Many OUI stops originate from a report of someone on the road claiming that another driver is driving erratically. In many cases, the officer will follow the motorist and make independent observations justifying the stop. In some cases the stop may be solely the result of the 911 caller. The SJC addressed this issue on October 26th of 2015 in Commonwealth v. John Depiero. The Court heard oral arguments in this case with a decision expected within three or four months.
Search and Seizure that occur in the home are subject to the highest scrutiny by the Court. The case of Commonwealth v. Colon addresses whether a protective sweep complies with the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights.
What happened in the Colon Case?
Officers arrived at the home of Robert Colon and knocked on the door, waiting for the defendant to open it. Upon opening the door, the officers identified a “strong odor” of fresh marijuana. This prompted the officers to handcuff the defendant and preform a protective sweep of his apartment.
A protective sweep a search done when there is a reasonable belief based on “specific and articulable facts that the area could harbor a dangerous individual”.
The Supreme Court is reconsidering a death row conviction from 30 years ago after the prosecution’s notes from the jury selection process were found to contain multiple indicators of racial bias. Despite the evidence showing illegal racial discrimination, the State of Georgia is disputing the case, alluding to the brutality of the murder and suggesting that the racial references were done to “prepare” the prosecution for future cases where racial bias may occur.
Police officers in Massachusetts and in particular State police officers have increased the number of arrests for OUI drugs, including marijuana. Massachusetts law prohibits a person from driving under the influence of marijuana, but it is difficult for the Commonwealth to prove this in Court. Recent case law, also may provide further defenses for those charged based on a violation of their Article 12 rights under the Massachusetts Constitution.
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.
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?
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:
- 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.
- Whether errors in the computer source code of the breath test 9510 make the machine unreliable scientifically.
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.
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.