Massachusetts Criminal Defense Lawyer Blog

One of my passions as a lawyer is to become the best communicator I can be. I am interested in learning new communication methods, to become better at giving closing arguments. I offer these comments to share my knowledge on the issue.

In Closing argument, I want the jury to learn something about me or try to find different ways to regain the attention of the jury.  One way to do this is with charts or personal stories.

I try to create an analogy about my family, often my daughter to tell a lesson in the case. In DUI cases, often the officer has a perception that everything is a sign of DUI. Cannot find your license, because you are under the influence, not because you are nervous or found it in 5 seconds instead of 2 as the officer thought you should. Cannot balance on one leg, it is the alcohol, not that you just do not have great balance. Sometimes perception is an issue. This is an opportunity to make this point with a story.

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As trial lawyers, we routinely cross examine police officers.  Some officers have been questioned before and will gladly give us the response that we want.  Its easy to quickly go through the cross examination and loss its full impact with the jury.

One of the best CD I have listened to is from John Maxwell, Everyone Communicates and Few Connect.  In his lecture, he discusses how an actor performs the same play nightly and that every audience deserves a first time performance.

How do we make sure that a jury get the trial as if it were our 1st Trial, first time cross examining a police officer?

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Massachusetts OUI Defense lawyers will have the opportunity to challenge the accuracy and reliability of the breath test used in the State in a State wide hearing that will be heard in the Concord District Court.

The hearing has yet to be scheduled with a status conference coming up on September 17, 2015. The primary issues are anticipated to be the following:

  1. Discovery issues regarding the out of calibration regarding the breath test that prompted numerous counties to stop using breath test evidence for several months throughout the summer.
  2. Whether errors in the computer source code of the breath test 9510 make the machine unreliable scientifically.

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OUI drug charges can be difficult for the Commonwealth to prove. This was evident in the recent case of Commonwealth v. Sousa, decided last week. In this case the defendant was convicted of OUI drugs and negligent operation of a motor vehicle after a bench trial in the Malden District Court. Bench trials are very common for an OUI drugs charge given the technical nature of the evidence and defenses.

After the guilty verdict, this case was brought to the Appeals Court. The defendant had appealed his conviction because he had believed that the Commonwealth presented insufficient evidence that the defendant was, in fact, under the influence of a prohibited substance.  In reaching its decision, the Court relied on the decision of Commonwealth v. Ferola, which also found that the Commonwealth must presented particular evidence as to the substance it is alleged that a defendant is under the influence of to support a conviction.

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The Rape Trial of Owen Labrie began this week with opening statements and testimony of the complaining witness in the case.

In this Blog, I will review what I see as the strength of the Defense case and why I would expect the jury to find Owen not guilty on the Rape Charge.

The case revealed a disturbing culture at St. Paul Boarding, a New Hampshire prep school, which students referred to as a senior salute. The defense tried to downplay this culture, which ultimately is when older students attempt to ‘hook up’ with one freshman student before graduation, but it is clear that the school prompted a culture degrading to its younger female students.

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In a recent Massachusetts Supreme Court decision, Alfred Tirado v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, the Court held that a continuance without a finding (CWOF) is a conviction funder G.L. c. 90F, section 1, which governs the licensure of commercial drivers. The decision essentially means that CDL holders who plea to an OUI will suffer the same license loss as those found guilty of the charge.  The SJC’s decision in Tirado can be found here.

The case arose out of an Appeals Court decision vacating three Board of Appeals CDL suspensions where the drivers received CWOFs on OUI charges. The Appeals court held that a CWOF was not a conviction. The Board appealed and the Supreme Court overturned the Appeals Court’s decision.  You can hear the oral arguments from the case on the Suffolk Law School Website.

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In Massachusetts, anyone involved in a motor vehicle accident on a public road is required to stop and give his name, address, and car registration number to any other individual or vehicle operator involved in the collision.

If property is damaged in addition to the motor vehicles involved, or if people are injured in the collision, the operators are also required to give their information to the owner of the damaged property. Failure to do so can result in criminal charges, with hundreds to thousands of dollars in fines and years of confinement.

The chart below shows the consequences of failing to stop after causing property damage or damage to a person. It is important to note that a conviction of leaving the scene of an accident not only carries prison time and fees, but also license revocation as well.


In order for the court to convict a driver of the crime of leaving the scene of an accident, the prosecution must prove 5 elements beyond a reasonable doubt:

  1. that the defendant was the operator of the vehicle at the time of the accident,
  2. that he operated the vehicle on a public road or any place which the public has a right of access,
  3. that the defendant’s operation of the car caused the collision,
  4. that the defendant knew he had caused damage to another person or property,
  5. and that the defendant failed to stop to give his name, address, and registration number to anyone else involved.
  6. In cases where the injured person dies, the prosecutor must also prove this death, and must prove that the driver fled in order to avoid arrest or prosecution. A conviction in this type of case would be considered a “Felony” and must be issued out of a state Superior Court.

Because the burden remains on the prosecutor, there are many defenses that can be raised to raise doubt and challenge each and every element of the Commonwealth’s case. If you were involved in a car accident, and are facing charges for leaving the scene, it is important that you speak to an experienced criminal defense attorney to understand your rights and defenses before deciding how to proceed with your case.

In many leaving the scene cases involving property damage, the case can be resolved with the payment of restitution or a probationary period.  Though the statute allows for the possibility of jail time, if you have no record it would be unlikely to be imposed.  The issue you will face is whether you can resolve the case without a license loss and in a manner that avoids probation. Leaving the scene of personal injury is a more serious offense and the resolution of the case will depend on the seriousness of the injuries.


In a unanimous decision reached by differing concurring opinions, the Supreme Court of the United States finally resolved the question left open by Crawford asking whether statements made to persons other than law enforcement trigger the Confrontation Clause. Publishing its decision in Ohio v. Clark today, the Court unanimously voted that statements made to a teacher at a school program by a child suffering from domestic abuse were not testimonial, and so not barred by the Sixth Amendment Confrontation Clause.

The arguments before the court in this case were fierce, as the Court was poised to make a decision that would either limit a defendant’s Sixth Amendment right to Confrontation or restrict prosecutions of countless cases involving child abuse. You can click here to view a thorough outline of the facts of this case, the arguments, and the relevant law, in a prior posting on my blog.

The Majority decided this case primarily on its unique set of facts in this case, rather than by issuing a categorical legal rule. The Court explained that the record clearly reflected that abused child’s statements were not made with the primary purpose of furthering a criminal investigation or prosecution. Instead, the child spoke with the teacher with the primary purpose of addressing an ongoing emergency, and the teacher’s questions were targeted at eliminating the threat to the child’s life. The Court noted that the conversation was informal and spontaneous, and that even the child’s age (4 years old) calls to question the possibility that the child could appreciate the use of his responses in a criminal investigation while merely responding to his teacher.

Despite the Majority’s heavy reliance on the particular facts of this case to render an opinion, a few legal holdings did arise out of this case. First, the Majority opinion explained that the primary purpose test is not dispositive of the question of whether the Confrontation Clause is triggered, though it is necessary. In other words, although a statement must satisfy the primary purpose test in order to be barred as testimonial, not every statement satisfying the primary purpose test should be barred as testimonial. Both Justice Scalia and Justice Thomas took strong offense to this reading of the Court’s past decisions in their own concurrences.

Second, mandated reporters are not per se agents of law enforcement. The test remains a totality of the circumstances analysis in addition to primary purpose. Just because a teacher’s duty to report is triggered by a statement made to her does not render that statement testimonial. In other words, whether or not someone is under a legal duty to report child abuse is not dispositive, even if the statements resulting from the conversation have a natural tendency to further a prosecution.

The Majority opinion in this case seems to have avoided making any clarifications to what has been a very unclear area of constitutional law. One of the difficulties with these types of fact-specific opinions is that it leaves little guidance to courts and litigators as to how to argue these cases. The Majority opinion, written by Justice Alito, seems to have expanded the Confrontation Clause analysis beyond the relatively clear “primary-purpose” test to an analysis that requires consideration of other unidentified “conditions.” Defense attorneys will certainly continue to raise challenges and appeals in the Confrontation Clause context until the Court publishes guidance that is a bit more satisfactory.

The Massachusetts Supreme Judicial Court is requiring the Court to hold an evidentiary hearing on the reliability of the breath test device the Alcotest 7110. The SJC held that the trial judge’s decision not to hold an evidentiary hearing addressing challenges to the reliability of the machine was wrong. The SJC clearly stated that a defendant who makes a proper showing addressing the reliability of the breath test machine is entitled to a hearing. In other words, the Court stated that trial judges are not permitted to assume that the breath test machine is accurate merely because the legislature approves breath testing under the law, but that breath test is scientific evidence that the Court should hold a hearing to address challenges to its reliability.

The SJC indicated it would retain jurisdiction of the case and require a report within 90 days. It appears that the SJC will review any decision of the district court and address the three issues that it indicated were raised by the case.

The hearing in Com. v. Kirk Camblin, will address the following issues:

  • The Reliability of the Source Code for the Breath Test Machine;
  • Whether the Alcotest 7110 is scientifically reliable because it does not test exclusively for ethanol;
  • whether the Alcotest’s calibration method allow the Alcotest to accurately measure BAC.

The SJC rejected one of the defense arguments that the Alcotest was not infrared technology as required under Section 24K because the infrared portion of the machine does not alone control whether the machine produces a valid test result. The SJC found that even though the Alcotest also uses fuel cell technology it does not negate that it is using infrared breath technology under the Statute and regulation.

Issues to be Decided by the Trial Court and Reviewed the State Supreme Court

Flaws in the Source Code

The defense produced an expert that found over 7, 000 errors and 3, 000 warning signals in the Alcotest computer source code. The Commonwealth contends that despite those errors the breath test machine is still reliable and source code errors are to be expected in a complex computer program. The SJC indicated that the Court does not require scientific evidence to be infallible, but that an evidentiary hearing was needed to address this claim.

As part of his reason for denying the evidentiary hearing, the trial judge relied on the case of State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825 (2008) where the New Jersey Supreme Court rejected a challenge to the reliability of the Source Code; however, the SJC held that trial court cannot resolve these claims without allowing for an evidentiary hearing.

Breath Test is not Specific for Alcohol

The defendant argued that the Alcotest was also incapable of measuring exclusively for ethanol. The defense argued that the Alcotest cannot distinguish between interfering substance and compounds that absorb light at the same micron level as ethanol. The defense claimed that the Alcotest is not capable of measuring alcohol to the exclusion of other interfering substances. The Court reviewed the affidavits submitted by the Commonwealth and found that they were confusing and the record was unclear. The Court indicated that on remand the Court should determine if the Alcotest is sufficiently ethanol specific such that the results are reliable and untainted by interfering substances.

Challenge to the Calibration

The challenge to the calibration seems to be the strongest challenge of the defense. This challenge is different from the calibration errors that have been reported in the media. This challenge is that regulations require a calibration prior to every breath test. The defense claimed that even though the Alcotest appears to calibrate itself, that the source code of the machine takes a different path and executes different instructions for the calibration measurement when it measures the individual’s breath. The defense claims that the machine is not conducting a proper calibration prior to every test as required by the regulations. The SJC noted that the Commonwealth did not rebut any of the defense claims on this point.

What’s Next

This case will be sent back to the district court where a hearing on these issues will be conducted. The Court will address whether:

1. The source code errors are too numerous to make the machine accurate and reliable 2. The Breath test is not sufficiently specific for ethanol to make the results reliable 3. Whether the Alcotest is calibrating itself prior to every test.

As a Massachusetts OUI Lawyer, the outcome of this case is extremely significant because the evidentiary hearing will provide an opportunity to uncover flaws with the Alcotest software. As a practical matter, most charged with OUI, even if they could afford an expert to dispute the reliability of the results, cannot afford to hire experts to address issues pertaining to the machine’s source code. Given that the Commonwealth did not study or test the source code prior to implementing the breath test, but assumed its reliability, this hearing is an important opportunity uncover flaws with the breath test machine that are very technical and could go uncovered as a result of the high cost to a defendant to uncover problems with the source code.

In the case of Commonwealth v. Alphonse, the Massachusetts Court of Appeals awarded a new trial based on the improper argument of the prosecutor. One of the more common grounds to appeal a criminal conviction is based on improper arguments during closing.

In this case, the prosecutor argued that the defendant had the opportunity to tailor his testimony because he was present during the testimony of all the witnesses and not sequestered like other witnesses. This argument was improper because a defendant is Constitutionally required to be present during all testimony and must be present to be afforded the right to confront and cross examine witnesses.

In this case, the Judge cautioned the prosecutor that the argument was improper and indicated to the jury his displeasure regarding that type of argument. Additionally, the judge did grant a directed verdict regarding one of the counts of the criminal complaint.

The Appeals Court found that the improper argument was so significant that it granted a new trial as the key issue in the case was credibility. Improper closing arguments are one of the more common grounds for a court reversing a criminal conviction.

The position of a prosecutor is not suppose to be that of just an advocate but as representative of the Government and attempting to promote justice. A prosecutor is not permitted to make improper arguments to essentially attempt to win at all costs to influence the decision of the jury. Given the argument, it could be the prosecutor had little else to argue other than comment on the fact that the defendant was present during all of the testimony, which is Constitutionally required. Accordingly, the Appeals Court properly granted the defendant a new trial in what would have been a conviction for domestic assault and battery.

For further reading on Improper Closing Arguments, Attorney Stephen Salzburg wrote an excellent article on this topic for the America Bar Journal.