Articles Posted in DUI Laws and Court Cases

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.

For drunk driving defense lawyers in Massachusetts, the area of law that is most in flux and subject to changing court decisions is the Sixth Amendment Right of Confrontation. A recent case from Indiana addressed the meaning of a defense lawyer’s prior opportunity for cross examination that is required if testimony is presented at trial without the live testimony of a witness.

In a felony murder case, the Indiana Court of Appeals ruled that a defendant’s Sixth Amendment right was not violated when a trial judge allowed transcripts of witness testimony into evidence without the presence of the witnesses in court. A petition for writ of certiorari was filed in the United States Supreme Court and recently denied.

In the matter of Berkman v. Indiana, the appellate court affirmed the trial judge’s decision to allow the transcripts in lieu of the witnesses’ live testimony because the defendant had an opportunity to question the witnesses during earlier proceedings. Unfortunately, the Supreme Court recently denied the defendant’s application for review of the decision.

As an OUI Lawyer in Massachusetts, a common defense is to attempt to exclude statements from evidence based on the police department failing to provide an individual with their Miranda warnings.

The United States Supreme Court denied review of a Florida Supreme Court’s decision in Deviney v. State, 112 So. 3d 57 (Fla. 2013), reversing a conviction in a murder case on the grounds that the interrogating officers obtained a confession after the defendant had invoked his right to remain silent.

The Fifth and Fourteenth Amendments to the U.S. Constitution protect a defendant in a criminal proceeding from self-incrimination, and forbid the government from detaining the defendant without due process of law. In layman’s terms, these constitutional amendments protect the defendant from being required to testify against himself, and ensure that the defendant receives a fair and proper proceeding.

The case of Berkman v. Indiana raised an interesting issue under the Sixth Amendment regarding the meaning of a prior opportunity for cross examination. As a Massachusetts OUI Lawyer, Sixth Amendment case law will continue to shape how drunk driving and other criminal charges are defended in Massachusetts.

The Indiana Court of Appeals ruled that a defendant’s Sixth Amendment right was not violated when a trial judge allowed transcripts of witness testimony into evidence without the presence of the witnesses in court. The Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees a defendant the right to face his accusers. In the matter of Berkman v. Indiana [976 N.E. 2d 68 (Ind. App. 2012), the appellate court affirmed the trial judge’s decision to allow the transcripts in lieu of the witnesses’ live testimony, holding that the defendant had an opportunity to question the witnesses during earlier proceedings.

Berkman was accused of murdering a drug dealer during a scheduled drug exchange in a supermarket parking lot. After the murder, Berkman allegedly brought the victim’s body in the victim’s car to a girlfriend, who later watched Berkman ignite the victim’s car on fire. Berkman was charged with murder and felony murder. The jury acquitted Mr. Berkman as to the murder charge, but was unable to reach a verdict on the felony murder charge.

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