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A thirty-eight year old mother of two was arrested and charged with operating under the influence of alcohol and two counts of child endangerment. The incident occurred on September 23, 2008 when two young boys ages 5 and 9 asked a female witness for assistance because their mother was “passed out drunk” in the car. A responding police officer reported that the woman was “pretty intoxicated” when he arrived.

According to reports, at approximately 8 p.m., the woman was on her way to the father of the children up at work when she pulled the car over in a parking lot close to an elementary school. The police responded and ultimately sent a cruiser to pick the children’s father up at work. The children appeared to be “pretty shaken” up. The woman posted bail and an arraignment is set for November 3rd. The Department of Youth and Family Services will follow up on this matter.

If you, a family member or a friend is charged with driving under the influence of alcohol you should contact an experienced attorney immediately. In order for the state to prove the case against you it must prove that you were driving a motor vehicle, that you were under the influence of alcohol and that you were driving on a public way. The issue that is most contested at trial is whether an individual is “under the influence” of alcohol. A common misconception is that a person must be drunk to be convicted of this offense. However, the law only requires that if your “ability” to operate a motor vehicle is impaired, you may be convicted. Thus, it is not necessary for the state to prove that you actually drove in an unsafe manner.

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The Quincy Patriot Ledger reported that Paul Gillis, 55 of Rockland was arrested for the fourth time for drunk driving.  He was held without bail by a judge in the Hingham District Court.  According to police Gillis was drunk when he drove his car into a parked car, failed to stop and drove off to his home a short distance away.  He now faces charges of drunken driving, leaving the scene of an accident with property damage, and negligent operation of a motor vehicle.  The defendant admitted to hitting the parked car but claimed that he did not stop because there was nobody present at the scene.  Read full article, Quincy Patriot Ledger, September 23, 2008.

If this is in fact a 4th offense OUI Gillis is looking at a severe sentence if convicted.  Massachusetts establishes harsh penalties for fourth offense OUI convictions.  Gillis is looking at a fine of up to twenty five thousand dollars, up to 5 years in state prison and a 10 year loss of license.  This case has Superior Court jurisdiction in Massachusetts meaning that a conviction could result in the defendant having to serve his time in a state prison.  For more information on drunk driving in Massachusetts call Massachusetts Drunk Driving Defense Lawyer Stephen Neyman.  You should also look at Melanie’s Law enacted in October of 2005.  The express purpose in passing this law to” enhance the penalties and administrative sanctions for Operating Under the Influence (OUI) offenders in Massachusetts”.

Gillis is also looking at a prosecution for leaving the scene of an accident with property damage and negligent operation of a motor vehicle.  Massachusetts General Laws Chapter 90 Section 24 makes these acts a crime.  That law specifically states that anyone who operates a motor vehicle negligently on a public way so that the lives or safety of the public might be endangered can be imprisoned for two years if convicted.  The same applies to anyone who fails to stop and identify himself by name and residence after knowingly colliding with any other vehicle or property or causing injury to any other vehicle or property.  One Massachusetts case has held that in order to support a conviction on the charge of leaving the scene of an accident involving property damage the prosecution must present legally sufficient evidence for a judge or jury to conclude that the defendant operated the vehicle at the time of the accident resulting in property damage.  This is often difficult to prove in that people see the car involved in the collision but are rarely in a position to positively identify the driver. 

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The Brockton Enterprise reported that David Gregoire of Quincy and William Hogrell of Raynham were arrested and charged with multiple drug crimes and weapons offenses in the Quincy District Court.  Read Entire Article, Brockton Enterprise September 19, 2008.  According to the article, police believed that the defendants were dealing cocaine, OxyContins and Methadone out of a 62 year old woman’s apartment in a public housing complex in Quincy and that Gregoire “had set up shop” in that apartment.  The 62 year old woman was identified as Susan McDermott.  No charges have been filed against her.  Police reported that McDermott admitted to using crack cocaine and that she turned over a crack pipe that was in her apartment.  She also admitted that Gregoire was living with her and that he was selling cocaine.  McDermott permitted the police to search her house.  Police also located additional drug paraphernalia including scales and packaging materials.  The weapon was a pair of brass knuckles. 

The investigation began on Monday, September 15, 2008.  Police received a tip that a drug deal was going down at Coop’s Bar and Grill on Washington Street in Quincy, Massachusetts.  A surveillance was set up during which Gregoire was arrested and found in possession of 2 bags of cocaine, some pot and 6 OxyContins.  The article was unclear as to why Gregoire was arrested and what probable cause, if any the police had to make that arrest.  Further information led the police to McDermott’s apartment and the eventual purported consensual search of her apartment.  While the police were at the apartment Hogrell arrived.  He had 46 methadone pills in his pocket.  He did not have a prescription for the pills. 

It appears that at a minimum Gregoire will be charged with possession with the intent to distribute cocaine and OxyContins.  Possession with the intent to distribute controlled substances in Massachusetts is a felony.  Possession with the intent to distribute cocaine, a class B substance, permits a sentence of up to 10 years in state prison.  Rarely is someone sentenced to that amount of time for this offense.  If this is a first offense it is possible to have the case continued without a finding.  If the case is disposed of in that manner you will not have a criminal record if you stay out of trouble for the period of time for which the case is continued.  Hogrell will likely be charged with possession with intent to distribute methadone, also a class B substance.  It is possible that McDermott was not charged with any crime because she has cooperated with law enforcement officials.  The basis for Gregoire’s arrest may be subject to a constitutional challenge defending on the reasons articulate in the police report.  This is typically done through a motion to suppress.  A motion to suppress is a written request to a judge for an order to exclude certain evidence from being introduced during a trial.  It serves to keep law enforcement in check and ensure that they do not violate a person’s constitutional rights.  Usually, where the judge allows the motion and the evidence is suppressed the case is over.  This is particularly true in drug cases where, without the drugs there can be no conviction. 

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The Boston Globe reported that on September 15, 2008 a Boston Firefighter was charged with OUI and other related charges.  Read Full article, Boston Globe, 9/15/2008.  According to the newspaper report, On Sunday, September 14, 2008 at around 2:30 a.m. the defendant, Vernon Tiger Allen, 43, was driving between 45 and 50 miles per hour on the VFW Parkway.  At the intersection of the VFW Parkway and Baker Street Allen broadsided a car being driving by a 27 year old Connecticut man.  The driver of that car was trapped in the car.  A rescue crew arrived to extricate the victim from the wreckage.  He was taken to Brigham and Women’s Hospital where he was reported to be in critical condition.  Allen took a breathalyzer test at the scene and blew a .14.  The legal limit in Massachusetts is a .08.  At the scene Allen told the police that he had only 2 beers and that he had finished his shift 2 hours earlier.  Boston Fire Department records showed that Allen had been off of work for 10 hours at that time.  The victim, Ryan Suprenant is also facing possible OUI charges and charges for running a red light.   

This is an interesting case.  Even though the victim might have caused the accident the defendant can still be prosecuted and convicted for OUI.  The victim faces the same plight as well.  Most likely the victim’s blood alcohol has already been determined.  When people are taken to the hospital blood is routinely taken.  A toxicology screen is likely given the statements made in the newspaper article.  The victim’s blood results might also be subject to suppression depending on the circumstances surrounding the taking of the blood.  Blood alcohol results can be tainted if hospital personnel used alcohol rather than iodine to clean the area around which they took the blood. 

As a Massachusetts OUI Defense Lawyer I have tried countless drunk driving cases.  While waiting around courthouses to get me cases called I have also had the privilege of watching scores of other drunk driving trials.  It am always amazed at how many people testify that they had “2 beers”.  For some reason this seems to be a number that people accused of OUI feel is believable yet will not result in a conviction.  This sort of “creativity” is completely unnecessary.  It can result in a jury disbelieving your testimony.  I remember years ago trying a case in the Dorchester District Court before a very reasonable and compassionate judge.  My client elected to have the case tried by the judge and not a jury.  He, like many other clients testified that he had 2 beers.  The judge interjected “I wish I got a dollar every time I heard a defendant admit to drinking a ‘2-pack'”.  Another judge in a similar situation wished he had invented the “2-pack” and commented that if everyone who testified before him had purchased one of his “2-packs” he would have been able to retire in his thirties.  For the reasons stated below relying on the “2 beer” testimony can be pointless.   

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On September 12, 2008 a 34 year old Ipswich man pleaded guilty to his 5th drunk driving charge in the Salem Superior Court.  He received a sentence of 2 1/2 to 3 years in state prison.  He will be on probation for 10 years after he is released from prison with 2 years home confinement.  His license has been revoked for life. 

Read Entire Article, Salem News, September 13, 2008. 

In 2003 the defendant’s license was suspended for 5 years after he was convicted of his 4th drunk driving offense.  Nevertheless, on September 19, 2007 the defendant again decided to drive.  Again he did so under the influence of alcohol.  The decision resulted in a head on collision in Hamilton.  The victim was an 80 year old woman.  According to the prosecution the defendant was driving down Asbury Street in Hamilton when he drove his car over the center lines and crashed head on into a pickup truck being driven by the victim.  The defendant continued driving, this time down the wrong side of the street and hit another car being driving by a 49 year old woman.  The pickup truck driver, her passenger and the other woman were all injured.  The second victim was hospitalized for four days and is now unable to driver herself around. 

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The defendant, 34 year old Michael Smith was indicted by a Suffolk County Grand Jury on 1 count of kidnapping.  He was arraigned in the Suffolk Superior Court and held on $250,000 bail.  The prosecution alleged that in June the victim met Smith at a motel.  She had placed an advertisement on the internet soliciting customers for sex.  The defendant responded purportedly as a customer.  He then told the woman that he would be taking her to New York to work as a prostitute for him.  Over the next week and a half the victim worked for the defendant and gave him all of the money she earned.  She was threatened and sexually assaulted by the defendant.  She was beaten with a wooden hanger as well.  At all times she was being watched by Smith.  On June 10, 2008 the victim tried to escape by leaving the New York motel where Smith was keeping her.  During the escape attempt Smith dragged her into a waiting car that was ultimately driven to Massachusetts.  The victim later tried to escape from a rest area as well.  There, Smith choked her and grabbed her by the neck.  Finally, on June 11, 2008 while in Boston she was able to escape and call 911.  Surveillance footage confirms portions of the woman’s story. 

When the police arrived to meet the victim she related her story, identified the defendant and the car in which he was riding.  Police later spotted the car and stopped and arrested the defendant.  A pre-trial conference has been scheduled for September 18, 2008.  This story was reported in the Suffolk County District Attorney’s Office Press Releases. 

Kidnapping is a violent crime.  In Massachusetts it is proscribed by G.L. c. 265 sec. 26.  It is the taking away of a person against his or her will usually in furtherance of some other crime.  Most kidnapping statutes recognize different levels or types of kidnapping and punish accordingly.  In Massachusetts the maximum penalty under the statute cited above is 10 years in state prison.  Cases such as the one discussed in this post can in certain circumstances be difficult to prosecute.  You must keep in mind that rarely if ever do press releases reveal all of the relevant facts pertinent to a case.  Here for instance, the victim was a prostitute.  She solicited the defendant through an internet advertisement.  The press release is unclear as to whether or not she voluntarily accompanied Smith to Connecticut initially.  It is also unclear as to what acts she wilfully engaged in once in Connecticut and New York.  The fact that the defendant in this case may have abused or assaulted the woman violently does not mean that he kidnapped her.  It is clear that the prosecution believes that the kidnapping took place in Suffolk County, Massachusetts and that Suffolk is the proper venue.  Venue in Massachusetts for crimes like this is set out in G.L. c. 265 sec. 24A. 

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On September 12, 2008, the Massachusetts Appeals Court reversed Harold Pierre’s conviction for possession of a firearm holding that the search conducted by the police at the time of the defendant’s arrest was unlawful. The police were conducting a surveillance in an effort to arrest the defendant on an outstanding warrant. Positioned in the area of Pierre’s home, the police observed him exit his residence and walk towards his car. After observing the defendant, the police announced their presence and ordered the defendant, and the individuals that he was with, not to move and to show their hands. The defendant complied and dropped a white plastic bag that he was carrying and put his hands in the air.

One member of the group with the defendant disobeyed these orders and entered the car through the rear passenger door. A police officer observed this individual take a firearm from his waistband and put “something” under the front seat where a firearm was eventually recovered. That individual was charged with possession of that firearm. Pierre was placed under arrest within “thirty seconds” of putting his hands in the air. The white bag that the defendant had dropped was placed in the car because it was raining. A police officer testified that sometime between a half hour and an hour after the car was brought back to the station he assisted in doing an inventory of the car. During this “inventory” he picked up the white plastic bag and removed a pair of pants from the bag. When he removed the pants from the bag, a firearm fell out. Pierre was charged with possession of that firearm and possession of ammunition.

It is well settled law in Massachusetts that under the Fourth Amendment to the United States Constitution and the Article Fourteen of the Massachusetts Declaration of Rights a search conducted without a search warrant are presumed to be invalid. See Katz v. United States, 389 U.S. 347, 357 (1967); Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 226 (1992). When the police conduct a warrantless search the burden is on the Commonwealth to prove that the search fell within one of the narrow exceptions to the warrant requirement. In the event that you, a family member or a friend, are charged with a crime in which possession is an element that the Commonwealth must prove, the experience and knowledge of a Boston Criminal Defense Attorney is necessary in order to mount an attack on the search that led to the possession charge. By successfully challenging the police conduct in searching an individual, home, car or other location, the Court will suppress the evidence and the case will likely be dismissed.

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On Thursday, September 10, 2008 the Salem News reported that an Amesbury woman was charged with drunk driving in the Salem District Court.  Read full article.  According to the report, the defendant, 52 year old Suzanne Sherman was seen driving her Mercedes northbound in the southbound lane of Route 1 in Danvers.  A state trooper responding to the scene found the defendant in her vehicle, stopped in the roadway.  The defendant subsequently drove her car into the parking lot of a nearby restaurant.  Sherman told the officer that she was going from Newburyport to Amesbury.  This made no sense geographically.  Sherman further admitted to having some drinks and making illegal U-Turns on Route 1.  At booking Sherman asked to call the Salisbury, Massachusetts Police Chief whom she claimed to be a good friend.  She was charged with OUI, a second offense and possession of a class E substance.  Sherman also refused the breathalyzer test.

In Massachusetts a drunk driving case is commonly referred to as an OUI (operating under the influence).  Penalties for convictions of OUI vary depending on several factors.  If you have prior OUI convictions your penalties can be severe.  If someone is injured or if there is an accident as a result of you operating under the influence judges will often increase your sentence if you are convicted. 

The current drunk driving statute in Massachusetts is commonly known as Melanie’s Law.  It was passed in 2005 and its purpose was to increase the penalties for OUI offenders in Massachusetts.  The law itself has some interesting components that were designed to get first time offenders to plead guilty rather than try to win the case at trial.  For example, if you fail to take a breathalyzer test the law mandates a 180 day loss of license.  Many Massachusetts court calendars do not permit you to get your case tried within 180 days due to volume and backlog.  However, if this is your first offense and you plead guilty you will be eligible for a “hardship” license almost immediately.  Nowadays, many police officers who stop suspected drunk drivers tell them about this aspect of the law in hopes that they will take the breathalyzer test.  The police will tell you that if you pass the test; i.e. blow less than a .08 you will be free to go.  If you fail the test you face an immediate 30 day loss of license rather than the 180 day loss of license imposed if you refuse the test.  Keep in mind that even blowing less than a .08 can subject you to prosecution for OUI in some cases.

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People often ask lawyers what goes on in a local district court on a given day.  The answer can be lengthy and depends on how busy a particular court might be.  Many local newspapers report a crime log or a district court log each week.  Here is a sample of crimes reported by the Gloucester Daily Times from on September 6, 2008 for the Gloucester District Court.  Read full article Gloucester Daily Times, Gloucester District Court Log. 

1.  A Gloucester man was charged with 7 counts of larceny by check.  Apparently he wrote a series of bad checks from November 2004 through January 2005.  A total of 8 bad checks were written over this time period to three separate businesses.  The total amount of bounced checks was $140.54.  The judge agreed to dismiss all charges provided that the man makes restitution in full. 

Larceny by check is defined by G.L. c. 266 sec. 37.  The statute states in part that it is a crime to write a check for goods and to obtain those goods with the knowledge that there are insufficient funds for the payment of the check.  Massachusetts law considers prima facie evidence of intent if the person does not make good on the check within 2 days after having been advised that the check did not clear. 

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Caridad Hernandez is a 51 year old grandmother who lives in Lawrence, Massachusetts.  On September 5, 2008, she was arrested for trafficking cocaine over 28 grams, trafficking cocaine within 1,000 feet of a school zone and possession with intent to distribute prescription drugs.  Charges will be initially filed in the Lawrence District Court.  After the case is indicted the case will be handled in the Essex County Superior Court.  Lawrence police stated that the drugs were found in sandwich bags, a candy tin and pill bottles.  Officers also located drug packaging paraphernalia.  According to an article in the Lawrence Eagle Tribune police had made several controlled buys from the defendant.  Afterwards they obtained a search warrant.  It was during the execution of the search warrant that the majority of the drugs were located.  Read Article, Lawrence Eagle Tribune, September 6, 2008.

Search warrants in Massachusetts are governed by G.L. c. 276 et seq.  Search warrants can be issued in Massachusetts upon a showing of probable cause.  Police officers seeking to conduct a search are required to file an affidavit with a judge or clerk magistrate.  The affidavit must contain facts and information upon which the officer relies that are sufficient to establish probable cause for the warrant to issue.  Criminal defense lawyers often challenge the issuance of the warrant through motions to suppress.  Grounds for the motion to suppress vary from case to case.  Sometimes criminal defense lawyers challenge the sufficiency of the facts in the affidavit and ask the judge to suppress the search.  Other times criminal defense lawyers challenge the integrity of the officer’s representations by asking the judge to look beyond the affidavit by using collateral evidence to show the judge that these facts were untrue. 

In this case Caridad Hernandez is looking at a minimum mandatory state prison sentence of 7 years.  The trafficking over 28 grams carries a mandatory 5 and the school zone carries a minimum mandatory 2 that must be served from and after the trafficking sentence is served.  It is likely that during the course of her defense her attorneys will try to locate anyone who was present during the controlled buys to ascertain the accuracy of the police officer’s account of these transactions.  I also imagine that a motion to suppress will be filed challenging the constitutionality of the search. 

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