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Marijuana Possession with Intent to Distribute Charges Look Thin and Illustrate Questions About Mass. Marijuana Laws

marijuana.jpgMarijuana charges were brought against a couple after a traffic stop in Brookline early Sunday morning. According to the an article in the Milton Patch, Catherine Burns was driving her car with her date, Armond Smikle, as a passenger when the Brookline Police allege that she drove through a stop sign. The officer conducting the stop approached the vehicle and claimed to have smelled a strong odor of alcohol "emanating from Burns." The officer also alleged the usual symptoms - slurred speech and eyes that were bloodshot and "glossy."

The article then states that the officer "went to check their licenses." This is interesting. Why would the officer take Smikle's license? The law does not require that passengers carry identification, or even provide it to the police. Perhaps -- and this may be wishful thinking -- the officer was anticipating that the driver may be arrested and he wanted to know if he could let Smikle take the car and avoid the tow. After all, at that stage, there was no reason to suspect the passenger of a crime. Unfortunately for Smikle however, that changed almost immediately.

While checking the licenses the officer claims to have seen the couple reaching around to the back seat of the car. He also said that Smikle opened the door. All of this could have been innocent activity, but during an early morning stop, the police take no chances. The officer called for back up.

A bad situation got worse when one of the responding officers smelled "fresh marijuana" in the car. This is somewhat surprising. I know that many police officers are trained to recognize the particular scent of marijuana, but in circumstances like these it is amazing that an officer was able to make this detection. They were out on the streets of Brookline in the early morning hours with a woman who was giving off a strong odor of an alcoholic beverage, and an officer was able to individualize the scent of fresh marijuana coming from the same area. If there were large trash bags full the crop in the vehicle this would make more sense. But, the police would find only 2.9 ounces in the center console, which I assume was wrapped in plastic. Stunning. Their drug detection dog performed a follow-up sniff and only came up with a "smoking device." It is unclear how that device escaped the officer's scent-assisted inspection. After all, the pipe must have been used, otherwise the dog would not have focused on it, and as such one would expect an odor even stronger than that of raw marijuana.

The police charged Burns with Operating Under the Influence of Alcohol, and charged them both with Possession of Marijuana with the Intent to Distribute.

Why has the couple been charged with having an intent to distribute marijuana? It is not even a crime to possess an ounce or less, and there was not all that much more than that in the center console. There were no large sums of cash, scales, or packaging materials to support an inference of distribution. Sometimes it appears that, in light of decriminalization, prosecutors have forgotten that it is still a crime to possess more than one ounce. Should that not be the charge? Every amount over an ounce does not signify an intent to distribute. And the pipe indicates that someone in the car most likely intended to smoke it, not sell it.

Moreover, Smikle would be correct in wondering why he has been charged with having anything to do with the marijuana it at all. Where is the evidence that he possessed it? Even if he shared the officer's sense of smell, and thereby knew that there was pot somewhere in the car, that knowledge does not go very far towards proof that he possessed it, much less that he was contemplating any sales.

What about the smoking device? The article described it as "plastic and hollow." Apparently they were not charged with possession of drug paraphernalia. This, by the way, is still a crime in Massachusetts. Will medical marijuana patients violate this law if they chose to use a pipe instead of rolling their own?

Putting aside the OUI charge, how would the case of Burns and Smikle look if either one of them had a valid prescription? For an answer a good place to start would be the proposed medical marijuana regulations, which allow for a medical marijuana patient to possess a sixty-day supply. The proposed regulations suggest that 10 ounces would be a reasonable sixty-day supply. That is, unless a physician determines that a patient needs more. How does 2.9 ounces denote an intent to distribute when 10-plus ounces is a reasonable sixty-day supply?

For one thing, I suppose we must have faith that medical marijuana use is very different from illegal recreational use. Prescription holders are expected to take their doses incrementally over time to address their diagnosed symptoms. Prescription holders are expected not share or sell their medical marijuana. Prescription holders are expected to refrain from driving under the influence of marijuana. And prescription holders are expected to possess only non-criminal ingestion devices.

Those accused of failing to follow medical marijuana rules and those without prescriptions would be well advised to seek experienced criminal defense counsel.

Continue reading "Marijuana Possession with Intent to Distribute Charges Look Thin and Illustrate Questions About Mass. Marijuana Laws" »

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? 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 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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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 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.


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.

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.


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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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, 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" »

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" »

Quincy Court to Hear OUI and Wiretapping Charges Against Bobby Orr's Daughter-in-Law

IPhone OUI.jpgThe Cohasset Police arrested Chelsea Orr (Bobby Orr's daughter-in-law) last week and charged her with operating under the influence of alcohol and violation of the Massachusetts wire tap statute. News reports say an EMT found her hiding in the bushes near her flipped-over SUV on Tuesday night. The police noted an odor of alcohol and described her speech as "thick tongued and slow." She admitted that she had been drinking and the police allege that she failed a field sobriety test, and refused to take the breath test. The officer that drove her back to the Cohasset Police Station claims that she was hostile and threatened to have him fired.

At some point Ms. Orr asked to see a doctor, presumably to be checked for injuries from the crash. The Cohasset Police apparently accompanied her to the hospital where she claimed that she had recorded their conversations with her cellular telephone. For this, the police brought an additional charge under the "wire-tapping statute." She was arraigned on all charges the next day in the Quincy District Court and released on $1,000 bail.

The drunk driving charge has its strengths and weaknesses. On the plus side: 1) from the wording of the report, it appears that she only took and failed one field sobriety test (which may be chalked up to the traumatic effect to her physical and mental state after the harrowing experience of flipping over in her vehicle); 2) there is no breathalyzer reading, which if high can be devastating to the defense (and the jury will not be informed that she refused the breath test); and 3) no-one actually saw her driving badly.

On the negative side, first of all, there is a claim that she was hiding in the bushes. This does not necessarily mean one is intoxicated, but it is unusual and may actually show a consciousness of guilt. She also admitted to drinking, had thick slow speech, and allegedly threatened to have the officer fired. The first two are classic police report descriptions of intoxication indicators. In fact, I expect there are a few others (red, glassy eyes, etc.) that are not included in this story. The threat to have the officer fired, while not necessarily related to intoxication, will not garner any sympathy with a jury. Lastly, although the accident may help explain her failure of the field sobriety test, it certainly is not an overall positive. Being charged with OUI after a car accident creates a difficult legal atmosphere. Luckily ,it appears there were no other vehicles or pedestrians involved. That would have been a lot worse.

Whether or not she is guilty of operating under the influence of alcohol, the news reports indicate that she made a number of bad decisions that may impact that case.

The wire-tapping charge is obviously separate from operating under the influence, but it may also be one of those things that make the entire case more challenging. The charge resulted from her own statement to the police that she had been taping their conversations with her cellular phone. This, the police claim, was in violation of chapter 272, section 99 - the Massachusetts wiretap statute.

At first blush this charge appears to contradict a fairly well publicized decision out of the Federal Court in Boston this summer which stated that recording the police during an arrest does not violate the wiretap statute. The statute only makes it illegal to secretly record the police or anyone else. That is without their knowledge or consent. In her case Ms. Orr recorded the police in secret, while in the federal case the individual was doing the recording out in the open with the police watching him.

A violation of the wiretap statute is actually more serious than the driving offense in that it is a felony punishable by a maximum prison term of five years and a maximum fine of $10,000.00.

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Dedham Police Make OUI Arrest after Following Anti-Freeze from Accident Scene

Antifreeze leak-resized-600.jpg.pngThe Dedham Police were alerted by witnesses to a hit and run accident last Wednesday, and later arrested Ms. Kaitlyn Crowley for operating under the influence of alcohol. According to the Patch article, the witnesses told the police that Ms. Crowley's car hit a fence on Central Avenue and left the scene. Apparently the vehicle left a one and a half mile trail of anti-freeze right to Ms. Crowley's driveway off Smith Circle in Dedham, where the police found the car with front end damage.

The article says that the police "administered a field sobriety test, which she allegedly failed." It also says that the police did not provide information "on what spurred police to give the sobriety test." (I'm sure this was the result of an alleged "odor of alcohol.") As a result of their investigation, the Dedham Police charged Ms. Crowley with leaving the scene of an accident after causing property damage and operating under the influence of alcohol. By now she has been arraigned in the Dedham District Court.

In addition to the unusual circumstance of police following a trail of engine coolant, this short story is interesting because it illustrates some potential legal issues which, no doubt, will be hashed out in the Dedham District Court.

1. What did the witnesses see?
Although the article says that the witnesses told police that Ms. Crowley drove into the fence, further investigation may reveal that they saw a car hit the fence, and gave the Dedham Police the license plate number. This is important because in order to be convicted of either charge, the prosecution must prove "operation" beyond a reasonable doubt. Just because she owned the car, does not necessarily prove that Ms. Crowley was driving it when it hit the fence. Whether the witnesses are able to identify Ms. Crowley as the driver, therefore, may be a contested issue. (Incidentally, if the police had the plate number, they would not have needed the coolant trail; they could have found Ms. Crowley's residence with their Mobile Data Terminal.)

2. What did Ms. Crowley say?
If Ms. Crowley made admissible statements to the police that she had been driving, there will be no real contest on the issue of operation. The fact that she agreed to perform a field sobriety test implies that this may be the case. However, when a defendant's incriminating statements are part of the prosecution's case, an expert defense attorney will evaluate the possibility of a Motion to Suppress those statements. For example, if Ms. Crowley had been in custody while answering questions, the absence of Miranda warnings ("You have the right to remain silent . . .") should result in an order deeming the statements inadmissible at trial.

3. Is there sufficient evidence of impaired driving?
Even if the prosecution has evidence that Ms. Crowley was behind the wheel, knowingly hit the fence, and went home without reporting it, there may be insufficient proof of alcohol impairment to sustain the charge of operating under the influence. Hitting the fence is surely a significant obstacle to be overcome in this regard, but the article hints that there may not be a lot more. First, it says she took "a" field sobriety test. The police usually ask for at least three. Moreover, it would be helpful to know which one she took, and how badly she allegedly failed it. Second, these articles usually make it a point to describe the results of breathalyzer tests. The absence of this information may mean that Ms. Crowley did not take the test at all. While there are negative consequences involved with refusing the breath test, the lack of a reading is a net positive when it comes to defending this charge.

4. How long had Ms. Crowley been home?
The longer she had been home before the police arrived, the more difficult it will be for the prosecution to prove that she was intoxicated at the time she was driving. For a conviction, the evidence of impairment and driving must be connected in time. If for example, she were impaired at the time of the sobriety test because she had a drink after arriving at home, the connection is in doubt.

All in all, there seems to be some significant issues to work with in Ms. Crowley's defense.

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Wrentham District Court Arraigns Foxboro Man Involved in Alleged OUI Crash Causing Serious Injuries

cuffs.jpgFoxboro Police responded to a single car crash on Elm Street early Sunday morning to find that Shane McCarthy had been thrown from the wreck and seriously injured. He was taken to Providence Hospital and induced into a coma. The driver, 20 year-old Edward Ryan, suffered only minor injuries, but was taken to Norwood Hospital in the custody of the Foxboro Police.

According to an article in the Sun Chronicle, Ryan took and failed a portable breath test and the Foxboro Police arrested him on the scene. The breath test reading was 0.192. (For drivers under the age of 21 a reading of .02 or above is considered a failure). The following day, Ryan was arraigned in the Wrentham District Court on charges of Operating Under the Influence of Alcohol, Operating Under the Influence and Causing Serious Bodily Injury, and Negligent Operation.

Mr. Ryan is in particular need of an experienced criminal defense attorney. Besides having a car accident that seriously injured a friend, he must now combat some weighty criminal charges. The fact that he had a car accident at 4:00 a.m., and had consumed alcohol even though he was under the legal drinking age are serious obstacles to overcome.

An accident has varied implications in drunk driving cases. One may tend to believe that it is indicative of alcohol impairment. On the other hand, one's performance on field sobriety tests after such a trauma will be significantly skewed. The article does not mention any such tests. As for the portable breath test, the results may provide probable cause to arrest, but they are not admissible in court at trial. Since the article does not refer to an admissible breath test, it does not appear that the prosecution will have admissible evidence of blood alcohol levels unless blood was drawn at the hospital. It is likely that other facts exist that may be utilized in favor of the defense.

The most formidable charge Ryan faces is "Serious Bodily Injury by Motor Vehicle While Under the Influence of Intoxicating Substances." This crime is set forth in Chapter 90 section 24L of the Massachusetts General Laws. This section makes a distinction between OUI/Serious Injury and OUI/Serious while operating recklessly. It appears that the Foxboro Police charged Mr. Ryan with the latter more serious charge. This charge is a felony and carries a potential state prison sentence of not less than 2 1/2 years and not more than 10 years. There is a county jail alternative of not less than 6 months and not more than 2 1/2 years. This is a mandatory minimum 6 months of incarceration. In such circumstances it is possible to negotiate an amendment to the lesser charge which does not carry a mandatory sentence. After all, an accident in and of itself is not proof of recklessness and there does not appear to be any independent evidence of such driving.

Although it is not likely to be foremost on Mr. Ryan's mind at this stage, the potential loss of license is substantial. This is due to the charges and his age. Underage drivers are subject to enhanced penalties in OUI cases. If the lack of a breath test result is because he refused it, the loss of license is 3 years. A conviction on the OUI/Serious Injury charge will result in an additional 2 years loss of license.

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Massachusetts OUI Arrests Decline and Some Police Believe More Getting Away with It

OUI.jpgDrunk driving arrests in Massachusetts have declined this year according to an article in the July 20 Boston Herald. This is interesting because on July 14 the Boston Herald reported that "cops are busting boozy motorists at a record-breaking pace so far in 2011."

The Herald attempted to explained the contradiction. The paper said that it was due to an erroneous reading of complicated data from the Massachusetts Registry of Motor Vehicles. The Herald relayed the RMV's explanation "that the ["DWI Liquor"] category includes only some OUI violations" and that there were a large number of uncounted violations "in which the offender was sentenced to alcohol rehabilitation or treatment."

So, even though the articles were about arrests, the RMV numbers did not include people that were actually arrested and assigned to a treatment program. This is somewhat confusing, especially since the first article was counting citations. And as such would be an accurate way to count arrests. Why would a citation not be counted because the offender was assigned to treatment? Furthermore, if they are not counting the same numbers this year that they failed to count last year, wouldn't the first article be correct?

In any event, it may be that the RMV data showed convictions and the articles were focused on arrests. A first offender may actually admit to an OUI charge and not be convicted. After the admission, the case may be "continued without a finding" for a period of time, during which he/she must complete an alcohol treatment/education program.

What is even more interesting are two different reactions to the data. Massachusetts State Police spokesman, David Procopio responded to the article that described the spike in arrests by saying "we're very proud of what's happening out there . . . . we are working hard at trying to help people save themselves." When asked for reaction to the correction, he said that the decline in arrests was because they had fewer troopers available to patrol the roads. So, for the state police, more arrests are good because they are catching the drunk drivers. And conversely, fewer arrests are bad because it means that a lot of drunk drivers are getting away with it. This, of course, assumes that the number of drunk drivers remains a constant regardless of their efforts. Pessimistic?

Contrast this with anti-drunk driving advocates' reaction to the article describing the spike. In the first article they were quoted as saying that "the startling numbers signal a need to strengthen the laws." Unfortunately, the second article did not contain their perspective. One, however, would expect that they would be pleased with the decline and credit their efforts to stiffen penalties and educate the public.

In fact, in 2008, an anti-drunk driving advocate stated that increased enforcement coupled with "strong education and public relations program [sic] to let people know that they will be caught for drunk driving and facing stiff penalties, it is going to have an impact." ["Crackdown yields spike in OUI arrests" Boston Herald, Mike Underwood, June 26, 2008.]

I guess it all depends on your motives and perspective. Hopefully the advocates are right and their efforts (as well as police efforts) over the last several years have paid off.

Continue reading "Massachusetts OUI Arrests Decline and Some Police Believe More Getting Away with It" »