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The Massachusetts Supreme Judicial Court heard oral argument in the case of Commonwealth v. Thomas Gerhardt raising the issue of whether field sobriety tests should be admissible for an OUI marijuana arrest.

While it is difficulty to predict how judges will decide from questions, here are my thoughts.

The Justice stated that it would be improper with an objection for an officer to testify that a defendant passed or failed field sobriety tests in an OUI alcohol or marijuana case.  It appeared as though the Justice seemed to think that because an officer can testify that someone stumbled getting out of the car, that it is not significantly different to say that the individual could not follow instructions on a field sobriety test.

The Massachusetts Supreme Judicial Court will review a decision from Judge DeAngelo out of the Worcester District Court holding that field sobriety tests are unreliable when attempting to determine if a driver is under the influence of marijuana. The case was argued once before at the SJC as Judge DeAngelo initially reported the question to the court without making a decision. The SJC remanded it to him for an evidentiary hearing. After that hearing he made the following finding in an extremely well reasoned opinion.  As a Massachusetts OUI Lawyer, I expect the SJC will affirm Judge DeAngelo’s decision and hope that this case will be followed nationally by other courts addressing this issue.

Judge DeAngelo questions that the SJC requested that he answered; here is a summary of his findings.

First, he found that there is a correlation between marijuana use and impaired driving.  Despite this correlation, he found that there was no credible evidence as to what physical characteristics permit an inference that an individual is impaired while driving.  He found 4 physical characteristics common to positive marijuana use.

There was no verdict in the Justin Ross Harris hot car death trial.  Lawyers delivered closing arguments in the Justin Ross trial.  The defense argued that it was an accident that Justin Ross left his infant son Cooper in a hot car that caused his death.  Ross’ lawyer Maddox Kilgore presented a skillful closing argument where he contends that Ross had no motive to kills his son.  The State claimed that he wanted to escape from his child to have more time to be with other women as there was extensive evidence of him sex texting other women and having affairs.  The defense claimed that Ross was living the life he wanted, there was no need to kill his son who the defense said the evidence showed he loved.  At the time of his son death, Ross the defense claims was planning a family cruise and was looking for a house in a good school district.  Ross’ ex-wife who despised him for cheating said that he loved Cooper.

Ross left his son in the car according to the defense when he got out of his normal routine of dropping his son off at daycare prior to going to Chick Fillet and then to work.  The defense presented an expert about false memory.  The defense expert explained to the jury that it is very easy to believe you did something when you habitually do it and people can easily get distracted.

The defense further argued that the State incorrectly presented how the car seat looked and that he was not in the line of sight of Ross.  A key point for the defense was that Ross parked in the middle of the parking lot, rather than in a wooded or more secluded area of the lot where Cooper was less likely to be seen.

The Massachusetts Supreme Judicial Court found that the police had no reasonable suspicion to stop a black male walking on the streets in Roxbury believed to be a suspect in a breaking and entering. As result of the seizure, the police found a hand gun; the Court ordered it suppressed as there was no basis for the detention of the defendant.

The SJC overruled the decision of the motion judge who would found no Constitutional violation under the 4th Amendment or Article 14. The Court decision held:

  • Flight provides little or no weigh in an analysis of reasonable suspicion unless the person is committing a crime, as the police could induce flight and thereby create a suspicion where none exits.

The Connecticut State Supreme Court has upheld the abolishment of the death penalty, including for death-row inmates in the re-examination of the case of State v. Santiago.  Last August, the Court held that the death penalty was unconstitutional following the legislature’s abolition of capital punishment three years ago. The legislature made the law to apply only to new cases and kept in place the death sentences that were already imposed on those facing execution. This law left 11 men on death row to await execution. Attorneys for the inmates on death row challenged the law, saying that it violated the inmates’ constitutional rights. The justices in the majority wrote that executing an inmate “would violate the state constitutional prohibition against cruel and unusual punishment” and that the death penalty “no longer comports with contemporary standards of decency.” The majority essentially said that it would be unfair to execute the remaining death row inmates when lawmakers had determined that the death penalty was no longer needed for future convicts. Inmates on death row will now be resentenced to life without parole.

The constitution of Connecticut prohibits cruel and unusual punishments under, as held in the Eighth Amendment of the US Constitution. The death penalty is categorically excessive and disproportionate when imposed on certain classes of offenders. Further, the death penalty is subject to random and arbitrary imposition due to biases and discrimination. The defendant’s life is left in the hand’s of the jury that has virtually unquestionable discretion whether to sentence him to death if convicted.

The United States is the only Western Country still applying the death penalty. There are currently still 30 states that uphold the death penalty as a sentencing option, as well as the federal government. Of these states, seven have put executions on hiatus without an official end to the death penalty. However, more and more restrictions are being put in place as time goes by. The death penalty may only be used if the defendant is convicted of or pleads guilty to a capital offense. The death penalty has been ruled to be unconstitutional for minors and those with intellectual disabilities.

The Supreme Court is reconsidering a death row conviction from 30 years ago after the prosecution’s notes from the jury selection process were found to contain multiple indicators of racial bias. Despite the evidence showing illegal racial discrimination, the State of Georgia is disputing the case, alluding to the brutality of the murder and suggesting that the racial references were done to “prepare” the prosecution for future cases where racial bias may occur. Juror

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The Rape Trial of Owen Labrie began this week with opening statements and testimony of the complaining witness in the case.

In this Blog, I will review what I see as the strength of the Defense case and why I would expect the jury to find Owen not guilty on the Rape Charge.

The case revealed a disturbing culture at St. Paul Boarding, a New Hampshire prep school, which students referred to as a senior salute. The defense tried to downplay this culture, which ultimately is when older students attempt to ‘hook up’ with one freshman student before graduation, but it is clear that the school prompted a culture degrading to its younger female students.

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The Kansas Supreme Court recently issued a decision dismissing one of the most controversial pieces of evidence used in an OUI trial – the horizontal gaze nystagmus test (HGN). Finding no evidence to support the reliability of HGN test results, the high court forbade trial judges from admitting HGN test results for ANY purpose at all, until expert scientific evidence is presented to establish the test’s reliability in measuring intoxication levels.

The Kansas court issued this important ruling in the recent case of City of Wichita v. Molitor. In Molitor, the defendant was pulled over for failing to signal a right turn at a stop sign. Though the defendant correctly stopped at the sign, and properly completed the turn, he did so without signaling. And though the defendant passed two of three sobriety tests, the officer still required him to take a breath test, which registered a BAC level of .09 percent. The defendant was then arrested for an OUI.

After the officer stopped the defendant, the officer approached the vehicle and detected an odor of alcohol. The officer also noticed that the defendant had watery and bloodshot eyes, and so asked the defendant if he had consumed alcohol earlier that evening. The defendant replied that he had a couple beers, and the officer ordered him to exit the vehicle for field sobriety testing.

New Jersey legislators are voting on a bill that would require the installation of an ignition interlock device for all drivers convicted of a DUI. If enacted, this bill would require all drivers operating a motor vehicle within a period of time after their DUI conviction to periodically breathe into an electronic device to determine whether they are sober enough to operate a vehicle. If the device registers a breath of .08 percent or greater, it will prevent the driver from starting their vehicle.

New Jersey joins many states in seeking to add and tighten existing restrictions and sanctions on repeated offenders. In 2005, for example, the Massachusetts legislature enacted “Melanie’s Law,” which not only requires the installation of ignition interlock devices for repeat offenders, but also enhanced license suspension sanctions and mandatory confinement sentences. Under Melanie’s law, a person charged with an OUI with a license that was currently suspended faces a one year mandatory minimum jail sentence. The law also creates a jail penalty for anyone tampering with the interlock device.

New Jersey has already enacted legislation that requires ignition interlock devices to be installed in the vehicles of drivers charged with a second or subsequent OUI. The new bill, however, seeks to require the installation of the device for not only repeat offenders, but also first time offenders as well. According to the official statement to Senate Bill No. 385, anyone convicted of a first offense OUI with a BAC level between .08 percent and .10 percent would not only lose his license for 10 days, but would be required to install an ignition interlock device for a period of three months. The ignition interlock device will remain installed for longer periods of time if the BAC level was greater than .10 percent. The bill also includes a provision that allows for the automatic extension of this time period if the driver fails the breath test within the last thirty days.

The Massachusetts Supreme Judicial Court has just issued an important decision in the license suspension case of Commonwealth v. Oyewole (click here for my previous blog on the case). After the Appeals Court rejected the defendant’s arguments that he was not properly notified of his suspension, the Supreme Judicial Court officially reversed this decision, agreeing with Appeals Court Justice Agnes’s dissent that the State must be required to prove notice beyond all reasonable doubt.

The Oyewole case involved a defendant who was charged with an OUI, and who was subsequently stopped by an officer operating within the 60 day license suspension period. The defendant’s license was temporarily suspended as a result of the OUI conviction that was continued by the trial judge for one year. And although the trial court generally confiscates the defendant’s license for the duration of the license suspension period, the officer who later stopped the defendant within the 60 day period testified that the defendant had his license with him at the time of this subsequent stop.

The defendant argued that he was not properly notified of his license suspension, and that the State failed to meet its burden of proof on this element of the charge. To convict on a charge of operating with a suspended license, the State must prove that the defendant not only operated a vehicle during the suspension term, but that the defendant did so while on notice that his license was suspended.

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