On September 19, 2017 the Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Gerhardt, SJC – 11967. This dealt with the admissibility of field sobriety tests as they relate to operating a motor vehicle under the influence of, or OUI marijuana. The Court held that in these cases, the term “field sobriety tests” cannot be used in court, rather the tests can be called “roadside assessments”. The Supreme Judicial Court further held that the officer cannot conclude that the driver passed or failed the test. Finally, the Court in Gerhardt crafted a jury instruction addressing the value of the roadside assessments that strongly assists the defense in these cases. Continue reading →
An Andover, Massachusetts police officer now has a November 22nd date for a Clerk’s Hearing in the Lowell District Court. The charges being considered at the hearing are Leaving the Scene of an Accident Causing Property Damage and Operating Under the Influence of Liquor, commonly referred to in Massachusetts as OUI.
It is alleged that on March 11th of this year Officer Evan Robitaille of the Andover Police Department got into an accident around 9:30 in the morning and then fled the scene. A Clerk’s Hearing was scheduled for last Friday but with the agreement of Robitaille’s lawyer and the district attorney the case was continued.
In Massachusetts, people charged with misdemeanors not committed in the presence of police officers have the right to a Clerk’s Hearing. This is a civil proceeding conducted in front of a Clerk Magistrate. The moving party will introduce evidence at the hearing. The Massachusetts Rules of Evidence do not apply to these proceedings, so essentially, the moving party gets to tell his or her story. The accused has the right to present evidence in his or her behalf but is under no obligation to do so. The clerk magistrate then weighs the evidence and makes the determination as to whether 1) there exists probable cause to issue a criminal complaint and 2) whether there exists probable cause to determine whether the accused is the person who committed that crime. If the answer to both is “yes” then a complaint often issues.
The Clerk Magistrate does however have the power not to issue the complaint. He can continue the matter and advise the accused that if he remains out of trouble for a period of time no complaint will issue. The Clerk Magistrate can also work with the parities towards a resolution of the issues without the need for judicial intervention. In essence he acts as a “gatekeeper” to the court, weeding out the cases that can be resolved without the issuance of a criminal complaint.
It is advisable for anyone who has one of these hearings to engage a Massachusetts Criminal Lawyer. Good lawyers can prevent complaints from issuing and the cost of a lawyer at a Clerk’s Hearing is often less than that at a criminal proceeding.
Boston.com reports today that a forty six year old Dorchester, Massachusetts man has been charged with Motor Vehicle Homicide stemming from an incident that occurred last week. It is alleged the defendant was driving his vehicle on Morrissey on September 14, 2012 when he hit a sixty three year old bicyclist. The impact of the collision threw the victim from the bicycle leaving him dead at the scene. The accused remained at the scene and called 911. The responding police officer reported that the defendant admitted to having one drink prior to the incident. The defendant asked to go to the hospital and quickly hired an attorney prompting police to honor his constitutional rights and cease all questioning. The officer at the hospital noted that the suspect exhibited the following: 1) a strong odor of alcohol coming from his person; 2) speech was slurred; 3) tongue was “thick and pasty” and 4) unsteady on his feet. An accident reconstructionist believed the defendant was driving twenty miles per hour over the speed limit. The case is pending in the Dorchester District Court.
Dorchester, Massachusetts Criminal Attorney
From the perspective of a Massachusetts Criminal Lawyer the accused in this case did the right thing. I have said on countless occasions that no one can talk his or her way out of being charged with a crime. People suspected of criminal activity who talk to the police usually provide the information necessary to secure a conviction. The reason for this is simple. The police are trained to ask questions and to ask them in a certain way. They often leave the suspect with a false sense comfort and implicitly suggest that their cooperation will benefit them if the case gets prosecuted. Their objective is to prove a suspect’s involvement in criminal activity regardless of what they tell you. The unassuming subject will talk to the police believing he is helping himself. He is wrong about this. His cooperation will hurt him.
Conversely, people who invoke their 5th Amendment Right to Remain Silent make the prosecution prove its case with evidence collected from the crime scene, the testimony of people who witness the event and other evidence that might support its case. Here for instance, the prosecution is going to have to rely primarily on the representations of the responding officer. The information in the report is boilerplate. The strong odor of alcohol, being unsteady on his feet, bloodshot eyes and slurred speech are phrases used in almost all drunk driving police reports. I wish that Massachusetts Criminal Defense Attorneys would keep a database of police officer’s reports because in my experience the content varies only slightly from report to report with these types of cases. Observations such as these are certainly subject to challenge from the experienced criminal lawyer. How did the defendant walk and talk before the arrest? What did his eyes look like before the incident? Now, try to get the office to explain exactly what he means by the “strong odor of alcohol coming from his person”.
Just one week ago an unidentified person driving a car in Lowell, Massachusetts made an observation he thought worthy of police investigation. He noticed that the driving of another car was stopped in traffic and sleeping. This individual was then observed “waking up” and driving in an erratic manner, nearly colliding with a utility pole. The Dracut police arrived shortly thereafter and arrested the man. It is alleged that the man was unsteady on his feet and that for his own safety no Field Sobriety Tests were given. It turns out that the driver of the suspect vehicle was an off duty paramedic. He was arrested and charged with OUI Drugs in the Lowell District Court. In the car police found some prescription pills, possibly some Heroin and some Drug Paraphernalia. These substances are being tested.
As a Massachusetts Criminal Lawyer I was immediately struck by a particular legal issue this case bears that is becoming more common in Massachusetts. It involves the admissibility of testimony necessary to sustain a prosecution in a case like this one. For an OUI Drug conviction in Massachusetts the prosecution must identify the substance that it believes the defendant was influenced by at the time of operation. It is well established in Massachusetts that unless properly trained no witness can opine that someone was under the influence of a particular kind of drug. Massachusetts police officers, particularly those on patrol are trained to observe and detect the symptoms of alcohol intoxication. But few of these officers are taught about the effects various drugs have on people and the manifestation of symptoms ingestion of these substances will have. Recently, to combat this shortcoming, district attorneys are using drug enforcement detectives to provide an expert opinion at trial on how people will behave when impaired by certain substances. The officer will review the investigation or arresting officer’s findings and draw a conclusion as to what substance was effecting the driver/defendant. Some judges are allowing this testimony notwithstanding objections by the Experienced Massachusetts Criminal Lawyer.
Historically, Massachusetts Courts have approved of this strategy. For instance, in murder cases it is often the case that the medical examiner who performed the autopsy is unavailable to testify at trial. The district attorney will substitute this witness with another medical examiner who will review the first examiner’s reports and records as well as the photographs taken during the examination. The substitute will then be allowed to provide an opinion as to the cause of death. This might however be coming to an end. In Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) the United States Supreme Court held that the Confrontation Clause does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made for the purposes of proving a particular fact, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. Bullcoming v. New Mexico, 131 S.Ct. 2705, 2710 (2011). Such surrogate testimony violates the confrontation clause unless the analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist. I am hopeful that the Bullcoming decision once tested in Massachusetts will have application to drug recognition experts.
Tyrone Farrar of Lawrence, Massachusetts was arraigned yesterday in the Newburyport District Court on charges of Statutory Rape. Farrar, a security guard at the Frost School is accused of having consensual sex with a fourteen year female student from that school. Initially, Farrar, the victim and the victim’s mother all denied that Farrar’s relationship with the girl was of a sexual nature. This changed however this past weekend when Farrar was arrested for OUI Drugs in Salisbury, Massachusetts with the girl in the car. The prosecution alleges that after the arrest both Farrar and the girl admitted to having sexual relations on several occasions over the past year. The victim claims that the sex started when she was thirteen years old. Reports state that Farrar was also the girl’s basketball coach. Farrar has been held without bail pending a dangerousness hearing. Charges are now pending in the Newburyport District Court. The Rape of a Child charges will be indicted and prosecuted in the Essex County Superior Court in Salem.
Essex County Statutory Rape Defense Lawyer
Farrar is in a lot of trouble. Back in June of this year a Melrose, Massachusetts basketball coach, James Connor plead guilty to similar charges and was sentenced to twenty to thirty years in state prison. Connor was fifty two years old at the time. He will be eligible for parole when he is seventy two years old. While many people think that the “consensual” nature of Statutory Rape (Rape of a Child in Massachusetts) lends itself to leniency often times it does not. Farrar, as a security guard and coach is in a position of trust when it comes to the development and safety of the people under his care. A violation of that trust particularly in a sexual manner is often punished harshly in Massachusetts. The sexual acts, helping the victim sneak out of her house, the presence of drugs and a firearm, having the girl out into the early hours of the morning will all factor into his sentence if Farrar is convicted. In so many regards this case presents great challenges for Farrar’s Massachusetts Criminal Defense Attorney.
Paul Souza, a Boston Police Fire Department lieutenant has been charged with OUI, Malicious Destruction to Property Over $250, Assault and Battery and Failure to Stop from a Police Officer stemming from his involvement in an incident in Braintree this past Friday. According to reports, Souza cut off a car that pulled out of a parking lot in front of him. Souza then confronted the driver, broke his window, shouted obscenities at him and fled. The victim followed Souza. He called the police. Souza then tried to evade the police who ultimately apprehended him. The police detected alcohol on Souza’s breath and indicated that he was uncooperative at the time of the stop. The case is pending in the Quincy District Court.
Quincy, Massachusetts OUI, Assault and Battery Lawyers
Cases like this are difficult for Massachusetts Criminal Defense Lawyers to defend successfully at trial. The district attorney would use Souza’s behavior as his or her best evidence of the OUI charge. They would argue that alcohol either triggered his violent behavior or prevented him from maintaining his composure. Trying to evade the police and being aggressive upon apprehension are also factors that would support their position. Given Souza’s rank it is unlikely that he has a criminal record. I would imagine that his lawyer will be successful in getting these charges continued without a finding. A consequence will probably include the 24D program and perhaps anger management counseling. I am willing to bet that this case does not go to trial.
Just before Thanksgiving Massachusetts Police set up a sobriety checkpoint in North Andover, Massachusetts. According to many reports Kenneth Howe, a forty five year old father of three was a passenger in a car being driven by a friend. The car was pulled over at the sobriety checkpoint. Howe might have had a marijuana cigarette in his possession that he was trying to extinguish. When asked to get out of the car he jumped out of a window, supposedly struck an officer and attempted to run away. He was quickly apprehended. Other reports suggest that Howe was dragged out of the car by a female trooper who claimed that Howe had assaulted her. A friend of Howe’s who was present at the time stated that up to twenty police officers descended on Howe. The lawyer for Howe’s family, Frances King commented that the “police acted like savage beasts” and that a witness overheard officers stating it was a “good thing we had flashlights”. Howe was taken to the police barracks in Andover where he collapsed during booking. He was taken to the Lawrence General Hospital where he was pronounced dead.
Almost every time I have a client who has been charged with Assault and Battery on a Police Officer the client comes into my office looking pretty beat up. There is no secret in Massachusetts Criminal Legal circles that this charge is filed anytime the police get overly aggressive with a suspect. Defense attorneys, judges and prosecutors know this and often the result of the case; i.e. a dismissal of this charge reflects this sentiment. The best thing defense attorneys can do in a case like this is go to the crime scene and look around for surveillance cameras. Post 9-11 many businesses and government structures such as schools, highways, bridges and even police vehicles have installed videotaping equipment to monitor suspicious activity. In this case, if there is video evidence of this incident I have no doubt that Attorney King will find it. She is an excellent attorney who knows firsthand how law enforcement officers operate.
I am more curious to see how the Essex County District Attorney’s Office handles this case. If Attorney King’s witnesses’ account of this event is accurate, what will Mr. Blodgett do? Twenty or even ten police officers beating a man to death at a sobriety checkpoint is nothing short of murder. How can these actions be justified? How injured was the female trooper? Did she go to the hospital? The law on self-defense in Massachusetts is clear. You can use no more force than is necessary to defend yourself. Was it necessary to use force sufficient to kill Howe? And would it not make more sense for an independent agency to investigate this case? After all, Mr. Blodgett’s office prosecutes cases that many of these officers have investigated. If ten or twenty civilians went to the aid of a female friend or colleague who claimed to have been struck by a stranger and beat him to death you can be assured that Mr. Blogdett would respond with indictments. One thing you can be sure of. If Jonathan Blodgett does not properly investigate this case, Frances King will.
Over the weekend Michael Farfard was stopped for speeding in Worcester County Massachusetts. Police then searched through his eighteen pack of Budweiser beer. In it they found over forty seven grams of cocaine. The charges: trafficking cocaine, OUI, 2nd offense, OUI drugs, using a motor vehicle during the commission of a felony and numerous motor vehicle crimes.
The drug trafficking charge is the most serious crime that Farfard must defend. The crime of trafficking over twenty eight grams of cocaine in Massachusetts carries a minimum mandatory five year state prison sentence. If there is a school zone violation involved then another two year mandatory sentence must be imposed. In the more rural Massachusetts counties you typically do see have as many school zone charges. In Suffolk County Massachusetts a large majority of drug cases have school zone violations as a component. This is primarily due to the population density in the county and the fact that there are hundreds of schools throughout the City of Boston and Suffolk County.
From this article it appears that the strength of the district attorney’s case will depend on the constitutionality of the search. The prosecution must show probable cause to stop Farfard’s vehicle. They must also show that the police had probable cause to search seize items in Farfard’s car. Even if they are able to show that the search and seizure was within constitutional limits they have to prove beyond a reasonable doubt that the cocaine was Farfard’s and that he intended to distribute the substance.
Amesbury, Massachusetts police had their work cut out for them early Saturday morning when they stopped a 2002 Pontiac sedan operating erratically on Route 110. When Officer David Noyes activated his lights the car’s four occupants started behaving strangely. When he contacted the driver he noticed the smell of alcohol coming from inside the vehicle. Noyes quickly learned that the driver had a warrant out of the Newburyport District Court for an OUI conviction and that he was operating on a revoked driver’s license. The passengers had become unruly and Noyes called for assistance. The responding officers patted down the passengers and conducted a search of the car. During the search the police located a loaded semi-automatic firearm. A small bag of cocaine was found on one of the passengers and two additional bags were located in the car. All four had criminal records including cocaine distribution, larceny of a motor vehicle, robbery and possession of a dangerous weapon. Three of the subjects had pending criminal cases in other courts.
As a result of this incident several charges were filed in the Newburyport District Court including carrying a firearm, possession of ammunition, possession of cocaine, OUI second offense, driving with a revoked license, open container violation and minor in possession of alcohol. Bail for each was set at $25,000 pending arraignment.
Of all the charges these guys are facing the most serious is the gun possession charge. In Massachusetts possession of a firearm is proscribed by Massachusetts General Laws Chapter Section 10. The law states that anyone who carries a firearm without being properly licensed to do so is guilty of a felony. There is a mandatory minimum eighteen month sentence that you must serve if you are convicted of this crime. The firearm charges in this case might be very difficult for the prosecution to prove. All four defendants are charged with possessing the gun. This is because the police were unable to determine who actually possessed the weapon. While there can be a joint venture theory used by the prosecution to attribute possession to all defendants the likelihood of getting convictions of this basis is slim.
Recently in Essex County the district attorney’s office has been fingerprinting firearms in cases such as this. If the prints match up to one of the occupants in the car a conviction against that person becomes more likely. Essex County has a gun court now held in Peabody. This might be where this case is ultimately prosecuted.
James Routenberg of Westford, Massachusetts has been charged with motor vehicle homicide stemming from an incident that occurred on February 26, 2009. According to reports, Routenberg lost control of an SUV he was driving on Worcester Road when he struck a tree. His passenger, a 36 year old man from Maynard was killed in the crash. Police stated that the defendant’s blood alcohol was a .20, two and one half times the legal limit. In addition to motor vehicle homicide Routenberg is being charged with negligent operation.