Articles Posted in DUI Laws and Court Cases

The Massachusetts Supreme Court ruled today in Commonwealth v. Thomas Gerhardt that field sobriety tests are admissible for an OUI marijuana, but cautioned that jurors cannot rely on these tests in and of themselves to find someone guilty or impaired by marijuana. The model jury instruction drafted in the opinion addresses the concerns that jurors will assume FST are accurate for marijuana as for alcohol.  The SJC expressly tells jurors that there is no correlation between performance on field sobriety tests and impairment by marijuana.

Additionally, the SJC found that officers cannot testify as to their lay opinion regarding impairment by marijuana as the scientific community has not developed any consenusus on the signs showing impairment by marijuana.

In an article from Chris Villani of the Boston Herald, the SJC was described as splitting the difference.  While that is a fair assessment of the decision,  I think the cautionary jury instruction will greatly reduce the value of the field tests to a jury, so while admissible, those assessments, as the Court refers to them, should have diminished weight in the eyes of the jury.  Further, the exclusion of lay opinion as to impairment leaves the jury without any testimony tying the observations to impairment from marijuana directly from the officer.  That is a significant benefit to the defense and based on the lack of scientific agreement on the signs of marijuana impairment, is a step forward in ensuring a defendant gets as fair trial.  The Gerhardt case was one where DelSignore Law submitted an amicus brief on behalf of the National College of DUI Defense on behalf of the defendant.

The Massachusetts Supreme Court will soon decide the case of Commonwealth v. Dayton, which raises the issue of whether an individual charged with an OUI third offense can be held as a danger to the community. The dangerousness statute of Massachusetts General Laws Chapter 58a, provides that a defendant can be held for up to 120 days without bail if the Commonwealth can establish that the defendant is a danger to the community. To be held without bail under the dangerousness statute, the defendant has to be charged with an offense which falls under the statute.

OUI third offense may fall under the statute, however, the statute is ambiguous, as to whether an OUI third qualifies for detention under the dangerousness statute. Section 58a., provides that the Commonwealth may order pretrial detention on conditions of release for a felony offense, including when a defendant is arrested and charged with a third or subsequent conviction for a violation of Section 24 of Ch. 90.

Third offense is a felony offense, however the issue is whether it counts as a third or subsequent conviction. The defendant’s in the Dayton case argued that a person must would have to be charged with a fourth offense in order to meet the requirements of being held as a danger to the community. A person charged with a third offense only has two prior convictions, as a person charged with a fourth offense has a third more subsequent conviction.

The Massachusetts SJC decided an important case for Massachusetts OUI Lawyers today.  The SJC held in Commonwealth v. Morgan that the Valor Act permits a judge to dismiss a first or second offense OUI over the Commonwealth’s objection.  The SJC held that the wording of the statute did not exclude dismissal as a remedy and that the legislature is presumed to know how a statute will impact existing laws.

The Valor Act was passed in 2012 in recognition of the service of military personnel in Afghanistan and Iraq. The Act permits someone who has been honorable discharged and has been in active duty to have a criminal charge of a misdemeanor, if the individual has no other record, dismissed under a diversionary program.

Once probation determines that an individual qualifies, the Court continues the arraignment for 14 days to allow the individual to receive a recommendation from the Veteran’s Administration that they meet the eligibility requirements for the pretrial diversion program.  The case is then stayed for 90 days until the program is completed; after the completion of the program, the judge is authorized to dismiss the charge under the recent decision of the SJC today in Commonwealth v. Morgan.

The Massachusetts Supreme Judicial Court will hear oral argument tomorrow on the issue of whether the Valor Act permits a dismissal of an OUI charge over the prosecutor’s objection.  The case that raised this issue is Commonwealth v. Joel Morgan, which was originally  charged out of the Lowell District Court.

The Valor Act allows for pretrial diversion of any individual who has served in the military and has been in at least one day of actual combat. To qualify for a diversion under the Valor Act, the individual most not have any prior record and must get a recommendation from a treatment provider that they would benefit from the treatment.  The diversion is available for any type of criminal charge but has come up must recently regarding OUI offenses.  The Morgan raises two questions both in the context of a second offense; however, the Court’s reasoning is likely to apply to a first offense.

  • Can a Judge enter a CWOF on a second offense OUI?

  Expert testimony is critical in a Massachusetts Motor Vehicle Homicide prosecution.  The issue of whether this testimony is admissible came up in the trial of Commonwealth v. Guinean, which was recently decided by the Massachusetts Court of Appeals.

Back in 2010, the defendant was found guilty of both OUI and motor vehicle homicide.  On appeal, the defense lawyer claimed that a Superior Court judge abused his discretion in admitting expert testimony introduced by the Commonwealth. The expert testimony was in relation to the computer-assisted power steering mechanism within the defendant’s motor vehicle.

Conviction Overturned because Expert Testimony was Improperly Admitted

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.

Many OUI stops originate from a report of someone on the road claiming that another driver is driving erratically. In many cases, the officer will follow the motorist and make independent observations justifying the stop. In some cases the stop may be solely the result of the 911 caller. The SJC addressed this issue on October 26th of 2015 in Commonwealth v. John Depiero.  The Court heard oral arguments in this case with a decision expected within three or four months.

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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.

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The Massachusetts Supreme Judicial Court has just issued a decision establishing a single definition of reasonable doubt, the standard by which jurors are to find the defendant guilty of a crime. The decision, published and released under the case heading of Commonwealth v. Gerald Russell, marks a significant effort to protect the most important legal principal in Constitutional law.

The 150-year-old Webster Instruction

Proof beyond a reasonable doubt is a difficult concept to understand and to explain, and is the most difficult standard for any party to meet. Courts have been relying specifically on one definition of this standard, published over 150 years ago in the case of Commonwealth v. Webster, 59 Mass. 295 (1850). The Supreme Judicial Court explained the standard of finding guilt beyond reasonable doubt to mean that the jury, after considering the facts and the reasonable inferences drawn from them, reached a “satisfactory conclusion” of “moral certainty” that the defendant committed the charged offense. The courts then derived from this decision what has become the model “Webster instruction” – which requires a “moral certainty” and an “abiding conviction.”

The Massachusetts Appeals Court addressed the issue of proving a motorist has a blood alcohol content over .08 under the per se law when there is a substantial time lapse between the time of the breath test and driving observations. This issues frequently arises as one of the many defenses in an OUI charge with breath test results.

The Appeals Court in Commonwealth v. Dacosta recently upheld a defendant’s conviction on the “per se” charge of operating a vehicle with a BAC level of .08 or greater when the defendant’s BAC level was tested approximately an hour after the traffic stop. According to the Court, no “retrograde extrapolation” evidence was required where a breathalyzer test was administered 55 minutes after the traffic stop. To learn about the science behind retrograde extrapolation see the attached Article by Kurt Dubowski.

The defendant was stopped when an officer noticed a faulty inspection sticker on the windshield. During the stop, the officer observed that the defendant had red glassy eyes and so administered two sobriety field tests. The defendant failed both tests, and so was arrested and transported to a nearby police station.

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