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?

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.

Last week saw the start of two high-profile shooting cases, both involving white police officers being charged with the shooting of a black civilian during a traffic stop. Given the circumstances, the cases  caught a lot of attention from the media when they individually occurred in 2015. Both incidents involve video evidence of the incidents so it will be interesting to see what approach the defense attorneys decide to take. Furthermore, the media coverage of both cases will make it difficult to obtain an objective verdict from the jury.

The Slager case underwent jury selection last week and the Tensing case will see opening arguments starting this week.

Below is a summary of the two 2015 cases.

Under Massachusetts OUI Law, a motorist must receive a citation immediately when being charged with OUI.  In a case where a motorist is not placed under arrest, the citation provides notice to the motorist of the OUI charge.  By not providing the citation immediately, A Massachusetts OUI lawyer can seek dismissal of the charge under the no fix statute.  This is what occurred in a recent case.

A Massachusetts Superior Court has dismissed an OUI charge after the 4 ½ month delay in the OUI citation was found to have not been in compliance with OUI Law and procedure. In Commonwealth v. Burnham, the defendant was the driver in a car accident but was never charged with OUI by the police officers that found him. It wasn’t until the defendant was later arrested on an OUI charge in an unrelated incident, that the prosecutor obtained medical records from the initial accident and cited him with OUI despite the time lapsed.

About the Case

The Murder trial of Justin Ross Harris will require the jury to piece together the circumstantial evidence of the prosecution and determine the intent of Harris, did he accidentally leave his son in the car as the defense content or was it intentionally, as the prosecution claims.  Monday’s opening statements showed defense attorney Maddox Kilgore refer to his client as being responsible, for a “tragic accident” and not for malice murder. The defendant, Justin Ross Harris, has plead not guilty to charges of malice murder, two counts of felony murder and first degree cruelty to children.

During the trial, Attorney Kilgore plans to use testimony from Harris’s ex-wife who- despite hostility towards Harris and the ending to their relationship- will testify that Harris was a good father and loved his son.

About the Case

The Massachusetts Supreme Judicial Court has excluded evidence obtained from the cellphone of the defendant in Commonwealth v. Onyx White following the Boston Police’s failure to prove probable cause for the warrantless seizure of the phone.  The court affirmed that the warrantless seizure of a cell phone in the robbery-homicide investigation could not be justified by the detective’s personal judgment as to whether or not the cell phone contained important information relating to a case. The SJC ruled that the 68 day delay in the respective search warrant application was was unreasonable and that the Boston Police department should have prioritized the application for the respective search warrant or released the cell phone back to the defendant.

About the Case

After speaking with an administrative at the defendant’s high school based on his connection to a robbery-homicide, the administrative had informed the detective that she was in possession of the defendant’s personal cell phone as part of school policy. After gaining approval from his supervisor, the detective seized the cell phone in order to prevent the defendant from tampering with any potential evidence stored in the phone. A search warrant was issued 68 days later following the emergence of new information. Although the detective did not search the phone prior to the search warrant, the forensic search revealed evidence significant to the investigation.

How does the RMV in Massachusetts determine if an out-of-state DUI conviction should count as a prior offense in Massachusetts?  When a motorist is charged with an OUI offense in Massachusetts, the offense level is determined by the number of prior offenses that the person has in their lifetime. This includes out-of-state offenses.

Prior offenses from another State count as a prior offense in Massachusetts if the DUI law in that state is substantially similar to Massachusetts OUI laws, which are contained in Chapter 90 Section 24.

Does a DUI Conviction in New York Count as a prior offense in Massachusetts?

The Massachusetts Supreme Judicial Court ruled that a dangerousness hearing provides a prior opportunity for cross examination under the Sixth Amendment in the case of Commonwealth v. Carlos Rodriguez, decided on September 22, 2016.  The Court upheld a conviction for domestic assault and battery without the testimony of the victim, despite its holding that the victim statements to the police were testimonial because the defense lawyer had an opportunity to cross examine the victim at a dangerousness hearing.

In this case, the defendant went to trial in the Springfield District Court for assault and battery As is common in domestic cases, the victim declined to testify.

Often, when someone is charged with domestic assault and battery, the person charge will assume that the case will be dropped if the victim does not wish to testify. In fact, the Commonwealth can still prosecute the case as this recent case illustrates.

As a Massachusetts OUI lawyer who has represented numerous clients dealing with an OUI charge, I understand it can be extremely difficult. In this blog I want to offer some guidance on how to get through the charge. For many people it is their first time ever being arrested or facing any type of criminal charge. So the stress and anxiety of being charged with a crime is high. Here are a few things that I believe will help you to deal with the situation.

First offense OUI is easy to be charged with. Essentially, it’s a crime of opinion. The officer’s opinion could simply be wrong. However, once you are charged, you have to go through the process and be found not guilty in court to avoid a conviction.  There are very few counties in Massachusetts that will negotiate an OUI, meaning reduce it to negligent operation.  As a generally rule, in 99% of the cases, you will have to go to trial to avoid an OUI conviction.

There is a good chance of winning such cases. Keep in mind, regardless of how the case turns out, whether it is guilty or not guilty, it is a misdemeanor offense, and an offense that many people have gotten through. You are highly unlikely to go to jail for a first offense OUI. I typically tell my clients, whether it be continuing to go to school or work, try to stay on the same course as before you had the charge.

Contact Information