Massachusetts Criminal Defense Lawyer Blog A blog for lawyers looking to improve trial skills and to learn recent case law relating to DUI and Criminal Defense

Up to 1000 DUI cases in Philadelphia may be impacted by a faulty breath test machine that was not properly calibrated.  What happened in Philadelphia is that an expired solution was used to calibrate the breath test machine.  This error was discovered by a DUI Lawyer likely in preparing one of his cases in order to attempt to have the results excluded at trial.  Gray Hall wrote an article for ABC6 in Philadelphia discussing the problems with the machine and notes that the police department were quick to say that the machine was working properly and that is was human error.

In Massachusetts, we are in the process of our own litigation over the accuracy of the breath test machine. Over 700 cases have been stayed awaiting the resolution of the litigation in the Concord District Court which concerns the following issues:

  1. Is the Computer Program, known as the source code, scientifically reliable?

The Massachusetts SJC rule on July 1, 2016 that a juvenile can be required to stand trial as an adult for involuntary manslaughter in a case that has drawn national attention, as the juvenile defendant is charged with encouraging another juvenile to commit suicide through text messages.  Text messages were a major portion of the evidence presented to the grand jury.

The SJC outlined the facts presented to the grand jury.  The grand jury heard evidence that the defendant knew that her boyfriend at the time had a history of mental illness, prior suicie attempts and the court found that many conversations during the time period concerned suicide and the defendant doing the following according to the court, encouraging the victim to commit suicide, chastising him for not doing it, instructing him how and when to do it as well as assuaging his concerns over taking his own life.

The defendant was alleged to have spoken to the victim while he was in the act of committing suicide and sent a text message to another friend saying that she told him to get back into the truck. The SJC further recounted evidence that the defendant understood her role in the victim’s death by trying to delete text message evidence and told another friend that she could have prevented his death.

A New York woman was not read her Miranda rights prior to a 45 minute, unrecorded interview with police after her husband’s kayak capsized in the Hudson river, resulting in his death.  A police investigator claims that Angelika Graswald told him that she took her fiance’s paddle after he capsized and held it while he begged her to call 911.  Graswald was not read her Miranda rights prior to the 45 minute unrecorded interrogation she had with detectives.  Police claim that during the interview, Graswald admitted that there was a plug in her fiance’s kayak and that she took it out.  Police claim that Graswald became a suspect only after that meeting.  In Massachusetts, the SJC Court has held that it prefers interrogation to be recorded and that a failure to record an interrogation can be held against the Commonwealth in determining whether the statements were voluntarily made.  The lack of a recording should be held against the State in determining whether it satisfies its burden of showing a valid waiver of Miranda.

The Miranda warning is a right to silence warning given by police to a criminal suspect in police custody before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings.  Miranda is part of a preventive criminal procedure rule that law enforcement are required to administer to protect an individual who is in custody and subject to direct questioning or its functional equivalent from a violation of his or her Fifth Amendment right against self-incrimination.  The admission of an elicited incriminating statement by a suspect not informed of these rights violates the Fifth Amendment right against self incrimination, and the Sixth Amendment right to counsel.

An officer is free to ask questions before an arrest, but must inform the suspect that the questioning is voluntary and that she is free to leave at any time.  If this information is unknown to suspect, then the statements are not admissible in court.  In the case of Graswald, she was questioned alone on the island from which she was rescued.  This is hardly an environment that would make someone with no experience with the police feel free to walk away from.  Graswald said that police kept asking her the same questions until she was at her breaking point. She says that she told them what they wanted so the interview would end. These statements by Graswald show that she did not feel free to leave during the questioning, and therefore these statements should be inadmissible.

The U.S. Supreme Court ruled on Thursday that states cannot make it a crime for a drunken driving suspect to refuse to take a blood test but can criminalize the refusal to take breath tests to determine alcohol levels.  The ruling will affect laws in 11 states.  The justices ruled that police must obtain a search warrant before requiring drivers to take blood alcohol tests, but not breath tests.  The court considers breath tests less intrusive than blood tests, hence no need for a warrant.  The ruling came in three cases in which drivers challenged so-called implied consent laws in Minnesota and North Dakota as violating the Constitution’s ban on unreasonable searches and seizures.  Other states that have criminalized a driver’s refusal to take alcohol blood or breath tests include Alaska, Florida, Indiana, Louisiana, Nebraska, Rhode Island, Tennessee, Vermont and Virginia.

Implied consent laws make the assumption that by driving on a state’s roads, you are deemed to have consented to testing if you are suspected of drunk driving.  All fifty states have imposed some form of implied consent laws.  Many states have tough laws if a driver is found to be driving under the influence.  These tough laws have created a problem of their own: drivers, particularly those who have had a lot to drink or have prior drunk driving convictions, may opt to refuse the tests, because the consequences of doing so may be less severe than what they would face if convicted of drunk driving. This dilemma led the eleven states mentioned above to create statutes that make refusing alcohol testing a crime.

Alcohol testing is a physical trespass search within the meaning of the Fourth Amendment, and therefore it must fall within a Fourth Amendment exception in order to be conducted without a warrant.  The Court ruled two years ago in a case involving the search of an arrestee’s cellphone, courts should instead look at the extent to which the search intrudes on the privacy of the person who is being arrested, as well as the extent to which the search is needed to promote “legitimate governmental interests.”  The Court today held that there is no real physical intrusion from the breathalyzer test, and that keeping drunk drivers off of the street is a legitimate government interest.By contrast, the Court concluded today, blood tests do not pass constitutional muster to be conducted without a warrant.  Although they too help promote “legitimate government interests,” they are “significantly more intrusive” than breath tests: they require the technician taking the sample to pierce the driver’s skin, extracting a sample that provides law enforcement officials with more information than a breath test.

The Statewide challenge to the accuracy of the breath test machine used in Massachusetts took a positive turn for the defense with a ruling from Massachusetts Supreme Court Justice Botsford.

The Massachusetts Supreme Judicial Court ruled that defendants in a set of cases should be provided access to breathalyzer instruments and the necessary related materials to permit dynamic testing to be performed. The defendants in the cases of Commonwealth v. Figuereo and Commonwealth v. Ananias challenged the scientific reliability of the alcohol breath test results produced by a model of breathalyzer used throughout the Commonwealth, the Alcotest 9510. In both sets of cases, a Daubert-Lanigan hearing is anticipated, and this decision is an effort to define the scope of discovery relating to the defendant’s challenges to the reliability of the Alocotest’s breath test results.

The defendants have been permitted to conduct both static and dynamic testing of the Alcotest in relation to their anticipated hearings. Static testing involves analyzing the “source code” used in manufacturing the instruments and tailoring them to meet Massachusetts specifications. The “source code” of the breath test, and most computerized devices, is the code written by computer programmers when they develop the software that runs the machine. As the source code is written by programmers that created the breath test, having access to that code allows defense attorneys to have the code analyzed by a programming expert to determine whether the machine has any errors or faults.

The Connecticut State Supreme Court has upheld the abolishment of the death penalty, including for death-row inmates in the re-examination of the case of State v. Santiago.  Last August, the Court held that the death penalty was unconstitutional following the legislature’s abolition of capital punishment three years ago. The legislature made the law to apply only to new cases and kept in place the death sentences that were already imposed on those facing execution. This law left 11 men on death row to await execution. Attorneys for the inmates on death row challenged the law, saying that it violated the inmates’ constitutional rights. The justices in the majority wrote that executing an inmate “would violate the state constitutional prohibition against cruel and unusual punishment” and that the death penalty “no longer comports with contemporary standards of decency.” The majority essentially said that it would be unfair to execute the remaining death row inmates when lawmakers had determined that the death penalty was no longer needed for future convicts. Inmates on death row will now be resentenced to life without parole.

The constitution of Connecticut prohibits cruel and unusual punishments under, as held in the Eighth Amendment of the US Constitution. The death penalty is categorically excessive and disproportionate when imposed on certain classes of offenders. Further, the death penalty is subject to random and arbitrary imposition due to biases and discrimination. The defendant’s life is left in the hand’s of the jury that has virtually unquestionable discretion whether to sentence him to death if convicted.

The United States is the only Western Country still applying the death penalty. There are currently still 30 states that uphold the death penalty as a sentencing option, as well as the federal government. Of these states, seven have put executions on hiatus without an official end to the death penalty. However, more and more restrictions are being put in place as time goes by. The death penalty may only be used if the defendant is convicted of or pleads guilty to a capital offense. The death penalty has been ruled to be unconstitutional for minors and those with intellectual disabilities.

What happens if the Commonwealth loses evidence in a case, like your booking video in an OUI arrest?  A recent case provides new answers to this question.  Although this is not a drunk driving case, attorneys can use the reasoning in this case to advocate in upcoming cases.

In Commonwealth v. Carroll Heath, No. 15-P-227, the Massachusetts Appeals Court held that the Commonwealth’s failure to preserve booking video was negligent, that it prejudiced the defendant’s case and warranted a new trial. This case is a victory for defendants who have suffered the loss of a booking video. Booking videos are often strong pieces of evidence for the defense because they objectively show the defendant on the date of their arrest. While this case is not a drunk driving case, this case may help OUI Lawyers argue for some type of remedy when the police department loses or destroys a booking video in an OUI case.  Video evidence increases the chance of having breath test evidence excluded from trial as it shows whether the officer followed the proper procedure in administering the breath test; you can learn about these issues on my website.

The defendant in the Heath case was charged with assault and battery of a police officer. The assault and battery allegedly occurred during booking at the Haverhill police station. Prior to trial a motion to preserve video evidence was allowed. At trial it became clear that the booking video had not been preserved. The arresting officer in the case testified that he was aware that booking video did exist which would have captured the defendant on the night of his arrest, but that the video had been erased.

The Massachusetts Supreme Judicial Court heard oral arguments in the case of Neary-French v. Massachusetts last week to decide the question of whether a defendant should be advised of his or her right to counsel prior to making the decision of whether or not to submit to a breathalyzer test. The 2003 amendment to G.L.c. 90, §24 created the “.08 or greater” per se theory by which an OUI offense can be proven. Because a breathalyzer test can result in per se proof, the decision whether or not to submit to the test becomes a critical stage in conviction for an OUI. A critical stage is one in which the defendant’s rights could be sacrificed or lost. Before the 2003 amendment, the right to counsel did not attach because the Court did not consider the test a ‘critical stage’ in the criminal process and the assistance of counsel would create an undue delay in the administration of the test. There were reasonable safeguards in place to protect the defendant’s right. The 2003 amendment removed defendant’s safeguards and caused the breathalyzer to become a critical stage in the criminal process because the outcome of the test could possibly be the sole basis of a conviction.

Counsel for the defense illustrated what the process would look like if the right to counsel were afforded. When a person is pulled over for suspicion of driving under the influence, they are immediately taken into physical custody. When they get to the station, they are then booked, a process that can take up to an hour. There is ample time to allow the defendant the right to consult with their attorney before the decision to submit to a breathalyzer test. There is concern about the dissipation of alcohol while the defendant is waiting on their lawyer. However, so long as the defendant is afforded the opportunity to place a call to a lawyer shortly after they arrive at the station, there will be a reasonable window of opportunity for the lawyer to advise their client without interference in the test process.

Courts in other states have held that the right to counsel attaches to the decision to submit to a breathalyzer test, including Oregon, South Dakota, Texas, Vermont, and New York. All of these states have found that the right to counsel before a breathalyzer test is guaranteed under the Sixth and Fourteenth Amendments. It is not enough that a suspect in custody is given their Miranda rights, as Miranda only applies to testimonial evidence. The decision to submit to a breathalyzer is a critical stage in the process of conviction for an OUI and should be treated as such. The right to counsel should attach to ensure a safeguard for defendants before they make the decision that could produce direct evidence against them.

Massachusetts Supreme Judicial Court Justice Botsford heard oral argument today relating to the Statewide challenge to the Alcotest breath test machine used to prosecute drunk driving cases in Massachusetts.  She heard appeals in the two challenge to the breath test source code, one arising from the Concord District Court and the other arising out of the Boston Municipal Court.

From the argument it appears as though Justice Botsford will rule in the following way:

Justice Botsford indicated she would try to find a way to consolidate the two cases as it does not make financial or practical sense to have two hearings challenging the breath test machine.  Further, she asked both sides if they could live with the protective order drafted by Judge McManus.  The defense indicated that all clients in the Concord litigation would prefer to have their case consoidlated with the Boston litigation.  Additionally, Justice Botsford asked if the defense expert would sign the protective order drafted by Judge McManus. The defense indicated he would sign it.  In contrast, the defense expert refused to sign the protective order drafted by Judge Brennan who is presiding over the Concord breath test litigation.

The Massachusetts Supreme Judicial Court heard oral arguments recently in the case of Commonwealth v. Carter. Carter is charged with involuntary manslaughter for encouraging her boyfriend, Conrad Roy, to commit suicide. The question the court must answer now is whether evidence that a juvenile has encouraged someone else to commit suicide constitutes “infliction or threat of serious bodily harm” for the purpose of indicting Carter as a youthful offender. Massachusetts currently does not have a statute about whether encouraging another person to commit suicide is criminally punishable.

Carter’s attorneys contend that verbally encouraging someone to commit suicide, no matter how forceful the encouragement, does not constitute a crime in Massachusetts. Carter’s encouragement did not cross the line to conduct that caused Roy’s death. Carter’s attorneys argue that verbal action of encouragement does not constitute “wanton and reckless behavior that results in the death of another” under the Massachusetts involuntary manslaughter statute. Roy was 30 miles away, and her encouragement was telling him to “get back in the car” where he then committed suicide by carbon monoxide poisoning. He got back into the truck with the intention of ending his own life, with no coercion from Carter.

Carter’s attorneys argue that words alone cannot be wanton and reckless. If someone makes a decision to participate in a dangerous activity, it is not because the words of another were wanton and reckless. Even the encouragement to take place in a game of Russian Roulette is not enough to constitute wanton and reckless behavior without the fact that the encouragement is to participate in the underlying crime of taking another’s life.