In February, the United States Supreme Court will hear a case which sheds light on whether or not the prosecution can legally use a defendant’s previously-obtained incriminating statement as evidence at a preliminary or probable cause hearing; the Supreme Court will ultimately decide whether or not this violates a person’s fifth amendment.

The fifth amendment of our constitution guarantees that “no person … shall be compelled in any criminal case to be a witness against him or herself”.  The main issue, in this case, is that if the Fifth Amendment is violated when a criminal defendant is compelled to incriminate himself, should the statement be allowed as evidence in a probable cause hearing?

The case, City of Hays, Kansas v. Vogt, is a case that will challenge the scope of the fifth amendment self-incrimination clause. The defendant in the case, Matthew Vogt, was a police officer in Hays, Kansas, but was in the interview process with the police department in another town, Haysville. During the interview process, Vogt disclosed that he had kept a knife that he obtained while working for the City of Hays.

In December, the Supreme Court began oral arguments in a Colorado case, where a shop owner denied service to a same-sex couple looking to purchase a cake. As the arguments ensued, it began clear that the justices were sharply divided and highlighted many of the issues, on both sides, in the case: religious beliefs and anti-discrimination laws.

The Colorado case dates back to 2012 when a gay couple, Charlie Craig and his partner David Mullins, walked into a cake shop requesting a cake to celebrate their same-sex marriage; their wedding was to be held in Massachusetts, but their cake was for a reception they were holding in Colorado for their friends and family. The owner of the shop, a religious man named Jack Phillips, declined to make them a cake due to his Christian values.

The rules governed by anti-discrimination agencies in Colorado suggest that Phillips’ refusal to provide a cake for a same-sex marriage celebration violated laws and that, legally, he had no right, by free speech, to turn down the cake request by the two men. Phillips was informed that if he was to make wedding cakes for heterosexual weddings, he is also legally required to do so for weddings where the two parties are of the same sex.

Together, African American narcotics officers and the Guardian Civil League have filed a federal lawsuit against the city of Philadelphia, the Philidelphia Police Department, and two narcotics supervisors; the basis for this lawsuit arose from the officers’ claims of racial discrimination and retaliation. The discrimination, officers’ say, is a result of their not wanting to cooperate with the narcotics bureau commanders orders to falsify drug-arrest paperwork.

The civil rights lawsuit highlighted a few of the major issues circulating within the Philidelphia Police Department; narcotics bureau commanders told their officers to disregard and ultimately ignore the department’s rules, withhold and change the names of the informants as well as other information used during drug prosecutions. By refusing to carry out such arrests, the African American narcotics officers say they have since been racially discriminated against.

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The Guardian Civic League represents African American Police Offices in PA. 

Since August of this year, breath test evidence has not been used in Massachusetts as a result of discovery violations that occurred during the Alcotest 9510 litigation in the Concord District Court that was heard before Judge Brennan.  Now New Jersey, has also had an issue impacting breath test evidence Statewide.  New Jersey uses the same Breath test used in Massachusetts.

Nearly 20,000 DWI cases with breath test results are currently on hold in New Jersey after a State Police Sergeant was accused of incorrectly calibrating the breath test machines used in police departments across the state. The issue arose out of a lawsuit filed in federal court by a woman who was convicted in 2016 of DWI after blowing a breath test reading of .09.


The Attorney General’s office in New Jersey has charged Sergeant Marc Dennis with records tampering, arguing that he overlooked and incorrectly handled the Alcotest breath test machine in the 6-month recalibration of the machine. All of the Alcotest instruments produced and manufactured by Draeger Safety Diagnostics were required to undergo the said 6-month recalibration.

The New York State Supreme Court Justice Andrew Ceresia recently ruled that prosecutors are not allowed to introduce Google location services as evidence into the second degree murder trial of Johnny Oquendo. In the ruling, Ceresia highlighted that prosecutors ultimately “failed to meet their burden” when exemplifying that Google location services is accepted in the relevant scientific community.

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Prosecutors had originally wanted to introduce evidence from the Oquendo’s cellphone from the night of the murder, arguing that the location services on his phone could pinpoint where the defendant was throughout that night. Oquendo’s defense attorney William Roberts asked the judge to hold a hearing in regards to the evidence.

The hearing was held on October 16, 2017; prosecutors called two witnesses to the stand, an FBI Special Agent Michael Sabric and a records custodian for Google, Sarah Rodriquez. While the witnesses presented by the state were qualified to offer opinions on the google technology, the judge argued, there simply was not any reference to how the technology itself has gained acceptance in the scientific community.

Massachusetts breath test evidence not being used in Court as the Head of the Office of Alcohol Testing was fired Monday.  Melissa O’Meara, the head of the Massachusetts Office of Alcohol, was fired Monday amid an investigation which uncovered that the office was withholding evidence of breath test machines that were improperly calibrated. The 126 page report cultivated by public safety officials stated that the withholding of such evidence was done intentionally and was not the result of a big mistake.

O’Meara was the technical leader of the Office of Alcohol Testing and had the responsibility of certifying the reliability of the breath tests submitted by defendant’s under arrest for operating under the influence of alcohol. Melissa O’ Meara worked with the Massachusetts State Police for nearly a decade.

The Massachusetts Office of Alcohol Testing oversees all of the states breathalyzer machines. They ensure the machines are up to date, and are, at all times, functioning and calibrated properly. The information that O’Meara was withholding is information that could have been hugely helpful to defense attorney’s and their clients. The report concludes that he Massachusetts OAT “made serious errors in judgement” in regards to handling requests made by defense attorneys in their requests for discovery.

The Massachusetts Appeals Court ruled today that the breath test operator does not have to watch the defendant to be in compliance with the 15 minutes observation period.  This ruling is contrary to the regulations requiring that the breath test operator observe a defendant for 15 minutes.

This decision arose out of a motor vehicle homicide case and is likely to be appealed.  The Appeals Court’s decision is contrary to the regulations and disregards the fact that a breath test operator has special training to determine whether someone is under the influence of alcohol.  The decision of the Appeals Court is Commonwealth v. Leary.

The burden of the Commonwealth to prove compliance with the 15 minute observation period is not very difficult.  A breath test operator should be able to watch the person taking the test for 15 minutes.  There are a lot of issues with the reliability of breath test machines that are being litigated as part of the consolidated litigation before Judge Brennan.  It was recently revealed that there were serious discovery violations during this litigation.  To lessen the requirement of admissibility was an unfortunate decision for the court when the regulation could not be more clear.  As a Massachusetts OUI Lawyer, this decision can be distinguished; it appears as though the Court may have been making inferences from the video in the case.  There is no indication from the opinion what role the other officers had during booking.  If this case is affirmed, it can be distinguished based on the facts this decision was based on.

When a driver is arrested for OUI, Massachusetts OUI law requires the officers to deliver a citation to the suspect immediately.  If there is a delay in issuing the citation, dismissal may be the appropriate remedy.  In the case of Commonwealth v. Richard O’Leary, the SJC reversed a lower court’s judge’s decision dismissing an OUI complaint alleging serious bodily injury.  The Court discussed the three circumstances where the Court would excuse a delay in issuing a citation.

  1. When the violator could not have been stopped;
  2. When additional time was reasonably necessary to determine the nature of the violation.

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.

This week there will be two significant hearings on breath testing.  The SJC will hear oral argument in the case of Commonwealth v. Camblin.  This case has been at the SJC before; in the first Camblin decision, the SJC held that a district court judge was wrong to deny the defense as hearing on the scientific reliability of the breath test.  At the time of the decision, the breath test being used was the Alcotest 7110.  The case was remanded back to the district court judge for a hearing on whether the Alcotest 7110 was scientifically reliable.  The judge concluded that it was scientifically reliable, rejecting a number of defense challenges to the accuracy of the machine.

The Camblin decision opened the door for the current litigation regarding the Alcotest 9510.  In response to the Camblin decision, defense lawyers filed motion to exclude the breath test arguing that the machines were not scientifically reliable.  The district court judge consolidated this litigation before Judge Brennan to resolve all issues regarding the scientific reliability of the Alcotest 9510.  That litigation expanded over two years; Judge Brennan concluded that the Alcotest 9510 was scientifically reliable, but found that the Office of Alcohol Testing did not have a scientifically reliable method to annually certify the machines prior to September 14, 2014.  As a result he made all tests prior to that date presumptively excluded.

That ruling resulted in district court judges holding hearings on whether the Commonwealth could prove that the analyst from OAT followed a reliable method.  Judges were reaching different decisions on this issue.  Recently, the Commonwealth stopped using all breath test results after it was discovered that the OAT failed to turn over 400 documents that were ordered to be produced as part of the litigation.  The hearing this week will address what remedy is afforded a result of this discovery violation. District Attorneys are investigating what occurred and have not used breath test evidence since this violation was uncovered.  As a Massachusetts OUI Lawyer, I would expect Judge Brennan to order that test results cannot be used at all prior to September 2014 as a remedy for the discovery violation.  As to cases outside of the period of the consolidated appeal, which would be case after September 14, 2014, these may be impacted but the discovery violation depending on the reason for the violation and whether any particular analyst had a role in the failure to disclose the exculpatory evidence.