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Operating Under Influence of Drug Charges Involve Unique Issues of Proof

red light.jpgxanax.jpgQuincy District Court arraigned Lisa Julian earlier this week on charges of Operating Under the Influence of Drugs. Braintree Police Chief Russell Jenkins informed the Patch of the following facts which gave the police probable cause to arrest Julian.

1. A motorist told the police that Julian weaved over the center line on Washington Street, ran two red lights and almost hit other vehicles.

2. Officers found Julian in Braintree Square and made "observations that she was impaired."

3. Julian made statements to the officers "that led them to believe she was under the influence of prescription medication."

4. The officers asked her to perform field sobriety tests.

Obviously there may be more to this story, but based on these facts alone a criminal defense attorney would analyze Ms. Julian's chances at trial as follows.

Do the police have the reporting motorist's identity? Will the reporting motorist be willing to come to court and testify? If the answer to either of these questions is no, then the erratic driving information will never be heard at trial. A police officer may not repeat it because it is inadmissible hearsay.

What exactly did the police see when they found Ms. Julian in Braintree square? Was she still in the car? The article does not say that the police found her driving. If not, will the prosecution be able to prove the essential element of "operation" at all.

What did she say to the police? As always, this is crucial evidence, and unlike the statements of the reporting motorist, these hearsay statements are admissible against Julian. It appears that she mentioned medication. This, however, may not be enough. The crime charged requires more than proof that a driver ingested "drugs." The criminal statute requires proof that a person operated under the influence of "narcotic drugs, depressants or stimulant substances." Without a blood test, how will the prosecution prove that she had such drugs in her system? This is not like alcohol where the police are able to smell it, are familiar with its effects, and have a breath test machine that supposedly measures its percentage in the blood stream.

I should note that her passenger was arrested for possessing Alprazolam -- also known as Xanax -- which is a depressant. This is somewhat damaging, but is not in and of itself proof that Ms. Julian took any of those type of pills.

The chief said that the officers asked Julian to perform field sobriety tests, but the article does not say whether or not she agreed to do so. If she did not, the case is even weaker. If she did and she failed it would be detrimental to her defense, but it still does not answer the question of whether she was under the influence of the particular drugs described in the statute. There are many reasons for being unable to do these tests that are not related to drug consumption.

Before she makes any decisions, Ms. Julian will require the advise of an experienced criminal defense attorney.


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OUI Charge in Dedham District Court After Collision with State Trooper

December 22, 2012

police blues.jpgThe Dedham District Court will hear charges against Lillian Vespa-Malkin as a result her collision into the rear of a Massachusetts State Police cruiser on Thursday night. The initial report in the Needham Patch indicated: "[t]here is no word on whether the driver will be charged." By 11:30 a.m. the Dedham Patch's update said that she had been arrested and charged with OUI, Operating to Endanger, and a civil marked lanes violation. According to the the Dedham Transcript Ms. Vespa-Malkin was arraigned in the Dedham District Court yesterday.

As for the factual allegations, the articles say that The trooper was working a highway construction detail when Ms. Vespa-Malkin drove her SUV into the driver side rear quarter of the cruiser and caused severe damage to the cruiser. Of course Ms. Vespa-Malkin's vehicle must have sustained heavy damage too. The trooper was treated at the hospital with neck and back injuries and released. The articles do not reveal whether Ms. Vespa-Malkin suffered any injuries, but at a minimum, she must have been severely shaken.

Responding troopers surely investigated and wrote reports that outline the bases for the charges against Ms. Vespa-Malkin. The news reports, however, contain no information on this topic. Some things, however are very clear. 1) Both the trooper and Ms. Vespa-Malkin are lucky that the injuries were not even more serious. 2) These incidents happen far too often. 3) Ms. Vespa-Malkin is in a lot of trouble and needs experienced legal assistance.

Here are some things that will surely be explored. Were there any field sobriety tests? What is the value of such tests for someone who was seriously shaken up from a car crash? Was there a breath test? Was Ms.Vespa-Malkin taken to the hospital? Was there blood drawn and tested for alcohol? Did she make incriminating statements regarding drinking? Does she have witnesses that could help her prove that she was not impaired? Was there any alcohol containers in her vehicle? Did any other vehicles that had been following her stop? What did they see? Were there any construction workers present? Did they see anything? Did the trooper have his flashing blues on at the time of the accident. Was his vehicle in the breakdown lane?

Most importantly, was this just an accident or was it a crime? Perhaps she took her eyes of the road for just an instant. At 60 mph you travel 1/8 of a mile in just 7.5 seconds. Perhaps there is some other reasonable explanation. I expect that someone smelled alcohol. If there had not been such an odor, would there be charges? Probably. If a trooper's vehicle gets hit, the other driver is going to be charged with something. The odor of alcohol will clinch the OUI charge, but proof at trial is another thing. It is entirely possible (again, I have not seen the reports at this point) that alcohol had nothing to do with it, but with all the press involved in these re-occurring events, Ms. Vespa-Malkin has a significant legal challenge on her hands.


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Operation Under the Influence Charges Against ER Doctor Has Video Evidence

November 17, 2012

video camera light post.jpgDedham District Court issued a Criminal Complaint for Motor Vehicle and Drug Possession charges against Newton-Wellesley Hospital E.R. doctor, Kristin Howard, on Tuesday as a result of a car crash Friday morning that was captured on video.

That video recording from a traffic light camera shows her car coming out of a parking lot and crashing into another car on State Street in Wellesley. This video has made national and international news. Commentator, George Stephanopoulos described the video as "heart stopping".

This exposure is sure to have an effect on the case. In fact, to some extent, it already has -- at arraignment,an experienced and well respected prosecutor asked for bail in the amount of $10,000.00. When one considers that the purpose of a cash bail is to ensure that an accused will return to court and not run away, the incongruity of this request becomes apparent. Was there really a chance that a well know physician would throw everything away and flee because of an OUI charge in the District Court? Since the Wellesley Police arrested her after the Friday morning accident, she must have been released from the Wellesley Police Station and must have come to court of her own volition. At the station a magistrate likely reviewed the situation and made the correct assumption that she could be trusted to arrive in court on Tuesday. After arraignment and bail arguments the Dedham District Court judge agreed and released her on her own recognizance to return again in January.

What about the charges? Boston.com has the most detailed news story. According to their report Doctor Howard was charged with Operating Under the Influence of Drugs and Alcohol, Operating to Endanger, Leaving the Scene of an Accident Causing Property Damage, and illegal Possession of Prescription Pills. The article describes the doctor driving in a parking lot, hitting a truck, backing up into a fence twice and then accelerating into the street and hitting a car stopped at the traffic light.

The police claimed to have smelled alcohol on her breath, hence the OUI Alcohol charge. They found prescription drugs in the car, hence the OUI Drugs charge and the drug possession charge. Striking the fence and the truck followed by accelerating into the street allegedly supports the charges of Leaving the Scene charges.

But there is no mention of an alcohol breath test, and only a single reference to a field sobriety test. Would it be reasonable to expect an operator to perform a road-side balancing type test after such a crash? No matter how "heart stopping" a video is, it does not prove everything.

There may or may not have been damage to the fence or the truck. If she tapped them and did not damage them, she may not be convicted of leaving the scene of property damage. This will be explored by defense counsel. Moreover, the prosecution will require witnesses to prove that she stuck anything. It is not on the video.

As for the prescription drugs, they may have been in her car, but were they in her system? Was there a blood test? Even if the drugs were in her system, did they cause her to drive the way she did? The prosecutor said that she wrote the prescriptions to herself, and that "raises some flags." Self prescribing is not actually a crime, but it invalidates the prescription and makes possession of the drugs illegal.

At least one article quoted Doctor Howard as telling the police that the car had a mechanical malfunction. The police also claimed that she initially said she was going to work, and then said she was going home from work.

One poster on the ABCnews.com site asked this question: "Why do people plead NOT guilty when they are CAUGHT both on video CRASHING into another vehicle, they found drugs that had been prescribed to HER by HER AND she initially LIED about where she was going[?]" This illustrates the prejudicial effect a video may have on a case. The video appears to be damning, but it does not prove all the elements of all of the charges. I trust that Doctor Howard has experienced defense counsel to sort though it all.

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OUI Arrest of Driver Parked in Travel Lane Presents Second Offense Issues

License.jpgOperating Under the Influence charges were brought against Alicea-Rove Velazquez early last Wednesday. According to the Hingham Journal, Hingham Officer Michael Rockoff found a car stopped in the right travel lane of Route 53 at approximately 3:22 a.m. that morning. When he approached, he saw Velazquez asleep in the driver's seat. According to the article, the transmission was in "park" and the key was in the "on" position. It does not say whether the engine was running.

Rockoff banged on the roof of the car for a couple of minutes to awaken Ms. Velazquez. The officer then noted an odor of alcohol, an inability to focus, and glassy eyes. When she got out, she was "unsteady on her feet." These are fairly standard observations involved in these arrests.

The article says that she was getting out to perform "field sobriety tests." It does not say which tests she did, or how she fared; it only says that the police determined that she was impaired. Hence, they either determined that she failed the tests, was unable to do them at all, or refused to try. It is my guess that it would not have mattered much. She was going to be arrested even if she did fairly well. The police don't take chances in these circumstances. It will be left up to the attorneys at court.

The police also determined that Ms. Velazquez had been convicted of OUI in New Hampshire in 2008. She was, therefore, charged with Second Offense OUI, .

This story shows that one does not need to be actually driving to be arrested for OUI. It has been argued that stopping and parking is the right thing to do if you determine that you should not be driving. This, however, is not a defense, nor does it always negate the "operating" element of Operating Under the Influence. At a trial, the judge will tell the jury that to satisfy the element of operation, there must be proof that the accused citizen did something (such as turning the key) that would set a vehicle in motion. For Ms. Vazquez this issue will need to be explored thoroughly.

The story also shows that out-of-state convictions may be considered first offenses. This does, however, raise challenges for the prosecution. If a person seeks trial on a Second Offense OUI, there will actually be two separate trials. In Ms. Velazquez's case, the first trial will be to determine her culpability while parked on Route 53. If she wins, that's the end. If she loses, however, there will be a second trial in which the prosecution will be required to prove beyond a reasonable doubt that she has been convicted in New Hampshire four years ago. This will require evidence from out of state.

It does not appear that Ms. Velazquez took a breath test. These articles usually tell us the results if one has been taken. Hence, she may have refused to take the test. This raises the stakes considerably with regard to her loss of license. Refusing the breath test on a second offense results in a loss of license for 3 years. If convicted, there is an additional 2-year loss of license. On top of that, once the license is returned she must have an interlock device (portable breath test) installed in her car for yet another 2 years.

If she wins her case however, she may have her full license back immediately. This should be the focus.

Obviously Ms. Velazquez and those in her position would be well advised to consult with an experience criminal defense attorney.

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Negligent Operation Combined with Illegal Texting Arraignment in Quincy Court

September 2, 2012

texting into headlights.jpgNegligent operation and texting-while-driving charges were formally lodged against 25 year-old Kyle Beard in the Quincy District Court last week. I say "formally lodged" because the events that gave rise to the charges occurred back in December. The delay tells me that the police did not arrest Beard back then, but applied for a complaint and requested a hearing before a Quincy District Court Clerk Magistrate. Obviously, the magistrate found enough evidence to issue the Complaint .

I came across this little story in the Plymouth Patch. I write about it because it illustrates some issues with regard to the Anti-Texting law (part of the so-called "Safe Driving Law") that is coming up on its second anniversary at the end of the month. The article says that Beard was driving his Jeep Cherokee on Commercial Street in Weymouth and allegedly crossed the center line into oncoming traffic. Fortunately, there was no crash, but unfortunately for Beard, a Weymouth police officer was coming the other way. That officer said that he had to "turn sharply" to avoid a head-on crash. When they pulled Beard over, the police saw a cell phone on his lap and he allegedly told them that it rang as he drove and he crossed the line as he looked at it. (Another example of making their case with your words).

The first and most obvious question is: "How are Beard's actions a violation of the no-texting statute?" The statute makes it a civil violation to use a cell phone to "compose, send, or read an electronic message while operating a motor vehicle." Did the magistrate interpret this language to mean you are not allowed to look at your ringing phone without being involved in illegal "texting?" According to the story, Beard did not even say that he was checking the caller ID on the cell phone. Even if he were, it seems to be a stretch to define this as texting. In any event, if he is found responsible, he will have to pay a $100 fine for a first offense (2d offense - 250; 3d offense -- $500).

Obviously, the texting charge is not Beard's main problem. It does, however, have an important link to the charge of negligent operation, which carries criminal penalties and a potential loss of license. For the prosecution to prove that Beard was negligent, it must prove that he failed to act reasonably under the circumstances. If he were illegally texting, then he was likely acting unreasonably. If his glance at his phone is not texting, then the question becomes: "Is it unreasonable to look at a ringing phone while driving?" I think not. One with an opposing view might ask: "What about crossing into the other lane?" My response: "Not every misstep is a crime."

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Drug Possession Arrest Following Seat Belt Stop Raises Questions of Illegal Search and Seizure

seat belt sign.jpgDrug possession charges were filed against a Fall River man after the Tiverton Police pulled him over for not wearing a seat belt. According to the Tiverton-Little Compton Patch, the police stopped Cristovao Aguiar at 11:31 p.m. on July 6 because they noticed that neither he nor his passenger was wearing a seat belt. After the stop, the police apparently made the usual request: "license and registration" to which Aguiar responded that he did not have a license.

The police proceeded to arrested Aguiar for driving without a license. After they transported him to the police station, they happened upon "several small blue envelopes containing a substance that later tested positive for heroine (sic) inside his wallet."

This simple short story provides a fact pattern that helps illustrate some crucial search and seizure issues.

First and foremost is the stop of the car. As with all seat belt situations, one could reasonably wonder how the police noticed that the individuals in the car were unbuckled. In this case we may assume that it was dark at 11:31 p.m. How did the police see the lack of seat belts? The seat belt law does not require the use of shoulder straps. The shoulder belts may easily be tucked behind, leaving the lap belt. How are the police able to see if a person has the lap belt on? (Anyone older than 40 will remember the days when there were no shoulder belts).

Even if we assume that the police noticed that Aguiar and his passenger were riding around unharnessed, that is not a reason to stop them. The seat belt law specifically precludes the police from citing a seat belt violation as the primary reason for a stop. It says: "The provisions of this section shall be enforced . . . only when an operator has been stopped for a violation of the motor vehicle laws or some other offense."

If this article is accurate, the stop was not reasonable according the constitutional laws governing searches and seizures. Therefore, anything that the police discovered as a result of the stop may not be used against Aguiar. That would include the heroin as well as the fact that he did not have a driver's license. I expect that an experienced criminal defense attorney will accomplish this with a Motion to Suppress Evidence.

The second issue involves the arrest. Assuming for the sake of argument, that the stop was legal, why did the police arrest Aguiar? Operating without a license (first offense) is a civil violation. One may not be incarcerated for it. It is punishable by a $500 to $1000 fine alone. As such it is not an offense for which a person may be arrested. If this were Aguiar's first offense, then the police should not have arrested him. If he had not been arrested, the police would not have gained access to his wallet at the booking desk. This will surely be part of the Motion to Suppress.

A successful Motion to Suppress will deprive the prosecution of necessary evidence and result in dismissal of all charges.

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Reports Related to Investigation of Wrong-Way Trooper Raise Suspicions that May be Unfounded

wrong way.jpgA Massachusetts State Police Trooper is under investigation for allegedly driving the wrong way on Memorial Drive in Cambridge back in April. The June 20, 2012 story in Enterprisenews.com reveals that the state police are not only investigating the trooper but are investigating the initial investigation. The obvious implication is that they are checking to see if he received preferential treatment by the troopers that responded to the scene. No explanation is given for the six-week time lapse between the incident and the investigation.

Apparently, it all started when the state police received "reports" of someone driving the wrong way, and when they responded they found the off-duty trooper "next to his car in a nearby parking lot." No further information is provided, but the article goes on with a little character assassination. It mentions that while he was an Easton Police officer, an "allegation of statutory rape surfaced." The story eventually says that there was no evidence and that even the alleged victim denied everything. That's fine, but, as we say: you cannot "unring" a bell.

To add insult to injury, the article notes: "Team Five Investigates obtained a copy of [his] driving record," and found that he had surchargeable accidents in 2000 and 2005 and received two speeding tickets in 2006. This man is 29 years old, so he was approximately 17 when he had the first accident and 22 at the time of the second. Adding two tickets to that hardly makes him a highway menace. These side notes prompted comments such as this one by liverpoolabbie: "It appears to be a trooper who is too frequently in the wrong place at the wrong time. Time to can him." A false allegation of rape, two car accidents and a couple of traffic tickets! This comment is precisely why an experienced criminal defense attorney will fight to keep this kind of information away from juries.

Predictably, a majority of the other comments following the article jump to similar conclusions that there must have been some wrongdoing on the trooper's part. The obvious suspicion is drunk driving. All of that is understandable. But, it may or may not be supported by evidence. And that is what ultimately matters.

First of all, simply driving the wrong way does not necessarily mean that a driver is intoxicated. Even more so for a trooper. I think of all the unusual motoring moves that I have seen executed by on-duty state police officers and wonder if perhaps this is what got things started. Was there any plausible reason for the wrong-way drive? Did he do it by making a quick U-turn to get to a side street without doing a longer legal turn around? How far did he go in the wrong direction? How fast? Were there cars coming the other way? What were the traffic conditions? What time of day was it?

Perhaps most importantly, did the people who reported the incident come forward to be identified as witness? If not, there will be no proof that he actually drove the wrong way. On top of that, there may be doubts as to whether he was actually driving. Did the witnesses report that they saw the off-duty trooper behind the wheel or did they just describe his car? After all, the article says he was "next to his car" when his fellow troopers arrived. Was there anyone else with him that could have been driving? Did he admit to driving or did he say nothing?

Perhaps the trooper did what criminal defense attorneys rarely see - he said nothing and did nothing to provide the other troopers with evidence against him. As an officer himself he would know that he had no obligation to incriminate himself by answering questions, performing field sobriety tests, or taking a portable breath test.

There may or may not have been favoritism. An experienced criminal defense attorney knows that when all is said and done we will likely never know, and what really matters to an accused is the actual admissible evidence. If there is no witness to say that he drove the wrong way, questionable evidence of whether he was driving at all, and no evidence of alcohol, then there is no case of any kind.

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New Decision Reduces Loss of License for Refusing Breathalyzer on Second OUI Arrest

keys.jpgYesterday, the state's highest court issued a significant decision regarding license losses for breath test refusals. Until yesterday, it had been understood that a person who refused a breath test after his/her second arrest for OUI would have his/her license suspended for 3 years. The court essentially reduced that to 180 days.

This decision only applies to those people that had their first offense "continued without a finding." If a person was actually found guilty of the first offense then this ruling will not change the status of their license loss.

In fact, this was the central issue in the case before the high court. The law says that there shall be a 3 year loss of license for those who refuse the breathalyzer after having been previously convicted. The court held that since a continuance without a finding is not a conviction, the 3 year license loss does not apply. The maximum loss of license, therefore, is 180 days.

FACTUAL EXAMPLE BEFORE THIS RULING:

Citizen A admits to sufficient facts for a First Offense OUI in 2010 and the case is continued without a finding.

Citizen A is arrested for OUI in June 2011 and refuses the breathalyzer at the police station.

Citizen A is convicted of the Second Offense OUI in July 2011.

Loss of License:
- 3 years for refusing the breathalyzer. No hardship license available.
- 2 years for the conviction of Second Offense OUI. Hardship after 1 year.
- Total loss of license with hardship 4 years.
.
THE CHANGE:

Loss of License:
- 180 days for refusing the breathalyzer. No hardship license available.
- 2 years for the conviction of Second Offense OUI. Hardship after 1 year.
- Total loss of license with hardship 1 ½ years.

THE DIFFERENCE:

2 ½ years without a license.

Anyone that has a situation even close to that of Citizen A should contact an experienced criminal defense attorney for assistance in license restoration.

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OUI, Operating to Endanger, and Drug Possession Case has Pros and Cons

tel pole.jpgOUI Alcohol, Operating to Endanger, and Drug Possession charges were filed in Lynn District Court against a Winthrop man after the Swamscott Police found him outside of his wrecked pickup truck on Wednesday.

I mention this simple case from a Swamscott Patch article because it illustrates the common situation of having a case that has some good facts that get dragged down by some not-so-good ones. The article says that Salvatore Lamattina hit a utility pole with his pick-up truck on Stetson Drive in Swamscott on April 25. When the Swamscott Police arrived, they saw that the driver's-side front tire and suspension had separated from the vehicle. Lamattina was standing outside of his truck and was unsteady on his feet. Lamattina told the officers that he crashed because the wheel had fallen off the vehicle. A hand-held field breathalyzer showed Lamattina's blood alcohol level at .06.

So far, so good for the defense. 1) The legal alcohol limit is .08; 2) An unexpected mechanical malfunction should not result in a conviction for OUI or Operating to Endanger; and 3) A person recently involved in a crash of that nature could reasonably be expected to be shaken up and unsteady.

But there is more. In addition to telling the police about the wheel falling off (which they did not believe because of certain skid marks), Lamattina told them that he had taken the drug Suboxone earlier for a leg injury. Even if your blood alcohol level is below the legal limit, you may still be convicted of OUI especially if you have mixed drugs with alcohol and the consumption of the mixture negatively affected your ability to operate safely. Lamattina's statement gave the prosecution all they need to prove mixing drugs and alcohol.

In addition, while having three cold beers and three empties in the truck may not negate the relatively low alcohol level, it does add a certain negative impression. On top of that, the police found pills in the car that they claimed were the drug Methadone. If he were not authorized to have them, he has a problem with the drug possession charge, and if he were authorized to have them, a jury may understand the meaning that goes along with Suboxone and Methadone - treatment for heroin addiction.

The drugs may not have had anything to do with his driving, or may have had a lot to do with it. Either way they just make what could have been a good defense case a much more difficult one.

Lastly, I should note that the results of a portable breath test are generally not admissible at trial. Only breath tests properly administered on properly tested and maintained breathalyzers are admissible. So, even that positive factor is no help.

All is not lost, but Lamattina has a challenging road ahead. He will require an experienced criminal defense attorney to steer the way.

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Stoughton Police Seek Driver Who Hit Utility Pole and Fled Scene

witness stand.jpgLeaving the Scene of Property Damage. That is the charge that would be brought against the driver of a Jeep that hit a utility pole in Stoughton on Friday. That is, if the police are able to find out who was driving. It appears that the driver parked the jeep after the crash and left on foot.

This short story from the Stoughton Patch/Journal has some interesting legal issues. First of all, the police will undoubtedly find the owner of the Jeep and ask questions. He/she will be in the position to make or break the prosecution's case at this point. Admit and you will be charged. Decline to speak (as is your Constitutional right) and the prosecution will have no evidence. Being the owner of the car does not mean that you drove it.

The other issue is highlighted by two sentences in the article: "[E]ven if found by police, the driver may not be arrested on a charge of leaving the scene of an accident as the property damage involved does not make it an offense to be arrested for. . . . Such a charge would be filed by a summons." I am not aware of any law that distinguishes between property types making an arrest allowable for one and not the other. I do know, however, the reason for the comments.

The law applicable to the charge of leaving the Scene of Property Damage states: "[a] summons may be issued instead of a warrant for arrest upon a complaint . . . if in the judgment of the court . . . there is reason to believe that the defendant will appear upon a summons." The article implies that the police would not be allowed to arrest the driver. This is not the case. If the police find out the identity of the driver, they will bring an application for a criminal complaint to the court. The court will then decide whether to issue a summons or a warrant.

A summons would be sent to the driver's address and he/she would be ordered to appear in court. A warrant would give the police the authority to go and arrest the driver and bring him/her to court in handcuffs. According to the statute, a warrant would be issued if it appeared that the driver would not obey the summons to appear on his/her own. As it stands now, in this case, the driver fled the scene of the accident, hence his/her reliability may be in question.

There is another important issue that arises when the court determines that a summons is sufficient. If the driver is not arrested, for what event will the driver be summonsed to appear? In most cases, where the crime is a misdemeanor, no arrest has taken place, and there are no imminent threats, the accused has a right to be summonsed for a hearing to determine if the complaint should issue at all. [This is true only if there is no imminent threat of a) bodily injury, b) commission of another crime, or c) flight from the commonwealth]. Sometimes, however, the summons is mistakenly issued for an arraignment.

Hearing vs. Arraignment. This is a very important distinction. When someone is arraigned - has the charges read in court - that information is entered into the Massachusetts Board of Probation data base. Although technically not a "criminal record," unless there is a conviction, it is an entry on one's "probation record." Even if acquitted in the future, the charge will remain on this record for a lifetime (with few exceptions).

A summons for a show cause hearing is another matter. Since the charge is not read in court, there is no entry on the Massachusetts Board of Probation data base. The accused has an informal hearing with a magistrate during which the police will attempt to establish probable cause for issuance of the complaint. This is not a high standard. Even if there is probable cause, however, it is very important to appear and defend oneself with an experienced criminal defense attorney at this stage. It may be possible to reach a favorable conclusion at this stage and avoid the next step - arraignment and creation of a record. Followed by criminal litigation, and possibly a trial.

As for the driver of the Jeep: if a summons is received, be sure that it is for a hearing, and show up as scheduled. Preferably with competent representation.


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Stolen Property Charge Lodged After Routine Traffic Stop in Walpole

gps.jpgThe Wrentham District Court will hear Receiving Stolen Property charges against a Millis man because the Walpole Police stopped him for having a loud exhaust and then searched his car. According to the Walpole Times, John Chadwick was driving on Route 27 when Officer Bob Doherty noticed his loud exhaust. After the stop, Officer Doherty found that the car had an illegally altered muffler, no inspection sticker, and "a registry document that appeared to be tampered with."

The police called a tow truck performed an "inventory search." In the console, they found a global positioning system, jewelry, and gift cards. "Doherty . . . suspected that the items were stolen when the home address programmed on [the] GPS did not match Chadwick's address." The police were later able to match the items from the console to items that had been stolen from other towns. This, of course, was "great police work" according to Chief Stillman, and was great news to the owners of the property, but what about Mr. Chadwick's defense?

"Receiving" charges are brought against people when there is no evidence that they actually stole the property in their possession. To prove the charge in this case, there must be sufficient evidence to prove that Chadwick possessed the items, and knew that they had been stolen. In this case, the police asked Chadwick where he got the property, and he said that he got them at his house, "but he didn't know who exactly they belonged to." This statement does not help Chadwick's defense, and may tip the scales on the issue of knowledge.

There is, however, more to Chadwick's defense than just proof of the elements of the crime charged. Since this offense involves possession, an experienced defense attorney will explore the possibility of a motion to suppress - essentially arguing that even if he possessed the items, the police found them by conducting an unreasonable search and seizure. If the search was illegal, the evidence will be suppressed (kept out of evidence at trial) and the case will be dismissed. Let's look at the possibilities, step by step.

Was the stop of Chadwick's car justified? The reason for the stop was an allegedly loud exhaust system. Although it may be interesting to compare his exhaust to that of at least half of the motorcycles we hear during the warm months, this avenue will probably not produce positive results for Chadwick at a motion hearing. This charge, however, is a civil violation ($50 fine), and without more, should result in the issuance of a citation only.

Was the search of Chadwick's console justified? The officer did more than just issue a ticket for loud exhaust because during the stop he discovered that the car had no inspection sticker and had a registry document that appeared to be tampered with. For these reasons he decided to have the car towed. And when the police tow a car they must do an "inventory search" of the contents to protect themselves and the tow truck drivers from claims of missing property.

The problem with this is that the lack of an inspection sticker is also a civil offense that should simply result in the issuance of a citation. So it must come down to the allegedly "tampered" registry document. I can only assume that this document was the car's registration. This issue is, however, easily resolved at a traffic stop. The police, obviously, are able to check the validity of a cars' registration. Since Chadwick was not charged with driving an unregistered motor vehicle, we may assume the registration was valid. Therefore, it may be that the police should have simply issued Chadwick two civil motor vehicle citations and let him go on his way.

Even if the police were justified in towing the car, there is one more thing. Was the search of the GPS justified? After all, the article states that the officer became suspicious about the items in the console after he compared the home address on the GPS to Chadwick's home address. Scrolling around in an electronic device (cell phone, lap top, etc.) is a "search" which must have independent justification. Without the information gained from the GPS, it may be argued that the items should simply have been noted on an inventory form and either stored for safe-keeping or returned to Chadwick on the scene.

Even cases that appear to be "open and shut" require expert legal analysis.

Continue reading "Stolen Property Charge Lodged After Routine Traffic Stop in Walpole" »

Motor Vehicle Homicide Charges Brought Against Driver After Passenger Falls Out

Orleans Cruiser.jpgThe Orleans District Court will arraign Dennis Maskell on motor vehicle homicide charges Monday morning. According to Boston.com, at approximately 5:00 p.m. on Friday, Maskell was driving his pickup truck in Orleans when his passenger, Diane Cole, fell out. The rear tire on the passenger side struck Cole and caused serious injuries. Witnesses told police that the truck had been traveling slowly. The police arrested Maskell and charged him with driving under the influence of alcohol and negligent operation. When they later they learned that Cole died in the hospital, they charged Maskell with motor vehicle homicide.

The Massachusetts "Homicide by Motor Vehicle Statute" -- Chapter 90, Section 24G - has two main provisions. The first involves operating under the influence AND operating negligently and "by any such operation" causing someone's death. This charge is a felony punishable up to 15 years in state prison. There is also a mandatory minimum sentence of 1 year. That means no deductions. One must serve every day.

The other provision is a lesser charge. It involves operating under the influence OR operating negligently and "by any such operation" causing someone's death. So the distinction is obvious. One may be charged under this provision if one is simply negligent and not under the influence, or if one is simply under the influence and not negligent. As opposed to the felony charge where one must be both. The provision provides for imprisonment in jail for up to 2 ½ years. There is no mandatory minimum sentence.

Either way, a conviction will result in a 15 year loss of license. If it is one's second OUI charge, the registry of motor vehicles will suspend one's license for life.

So which will it be for Mr. Maskell? Since the police initially charged him with OUI and Negligent Operation, it appears that he will be facing the more serious felony charge. What may be proven, as always, is a different thing all together. Without seeing more of the evidence, it is hard to judge Maskell's chances of acquittal. But, if he were driving slowly and his passenger opened the door and fell out without warning, how can that amount to negligent driving? Again, for the felony charge, there must be intoxication and negligence and one or both must have caused the death. The prosecution must prove that something that Maskell did, or failed to do, set in motion a chain of events that caused Cole's death. And if not for those actions, Ms. Cole would not have died. This case is very different from the typical case where an allegedly drunk driver crashes and kills his/her own passenger. In this case, it may be that the passenger was negligent and Maskell was not.

Furthermore, what is the evidence of intoxication? The witnesses saw him driving slowly. There is no mention of erratic operation that would indicate impairment. Perhaps he had the odor of alcohol on his breath and failed sobriety tests and/or a breathalyzer. The article says that he made bail at the police station. If this had been a second OUI charge, or if Maskell had a long criminal record, the bail would have been significant and he may not have been able to post it.

Mr. Maskell is in need of an experienced criminal defense attorney to evaluate the evidence and obtain exoneration. Many different results are possible. It could be felony homicide, it could be misdemeanor homicide, it could be misdemeanor drunk driving, or it could be misdemeanor negligent operation. Obviously, my goal would be straight acquittal of all charges. And from what I have read, that may be obtainable.

Drunk Driving Charge Number Seven for Springfield Man

cuffs3.jpgOperating Under the Influence of Alcohol and other charges were filed against a Springfield man Wednesday morning, after his arrest by the Massachusetts State Police. According to the 03 Springfield, John Maher was speeding South on Route 391 in Chicopee at approximately 1:20 a.m. when he passed State Trooper Robert Church. Church claimed that Maher's pick-up truck was traveling at approximately eighty-five miles per hour when he passed. After pulling Maher over, Trooper Church made many of the usual observations found in OUI police reports -- blood-shot glassy eyes, slurred speech, alcohol breath, and unsteadiness on his feet. Back at the state police barracks, they learned that his "license had been suspended for eight years in 2006 at the time of his sixth OUI conviction."

"Maher was booked and charged with the following offenses:
1. OUI liquor, seventh offense.
2. Operating a motor vehicle with a revoked license, subsequent offense.
3. Reckless operation of a motor vehicle.
4. Operating a motor vehicle with a license revoked for OUI.
5. Operating a motor vehicle with a license revoked as a habitual traffic offender.
6. Speeding.
7. Marked lanes violation.
8. Failure to wear a seat belt."

A bail commissioner set his bail at $20,000.00. When he appeared in the Chicopee District Court later that morning, however, his bail situation changed drastically. The district attorney asked the court to hold Mr. Maher without any possibility of posting bail. This request was based upon "dangerousness." Generally bail is set simply to ensure that the accused does not flee and returns to court as scheduled. If, however, the prosecution is able to show the court that no terms of release, will prevent the accused from being a risk to the community, the court may hold the accused in jail without bail. Apparently the court granted the prosecution's request and ordered Maher "held without bail." Maher has a right to seek a change in these bail terms by appealing to the Hampden County Superior Court.

A few observations:

A conviction for a 6th offense today would result in a license loss for life, not for eight years. In fact, even a 5th offense results in a life-time suspension. Moreover, if anyone has his/ license suspended for anything more than a first offense, the law requires the installation of an "interlock" breath test devise in any vehicle that the person drives for a period of time. If a person that is required to have such a device drives a vehicle without the device, an addition felony charge would be filed. The potential penalty would be a mandatory minimum 150 days in jail and a maximum of five years in state prison. An interlock device is required when a person actually gets a hardship license or full license back after conviction. Maher had not even gotten to that point at the time of his arrest.

It could be that Maher's priors all occurred before Melanie's Law which increased OUI penalties and added new related offenses, including interlock crimes. (Failing to have an interlock, having another person breath into the interlock, etc.) Melanie's Law was enacted in October of 2005. Maher's 2006 conviction may have involved a drunk driving incident that occurred prior to that. A person, after all, may not be punished by a law that was enacted AFTER the commission of a criminal act.

It could also be that he had not actually been convicted of OUI six times in the past. Sometimes the records make it appear that there were more convictions than there actually were. In the early stages of a criminal case the police and prosecutors always choose the highest number. Afterward, that number sometimes goes down with a more complete search of the records.

In cases where a person is charged as a multiple OUI offender, the prosecution is required to prove the prior offenses at trial beyond a reasonable doubt. The prosecution may not simply show a person's uncertified probation record or uncertified driving history to do this. The prosecutor must obtain certified documents for each alleged prior conviction. The documents must contain important detailed information related to the prior conviction, or they will not be admitted at trial. So if they obtain six priors, but only 2 are admissible, the conviction will be for a third offense. This is very important to OUI defense attorneys and their clients when one considers that the penalties increase drastically with the number of proven priors.

When a person is charged as a multiple offender he is actually entitled to two trials. At the first trial, the prosecution must prove beyond a reasonable doubt that the person was driving under the influence of alcohol prior to the recent arrest. At this trial an experienced defense attorney will be sure to prevent the jury from hearing anything about prior convictions. To allow the jury to hear this would result in unfair prejudice. After all if the jury hears of prior similar crimes, they will likely assume that the accused was guilty of the present one too. (Or reason that an error in convicting on the preset charge is not a serious error because the accused is a criminal anyway). If convicted in the first trial, the defendant would then be entitled to a second trial at which the prosecution would be required to prove that the accused had previously been convicted. Again, each prior conviction would have to be proven beyond a reasonable doubt.

Since the news articles do not indicate that Maher failed a breath test, he probably refused to submit to one. According to Melanie's Law, this alone will result in a life time loss of license whether this is his 5th, 6th, or 7th offense.

A 7th offense OUI conviction carries a minimum sentence of 2 ½ years in state prison and a maximum state prison sentence of 5 years. In order to receive a state prison sentence, the prosecution is required to present this case to a grand jury and seek an indictment. If indicted, Maher will litigate this case in the Hampden County Superior Court. It is very likely, under these circumstances that the Hampden County District Attorney will be seeking such an indictment.

The charge of operating a motor vehicle with a license that has been suspended for drunk driving carries a mandatory minimum sentence of sixty days. If however, a person is drunk at the time, the mandatory minimum penalty increases to 1 year. The law requires that this sentence be served from and after serving any other sentence.

Needless to say, Mr. Maher has significant challenges ahead, and requires the expertise of a skilled criminal defense attorney.

Continue reading "Drunk Driving Charge Number Seven for Springfield Man" »

Vehicular Homicide Charge Brought Six Months After Accident

cross walk.jpgThe West Roxbury Division of the Boston Municipal Court arraigned Zyoma Vasserman of Newton yesterday on charges of Vehicular Homicide. Mr. Vasserman was driving on the V.F.W. Parkway between 9 and 10 p.m. on June 14, 2011 when he struck and killed a 17 year-old high school student. The 17 year-old was crossing the parkway with five friends when Vasserman struck him.

After the accident, Vasserman stopped and waited at the scene for the police and E.M.T.s. The police did not find that he was impaired or intoxicated at that time and Vasserman subsequently cooperated with investigators. According to Boston.com, those investigators found no suggestion of excessive speed, erratic operation, impairment, or negligence.

A full follow-up investigation apparently turned up evidence of negligence -- speed. According to a Metro article, the investigators found that Vasserman was traveling at 59 miles per hour in a 30 mile per hour zone. The State Police, according to a Boston Globe article, "concluded that Vasserman was driving between 46 and 59 miles per hour in the moments leading up to the collision point." This conclusion was apparently reached by a review of surveillance cameras from Vasserman's route.

A tragedy, yes. But, a crime? Let's take a closer look at what has been reported.

The Metro said that Vasserman had a "lengthy driving record." The Globe said that he has "a long history of driving infractions." The Suffolk County District Attorney's Office issued a press release entitled "Longtime Traffic Offender Charged With Motor Vehicle Homicide." Did these claims have anything to do with the decision to bring the charges? And exactly how bad is this man's driving history?

Well, the Globe reports that he has had five speeding tickets between 1990 and 2009. Five tickets in 19 years. So he averages one speeding ticket every 4 years. Not so bad, really. According to the Metro, RMV records revealed 11 moving violations in 28 years. That is likely his entire driving history. Eleven tickets in a lifetime? Is that really extraordinary?

Vasserman's driving history makes good press and it may or may not have had something to do with the decision to charge him, but one thing is for sure: no jury will ever hear about it at trial. This type of evidence is routinely excluded by experienced criminal defense attorneys because it is very prejudicial and has nothing to do with whether Vasser was negligent on June 14, 2011.

The police said they determined his speed by reviewing cameras along his route. What they did not say was they had data from a camera at the scene of the accident. Hence, we may conclude that they have no such evidence. Isn't this the most important place? After all, the question is whether he was negligent when he hit the young man. His speed a mile or two before the accident is just slightly more relevant than his so-called "lengthy driving record."

Where were these cameras? How far back were they? What were the speed limits at the camera locations? Were there other recordings that showed that he was actually driving at less than 46 miles per hour? Were other cars clocked at these locations? Were they going slower or faster than Vasserman? Negligence, after all is doing something that a prudent person would not do or failing to do something that a prudent person would do.

The State Police recently revealed the data from the "black box" in the Lieutenant Governor's car after his early morning crash. Did Vasserman's car have a black box?

What did the victim's five friends say during the initial investigation? They couldn't have said that Vasserman was speeding, otherwise the initial investigation would not have cleared Vasserman. At his arraignment Vasserman, through counsel, claimed that he was driving through a green light when the victim "shot out in front of him." He also said that the victim was not in the crosswalk. Well-respected prosecutor, Patrick Devlin, said: "It was a violent, tragic, and in the end, a preventable death." My question, however, remains: Was it a crime?

The crime charged here is punishable by imprisonment for not less than 30 days and not more than 2 ½ years. In addition, a conviction will result in a 15 year loss of license. Since Vasserman owns an auto repair shop, and needs to drive cars to operate it, we should expect that he will put up a vigorous defense.


Continue reading "Vehicular Homicide Charge Brought Six Months After Accident" »

OUI Charge Against Former State Legislator Headed for Lynn District Court

November 11, 2011

police at night.jpgMarblehead Police officer Chuck Sinclair responded to the scene of a single car crash at Brookhouse Drive and Tedesco Street on Wednesday night to find former state representative Doug Petersen standing outside his damaged BMW. According to the Winchester Star, Petersen was standing on a walkway talking on his cell phone and yelled "I was operating" to Officer Sinclair. Apparently, a witness told the officers that he/she saw the BMW travelling a rate speed which was too fast to make the turn onto Brookhouse. The front driver's side wheel hit the median, causing the car to swing around so that the rear wheel also "slammed into the curb." Emergency Medical Technicians evaluated Petersen on the scene, but he was not injured.

Sinclair reported that Petersen's breath had a "heavy" odor of alcohol, his eyes were glassy/blood shot, his speech was slurred, and he was unsteady on his feet. Petersen initially denied drinking alcohol, then admitted to drinking a couple of drinks, adding that he did not think he was drunk. The article in the Star stated that "[w]hen Sinclair attempted to test Petersen's horizontal gaze nystagmus . . . Petersen wouldn't follow direction." Officer Sinclair arrested him on a charge of operating under the influence of alcohol.

Petersen refused to participate in agility-based field sobriety tests, refused to provide a breath sample for the portable breathalyzer, and refused to take the breathalyzer test back at the station. According to the Salem News, while he was being booked he claimed to have taken medication earlier in the day and showed emotional mood swings. He is scheduled to be arraigned in Lynn District Court on Monday.

The following issues are relevant from the standpoint of an experienced criminal defense attorney:

1. Investigation. The prosecution's case like many OUI cases is based in large part on the testimony of the arresting officer. There are, however, independent sources of information that should be explored. The witness that saw the car speeding apparently stayed on the scene long enough to talk to the officer. That individual should be asked whether he/she noticed the same things about Petersen's appearance as the officer did. Additionally the EMTs should be interviewed for the same reason. Was he really that unsteady? Was the odor of alcohol really that "heavy?" Was his speech really that slurred?

2. Nystagmus. The "horizontal gaze nystagmus test" involves an officer holding an object in front of an operator's face and moving it off to the side. The operator is instructed to follow the object with his/her eyes only, without turning his/her head. The test supposedly reveals impairment if the operator's eyes begin to involuntarily jerk before the point where they normally would. In other words, an impaired operator's eyes would be unable to follow the object as far as sober person's eyes would. This may explain the wording of the article where it says "Petersen wouldn't follow direction." This gives the impression that Petersen was refusing or unable to follow directions. I would expect, however, that the report was merely explaining that his eyes would not follow the direction of the object. In any event, this is not likely to have much an effect on the trial because these tests, without explanatory expert testimony are routinely deemed inadmissible.

3. The Accident. The occurrence of an accident in connection with an OUI charge obviously hurts the defense case. Sometimes badly. An accident, however, may provide an alternative explanation to behaviors that would otherwise appear to indicate intoxication. A person involved in a high speed car crash, gets shaken up. This may account for being unsteady or even confused, and when one knows one is in that condition, it is wise to decline the invitation to perform physical agility tests. Add to this the nervousness associated with prospect of being arrested, and a dexterity drill is a daunting challenge.

4. The Admissible Evidence vs. the News. The news reports of this incident do not accurately portray the facts that may be admitted at trial against Mr. Petersen. The jury will be informed that it is not a crime to drink and then drive (with an odor on your breath). The jury will not likely hear that he refused to incriminate himself by taking so-called field sobriety tests. The jury will not be informed that he refused the breath test on the scene or at the station. (The portable test would have been inadmissible even if he had taken it).

These cases are never easy. In this case, however, an acquittal may be achievable. One of the biggest factors is the lack of an admissible breath test result. When the legislature, with the vote of Representative Petersen, enacted Melanie's Law in 2005, the importance of the breath test was amplified. It used to be that failing the test was just evidence of impairment, and the prosecution was still required to prove that an accused's ability to operate safely had been impaired by drinking. Melanie's law made it easier for prosecutors trying OUI cases where the accused failed the test. According to the law, the prosecutor now simply shows that the accused was driving with blood alcohol content above the limit. That's it. It is a crime to drive while over the limit no matter how safely one is able to do so.

The Registry of Motor Vehicles will suspend Mr. Petersen's license for 6 months because he refused the breath test. (Proponents of Melanie's Law had suggested a one year suspension, but that was voted down. Representative Petersen voted with the majority on this issue.) While Mr. Petersen lost his license for his refusal, he increased the odds of winning his case. After all, he knew the law better than most in his predicament.

Continue reading "OUI Charge Against Former State Legislator Headed for Lynn District Court" »