Under Massachusetts OUI Law, a motorist must receive a citation immediately when being charged with OUI.  In a case where a motorist is not placed under arrest, the citation provides notice to the motorist of the OUI charge.  By not providing the citation immediately, A Massachusetts OUI lawyer can seek dismissal of the charge under the no fix statute.  This is what occurred in a recent case.

A Massachusetts Superior Court has dismissed an OUI charge after the 4 ½ month delay in the OUI citation was found to have not been in compliance with OUI Law and procedure. In Commonwealth v. Burnham, the defendant was the driver in a car accident but was never charged with OUI by the police officers that found him. It wasn’t until the defendant was later arrested on an OUI charge in an unrelated incident, that the prosecutor obtained medical records from the initial accident and cited him with OUI despite the time lapsed.

About the Case

The Murder trial of Justin Ross Harris will require the jury to piece together the circumstantial evidence of the prosecution and determine the intent of Harris, did he accidentally leave his son in the car as the defense content or was it intentionally, as the prosecution claims.  Monday’s opening statements showed defense attorney Maddox Kilgore refer to his client as being responsible, for a “tragic accident” and not for malice murder. The defendant, Justin Ross Harris, has plead not guilty to charges of malice murder, two counts of felony murder and first degree cruelty to children.

During the trial, Attorney Kilgore plans to use testimony from Harris’s ex-wife who- despite hostility towards Harris and the ending to their relationship- will testify that Harris was a good father and loved his son.

About the Case

The Massachusetts Supreme Judicial Court has excluded evidence obtained from the cellphone of the defendant in Commonwealth v. Onyx White following the Boston Police’s failure to prove probable cause for the warrantless seizure of the phone.  The court affirmed that the warrantless seizure of a cell phone in the robbery-homicide investigation could not be justified by the detective’s personal judgment as to whether or not the cell phone contained important information relating to a case. The SJC ruled that the 68 day delay in the respective search warrant application was was unreasonable and that the Boston Police department should have prioritized the application for the respective search warrant or released the cell phone back to the defendant.

About the Case

After speaking with an administrative at the defendant’s high school based on his connection to a robbery-homicide, the administrative had informed the detective that she was in possession of the defendant’s personal cell phone as part of school policy. After gaining approval from his supervisor, the detective seized the cell phone in order to prevent the defendant from tampering with any potential evidence stored in the phone. A search warrant was issued 68 days later following the emergence of new information. Although the detective did not search the phone prior to the search warrant, the forensic search revealed evidence significant to the investigation.

How does the RMV in Massachusetts determine if an out-of-state DUI conviction should count as a prior offense in Massachusetts?  When a motorist is charged with an OUI offense in Massachusetts, the offense level is determined by the number of prior offenses that the person has in their lifetime. This includes out-of-state offenses.

Prior offenses from another State count as a prior offense in Massachusetts if the DUI law in that state is substantially similar to Massachusetts OUI laws, which are contained in Chapter 90 Section 24.

Does a DUI Conviction in New York Count as a prior offense in Massachusetts?

The Massachusetts Supreme Judicial Court ruled that a dangerousness hearing provides a prior opportunity for cross examination under the Sixth Amendment in the case of Commonwealth v. Carlos Rodriguez, decided on September 22, 2016.  The Court upheld a conviction for domestic assault and battery without the testimony of the victim, despite its holding that the victim statements to the police were testimonial because the defense lawyer had an opportunity to cross examine the victim at a dangerousness hearing.

In this case, the defendant went to trial in the Springfield District Court for assault and battery As is common in domestic cases, the victim declined to testify.

Often, when someone is charged with domestic assault and battery, the person charge will assume that the case will be dropped if the victim does not wish to testify. In fact, the Commonwealth can still prosecute the case as this recent case illustrates.

As a Massachusetts OUI lawyer who has represented numerous clients dealing with an OUI charge, I understand it can be extremely difficult. In this blog I want to offer some guidance on how to get through the charge. For many people it is their first time ever being arrested or facing any type of criminal charge. So the stress and anxiety of being charged with a crime is high. Here are a few things that I believe will help you to deal with the situation.

First offense OUI is easy to be charged with. Essentially, it’s a crime of opinion. The officer’s opinion could simply be wrong. However, once you are charged, you have to go through the process and be found not guilty in court to avoid a conviction.  There are very few counties in Massachusetts that will negotiate an OUI, meaning reduce it to negligent operation.  As a generally rule, in 99% of the cases, you will have to go to trial to avoid an OUI conviction.

There is a good chance of winning such cases. Keep in mind, regardless of how the case turns out, whether it is guilty or not guilty, it is a misdemeanor offense, and an offense that many people have gotten through. You are highly unlikely to go to jail for a first offense OUI. I typically tell my clients, whether it be continuing to go to school or work, try to stay on the same course as before you had the charge.

The Massachusetts Supreme Judicial Court found that the police had no reasonable suspicion to stop a black male walking on the streets in Roxbury believed to be a suspect in a breaking and entering. As result of the seizure, the police found a hand gun; the Court ordered it suppressed as there was no basis for the detention of the defendant.

The SJC overruled the decision of the motion judge who would found no Constitutional violation under the 4th Amendment or Article 14. The Court decision held:

  • Flight provides little or no weigh in an analysis of reasonable suspicion unless the person is committing a crime, as the police could induce flight and thereby create a suspicion where none exits.

Key to Cosby’s success at upcoming jury trial will be the judge’s ruling on numerous motions in liming defining what evidence the jury will get to hear at trial.

A judge has ruled that prosecutors can use a phone call that was taped without Bill Cosby’s consent as evidence in his sexual assault trial.  Cosby argued that because he did not know the call was being taped, that it should be excluded from evidence under a two party consent law.  However, the judge denied the request according to a report by Fox News.

The case raised some interesting legal issues, include whether the Court will allow prior bad acts of uncharged conduct into evidence at trial.  Generally, prior bad act evidence would be inadmissible at trial, but can be admitted if it shows a common plan, scheme or method of operation.  A judge has to determine whether the probative value of this evidence out weights its unfair prejudice to the defendant.  A jury is instructed that the defendant is not charged with committing any prior bad acts and that it cannot consider those prior bad acts as proof of the current charge. But prior bad act evidence to be used to show motive, state of mind, intent, common scheme, absence of mistake or identity.  In Aaron Hernandez’s recent murder trial where he was convicted, the judge did not permit the Commonwealth to offer into evidence that the victim knew that he was allegedly involved in a 2012 shooting.  The Court ruled that this testimony would have been unfairly prejudicial.  Accordingly, the defense was allowed to argue that he had no motive to commit the crime.  The reason that the judge declined to allow this evidence to come into evidence at trial is that it would have been too difficult for the jury to keep the alleged prior bad act separate from the criminal conduct that the defendant was on trial for.

One of the most important aspects of building a successful criminal defense practice is being able to relate to the client and understand the client’s fears and anxiety when going through an uncertain court process.  For most clients, it is their first interaction with a lawyer and the criminal justice system.  I have found that we can reduce the client’s anxiety by explaining the process in greater detail.


In an excellent Article in the Champion Magazine produced by the National Criminal Defense Lawyer Association, Chelsea Davis, Ayesha Delany-Brumsey, and Jim Parsons, wrote an article from the Client’s perspective where they interviewed clients to gain their perspective of their lawyer.

Generally speaking, attorneys are fully equipped to understand and interpret the law. As an attorney’s primary duty revolves around providing legal counsel to their client, it is sometimes easy to forget that clients are not as familiar with the criminal justice system. The attorney- client relationship, specifically the communication between the two, can either contribute to or hinder the development of positive working relationships. Defendants, more often that not, are unclear about even the basic elements related to court procedure, and it is common for attorneys to overestimate exactly how much their client understands regarding the proceedings according to the article.

Not only is it important for clients to understand the basic proceedings of the court system and the law, clients feel the need to share their side of the story with their attorney. In a study conducted, 35% of respondents identified a positive experience during the first encounter with their lawyers. Almost two thirds thought the experience was both negative and stress inducing. Clients want to feel as if you understand their version of the events, and appreciate when you listen to what they have to say regarding their case as this quote from a client illustrates:

“She didn’t introduce herself. She said she was a lawyer… She didn’t write anything down and had no paperwork. She didn’t do anything. She didn’t ask me about my opinions or what I think or anything” (NACDL, 2016). 



Attorneys, when asked, more commonly than not identified their clients satisfaction as being directly related to the outcome of the case. However, we know that this is not true-as clients themselves actually reported that communication with their attorney was significantly more crucial to their experience. The quality of the communication between both the client and the attorney has the ability to influence a clients overall opinion of his of her attorney, regardless of the outcome of the case.

Overall, a clients satisfaction can be increased by, as an attorney, taking simple steps to improve overall relationships with clients and keeping the communication open. Simplygoing through the motions upon obtaining a new client will not result in a successful practice. Ensuring your clients understand the court process, what exactly is going on in their case, allowing the client to tell his or her story, and providing your client with the idea that you understand and believe them will result in an improved relationship. Continue reading

Drugs convictions and other types of criminal convictions may be vacated based on the lack of oversight at the Braintree Police Department.  Following the completion of an audit conducted on Braintree Police Department’s evidence room, it is suspected that thousands of items, items such as weapons and money, are among the missing. It is estimated that roughly $407,998.oo in cash is missing from the department, and nearly 60 guns have gone unaccounted for (Patriot Ledger, 2016).  This week according to the Patriot Ledger several drug trafficking charges were dismissed, this scandal is likely to result in numerous motions for new trials and to vacate pleas in cases involving the Braintree police, alleging new discovered evidence, lack of knowledge of the status of the evidence and or ineffective assistance of counsel in making a plea or in handling the trial.  To learn more about what rights you may have if your were arrested by the Braintree police, you should contact a criminal defense lawyer or fill out the form on our website.

Not only are several thousand pieces of evidence missing, the audit revealed the disheveled record-keeping, or lack thereof, was completely mishandled- evidence was left unlabeled and sexual assault test kits were simply left outside in a trailer. A whopping total of 4,709 pieces of narcotics evidence are unable to be accounted for, and 38 pieces have been tampered with- meaning they have been opened or left unpackaged. In theory, the evidence is supposed to be stored in an orderly fashion, with a chronological date attached as well as the Braintree Police property number. However, this was not the case.

Over several years, it is common for police departments to seize massive amounts of money from offenders. While this sort of evidence is supposed to be kept track of and monitored frequently, the evidence bags containing money at the Braintree Police Department appeared to either be ripped open or cut at the bottom. Mostly, this cash was the product of crimes which occurred in the years of 2001, 2002, 2012 and 2013 (Patriot Ledger, 2016), with a majority of this money missing from 2001 specifically.