Massachusetts Criminal Defense Lawyer Blog

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.

The Supreme Court’s reasoning was based on the Federal Commercial Vehicle Safety Act of 1986 and the subsequent Motor Carrier Safety Improvement Act of 1999. The acts increased the range of offenses that could disqualify someone from maintaining a CDL and implored states to “unmask” dangerous commercial drivers. The regulations stated that practices allowing commercial drivers to enter diversion programs, “masked” convictions and allowed unsafe drivers to pose a risk to other motorists. Massachusetts adopted the 1986 Act in 1998 and amended it in 2006 to include an “anti-masking” provision.

The plaintiffs argued that a CWOF does not require an adjudication of guilt and therefore cannot be considered an admission of guilt or a conviction. The court dismissed the argument and instead held that a defendant’s admission to sufficient facts, accepted by a judge, is enough to show that the defendant violated or failed to comply with the law.

The court further reasoned that the language used in 90F; “to the extent that provisions of this chapter conflict with general licensing provisions this chapter prevails”, shows that the Legislature intended for the statute to be construed liberally.

This decision is an important one for anyone charged with an OUI that has a CDL. CDL holders should closely examine their case with an experienced attorney and consider taking their case to trial.  Attorney DelSignore is a Massachusetts OUI Lawyer that has assisted CDL license holders avoid OUI convictions and maintain their eligibility to hold a CDL license.

 

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.

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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.

The Massachusetts Supreme Judicial Court heard oral argument in the case of Tirado v. Board of Appeals addressing the issue of whether a CWOF qualifies as a conviction for the purposes of CDL license suspensions. In Souza v. Registrar of Motor Vehicles, 462 Mass. 227 (2012), the SJC held that a CWOF could not count as a conviction for the purposes of calculating subsequent offense license suspensions. The SJC found that because the legislature did not explicitly state that a CWOF was a conviction it could not be used to enhance a license suspension by the RMV. The legislature quickly amended the statute to include CWOF as convictions.

The legislature however, never amended the CDL statute to address whether a CWOF was a conviction for the purposes of CDL license suspensions, leaving the SJC with an issue of great importance for Massachusetts OUI Lawyers.

Under Chapter 90F Section 1, a person is disqualified from holding a CDL license if he or she has certain convictions. The statute defines a conviction as follows:

An unvacated adjudication of guilt; a determination that a person has violated or failed to comply with the law in court of original jurisdiction, in an administrative proceeding, if the adjudication of guilt is within it jurisdiction; an unvacated forfeiture of bail or collateral, deposited to secure a person’s appearance in court, a plea of guilty or nolo contender accepted by the court, the payment of fine or court costs.

The Board of Appeals argued that a CWOF is a determination by the court that a person violated the law and that the Massachusetts statute was meant to mirror the federal statute to include a broad definition of conviction.

The defense argued that since the legislature never explicitly stated that a CWOF is a conviction it was not meant to be covered by the statute and that the legislature could have drafted the statute to explicitly define a CWOF as a conviction.

The federal regulations broadly define a conviction as an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or by an authorized administrative tribunal.

The Board argued that the definition of conviction under the Massachusetts statute mirrored the federal law. In response to one of the questions from a Justice, the lawyer for the motorist was asked what would a determination that a person violated the law consistent of if it did not include a CWOF. The lawyer for the motorist argued that because that finding is not imposed, it cannot qualify as a conviction. The Justice inquired if any other State uses the term CWOF. It appeared that the Justice may side with the Board based on the questions. The Justice suggested that the Court believed that a CWOF is the equivalent of a determination that a person violated the law and is at least as much of an adjudication as a determination that a person violated the conditions of release.

The State argued that failure to comply with the federal definition of conviction would result in Massachusetts losing federal funding and causing the federal government to shut down its CDL license program. As a result the legislature must have intended the Massachusetts statute to mirror the federal law.

The argument has important implications as if the Court accepts the argument that a CWOF is not a conviction those with CWOF would not be considered prior offenders for the purposes of applying for a CDL license in Massachusetts.

The defense argued that in the absence of specific reference to a CWOF in the federal statute or the Massachusetts statute, the issue is whether the plain language of the statute supports the Board’s interpretation of conviction. Relying on Souza, the defense argued that the Court already ruled that a CWOF is not an adjudication of guilt. Because any finding of guilt is deferred, the motorist argued that no judge made a finding that the defendant violated the law.

One lesson from this appeal is that the definition of conviction is extremely broad when you hold a CDL license.

The Massachusetts Appeals Court in an unpublished decision ruled that the lack of an operator’s manual for the new breath test machine did not bar admission of the test results into evidence. The decision was an unreported decision. This decision has been anticipated for almost a year by Massachusetts OUI Lawyers as it was argued on June 5, 2014. The Court held that the power point presentation was sufficient as training for the officer and that the defendant did not claim that the officer lacked formal training to administer the breath test.

The Court held that the OAT was in compliance with the regulation and even assuming it was out of compliance the Court would not have suppressed the breath test result. The Appeals Court did not read the regulation pertaining to the breath test manual as requiring the Office of Alcohol Testing to create a manual.

The decision from the Appeals Court can be appealed to the SJC if the Court grants further review. The timing of this decision is interesting in light of the disclosure that some breath test machines were not properly calibrated. The Office of Alcohol Testing found that the error was caused by the fact that the officers were not trained to ensure that the calibration satisfies the Massachusetts standards. The Appeals Court’s decision essentially minimizing the significance of the regulation requiring that the Office of Alcohol Testing to prepare an operators manual is unfortunate given that this would have prevented unreliable test results from being admitted in numerous cases which caused the most recent controversy surrounding breath test results.

Given the difficulty I had in finding the full decision I have copied it below:

breath test manual decision.pdf

In Commonwealth v. Crayton, 470 Mass. 228 (2014), the SJC issued an important decision regarding in court identification testimony. The SJC held that if there is no prior identification of the defendant by the witness prior to trial, then an identification for the first time in court is unnecessarily suggestive and the CW must file a motion in limine to admit the in-court identification.

The Court held that an in court identification is suggestive in the same way that a show up identification is and should require the Commonwealth to establish the same foundation to admit the identification. The Court held that it will treat an in court identification without any prior identification as an in-court show up and require the Commonwealth to show good reason for its admission. The Court listed a number of factors that would fall within the “Good Reason” category:

Concern for public safety;
Victim was familiar with the defendant Arresting officer

The Court held that it was not addressing the issue of whether its rule would apply to eyewitness that saw was not present during the commission of a crime, but may have observed the defendant before or after. The Court is referring to a witness that would testify that a defendant appeared calm after the commission of a crime, or appeared nervous or made some statements. Its unlikely this scenario would come up as the police would show the witness a picture or a lineup to establish that the police have the correct suspect.

The court held that if prior to trial the defendant was put in a room and the witness was asked, is that the defendant”, the Court held that it would find that identification suggestive. The Court reasoned that an in-court identification without any prior identification by the victim is essentially the same thing. The Court held that cross examination and jury instructions are not sufficient to avoid the prejudicial impact of a suggestive in-court identification under those circumstances. The Court relied on social science research about the prejudicial impact of suggestive identifications. The Court’s focus on avoiding suggestive identification is critical as the Innocnence Project sites false identifications as one of the leading cause of false convictions.

The Crayton case arose out of a suggestive identification for the defendant who was charged with possession of child pornography. His conviction was overturned and the court held that its new rule regarding identification would apply to all pending cases going forward and would not have retroactive application. To read the Crayton decision follow this link.

As a Massachusetts criminal defense lawyer, this decision may come in in charges involving burglary, an assault and battery involving a large number of people or any other crime where identification may be an issue, such as a larceny offense.

What happens if you are arrested at an OUI roadblock in Westboro, Massachusetts? In this Blog, I will explains the three things you need to know to confront the charge.

First, understand that your first court appearance will be for arraignment. This is not a date that the court expect you to resolve the case, but a date for you to be notified of the charge and you will receive another court date for a pretrial conference.

Second, many OUI Roadblocks are winnable at trial. With no evidence of erratic driving, but in fact evidence of safe driving that assist you in your defense, the Government is at a substantial disadvantage in prosecuting the case against you.

What evidence will the Commonwealth rely on? With no evidence of erratic driving, the Commonwealth will have to rely almost solely on field sobriety tests, which are inaccurate, unreliable and subject to many attacks as unfair and not showing someone is under the influence of alcohol. In addition to field tests, the Commonwealth will rely on the officers observations, as to your speech, appearance and behavior. In many roadblock arrest police reports, the officer makes a short report and has little detail of his or her interaction during the stop.

To learn more about roadblock arrests, you should watch this video that explains the process.


To ask questions about your arrest, feel free to contact me on my cell phone at 781-686-5924 or office line at 508-455-4755.

The news this week of errors with breath testing in Massachusetts has had a major impact on the prosecution of drunk driving cases and raises the potential of hundreds of wrongful convictions and or wrongful pleas that were not supported by accurate evidence. One reason this has occurred is the ease with which prosecutors can admit breath test evidence at trial. The Commonwealth can admit the results without calling any witness that knows anything about how the machine operates. At a trial, the breath test operator will typically testify that they are taught to push the button, wait for the machine to run its self checks and if the machine does not report any error, the results are fine. The officer will often admit to not understanding the science behind the machine.

The Commonwealth is not required to call any expert witness from the Office of Alcohol Testing to verify the accuracy of the results. In a case known as Commonwealth v. Zeininger, 459 Mass. 775 (2011), the Massachusetts Supreme Judicial Court said that breath test records can come into evidence without live testimony because the records are not testimonial, meaning that the Court was saying that the records do not accuse a person of a crime but report “neutral” data. The Court’s reasoning was flawed and allowed evidence to come in a trials without being properly tested through cross examination. In light of the disclosure of the problems with the machine, the SJC should reconsider its decision in the Zeininger case that is partly the cause of unreliable evidence being presented to jurors during OUI trials.

This bring us to the error that prompted many counties to hold off using breath test results, including Suffolk, Middlesex, Worcester, Essex, Northwestern, Barnstable County.

Prosecutors are explaining that the error is that the manufacturer has broader tolerance for errors than the State regulations and as a result the machine does not notify of the operator of an error. According to the MyFoxBoston report, police are trying to minimize the significance of the problem by claiming they were not properly trained and had inadequate understanding of the machine. Despite district attorneys declining to use the results, police departments will still offer breath tests for those arrested for OUI over this weekend according to a Boston Herald report.

When the breath test machine calibrates itself prior to each individual test, it was suppose to read between .076 and .084 on a known alcohol solution that was suppose to be .08 percent. The problem was that the machine was reading outside of the calibration without notifying the operator of the error. Accordingly, the machine did not have the ability to self-check its own errors as officers testified occurred during OUI trials.

The issue is that prosecutors and police officers have been testifying since the Alcotest 9510 was first used in 2012 in Massachusetts that the machine would not produce a result unless it was working properly. This testimony that occurred in almost every trial with breath test evidence was clearly wrong and inaccurate. The calibration numbers are at least evident from a breath test ticket, but the machine performs many functions that would be undetectable unless the machine was completely examined which does not happen during a trial or even during the annual certification of the breath test machine.

The breath test machine is suppose to have a mouth alcohol detector, a sensor that determines there is no alcohol in the chamber prior to the breath test and makes calculations to convert a breath alcohol reading into a blood alcohol percentage based on an individual partition ratio. All of these functions of the machine are assumed to work properly. The periodic testing of a breath test machine is simply running a known sample through the machine five times. The machine is never challenged to see if any of its features work during the periodic testing. The annual certification of the machine is not rigorous either with the machine being tested at different alcohol levels of .08, .10 and .20 with a sample made in a laboratory.

The problem with breath testing runs much deeper than officers not being trained to catch if the machine fails to calibrate, but centers around having a machine represent per se evidence of guilty in a criminal case and having no reliable evidence in court that it works, other than the machine did not tell us there was an error. Only in a drunk driving case can someone be convicted of a crime based solely on the result of a machine, that even during trials, police witnesses acknowledge they do not know how it works and simply push the buttons waiting for an error message.

The Office of Alcohol Testing should create meaningful testing of the breath test machine while the Courts should recognize that breath test evidence should require live testimony subject to cross examination at trial, rather than permitting the Commonwealth to submit documents, claiming to show accurate results without anyone to provide meaningful testimony as to how to interpret the records and verify that the machine was working properly.

To read more about breath testing and the error with the machine, you can see my previous Blog on the topic.