in any comparable studies between other states with different jury instructions, prosecutors with greater discretion to reduce or dismiss weak DUI cases and different rules of evidence. The clear motivation of the SJC endorsing and continuing the probe of the Boston Globe is to send a message to Massachusetts judges, OUI conviction rates must increase in bench trials. This is a dangerous threat to the independence of the judiciary. While a journalist clearly can put pressure on the courts as a private business, the SJC should not sanction this intimidation of the judiciary aimed to achieve a desired result in drunk driving cases.

As a Massachusetts drunk driving lawyer, the decision of the Appeals Court in Commonwealth v. McLaughlin, decided on June 13, 2010 is of interest in defending DUI cases involving motor vehicle accidents. The McLaughlin case arose out of a 3rd offense Massachusetts OUI charge out of the Plymouth District Court. The defendant was involved in a motor vehicle accident and brought to the hospital for medical treatment.

At trial, the Commonwealth sought to introduce the hospital medical records of the defendant to prove his blood alcohol level to be above the legal limit of .08. The Commonwealth called a toxicologist to explain the meaning of the hospital records and how the serum alcohol blood alcohol reading converted to a blood alcohol content on the night of the incident. The Commonwealth did not call the keeper of the hospital records to testify but relied exclusively on the medical affidavit statute to have the records admitted into evidence.

Under Massachusetts General Laws Chapter 233 Section 79G, medical records may be admitted in the discretion of the court by way of affidavit relating to treatment and medical history, but nothing admissible shall relate to the question of liability. The Appeals Court held that the admission of the toxicology report did not violate the medical affidavit statute.

Further, the Appeals court rejected the challenge of the Massachusetts DUI lawyer in the case that the admission of the hospital medical records violated the defendant's right of confrontation under the Sixth Amendment or Article 12 of the Massachusetts Declaration of Rights.

Continue reading "Massachusetts drunk driving lawyer comments on recent Appeals Court decision regarding admissibility of hospital medical records at DUI trial " »

The Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Zoanne Zeininger which addressed the issue of whether the Sixth Amendment requires the Commonwealth to present the live testimony of a witness from the Office of Alcohol Testing in order to admit breathalyzer test results at a Massachusetts DUI trial. Click here to read in SJC decision in Zeininger.

At trial, the Massachusetts OUI attorney, argued that the Office of Alcohol Testing documents could not be admitted into evidence without the live testimony of a witness from OAT in order to preserve the defendant's right of confrontation under the Sixth Amendment and the recent case of Melendez-Diaz v. Massachusetts. At a DUI trial, the Commonwealth generally subpoenas a packet of documents from the OAT that show compliance with the annual certification and periodic testing requirements of Massachusetts drunk driving law. The Commonwealth generally seeks to admit these documents into evidence as business records without live testimony from the Office of Alcohol Testing. The Zeininger case raised the issue of whether this practice satisfied constitutional requirements.

The Massachusetts Supreme Judicial Court held that the court undergoes a two part inquiry to determine whether out-of-court statements are admissible at a criminal trial. First, it determines whether the statement is admissible under a hearsay evidence exception and second whether it satisfies the requirements of the Confrontation Clause of the Sixth Amendment.

The SJC held that the OAT documents are made by a public official having a statutory duty to comply with a rigorous regulatory certification. The Court held that these records do not express any opinion but memorialize routine scientific measurements. Further, the court stated that the records qualify as business records because they were not created essentially for use in court, but pursuant to the mandates of Massachusetts statutes creating the regulatory scheme. Accordingly, the court held that the records are admissible under Massachusetts evidence law.

The SJC also rejected challenges to the admissibility of the OAT records based on the Sixth Amendment Confrontation Clause. The SJC held that the Oat records are not made for the purpose of proving some fact at trial but to comply with its statutory mandate.

As a Massachusetts OUI lawyer, the court's decision is contrary to the United States Supreme Court's Melendez-Diaz decision as the only purpose for the OAT records is to establish the reliability of the breathalyzer test at trial. But for the fact that breathalyzer results are used in court, there would be no purpose for the records or testing of the machine. Accordingly, the Court 's suggestion that the records are not prepared primarily for trial is simply incorrect.

Additionally, the SJC's claim that the records the records memorialize routine scientific measurements is inconsistent with the language of Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009) which held that the Confrontation Clause is essential to ensure the reliability of scientific procedures in court. The SJC ignores the language of the Supreme Court in Melendez-Diaz by suggesting that the OAT testing procedure is simple so that confrontation is not required.

As a Massachusetts DUI lawyer, the court's decision and reasoning is incorrect and contrary to the requirements of the Confrontation Clause as set forth in the United States Supreme Court case law. The United States Supreme Court is expected to release its decision in Bullcoming v. New Mexico by the end of the terms, which may undermine the SJC reasoning in Zeininger.

Continue reading "Massachusetts DUI lawyer comments on recent case regarding admissibility of breathalyzer test results " »

Bullcoming v. New Mexico raises a significant issue under the Sixth Amendment Confrontation Clause regarding scientific and blood test evidence in Massachusetts drunk driving cases with breathalyzer or blood test results. The State of New Mexico attempted to present evidence to prove the defendant's blood alcohol content through a surrogate blood analyst who did not have any role in drawing the defendant's blood.

The State argued that the Sixth Amendment Confrontation Clause was not violated because the blood test was a simple test that did not require the analyst to interpret results or exercise independent judgment. The National College of DUI Defense amicus brief, by Attorneys Justice McShane, Lenny Stamm and Ronald Moore, pointed out the scientific judgment and interpretation involved with blood test results.

The State argued in its brief that the Confrontation Clause is not implicated because the report was produced by a machine and a machine is not a witness under the Confrontation Clause. The State argued that the scientific evidence in Bullcoming did not qualify as testimonial because it was not prepared under oath and is not an affidavit or confession. The complete court filings in the case are contained on the Scotus Blog, click here.

After reviewing the transcript of the oral argument, Justice Scalia appeared to agree with the position of the defendant that the defendant's right of confrontation was violated. Further, he pointed out that it appeared that the State attempted to shield the blood analyst from cross examination as he was put on leave without pay.

In an exchange with Justice Alito, the Attorney for Bullcoming, Jeffrey Fisher was asked if the machine produced a reading of .21, would that reading be testimonial. This exchange is essentially the confrontation debate surrounding breathalyzer test results.

Attorney Fisher avoided this issue during his argument because it did not fit the defendant's case. However, he stressed that the issue is whether a result from a machine, has enough human influences that it should be treated as a statement of a person.

Justice Ginsburg questioned the value of cross examination as the lab technician is unlikely to remember the results of the analysis, but will only be able to testify as to usual practices. Attorney Fisher stressed that the analyst would remember if something went wrong and that prior case law stressed that the right of confrontation is satisfied even if the witness does not remember as the jury can evaluate the demeanor of the witness and the competence of the witness.

The State, attempted to rely on the Bryant decision of only two days earlier, to argue that the blood test results were not testimonial under the public record exception. Justice Sotomayor seemed to reject the State argument that the analyst is copying the tests results onto paper generated by a machine. Justice Sotomayor rejected the idea that the analyst was a mere conduit for information and stated that he is certifying that certain steps were taken, that evidence was not tampered with. Applying the primary purpose test set forth in Bryant, she asked whether the primary purpose of the lab report was for prosecution. The State's response, trust the scientist, which the under the reasoning of Melendez-Diaz, the scientific process must be subject to cross examination.

Justice Scalia asked the State whether the same procedure is followed for ballistics analysis. The State argued that ballistics require interpretation of the results. In response to Justice Scalia's hypothetical, asking what if a machine could interpret ballistic results, the State argued that confrontation would not be required because the machine provides the best evidence.

I would expect the United States Supreme Court to find that the defendant's right of confrontation was violated in this case by the lack of live testimony of the blood analyst. Bullcoming presents an interesting case for the court because it could potentially minimize the significance of either the Melendez-Diaz case or the recent Bryant decision. To side for the State the Court would be essentially overruling Melendez-Diaz. However, it would be difficult to reconcile a decision for the defendant with the holding of Bryant. A decision in favor of the defendant would result in Massachusetts criminal lawyers arguing that Bryant was a narrow holding limited to its facts. Applying the primary purpose test to blood and breathalyzer testing machines, the primary purpose of these machine will always be for use in court. Accordingly, the primary purpose analysis would reconcile the three recent Confrontation Clause cases of the United States Supreme Court.

As a Massachusetts DUI lawyer, the Bullcoming decision will have a major impact on how the Massachusetts Supreme Court decides the case of Commonwealth v. Zeininger which is currently pending before the Massachusetts Supreme Judicial Court. Click here to read my prior post on the Zeininger case. The Court will likely issue its decision at the end of its term.

The Massachusetts Court of Appeals held on February 17, 2011 in the case of DiGregorio v. Registrar of Motor Vehicles that a motorist convicted of drunk driving out of state is entitled to have the period of the Massachusetts license suspension run from the date of the out of state conviction rather than the date on which the RMV learns of the conviction. Under Massachusetts OUI law, if a motorist is convicted of DUI in another state the RMV will suspend the motorist as if the offense occurred in Massachusetts.

The issue in DiGregoria is that the RMV did not learn that the defendant was convicted of his third DUI in Connecticut until three years after the conviction. Any motorist who has DUI conviction in Massachusetts or any other state will incur an eight year loss of license. The RMV asserted that the eight year period did not run until the RMV receives notice of the suspension. The Appeals Court held that the RMV's interpretation of the statute is contrary to the plain meaning of the statute. Further, the court notes that the RMV should have learned of the suspension as the information pertaining to the conviction was accessible to the RMV.

The Massachusetts Supreme Judicial Court heard oral arguments on February 7, 2011 in the case of Commonwealth v. Zeininger, which was an appeal of a drunk driving conviction out of the Greenfield District Court. The defendants in the case filed an appeal with the Massachusetts Court of Appeals, which the SJC took on its own motion for direct view. As a Massachusetts OUI attorney, this decision could have an important implications for attorney defending drunk driving cases.

The defendant made three challenges to the admissibility of the breathalyzer test results. First, the defendant challenged the evidence presented by the Commonwealth to show that the breathalyzer machine was certified. Under the Massachusetts Supreme Court's decision in Commonwealth v. Barbeau, 411 Mass. 782 (1992), in order to admit breathalyzer test results into evidence, the Commonwealth has to establish that the machine satisfies both the annual certification and the periodic testing requirements imposed by the Massachusetts regulation and the Barbeau decision.

The Commonwealth did not call a witness to prove the annual certification, but relied on the certification noted in the implied consent form. The implied consent form does not indicate who certified the breathalyzer testing machine. The Commonwealth can request a certification from the Office of Alcohol Testing, but it appears that the Commonwealth relied on the certification on the implied consent form rather than the full Office of Alcohol Testing documents that are certified by the Office of Alcohol Testing.

The defendant on appeal argued that the defendant was being deprived of the right of confrontation guaranteed by the Sixth Amendment to the United States Supreme Court by not being granted the opportunity to confront the witness that certified the machine. The defendant relied on two recent United States Supreme Court decision Crawford v. Washington, 541 U.S. 36 (2004) and Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).

The SJC is likely to use this decision to address how the Commonwealth must prove that the machine has been certified. I would expect the SJC to hold that the Commonwealth needs the certification from the Office of Alcohol Testing at minimum to satisfy the annual certification requirement and cannot simply rely on a notation on the implied consent form that the machine was certified.

As a Massachusetts OUI lawyer, the Commonwealth should be required to call a witness to establish that the machine was certified. However, if the court is going to hold that the certification of the machine is nontestimonial under Crawford, the Commonwealth would still be required to present some evidence of who certified the machine. It appears as though the Commonwealth did not provide reliable evidence that the machine was certified and accordingly the court should have excluded the breathalyzer test results.

A second issue raised by this appeal is whether the trial judge properly allowed the police officer to testify as an expert regarding the breathalyzer machine. In the case, the trial judge allowed the police office over the objection of the defendant to testify that the breathalyzer machine was working properly. The Massachusetts DUI attorney in the case argued that the Commonwealth did not offer the police officer as an expert and that his training was only to give breathalyzer tests and that there was no evidence that he was qualified to determine if the machine was working properly. The defense argued that only a chemist from the Office of Alcohol Testing can determine whether a breathalyzer machine is working properly. Further, defense counsel objected to the officer testifying regarding the ability of the breathalyzer machine to recognize mouth alcohol.

The Massachusetts Supreme Judicial Court should reverse the conviction of the defendant on the grounds that the officer was not qualified to testify regarding the presence or absence of mouth alcohol. In the case, the defendant was found guilty of only the per se prong of Massachusetts drunk driving law as her BAC was just over the legal limit and registered .10. The defendant presented credible evidence during the trial that the defendant had acid reflux which can cause inaccurate breathalyzer readings. The trial testimony was that the defendant spit up acid and spit into the trash can next to the breathalyzer machine.

The final argument made by the defense was that the breathalyzer test should be excluded because the police officer did not comply with the observation period. It appears this is a strong argument. From the argument it appears as though the officer misconstrued the 15 minute waiting period as simply a time period that must elapse so that the breathalyzer can warm up. This misinterprets the purpose of the waiting period and based on the briefs in the case it appeared as though the officer did not testify according to the requirements defined in Massachusetts DUI law as set forth in the case law. The officer must testify that he did not observe any contaminating events and it appears as though the sample may have been contaminated as a result of the defendant spitting up and suffering from acid reflux. This would have contaminated the sample and artificially inflated the defendant's breath test results.

Overall, I would expect the court to reverse the conviction based on the improper expert testimony of the officer and because a substantial miscarriage of justice did occur as a result of the admission of the breathalyzer test results and the failure to conduct a proper observation period.

The recent decision of the Massachusetts Court of Appeals in Commonwealth v. McGillivary, decided on January 25, 2011 interpreted the definition of operation of a motor vehicle under Massachusetts OUI law. In the case, the defendant was slumped over the wheel with the keys in the ignition but the engine turned off. Only the electricity was running in the car as the engine was off. The Massachusetts Appeals Court had to address the issue of whether a DUI conviction could be upheld when there was no evidence that the defendant drove the vehicle, but only that the defendant was in the car with the keys in the ignition and the electricity turned on in the car.

The Appeals Court found sufficient evidence of operation and held that putting the keys in the ignition was the first step in operating the vehicle. The Court's decision raises the interesting question for Massachusetts OUI attorneys regarding whether the court would have found operation if the keys were simply in the ignition without the electricity of the car being turned on.

Continue reading "Massachusetts OUI attorney comments on recent court decision interpreting definition of operation under Massachusetts drunk driving law " »

A snowmobile operator was recently cited for driving under the influence of alcohol after a collision in Wisconsin. While most of us immediately think of automobiles when we hear the terms "OUI" and "DUI," it's important to remember that Massachusetts' "operating under the influence" laws are broad and prohibit the public from operating almost any vehicle while intoxicated. Specifically, Massachusetts General Law (Chapter 90, Section 24) prohibits individuals from operating any "motor vehicle" while under the influence of liquor, marijuana, or other narcotics.

So what exactly is a "motor vehicle"? It may surprise you to find out that the simple term "motor vehicle" has a 240 word definition within the Massachusetts General Laws. Generally speaking, a motor vehicle is any vehicle that is designed to be propelled with motor power, rather than muscular power. The Massachusetts definition goes on to exclude certain vehicles, like trolleys, some motorized bikes, and motorized wheelchairs operated by invalids.

Under Massachusetts law, snowmobiles would probably be considered "motor vehicles," along with automobiles, motorcycles, motor boats, and golf carts. So, a simple story about a Wisconsin man charged with driving a snowmobile under the influence reminds us to enjoy all of our motorized vehicles safely this Winter.

Continue reading "Snowmobile Accident Highlights Broad Applicability of Massachusetts OUI Laws" »

The United States Supreme Court will hear arguments in the case of Bullcoming v. New Mexico. The Supreme Court filings in the case can be found on the Scotusblog.

The Bullcoming case is an important case for Massachusetts DUI lawyers. In Bullcoming, Donald Bullcoming was convicted of aggravated felony DWI after a blood alcohol test was admitted into evidence claiming that his blood alcohol level was well above the legal limit of .08. The State admitted evidence of the defendant's blood alcohol level not by calling the individual that performed the chemical analysis of the defendant's blood but by calling a surrogate witness. This surrogate witness was unable to respond effectively during cross examination because the witness did not participate in the chemical analysis of the defendant's blood. Accordingly, the defendant argued that he was being denied his Sixth Amendment right of confrontation under the United States Supreme Court's Melendez-Diaz v. Massachusetts holding.

Three Lawyers from the National College of DUI Defense, Leonard Stamm, Justice McShane and Ronald Moore filed an amicus brief in the case on behalf of the defendant. Click here to read the brief.

The Brief explains the science behind blood alcohol testing and documents that improper blood alcohol testing has led to wrongful DUI convictions in other parts of the country. The Brief argues that cross examination is vital to ensure the reliability of the forensic science behind blood alcohol testing involving gas chromatography and suggests what an effective cross examination would entail if the individual that performed the test were testifying on the witness stand rather than a surrogate witness with no personal knowledge of the testing of the defendant's blood.

As a Massachusetts DUI lawyer, the arguments raised by the defendant's in Bullcoming can be used to excluded blood test evidence from being introduced into evidence. When the Commonwealth attempts to introduce hospital medical records of a defendant following an accident, thought to be caused by a drunk driver, the Commonwealth should have witnesses that took the blood from the defendant available to testify in court; without live testimony, a defendant is being denied the Sixth Amendment right of confrontation guaranteed by the United States Constitution. The Bullcoming decision could provide an important grounds for excluding blood test evidence at Massachusetts DUI trials.

In light of the United States Supreme Court's decision in Melendez-Diaz, I would expect the Supreme Court to reverse the decision of the New Mexico Supreme Court and find that the defendant's right of confrontation was violated by the failure of the State to have the blood alcohol analysis testify just as the defendant's Sixth Amendment right of confrontation was violated in Melendez-Diaz when the Commonwealth did not provide the defendant an opportunity to cross examine the chemist who analyzed the drugs during a trial for drug trafficking.

A petition for certiorari filed in the United States in the case of People v. Tolentino from the State of New York raises the issue of whether a motorist can have information relating to his identity suppressed as the fruit of an unlawful search and seizure. In the Tolentino case, the defendant was stopped for allegedly playing music too loud; when the police did a RMV check of the defendant's drivers license, a search revealed that he had a suspended license.

The trial judge agreed that the defendant was not properly stopped, but refused to suppress the evidence relating to his suspended drivers license, holding that identifying information cannot be suppressed as the fruit of the unlawful police activity.

As a Massachusetts DUI lawyer, this petition is of interest because the Fourth Amendment provides an a method for defending DUI charges. When the police violate a motorist's Constitutional rights, the court should exclude all evidence that is the fruit of the unlawful police conduct, that violates either a motorist right to be free of unreasonable searches and seizures or their 5th Amendment Miranda rights.

In the Tolentino case, the criminal defense lawyers argued that the identifying information learned from the unlawful police conduct should be suppressed so that there is a penalty to deter unlawful police conduct. Without the court excluding the unlawfully obtained evidence, there is no penalty for unlawful police conduct. The United States Supreme Court should grant certiorari in the Tolentino case.

Continue reading "Massachusetts DUI lawyers should consider filing motion to suppress unlawfully obtained information revealing identity of motorist " »

Prosecutors in the Florida DUI manslaughter trial of former Yankee star Jim Leyritz were barred this week from using an illegally obtained blood test, the Associated Press reported.

Massachusetts OUI defense lawyers have been monitoring the trial, which is being followed by CourtTV and other national media. Leyritz faces up to 15 years in prison if convicted of the December 2007 drunk driving accident. He was returning home from his 44th birthday party when he allegedly ran a red light and smashed into a vehicle driven by a 30-year-old mother of two.

She had just gotten off work as a bartender, was even drunker than Leyritz, was not wearing her seat belt and was receiving telephone calls and text messages in the moments before the fatal crash. The judge has ruled most of that cannot be entered into evidence before the jury. But Leyritz's drunk driving defense lawyers have not been without their fare share of victories.

Leyritz refused a breath test and had a blood test drawn about three hours after the crash. That test showed a level of .14, above Florida's legal limit of .08 under Florida law. Investigators drew a second blood test, which is not authorized by state law, the results of which were thrown out.

It is the latest setback for prosecutors, who told jurors a passenger in Leyritz's vehicle would testify the former baseball player ran the red light in the moments before the accident. Instead, the passenger testified he remembered the vehicle entering the intersection on a yellow light.

Leyritz, 46, who reportedly has sought financial assistance from a baseball charity established to help former players in need, settled a wrongful death lawsuit earlier this year for the $250,000 policy limits of his auto insurance policy and $1,000 a month for 100 months. Mainly a catcher during his 11 seasons in the majors, he is best known for hitting a home run for the Yankees in the 1996 World Series.

Continue reading "Illegally obtained blood test thrown out of court in OUI manslaughter trial" »

The Massachusetts Court of Appeals again addressed the definition of operation under Massachusetts OUI law. In the case of Commonwealth v. Cabral, decided, August 5, 2010, the defense attorney on appeals conceded that the under the influence element was satisfied and appealed on the operation and public way elements of the offense. Under Chapter 90 Section 24, to convict a driver of OUI in Massachusetts the Commonwealth must prove the following elements beyond a reasonable doubt:

1. that you operated a motor vehicle
2. on a public way or a way which the public has a right of access;
3. while you were under the influence of alcohol.

In most cases, the defense centers around the third element of a DUI offense, under the influence. In Cabral's case, the court found that the Commonwealth proved operation because she was behind the wheel, and the tires were spinning on the vehicle, even though it was not moving and she was not driving but trying to back the truck up. Further, the truck was off of the road and appeared to have been in an accident. The Appeals Court found that operation could be proven by circumstantial evidence and affirmed the defendant's conviction.

Continue reading "Massachusetts court addresses definition of operation in recent OUI ruling" »