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

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

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

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

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

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

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

The Massachusetts Supreme Judicial Court will hear argument in two cases relating to the statewide challenge to the reliability of the Alcotest 9510. The first case is an appeal from the Concord District Court, where over 500 OUI cases have been consolidated pending the challenge to the reliability of the Alcotest 9510.

This hearing arose from the decision of the Massachusetts Supreme Judicial Court in Commonwealth v. Camblin, holding that defendants in an OUI case are entitled to challenge the scientific reliability of the breath test machine. The Camblin decision applied to the old machine, the Alcotest 7110. In the Camblin decision, the SJC identified issues that could impact the reliability of the machine.

The Massachusetts Supreme Judicial Court Ruled this past week it was unreasonable for the police to impound a vehicle lawfully parked in a department store lot and conduct an inventory search of the vehicle after the authorized driver of the vehicle was arrested for shoplifting in the case of Commonwealth v. Oliveira. Police officers went to the loss prevention office of a department store in Dartmouth, where defendants had attempted to leave the store without paying for some items. A bag of merchandise was in the car that Defendant Violet had driven, which was registered to Violet’s girlfriend. Violet gave permission to search the car for the bag, and provided the keys to the car. Defendants were then placed under arrest. When told that the car would be inventoried and towed, Violet stated that he wanted his girlfriend to come and pick it up instead. The police did not honor Violet’s request, and conducted an inventory search of the vehicle, which produced a loaded firearm.

During a motion to suppress the firearm, the judge concluded that the seizure of the car was unreasonable. The judge found that Violet’s request that the vehicle not be towed and that its owner be permitted to get it was reasonable. After the arrest of a driver, a vehicle may be seized for a legitimate reason. However, seizure with the purpose of investigation is not a legitimate reason.

Courts look at the totality of the circumstances to see whether the alternative offered by the owner was an alternative the police reasonably should have allowed instead of impoundment. In this case, the car was registered to Violet’s girlfriend, and the police did not question that he was authorized by her to drive it. Violet requested that the police leave the car where it was parked until his girlfriend could retrieve it. Violet was only arrested for shoplifting and it was likely that he would be released on bail after he was booked and could then notify his girlfriend to retrieve the car. Even if Violet was not quickly released on bail, he could have used his phone call to call his girlfriend to pick up the car. There was no evidence of the car being at risk of being stolen or vandalized while left in the parking lot. The car was properly parked in the lot, and did not obstruct other vehicles.

Vehicular crash data is helpful when trying to figure out how an accident happened, and who may be at fault. However, it may be hurtful to defendants in that it may reveal liability that may not be uncovered by other means. Vehicle crash data may include anything from testing brakes to insurance reports.

In Massachusetts, a warrant is not required to collect vehicular crash data. In Commonwealth v. Mamacos, the Supreme Judicial Court of Massachusetts determined that the defendant did not have a reasonable expectation of privacy when the police tested his truck’s breaks. The first question the Court asked is did the defendant have a subjective expectation of privacy in his truck’s brakes? The Court held that it was unclear if the defendant had a subjective expectation to privacy, and turned to the second question of inquiry: does society recognize the defendant’s expectation of privacy as reasonable under the circumstances?

In Massachusetts, the Registrar of Motor Vehicles has the statutory authority to “investigate the cause of any accident in which any motor vehicle is involved.” G. L. c. 90, § 29. Section 29 requires that local police departments “notify the registrar . . . of the particulars of every accident [in which any person is killed or injured] which happens within the limits of [its] city, town or jurisdiction.” Because of the regulations set forth in Section 29, the general population would not find the defendant’s expectation of privacy reasonable. The Court held “it would stretch the Fourth Amendment’s protections too far to say that society is prepared to recognize as objectively reasonable an expectation of privacy in the braking mechanism of a motor vehicle that has come into police possession following the death of a motorist on the highway.”

The Massachusetts Supreme Judicial Court will hear oral arguments on Thursday in the case of Commonwealth v. Carter. Defendant Michelle Carter allegedly encouraged her friend to commit suicide, which he followed through with. Carter was only 17 at the time and therefore tried as a juvenile. The Court will hear arguments over whether a juvenile allegedly encouraging another person to commit suicide constitutes the “infliction or threat of serious bodily harm” for purposes of indicting her as a youthful offender.

Carter’s friend Conrad Roy committed suicide by inhaling carbon monoxide generated by his truck. While investigating Roy’s death, police uncovered text messages, phone calls, and emails between Carter and Roy. The messages focused on specific plans, direction, and encouragement for Roy to commit suicide. Phone records also revealed that Roy and Carter spoke by phone to each other during the time it is believed Roy sat in his truck inhaling the carbon monoxide fumes. Carter allegedly told Roy to “get back in his truck” when he exited because he was “scared that it was working.” Based on these correspondences, the Commonwealth sought to indict Carter as a youthful offender on the charge of involuntary manslaughter.

The Massachusetts legislature has not criminalized words that encourage suicide. No Massachusetts case or statute has recognized a duty to act in circumstances where a victim creates his own peril. The only way for Carter to be charged under involuntary manslaughter is for the state to show that Carter’s messages to Roy constitute the “wanton and reckless conduct” that caused the victim’s death.   Carter’s argues that her statements and text messages to Roy did not constitute the “infliction or threat of serious bodily harm” for the purposes of indicting her as a youthful offender. Carter argues that she committed no affirmative act resulting in Roy’s death, nor did she have any duty to protect him from self-harm.

The Kansas Supreme Court held in State v. David Lee Ryceheld that DUI tests are a search, and therefore a police officer is required to have a warrant if the driver does not consent to a test. Kansans can no longer be criminally prosecuted for refusal to take a breathalyzer or blood test without a warrant. The ruling also held that implied consent is not irrevocable and that withdrawal of consent cannot be criminally punished. Under Kansas law, anyone who operates a motor vehicle is considered to have given implied consent to DUI testing. The statute is facially unconstitutional, the court said, because it punishes the defendant for exercising his or her constitutional right to refuse the test.

The 4th Amendment of the Constitution of the United States starts with “the right of the people to be secure in their persons…” and cannot be searched without a warrant. Breathalyzers and blood tests are a search that invades a person’s privacy in the way that they are intrusive to what is actually going on within a person. Drivers who refuse a DUI test may still be required to submit to one of a warrant is obtained, but their Constitutional right to be secure in their persons will now be upheld.

However, even though drivers who refuse to take a DUI test may not be criminally charged, there are still civil punishments in place for refusal. Drivers are still in danger of fines or losing their licenses. While a few extra steps may be involved, following constitutional requirements still leaves the state with significant weapons to deal with those who refuse DUI tests.“While not all drivers without licenses will refrain from driving, the state may theoretically seek a warrant for an alcohol test and enact criminal penalties, including jail time, for refusing to submit to a valid Fourth Amendment search,” the court writes.

In the recently decided case of Commonwealth v. Beltrandi, the Massachusetts Appellate Court has held that when there are two people in a car, the jury may infer whom the driver of the vehicle is when presented with circumstantial evidence. In the case of Beltrandi, the defendant was sitting in the driver seat of a vehicle stopped on Route 9, with another person in the passenger seat. The defendant admitted that she and the man in the passenger seat had been engaged in “sexual activity” in the vehicle. After exiting the vehicle and performing several field tests, the officer formed the opinion that defendant was intoxicated and placed her under arrest. The defendant did not dispute that the vehicle had been operated on a public way, or that she was intoxicated at the time of arrest, but instead challenged whether the Commonwealth proved that she had operated the vehicle.

The Court held that direct evidence that the defendant operated the vehicle was not required. However, an inference of circumstantial evidence that the defendant was the operator is not reasonable if the fact finder must resort to speculation, conjecture or surmise. Defendant argued that the presence of a second person in the vehicle renders the inference that the defendant was the operator unreasonable. However, because the defendant was in the driver’s seat when the officer approached the car, the Court held that it was reasonable that the jury could infer that the defendant had been the driver of the vehicle.

Ultimately, the Court of Appeals reversed the lower courts decision in Beltrandi, due to an improper closing argument by the prosecutor. The passenger in the defendant’s vehicle was unavailable for trial because he had moved to California. In his closing argument, the prosecutor asked rhetorically, “[I]sn’t it convenient” that the witness was not present, and “[w]hat else would he know that we may reasonably infer from the evidence that came in?”  At the close of this argument, defense counsel objected, pointing out that the prosecutor was aware that the witness in question was in California and was not available.  The prosecutor informed the judge that he was not asking for a missing witness instruction, but contended that he was still entitled to argue that the jury should draw an adverse inference against the defendant due to the absence of the witness. The judge overruled the defendant’s objection by indicating that he would not give a missing witness instruction. The Court of Appeals applied the prejudicial error standard: “An error is not prejudicial if it did not influence the jury, or had but slight effect; however, if we cannot find with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, then it is prejudicial.” The Court held that it could not say that the prosecutor’s improper argument did not have a substantial effect on the outcome. The judgment was reversed and the verdict set aside.

The Massachusetts Supreme Judicial Court will hear the case of Neary-French v. Massachusetts over whether a defendant should be advised of his or her right to counsel prior to making the decision of whether or not to submit to a breathalyzer test. The 2003 amendment to G.L.c. 90, §24 created the “.08 or greater” per se theory by which an OUI offense can be proven. The SJC will have to decide whether or not the decision to take a breath test is a critical stage of the criminal proceeding, as defendants are entitled to be advised of their right to counsel prior to making any decisions in the critical stages of a criminal proceeding.  Recently, Bob McGovern of the Boston Herald wrote an Article about this case and how it has prosecutors concerned.

In Massachusetts, in order to support a prima facie case for an OUI, the prosecution must prove three elements: (1) that the defendant was in physical operation of the vehicle; (2) that the defendant did so on a public way or place to which the public has a right of access; and (3) had a measurable blood alcohol content percentage of .08 or greater, or was impaired by the influence of intoxicating liquor. Before the 2003 amendment, the jury could draw a permissible inference that the defendant was under the influence at the time of the offense if the BAC was .08 or higher. The 2003 amendment adopted the per se theory that a defendant with a BAC level of .08 or higher is now considered to be legally intoxicated under the law, regardless of the level of impairment.

A critical stage is one in which the defendant’s rights could be sacrificed or lost. Before the 2003 amendment, the right to counsel did not attach because the Court did not consider the test a ‘critical stage’ in the criminal process and the assistance of counsel would create an undue delay in the administration of the test. There were reasonable safeguards in place to protect the defendant’s right. The 2003 amendment removed defendant’s safeguards and caused the breathalyzer to become a critical stage in the criminal process because the outcome of the test could possibly be the sole basis of a conviction.

Making of a Murderer is a Netflix documentary that follows the life of Steven Avery, a convicted murderer. This documentary has been somewhat controversial, as it makes the argument that Steven Avery is innocent and that the Manitowoc County Police Department (Wisconsin) framed him. However, if you haven’t watched this enticing documentary, I urge you to. It will truly force you to question the justice system.


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