Fourth Amendment challenge to breath test refusal statute rejected by Appellate Court

November 14, 2014,

Most drivers don't realize that every state requires a driver suspected of drunk driving submit to a blood-alcohol test or face mandatory license suspension. This requirement is outlined in "implied-consent statutes." Although the U.S. Supreme Court has partially addressed the constitutionality of these statutes, a recent defendant in Illinois unsuccessfully appealed with the state Appellate Court challenging the constitutionality of such statutes under the Fourth Amendment.

The Arrest
The case of the People of Illinois v. Gaede involved a defendant who was arrested for drunk driving associated with a hit-and-run incident. The defendant was operating a motorcycle when he was stopped by an officer responding to reports of a hit-and-run. After failing field sobriety tests, the defendant was arrested for an OUI and transported to the county jail where he was read his rights and warnings. The defendant then chose to refuse the required chemical breath test, and as a result, his license was immediately suspended. The jury found the defendant guilty of the OUI, and the defendant appealed.

Defendant's Appeal
The defendant's argument on appeal consisted of two attacks on the state's implied consent statute:


  1. First, a blood-alcohol test is an unreasonable search and seizure under the Fourth Amendment, and so requires that officers obtain a search warrant before measuring the blood alcohol content without the defendant's consent; and

  2. Since the state's implied consent statute requires that defendants submit to blood alcohol or otherwise be penalized, the statute effectively violates the Fourth Amendment on its face since the defendant would punished for exercising his right to privacy in his body and its contents.

Court's Response
The defendant's argument that the implied consent statute is facially unconstitutional was rejected by the Appellate Court of Illinois for two main reasons:


  1. The defendant does not have grounds to argue that the statute is facially unconstitutional under the Fourth Amendment since he not only was permitted to, but did in fact, withdraw his consent to the blood alcohol test; and

  2. The state's heavy interest in law enforcement and preserving public safety outweighs the defendant's right to privacy under the Fourth Amendment, and so justifies the state's intrusion under the implied consent statute.

With regard to the court's first conclusion, the court found that the defendant was given an opportunity to refuse the blood alcohol test, and did choose to withdraw his consent to it after his arrest. As a result, no test was ever administered and so the defendant's Fourth Amendment rights could not have been violated. And since a facial constitutional challenge against the statute requires that there be no possible way for the statute to not violate the Fourth Amendment, the defendant's argument here fails.

The second conclusion relies heavily on earlier U.S. Supreme Court case law that addresses blood alcohol tests. Although the Supreme Court did previously conclude that a blood alcohol test is a "search" within the Fourth Amendment, that does not necessarily mean that it is always an "unreasonable search" requiring a warrant. Under the cases of Missouri v. McNeely (133 S.Ct. 1552 (2013)), Schmerber v. California (384 U.S. 757 (1966)), and Skinner v. Ry. Labor Executives' Ass'n (489 U.S. 602 (1989)), a warrantless blood alcohol test is permissible if the delay in procuring a warrant would result in the destruction of evidence critical to the state's interest in law enforcement. In an OUI context, the relevant evidence is the alcohol in the defendant's body, which naturally dissipates to an unmeasurable size after a certain period of time, leaving the prosecution's case without persuasive evidence. The test, under the Supreme Court cases requires that courts consider the totality of the circumstances.

Every state has adopted some form of the "implied consent" statute, requiring drivers to agree to submit to blood-alcohol tests as a condition of licensure. In Massachusetts, every driver agrees to this condition when he signs the paperwork at the RMV to receive his state license. If a driver refuses to consent, the RMV automatically imposes a license suspension, rendering the driver incapable of commuting to work until the case is favorably resolved. Mass. Gen. Laws ch. 90, § 24( I)( f)( I) (2007). Because OUI charges have such drastic consequences that immediately take effect, it is critical that a defendant critically retain an experienced defense attorney who will be able to persuade the prosecutor to reduce the penalties or otherwise obtain a "hardship" license for the defendant.

ACLU Petition for Improved Response to Annie Dookhan drug lab cases

November 10, 2014,

Surpreme Judicial Court Justice, Associate Justice Margot Botsford, has requested that state's highest court dismiss thousands of the drug convictions that Annie Dookhan had handled evidence for. Based on a petition filed by the American Civil Liberties Union (ACLU), Botsford submitted a five-page report, in which she also describes the need for a more 'systematic approach' to the convicted cases tied to Dookhan. Supported by the ACLU, Botsford believes the Dookhan case needs to be taken more seriously, and that the issue of mishandled evidence is more profound than the court believes.

Background
Annie Dookhan was arrested and charged in 2012 with a total of 27 charges- including counts of obstruction of justice, tampering with evidence and perjury. In November 2013, the chemist pleaded guilty and was sentenced to 3-5 years jail time. Responsible for over 40,000 cases during her 10 year career at the Boston lab, Massachusets govenor Deval Patrick closed the entire lab and ordered prosecutors to reevaluate cases tied to her work.

The ACLU Petition
In the petition filed by the ACLU, the union suggests that the state failed in serving the convicted defendants involved cases tied to Dookhan's work. The ACLU argues that the state should increase their effort in alerting defendants about both the possibility of tainted evidence and the possibility of a new hearing.

If the petition goes fourth, there are a couple of things that would happen:
• The court would dismiss all cases linked to Dookhan and prosecutors would be given 90 days to decide whether they want to re-prosecute.
• If prosecutors wish to re-prosecute, they are disallowed from seeking harsher sentences than had originally been given.
• Although every case tied to Dookhan will be considered as 'suspicious', defendants are responsible for proving that they would not have pleaded guilty if they were aware that their evidence could have been mishandled.

According to the Boston Globe will hear the petition, Suffolk District Attorney Daniel Conley believes the court is likely to reject the request, describing it as "transparent, self-serving demands to exploit a crisis that is finally under control".

The criminal investigation in the Dookhan matter highlights the role of mishandled evidence in criminal cases, and the profound impact that it has on the outcome of a case. Botsford is essentially accusing the court of disserving convicted defendants, denying them of full access to justice. If a case is based on tainted evidence, it can damage the entire outcome of the case. Scientific evidence is highly valued by the court and can often sway a verdict, misinforming expert witnesses, misleading the jury and disheartening an innocent defendant.

As a Massachusetts Criminal Defense Lawyer, it is clear that the petition should be allowed. Given the criminal activity in the State lab, the evidence that lead to convictions is unreliable and cannot support the standard required for a criminal conviction of proof beyond a reasonable doubt. Had the Commonwealth had video cameras at the crime lab, perhaps the extent of the criminal activity could have been known. But with no way to limit the scope of the contamination of evidence the Court should acknowledge there is only one proper solution to vacate the convictions.

Tips for being a Top DUI Trial Lawyer

November 3, 2014,


One of the most important qualities of a successful trial attorney is the ability to present the client's case in a manner that enables jurors to adopt the attorney's arguments as the truth. But doing so requires more than mere persuasion. According to a recent article by prominent trial attorney Paul Luvera, clever and persuasive arguments may in fact be counterintuitive if the attorney is not authentic - not authentic about the weaknesses in his case, and not authentic about his own weaknesses as well.

Authenticity as the Key to Acceptance

Attorney Luvera, who was inducted into the American Trial Attorneys Hall of Fame, refers to the research of Professor Brene Brown at the University of Houston on how relationships are formed, and the role of vulnerability, courage, worthiness and shame on people's ability to relate to others. Professor Brown states that one of the most important keys to a successful relationship is the ability of one individual to relate to another, which is only possible if each party is able to identify with another's beliefs, values, characteristics, or qualities. But it is impossible to truly accept and identify with another without each party being honest with the other and themselves.

According to Prof. Brown's research, the average person has the instinctual ability to detect when someone is guarded or is not being honest about himself. When inauthenticity is detected, it leads people away from trusting one another, and so destroys any opportunity for one to relate to another. Prof. Brown argues that people are inauthentic because of their own insecurities about themselves - they are unwilling to clearly expose themselves to others because they are afraid that their imperfections will lead to rejection or pain. That is why Prof. Brown asserts that it takes courage - courage to accept oneself for who he is with all his imperfections. It is only when one can accept himself with all his imperfections that he allows himself to be who he truly is, and so to lower the barriers thereby allowing others to relate to him.

Authenticity and Trial Practice
Prof. Brown's research is critical to the success of any trial attorney. In a jury trial, the verdict often hinges on the jury's acceptance of the evidence and arguments presented by the attorneys, which is heavily influenced by the jury's impression of each trial attorney. As Attorney Luvera notes, the panel of 6 or 12 jurors spend hours, if not days, observing and attending to the language, social cues, and body language of the attorneys arguing before them. If the jury detects that the attorney is guarded, not forthcoming about certain facts, and insecure about the case, the jury will likely form a negative impression of the attorney, failing to relate to him, and so unwilling to accept him.

The solution is for the attorney to be authentic - "A trial lawyer who projects to the jury an unguarded and authentic person coupled with honesty and truthfulness about his case is someone who is trusted," says Attorney Luvera. And authenticity will require both the attorney and the case to be more vulnerable than they otherwise would be; the attorney will need to be honest about his imperfections as well as the imperfections of the case. As Attorney Luvera warns: "Jurors can be entertained by the illusion of perfection for only so long before they begin to question the performer's authenticity - and that's the end of the show.

The lawyer must strike a balance between completely exposing the weaknesses of his client's case and falsely presenting his case as faultless and foolproof. The lawyer's ethical obligation is to the client first and foremost, and so must present both himself and the case in the light that would be most favorable to the client. However, the lawyer should not attempt to pass himself or the case for something that is not true - there is no such thing as a perfect lawyer or a perfect case. And jurors are certainly wise enough to see through the false illusion of perfection. A successful trial attorney is one that can be honest in presenting his case, while persuading jurors to accept the case for its strengths and regardless of its weaknesses. The jury doesn't need a perfect case, but it does need a case and an attorney that it can trust and accept, for both their strengths and their imperfections.

Can Medical Reports be used in a Massachusetts OUI Trial?

November 1, 2014,

An OUI trial in Massachusetts is governed by rules and laws that allow and prohibit certain statements, reports, and objects from admission into evidence. Once a statement or item is admitted into evidence, it may be considered by the judge or jury for the purposes of reaching a verdict. In Com. v. Schutte, the MA Court of Appeals considered the admissibility of a doctor's report which corroborated the defendant's own testimony that he was suffering from an impairment that caused him to fail his sobriety tests.

The defendant in this case was pulled over after the officer observed him driving erratically on the road. The officer testified that he had smelt alcohol, and asked the defendant whether he had been drinking. The defendant replied that he a couple of bears. The officer then decided to conduct field sobriety tests.

The officer administered the alphabet test, and then asked the defendant to perform the one-legged stand and the walk-and-pivot test. The defendant passed the alphabet test, but before taking the remaining two tests, informed the officer that he had thirteen ear operations which effect his equilibrium. Despite this admission, the officer allowed the defendant to take the remaining two tests - and the defendant lost his balance in both.

At trial, the defendant testified that he suffered from an impairment that effected his balance and equilibrium, and offered medical records from his hospital and treating physicians that documented his ear surgeries. The defendant then sought to offer a report by his physician stating that the defendant had degenerated balance which is associated with his ear surgeries. The prosecutor, however, challenged admission of that evidence and the trial judge prohibited it from admission. The prosecutor subsequently relied on the fact that the defendant failed the walk and one-legged stand tests to persuade the jury to convict the defendant. The defendant appealed.

The Appeals Court disagreed with the trial judge's treatment of this report, and reversed the conviction on the grounds that the medical reports were admissible under a state statute (G.L. 233 § 79G). According to the Appeals Court, a written report of an examining physician that speaks to a disability or incapacity that proximately results form a condition that the physician observed is admissible. The court found that the report was drafted by a physician who treated the defendant, and that it stated the cause of the defendant's imbalance. Furthermore, the defense attorney took the proper steps to inform the court and the prosecutor ahead of time of his intent to introduce this evidence. Under these circumstances, the evidence is admissible, even if the report was written in preparation for trial.

Since the prosecutor relied substantially on the lack of evidence that speaks directly to the defendant's imbalance in order to convict, the Appeals Court also ruled that the conviction should be set aside. The jury likely relied on the officer's testimony that the defendant did not pass his sobriety tests when it returned a guilty verdict. But the officer's conclusion was highly misleading, given the fact that the defendant would have failed the tests regardless of whether he was intoxicated (because of his balance impairment). And since the trial judge prohibited the doctor's report which evidenced the defendant's impairment, the defendant was deprived a critical opportunity to bolster his defense theory that his loss of balance was not a result of intoxication but rather a medical impairment.

All trials are heavily regulated by rules and statutes, which govern the types of questions and arguments raised in court, as well as the kind of evidence offered by either party. Many of these rules are highly technical, and can mean the difference between a guilty and innocent verdict. This case is an excellent example of the need for diligent and experienced legal representation in any criminal case, since failure to adhere and properly apply these rules may result not only in a conviction but also sanctions against the negligent attorney.

John Goodman testifies in the retrial of his OUI Manslaughter trial

October 25, 2014,

The owner of the International Polo Club Palm Beach, Mr. John Goodman, recently took the stand to testify in his own criminal trial on an OUI manslaughter charge in Florida. Goodman was operating his Bentley in 2010 when he collided with the 23 year old man Scott Wilson in his motor vehicle, causing Wilson's death.

Goodman testified that he was not intoxicated at the time of operation, although he admitted to having drank multiple alcoholic beverages immediately before the collision. According to Goodman, he was at a party where he consumed alcohol, purchased alcohol for his friends, but was nonetheless sober when he got behind the wheel of his Bentley to purchase a frosty from a local Wendy's restaurant. Rather, what caused him to lose control of the vehicle colliding with Wilson was faulty breaks in the Bentley.

Goodman was tested following the accident, and had a BAC level of twice the legal limit. Goodman explained that he actually became intoxicated after the accident, when he left the scene of the accident and drank heavily at a nearby location throughout that night. And in his second trial, he offered witness testimony corroborating this explanation. The bartender of the bar where Goodman was drinking before the accident may also be called to testify as to Goodman's sobriety at the time of the accident.

This is the second time Goodman is being tried. Goodman also testified in his first trial, and was convicted by a jury and sentenced to sixteen years. However that trial was declared a mistrial because of juror misconduct.

In the testimony earlier this week, the Judge permitted the prosecutor to ask Goodman if he heard the testimony of other witnesses and said that he had an advantage in testifying because he was present for other testimony. The judge overruled an objection to this line of question. As a Massachusetts OUI Lawyer, the judge was clearly wrong to permit this testimony because Goodman is Constitution required to be present during the testimony. This Constitution requirement should not be used to attack Goodman's credibility.

United States Supreme Court hears arguments on Fourth Amendment violations where police mistakenly conduct traffic stop

October 20, 2014,


On October 6, the U.S. Supreme Court heard arguments from defense counsel, the North Carolina State Attorney General, and the U.S. Solicitor General regarding the matter of Heien v. North Carolina. The question initially posed before the Court was whether a traffic stop premised on an officer's mistaken understanding of a state statute violates the defendant's Fourth Amendment rights. But as arguments proceeded, the issue became much more complicated, leaving some Justices concerned that this case raises more serious implications than initially anticipated.

The defendant in this case was a passenger in his own vehicle as it was operated by a friend down an interstate highway in North Carolina. A highway patrol officer noticed that only one of the defendant's two brake lights was functioning. While the state statute only requires that vehicles have only one functioning break light, the officer interpreted the statute incorrectly and stopped the defendant's vehicle to issue a warning to the defendant. The defendant then consented to the officer's request to search the vehicle. And after forty minutes, the officer discovered a plastic sandwich bag containing cocaine. The defendant was charged and convicted on the charge of trafficking cocaine.

ISSUES BEFORE THE COURT
The disposition of this case, as presented by defense counsel, depends on two main question:

  1. Whether the initial traffic stop violated the defendant's Fourth Amendment right, and if so,

  2. Whether the remedy for the defendant would be to exclude all the evidence obtained as a result of the traffic stop from being used at trial to convict the defendant.

Fourth Amendment law protects individuals from all "unreasonable" seizures and searches by law enforcement officers. And as previously decided by the U.S. Supreme Court, a brief investigatory stop - including a traffic stop - constitutes a seizure for Fourth Amendment purposes. Any traffic stop that is not founded on an officer's "reasonable suspicion" that a crime has occurred or is underway is an unreasonable seizure and a violation of the seized individual's Fourth Amendment right.

The issues in this case stem from the fact that the officer who stopped the defendant's vehicle was acting under a mistaken understanding of the state statute that really only requires one taillight to be functioning. This is called a "mistake of law," because the mistake was not in believing the defendant's vehicle had only one functional brake light (which would otherwise be a "mistake of fact") but rather that operating a vehicle with only one functional brake light was a violation of state law.

THE "RIGHTS" ARGUMENT
If the officer's understanding of the state law was mistaken, the question then becomes whether an officer's mistake of law could justify a lawful traffic stop. In other words, does a traffic stop violate a defendant's Fourth Amendment right if the officer misunderstood the law that he believed was violated? For the most part, the Justices seemed convinced that a traffic stop based on a mistake of law does violate the Fourth Amendment. But a subsequent question of whether an officer's mistake is excusable if it is "reasonable" also arises. However, as will be discussed below, this question remains an important issue of dispute for the Court.

THE "REMEDY" ARGUMENT
If the Supreme Court decides as the Justices appeared to have leaned with regard to the question of whether a Fourth Amendment right was violated, the subsequent question would be whether the defendant is entitled to have his conviction vacated and the drug evidence excluded since it was obtained in violation of the his constitutional right. This is more of a "remedy" issue since it deals with how a court could cure the damage caused to the defendant by the officer's intrusion on his Fourth Amendment right (in contrast to the earlier issue of whether the defendant's right was violated at all).

The "remedy" question was a complicated issue for the Court because it raised a federalism problem. The defendant was stopped by North Carolina law enforcement as he was traveling on North Carolina roads. Therefore, the defendant faces violations of state laws in state court. But the defendant continues to have rights under the Federal Constitution - which are still reviewed by the North Carolina state courts for determinations as to whether any constitutional rights were violated.

A serious complication arises in comparing how North Carolina courts examined the remedy issue posed by this case under the federal Fourth Amendment in comparison to how the U.S. Supreme Court ruled on the same questions. Could North Carolina create remedies for Fourth Amendment violations where Congress and the U.S. Supreme Court have not? More specifically, the North Carolina law previously stated that the reasonableness of an officer's mistake of law is irrelevant to the question of a Fourth Amendment violation, and does not excuse that violation, thereby calling for exclusion of any evidence obtained from a search and seizure conducted in violation of the individual's Fourth Amendment right. The U.S. Supreme Court, however, ruled in the exact opposite direction in the case of U.S. v. Leon, where the Court held that evidence would not be excluded as long as the Fourth Amendment intrusion was premised on a "good faith" belief by the officer that a law was violated. Which law applies to the remedy question on Fourth Amendment violations - state or federal?

The traditional law is that the U.S. Supreme Court has the final say on how the federal constitution (and federal legislation) is to be interpreted, whereas state supreme courts have the final word on how state law is to be interpreted. However, because this a question of "remedy" rather than "right," the Supreme Court was thrown off guard since remedies are usually within the sphere of state law, and unfortunately neither party to the appeal had actually submitted a brief specifically on this question of remedy. But defense counsel did suggest in arguments that the state's decisions on remedies should be respected by the federal court. Even more, defense counsel asked that should the Court find its decision on remedies to be the binding rule, that it should specifically articulate a decision where it states that the same "good faith exception" does NOT apply to the constitutional right.

DEFINING "REASONABLENESS" AND ITS IMPLICATIONS
A corollary issue to this case was the question of what constitutes a "reasonable" mistake of law, excusing a Fourth Amendment violation. If the issue of whether the defendant's Fourth Amendment right was violated rests on the more narrow issue of whether the officer's mistake of law was reasonable, what exactly would differentiate a "reasonable" mistake from an "unreasonable" mistake?

Although the Justices questioned the attorneys on this question, the Court did not state what it thought constituted "reasonable" mistake. Instead, the Justices continued to express strong concern that, by allowing officers to act only on a "reasonable" understanding of the law (rather than the correct understanding of the law), the Court would essentially be granting officers the discretion to choose whether or not to act in a way that may violate a constitutional right whenever there's an ambiguity in the law. That type of law enforcement would undermine both the function of officers as enforcers of actual law (rather than of mistaken understanding of the law) and would jeopardize society's trust in police authority.

This issue is only one among many that the Court may or may not decide to opine on when announcing its decision several months from now.

Attorney General appeals Illinois court decision to U.S. Supreme Court arguing traffic stop did not violate Fourth Amendment

October 15, 2014,

Often times, what initially begins as a traffic stop for a civil offense (such as speeding) unexpectedly becomes an investigation into a criminal offense, ultimately leading to criminal charges. Under Fourth Amendment law, police officers conducting a traffic stop can investigate for criminal activity so long as the investigation was reasonably derived from the officer's initial suspicion that a traffic offense had been committed. Very recently, the Illinois State Attorney General filed an appeal with the U.S. Supreme Court to determine whether an officer can continue to hold the defendant even after the officer's initial suspicion had already dissipated.


The case of Illinois v. Cummings
The petition for appeal was filed under Illinois v. Derrick Cummings, earlier this past summer. This case arose out of a traffic stop where a driver was charged with operating a vehicle without a license. The officer who conducted the traffic stop testified that he initially suspected the vehicle registration had expired. But after running the registration number through the database, the officer discovered that the registration was not expired but that the car was registered under a woman who had an arrest warrant issued against her. The officer then pulled the vehicle over and approached the driver. The driver was not a woman, but was the defendant, Mr. Derrick Cummings.

Despite the officer realizing that the driver was not the subject of the arrest warrant, the officer requested that the driver produce his license and registration per standard police protocol. The driver was unable to produce a license, and was subsequently charged with a felony under Illinois state law.

The defendant successfully argued before the Illinois Supreme Court that the evidence of the driver's failure to produce a license should be excluded from trial since the initial purpose for the traffic stop was already achieved prior to asking the driver to produce a license. According to the defendant and the Illinois trial and appellate courts, the officer was only permitted to stop the defendant to determine whether the driver was in fact the object of the warrant, and then to execute the warrant if the driver was the correct person. But since the officer quickly realized that the driver could not have been the woman against whom the warrant was issued, it was unreasonable to continue the seizure and to require the defendant to produce a license.


Terry v. Ohio and Traffic Stops
Over the past few decades, both state and federal courts have applied the famous ruling in Terry v. Ohio to traffic stops. Under the Terry doctrine, a traffic stop (also known as an "investigative detention") constitutes a warrantless seizure under the Fourth Amendment, but is permissible as long as it is supported by the officer's reasonable suspicion that the driver has committed, or is about to commit, a crime. The stop is lawful so long as it is "reasonable" - if it is initially justified by suspicion of an offense, and only lasts as long as reasonably necessary to complete the investigation into the suspected crime.


Massachusetts Law on Traffic Stops
Massachusetts courts have ruled that an officer's questioning of the driver and/or passengers must be reasonably related to the initial reason for the stop. If the officer finds that his/her suspicion of an offense was unfounded, the officer must release the driver. If, however, the officer finds no real evidence for the suspected offense but evidence of another crime (such as drug possession) during the course of his questioning the driver, the officer may conduct a more thorough investigation that is more closely tailored to that criminal offense rather than the initial traffic offense.

Because of the wide latitude officers are granted while conducting traffic stops, a simple stop for a broken tail light could quickly lead to a full blown car search for weapons or drugs, if the officer finds evidence of drugs or weapons as he discusses the tail light with the driver. The good news, however, is that Massachusetts courts have interpreted Article 14 of the Massachusetts Constitution (Declaration of Rights) as providing more protection than the Fourth Amendment. Therefore, a defendant in a Massachusetts state court theoretically has more privacy protection under the state constitution, and is often more successful in defending him/herself against warrantless searches and seizures by law enforcement.

Ohio Supreme Court rules in favor of DUI defendant challenging breathalyzer

October 12, 2014,

DUI defense attorneys in Ohio have recently won a substantial victory in the Ohio Supreme Court that will allow defendants to bring stronger challenges to the validity of breathalyzer tests. The Ohio court's decision will require states to comply with discovery requests by the defendant, and produce critical data and records relating to their breathalyzer devices.

In the case of Cincinnati v. Ilg, the defendant was questioned and tested for intoxication after he lost control of his vehicle and struck a fence, sign, and pole. The officer who responded to the accident administered a breath test using the state's device, the Intoxilyzer 8000. The device revealed that the defendant had a BAC reading that was almost twice the legal limit. The defendant was subsequently charged with an OUI.

Before trial, the defendant's attorneys requested that the prosecutor produce records of the defendant's test, as well as test data, maintenance records, and results produced by the Intoxilyzer 8000 machine used to test the defendant. The purpose of this request was to compile enough evidence to demonstrate the inaccuracy of the defendant's breath test on the night of the accident, and so to prevent his BAC results from being introduced in trial. The defendant requested records from his own test, as well as for tests conducted three years prior to his arrest, and three months following.

The state refused to hand over the requested information, stating that it was too costly and time consuming to produce all of the requested records, and that state legislation does not require release of that information. The defendant then asked the court to issue an order compelling the state to release those records, but the state continued to refuse. The court subsequently imposed sanctions no the state prosecutor, forbidding any evidence of the breath tests from being presented into trial. The state appealed.

The Ohio Supreme Court agreed with the trial court's decision because it did not believe that the state was protected by statute from disclosing the information sought by the defendant. The Ohio legislature had previously passed a statute requiring courts to accept the results of an state-approved breathalyzer machine as generally scientifically erliable. This legislation was designed to allow courts to avoid having to hear lengthy expert testimony and arguments by both parties regarding the general scientific accuracy of the results of these state-approved machines.

However, the Ohio Supreme Court distinguished the statute from the defendant's discovery attempt, interpreting the defendant's request to fall outside the scope of the statute. According to the Ohio Supreme Court, the statute only prevents defendants from attacking the general accuracy and scientific reliability of the test procedure and machine approved by the state. The defendant in this case, however, only sought to challenge the accuracy of the results produced by the specific breathalyzer test used in his own specific case. And since the defendant's discovery request is consistent with his attempt to challenge the specific test results in his case, rather than the general scientific reliability of breath tests, the Ohio Supreme Court upheld the trial court's sanctions against the state for failing to comply with the request and court order.

Breathalyzer test results are among the most controversial forms of evidence presented by prosecutors against DUI defendants all across the nation. Breath tests are often found to be unreliable because the BAC readings are often effected by too many unmeasured variables that are inherent in human physiology and metabolism of alcohol. This case is a substantial victory for Ohio defendants, and it comes at a time where many courts in different jurisdictions are beginning to take a closer look at the accuracy of breath tests and the actual reliability of their readings.

First Degree Homicide conviction overturned in a Georgia Hit-and-Run case

October 11, 2014,

Under state statute (G.L. c. 90 § 24), all drivers in Massachusetts have a legal obligation to stop and identify themselves whenever they know that their vehicle has collided with another vehicle, property, or a person. If the driver collides with another person, leaving them dead or unconscious, the driver must stay at the scene and provide information to another motorist or officer, or leave the scene to find a telephone to report the accident to authorities. Failure to do so could result in license suspension or criminal offenses.

Other states, such as Georgia, also require drivers to provide injured parties "reasonable assistance," including providing, or arranging for, transportation of the injured parties for medical attention. Under Georgia statutes OCGA 40-6-270, a driver could be charged with a felony hit-and-run for failing to provide such assistance. Another statute, OCGA 40-6-393, also allows for a driver who fails to stop as required under 40-6-270 to be charged with first degree vehicular homicide if he injures a person and that person subsequently dies. Under the second statutory provision, a person could be sentenced to up to 15 years in prison, in comparison to the five years under the hit-and-run provision.

The case of Henry v. State, heard by the Court of Appeals of Georgia, demonstrates the different legal issues that come into play in such hit-and-run cases. In Henry v. State, the defendant was operating a vehicle with a passenger down a public road in Georgia after midnight, when he struck two fourteen year-old boys walking in the grass along the road. The passenger testified that he felt an impact and saw one boy's head hit the hood of the defendant's pickup truck, and screamed to the defendant: "You just killed somebody. Stop Henry." The passenger also testified that he was certain that this boy died on impact. Rather than stop to provide assistance as the statute requires, the defendant sped home and later abandoned the truck in a field with the intention of reporting it stolen.

The deceased boy was found dead by emergency responders at the scene of the accident, near the second boy who suffered substantial injuries. Aside from the actual crime scene and the passenger's testimony at trial, there was no other evidence regarding whether or how long the deceased boy survived the impact. The abandoned truck was found in a field the morning after the incident.

The defendant was subsequently charged with two counts of felony hit-and-run, and one count of first-degree vehicular homicide. He was also found guilty on all three charges and was sentenced to the maximum penalty of 15 years in prison under the vehicular homicide charge. Defendant appealed the trial court's finding of guilt on the vehicular homicide charge, arguing that although he was in fact guilty of the hit-and-run, the state did not meet its burden in proving that his failure to remain at the scene contributed to the victim's death. The Appeals Court agreed, and remanded to the trial court to reduce the sentence term.

The reason the defendant succeeded in his appeal was due to the manner in which the Court interpreted the language of the Georgia statute for first degree vehicular homicide. The Court noted that causing a death through failing to stop and render assistance was materially different from causing a death and then failing to stop and render assistance. The difference in interpretation is key here because the state in Henry v. State only proved that the defendant's collision with the boy likely killed the boy on impact, rather than that the boy died partly as a result of the defendant failing to stop to provide assistance. Since the boy died on impact, the defendant could not be held liable under the first degree vehicular homicide charge since there was no evidence that the boy's life may have been saved had the defendant actually stopped the vehicle. As the Court notes, the flaw is really in the language of the statue, which only the legislature could correct. And the legislature did in fact revise the statute following this decision.


Judge in Aaron Hernandez murder trial excludes evidence obtained from house search in violation of the Fourth Amendment

October 7, 2014,

In a recent hearing before the Bristol County Superior Court, Judge Garsh ruled that she will not be allowing the prosecutor to introduce evidence obtained during a police house search in the murder trial of former NFL player Aaron Hernandez. According to a local news reporter, the judge explained that the application for the warrant authorizing the search was defective, and so police had no authority to execute a search using that warrant.

Searching Aaron Hernandez's Home
The warrant was for the search of Aaron Hernandez's home in Franklin, MA. Law enforcement applied for a search warrant in order to seize the cell phone of Carlos Ortiz, a co-defendant of Hernandez in the Bristol County murder trial. And since the cell phone of Ortiz was known by authorities to be at Hernandez's Franklin home, authorities applied for a warrant to search that location for the cell phone. During the search, police also seized several other pieces of evidence, including dozens of ammunition rounds for various firearms, lease and rental agreements under Hernandez's name, receipts, mail and checks written to Hernandez, and even keys to a Hummer SUV.

Judge Garsh stated in her 8-page order that the search warrant application filed by the authorities simply failed to provide the proper basis for the lawful issuance of the warrant. Therefore, any evidence obtained during execution of the warrant violated Hernandez's constitutional protection against unlawful searches and seizures, and so could not be offered into evidence by the prosecutor at trial.

Search Warrants
A search warrant grants law enforcement the authority to intrude on an individual's privacy by searching their private space - such as a home, office, vehicle, or even their person. Most often, police officers would apply for a search warrant with a magistrate at a local court by submitting a formal application form and attaching an affidavit by the applicant explaining the reason and purpose of the warrant that they seek. Magistrates are allowed to issue the warrant only if the affidavit provides sufficient information to establish that a certain location likely contains evidence pertaining to a crime which the applicant is investigating.

If the magistrate is convinced, a warrant would be issued specifying the particular location, time, and date on which the search should be executed, as well as the particular types of evidence that should be sought during the search. The warrant is then given to law enforcement, which would then execute the warrant but are limited by the specific boundaries in the warrant, including the time, place, and date of execution, as well as the evidence sought. If the executing officers exceeded those boundaries during the execution, any evidence they seize would be held inadmissible as a violation of the suspect's constitutional right to privacy.

In the case of the search warrant of Hernandez's Franklin home, Judge Garsh explained that the application attached to the search warrant was deficient in that it failed to state facts establishing a link between Hernandez, Ortiz, and the murder of Lloyd. According to the judge, it is not enough that the affidavit simply state that the police have been conducting an investigation that leads them to believe evidence would be found in the Franklin home. Instead, Judge Garsh stated that the application had to state more specific reasons justifying Hernandez's Franklin home. And since it failed to do so, any evidence seized would be excluded.

This decision highlights the importance of protecting every criminal suspect's constitutional rights in the face of any criminal investigation. Judge Garsh made clear that Hernandez's rights cannot be violated, despite the officers' good faith and the severity of the criminal charges at stake.

Appellate Court dismisses DUI charge where police violated Fourth Amendment rights

September 25, 2014,

The right of against unreasonable seizures in the Fourth Amendment to the U.S. Constitution is invoked frequently in the context of traffic stops, where officers temporarily "seize" a driver and his vehicle for questioning. It is established law, however, that an officer is only authorized to stop a vehicle where there the officer makes specific and articulable observations of the driver that lead him to reasonably suspect that the driver is operating unlawfully - such as while under the influence of alcohol. Where the officer arrests a driver under the pretense that the driver was operating under the influence without the officer being able to refer to specific articulable observations leading to his suspicion, the courts have ruled that the seizure or subsequent arrest is completely unlawful - regardless of whether the driver was in fact intoxicated.

The Court of Criminal Appeals of Tennessee's recent decision in State v. Wild, is one such example. The court overturned a trial judge's finding that an officer lawfully stopped a driver suspected of drunk driving because the State prosecutor was unable to establish that the officer truly had reasonable suspicion to seize the defendant.

The only evidence of suspicious activity that was offered by the prosecutor was the testimony of the police officer involved, along with one-minute's worth of video footage from the officer's cruiser camera. The officer explicitly testified that he did not remember any observations of the driver on the day of the incident, and deferred the trial court's attention to the unclear camera footage and the officer's statement that the defendant had crossed the lane multiple times, as the officer's voice was recorded in the video. On this evidence alone, the trial court accepted the state's argument that the defendant was in fact swerving or "straddling" across her lane after the court itself supplied more information as to the road design on its own accord, since the video footage was too unclear. Based on the video testimony and the trial judge's own recollection of that road, the trial court found there to have been reasonable suspicion that the defendant was operating while under the influence. The Court of Appeals, however, completely disagreed.

The Court of Appeals was determined that the evidence provided by the prosecutor was clearly insufficient to establish probable cause. The officer had testified that he did not recollect the events, thereby leaving the unclear video footage to be the only evidence for the trial court's determination. The fact that the trial judge based his final determination on information that he himself provided to supplement the video footage indicated to the Court of Appeals that the State had failed its burden of proving the officer had reasonable suspicion to seize the defendant. In other words, the State had clearly failed to demonstrate that the officer specifically articulate facts or observations that justify his suspicion of the defendant. The seizure was therefore unconstitutional, and the Court of Appeals dismissed the charges against the defendant.

Although this case was relatively simple, it still serves as an important example of the need for an experienced defense attorney representing you in your DUI case before the court. In most cases such as this, the state is able to easily establish reasonable suspicion because the standard of proof is so low. However, as this case demonstrates, there are times where the state may not be able to meet even such a low standard. In those rare times, the defendant's Fourth Amendment rights are held to have been violated, and the defendant is entitled to relief from the charges against him. Because even the simplest cases brought against a person could have subtle flaws that are fatal to the state's case, it is absolutely critical that you find a diligent defense attorney to protect your rights before the court and to ensure that you are not held liable where the state does not meet its burden as required under law.

Traffic stop leading to cocaine possession arrest is unconstitutional because 911 caller unreliable

September 19, 2014,

The highest appellate court of Nebraska recently overruled a trial judge who allowed evidence of drunk driving to be admitted during trial, where that evidence was obtained as a result of an traffic stop based on an anonymous tip. Applying recent federal case law, the Nebraska Supreme Court found that the driver's Fourth Amendment right against unreasonable searches and seizures was violated when the officer stopped the driver without first confirming the reliability of the anonymous 911 caller's tip, or reasonably believing a crime was committed.

State v. Rodriguez
In the matter of State v. Rodriguez, a 911 dispatcher received an anonymous call alleging that the caller was just pushed out of a moving vehicle. The vehicle was identified as a green GMC Envoy heading westbound on Highway 26. An officer was dispatched to the location, where he observed a vehicle matching the description traveling westbound past the location of the caller. The officer followed the vehicle then activated his emergency lights and began to question the driver about the reported disturbance.

During the questioning, the officer noticed a strong odor of alcohol emanating from the driver, who had a flushed face, slurred speech, and bloodshot watery eyes. The driver was subsequently tested for intoxication, and the officer determined that the driver was heavily intoxicated. During booking, the officer collected the driver's personal belongings for inventory purposes, when he noticed two clear plastic baggies in the driver's wallet. One of those baggies was later determined to be cocaine, while the other baggie did not contain any controlled substance.

After being charged with an OUI, third offense, and drug possession, the defendant asked the court to exclude any evidence obtained by officers during incident. The defendant argued that the evidence was obtained by violating the defendant's Fourth Amendment right. After both the trial judge and the intermediate appellate court disagreed with the defendant's arguments, the Nebraska Supreme Court overturned the lower courts and ordered that evidence of the defendant's intoxication and cocaine possession be excluded

Recent Fourth Amendment Law

In reaching its determination, the Nebraska court referred to recent case law from the U.S. Supreme Court that addresses Fourth Amendment violations in the context of traffic stops. There were three particularly important cases:


  1. In the U.S. Supreme Court case of Alabama v. White, 496 U.S. 325 (1990), police officers received an anonymous tip from a caller alleging that the defendant was to leave a particular location at a particular time and in a particular vehicle to reach another location where the defendant would be in possession of cocaine. Police officers corroborated the tip by observing the defendant leave from the time and place alleged and arrived at the destination point alleged. The Supreme Court held that the officers had correctly relied on the tip after they confirmed its reliability by observing the defendant behave as predicted.
  2. In the matter of FL v. J.L., 529 U.S. 266 (2000), the Supreme Court found that an anonymous caller's allegation that "a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun" was inadequate to provide a reasonable basis for officers to stop and frisk the defendant for weapons. The Supreme Court required that the tip be reliable in its assertion that the crime was committed, and not simply in identifying a particular person and accusing him of a crime.
  3. The most recent federal case which the Nebraska court relied on is the matter of Navarette v. California, 134 S. Ct. 1683 (2014). The U.S. Supreme Court in this case reviewed an arrest that was executed after officers received an anonymous tip that the defendant ran the caller off the road and was operating the vehicle erratically down the road. The majority found that this caller's tip was not only reliable in identifying the driver, but also provided enough evidence for officers to reasonably suspect that the driver was operating the vehicle while intoxicated. Furthermore, the caller identified an ongoing crime, not a past isolated event.


Applying this case law to the facts of the defendant in State v. Rodriguez, the Nebraska Supreme Court found the case to be most similar to the circumstances in FL v. J.L., where the investigatory stop was found to be a violation of the defendant's Fourth Amendment right. The only information provided by the caller and corroborated by police observations was the description of the vehicle and the general location of the incident. The caller's tip, however, did not establish any reasonable basis for police to believe that the driver had committed an offense, and so the officers could not have lawfully relied on the caller's tip to execute a traffic stop. Furthermore, the Nebraska court found that the reported crime was not ongoing, and so could not have justified the traffic stop on the premise that there was an ongoing emergency to be investigated, as in Navarette v. California .

Criminal Implications of Minor Traffic Stops

Federal constitutional law on the Fourth Amendment has developed substantially over the past few decades, particularly due to traffic stops becoming a much more common basis for larger police investigations. Defendants are often surprised to learn that a burnt tail light or expired inspection sticker could, and often do, provide the bases for police to thoroughly investigate the driver for any criminal activity. Because a traffic stop could result in a substantial imposition on a driver's (or passenger's) privacy, it is important that all defendants in traffic stops facing criminal charges retain an experienced criminal defense attorney to protect their constitutional rights in order to avoid unlawful prosecution.

Oregon appeals court rules against police forceful entry into home

September 15, 2014,

The Oregon Court of Appeals issued a decision prohibiting police officers from forcefully entering the home of an individual whom they believed operated a vehicle while intoxicated. Finding no emergency where the suspect was under the influence and had locked himself and his seven-year old child into their home, the Court ruled that the officers were required by the Fourth Amendment to obtain a warrant.

In the matter of State v. Sullivan, the defendant was observed by a clerk to be under the influence of alcohol while checking out of a grocery store with his seven-year-old son. The clerk followed the defendant out of the store and recorded the license plate number of the defendant's vehicle. The clerk forwarded that information to police, which located the defendant's home address and immediately responded.

An officer arrived at the defendant's home address and observed the defendant's car and a man yelling to a young boy in slurred speech. After the officer ordered the defendant to stop, the defendant pushed his son up the stairs of the apartment building, slammed the door shut, and closed the blinds in the apartment unit. The officer, joined by two other officers, immediately approached began to pound on the door to the apartment, but there was no response. After speaking with dispatch and his sergeant, the officer discovered that the defendant had a concealed weapons permit. He then received permission to forcefully enter the premises under the premise that the child's safety was at risk. The officers then kicked the door down and drew their guns to enter the apartment .The defendant approached and was arrested, and subsequently refused to submit to a blood-alcohol test.

Before his trial, the defendant's counsel filed a motion to suppress all evidence derived from the home entry, claiming that the officers violated both his state constitutional rights as well as his Fourth Amendment right to privacy against unreasonable searches and seizures. According to the defendant, the officers had no authority or justification to forcefully enter his home without first obtaining a warrant. The trial judge disagreed with the defendant, on the basis that the defendant's child was in immediate risk of harm, thereby warranting police interference even without a warrant.

The Court of Appeals recognized that the trial court implicitly relied on the doctrine of the emergency aid, which is an exception to the warrant requirement where there is an objectively reasonable belief that warrantless entry is required to provide immediate aid or assistance to someone who is suffering or is threatened with suffering serious harm. The Court of Appeals, however, did not find that the circumstances known to the officers were sufficient to form an objectively reasonable belief that the defendant's son was at risk of suffering imminent harm to the child. The officers had merely received reports that the defendant appeared intoxicated, and had only observed the child being urged into the apartment home by the defendant-father. From these circumstances alone, the Court of Appeals concluded, there is no reason to believe that the defendant posed a risk of harm to his son.

Although the Oregon Court resolved this issue only under state law, the Massachusetts Supreme Judicial Court has previously found that a warrantless entry into a suspect's home is a violation of the suspect's Fourth Amendment rights under the U.S. Constitution. See Com. v. Forde, 367 Mass. 798 (1975). A similar result is expected in the Massachusetts courts when the same question is considered under article 14 of the Massachusetts constitution.

Another way to have approached this case is to have challenged the basis on which the officers believed they had probable cause to enter. In order to receive a warrant to enter, or to enter a home without a warrant, the officers must first establish a reasonable belief based on specific articulable facts that a crime had been committed or was about to be committed, and that the defendant is the perpetrator. Here the officers were relying on a store clerk's brief observations of a man with a child checking out of a grocery store. The defense attorney could have moved to dismiss this case on the grounds that neither the clerk's observations, nor the officer's very brief observations, were sufficient to establish probable cause. A trained and knowledgeable defense attorney is very valuable in such cases where officers act out of a hunch and speculation, rather than specific and articulable evidence.

Video tape evidence in domestic assault and battery case results in NFL indefinite suspension for Ray Rice

September 8, 2014,

Video tape evidence in the domestic assault and battery incident involving Ray Rice became public today showing him punching his then fiancee in the face in an elevator. The release of the video caused the NFL to issue an indefinite suspension and also resulted in his release by the Baltimore Ravens. Players in the NFL via Twitter expressed outrage saying he should be banned from the NFL for life.

Prosecutor in Massachusetts domestic assault and battery charges are looking for video tape evidence to prosecutor domestic cases as it is prevalent in public places and even as a result of iPhone or cell phone cameras. In some cases, a Massachusetts Criminal Defense Lawyer may be able to content that video tape evidence does not show the complete picture. In this case, it would be a difficult argument to make as the video shows the couple both inside and outside of the elevator.

In a case involving a bar room fight, captured on video in part, a defendant may be able to claim that the video fails to show some act prior to the incident raising an issue of self defense. In this case, the video evidence would be difficult to overcome for a defense lawyer and may have allow the prosecution to proceed even if the criminal case was not resolved. The video in the Rice case would leave no room for interpretation, while it does not have sound, it does not appear it was anything other than an unprovoked an violent punch by Rice.

Rice accepted a plea agreement to probation in the case. In many domestic assault and battery matters, a victim will not wish to go forward resulting in the dismissal of the charges. Prosecutors in Massachusetts typically look for other ways to prove the case without an alleged victim, such as with a 911 tape, video evidence or admissions of the defendant.

While domestic assault and battery allegations are unfortunately common, high profile cases like this incident will result in courts and the legislatures to toughen punishment. For a non-citizen or a person needing a clean background check for employment, this type of charge may have to be won at trial to avoid these adverse consequences.

US Supreme Court to decide whether an officer's mistake in a traffic stop invalidates a drug trafficking charge

September 3, 2014,

The Supreme Court of the United States has agreed to hear arguments on the constitutionality of traffic stops based on a police officer's mistaken understanding of the law under the Fourth Amendment. The case, Heien v. North Carolina, stems from the drug trafficking prosecution of the defendant-petitioner, which resulted from a discovery of cocaine during the search of a car pulled over for a burnt brake light.

The Traffic Stop

The defendant-petitioner, Mr. Heien, was a passenger in his own vehicle as it was operated by a friend down an interstate highway in North Carolina. A highway patrol officer observed the defendant's friend operating the vehicle with a stiff and nervous expression, "gripping the steering wheel at a 10 and 2 position, looking straight ahead." The officer followed the vehicle until he noticed that only one of the two brake lights were functioning. While the state statute only requires that vehicles have only one functioning break light, the officer interpreted the statute incorrectly and issued a warning to the defendant, who was the vehicle's owner. The officers then asked the defendant if he could search the vehicle, and the defendant consented. After a forty minute search of the vehicle, the officer discovered a plastic sandwich bag containing cocaine. The defendant was charged and convicted on the charge of trafficking cocaine.

The Issues in Dispute

The defendant in this case argued that the initial traffic stop violated his Fourth Amendment right against unreasonable searches and seizures because the stop was based on a mistake of law on account of the officer. The law on the validity of traffic stops is pretty well established - an officer may not conduct a traffic stop (or temporarily seize the vehicle) unless the officer reasonably suspects that a traffic law was violated, or that a crime has or is about to be committed. The law does not expect the officer to be completely correct in his suspicions each time; there will certainly be times where the officer makes observations that he believes, based on his experiences, suggest that criminal activity is afoot, but where in reality there was just a mistake of fact - no crime, just seemingly suspicious behavior. The officer must only have a reasonable basis for the suspicion as recognized by law, even though the officer may sometimes be mistaken.

The issue in this case, however, is not that the officer mistakenly believed that the defendant's had a burnt brake light. That would constitute a mistake of fact, which courts usually excuse. Instead, the challenge raised by the defendant was that the officer mistakenly believed that a single non-functional brake light constituted a violation of the state statute requiring vehicles to be equipped with "a stop light." The latter issue is a mistake of law - where the officer misinterprets the law and applies this misinterpretation to the driver.

A Criminal Defense Attorney's Thoughts

Two different aspects of this case make it especially striking. The first concerns the initial basis on which the officer suspected and followed the vehicle. In this case, the officer began to follow the vehicle after observing the driver's stiff demeanor, holding the steering tightly at 10 and 2, and looking straight ahead. In other words, the fact that the driver's behavior completely conformed to state driving laws served as the basis of the officer's reasonable suspicion to follow, and subsequently stop, the vehicle. While the officer's suspicion may seem understandable in practical terms, it was nonetheless illogical. Here, the vehicle was initially suspected and followed because the driver of the vehicle was in seemingly full and perfect adherence with safe driving practices - holding the steering wheel at 10 and 2 and focusing on the road ahead.

The second striking aspect of this case is the reasoning on which the courts of North Carolina premised their decisions to uphold the trial judge's denial of the defendant's motion to suppress. The North Carolina Supreme Court in this case stated that "so long as an officer's mistake is reasonable, it may give rise to reasonable suspicion" for purposes of infringing on the driver's Fourth Amendment freedom from police seizures. Almost half of the North Carolina Supreme Court justices, however, picked up on the flaw in this reasoning and dissented. The dissenting justices recognized that it would be unjust to require citizens to know the law or face punishment, while at the same time excusing law enforcement officers from that same requirement. If citizens are generally held culpable for acts that constitute crimes, despite their lack of knowledge that an act was criminal, it is only fair to require officers charged with enforcing the laws to have a good understanding of the laws so that enforcement is effected in a fair and predictable manner. By excusing officers from infringing on a citizens constitutional rights based on a misunderstanding of the law they are charged with enforcing, the courts effectively shield officers at the expense of the citizenry's constitutionally protected rights.

The Supreme Court will be hearing arguments from both the defendant and the State of North Carolina on October 6, 2014. The Court has also granted permission to the U.S. Solicitor General to argue why the Supreme Court should not hold that a police officer's reasonable mistake of law cannot support reasonable suspicion. The Court is expected to issue a decision months after arguments are heard.