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.

Can tattoos be consider evidence of a crime the same as if a person makes a confession to the police?  As a Massachusetts criminal defense lawyer, I would expect the judge to say that the tattoos cannot be admitted into evidence; however, this issue is before the Superior Court judge presiding over the Aaron Hernandez trial.

Hernandez’s defense lawyers correctly argued that it would be unfairly prejudicial and speculative to allow the jury to infer the reasons why Hernandez may have his tattoos and attempt to infer intent.

Aaron Hernandez now spends his time behind bars serving a life sentence for the June 2013 murder of Odin Lloyd. Additionally, he has been charged and is awaiting trial for the double homicide of Daniel de Abreau and Safiro Furtado. It is known that Hernandez has many tattoos on his body, and during a recent motion hearing prosecutors mentioned the potential link between the tattoos and the crimes that were committed- noting that the tattoos are “trophies of his killings”.

john-adams-courthouse-1-300x225On January 6, 2017 the Massachusetts Supreme Judicial Court will hear oral arguments in the case of Commonwealth v. Thomas Gerhardt. This case raises the issue of whether field sobriety tests, which are routinely used to determine whether someone is under the influence of alcohol, can additionally be used to be determine if someone is driving under the influence of marijuana. Field sobriety tests have been studied extensively with relation to alcohol, and they are accepted as being proper evidence in the prosecution of driving under the influence of alcohol. However, the field sobriety tests have never been studied with regards to whether or not they can help determine if a person is impaired by marijuana.  Attorney DelSignore filed an Amicus Brief on behalf of the National DUI College, an organization he has been a member of since 2007.

A judge in the district court ruled that these tests are inadmissible because they are unreliable and do not have any scientific support behind them. The judge concluded that whether someone passes or fails a nine step walk and turn or a one-leg stand does not help a jury determine whether the defendant is under the influence of marijuana. The Government argued that these tests do in fact have relevance because a persons reduced balance and the ability to follow instructions is a correlated with impairment by marijuana just as it is for alcohol.

DUI arrests on New Year’s Eve are often the result of polcie officers looking to make arrests; often police departments will receive extra grant money for New Year’s Eve.   Some of those arrest will be drinking socially and not under the influence, but arrested anyway and will have to go through the process of fighting the charge in court.  As a Massachusetts OUI Lawyer who handles these cases everyday, I will be available on the New Years Day and the 2nd to help answer your questions.  Many of these cases can be defended in court, you just need to understand the process.

With New Years Eve quickly approaching, many people are scrambling to find celebratory plans for the upcoming weekend. With New Year’s Eve  falling on a Saturday this year, local bars and restaurants are likely to be jam-packed for the night, and many people will fail to take into account their means of getting to and from these establishments.

The NIAAA (The National Institute on Alcohol Abuse and Alcoholism) has recognized that 40% of traffic-related deaths occur between Christmas and New Years by drunk drivers, and New Years Eve itself has been cited as being the day with the most arrests made by law enforcement agencies across the country. Additionally, Triple AAA has reported that nearly 90 million Americans will hit the roads between Christmas and New Years, further exemplifying the fact that the roads are a dangerous place to be this time of year. For a better understanding of Massachusetts statistic’s regarding DUI arrests, view the Mass DUI Statistics webpage here.

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

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