October 2011 Archives

October 31, 2011

Massachusetts Supreme Court to Investigate Drunk Driving Acquittal Rate


The Massachusetts Supreme Judicial Court announced today that it will initiate an investigation into the reported acquittal rate of Massachusetts Drunk Driving Cases by judges in the district courts.

The states highest court has tapped Jack Cinquigrana, a former prosecutor with the United States Attorney's Office and the Suffolk County District Attorney's Office, to look into and examine why the acquittal rate of OUI / DUI cases in Massachusetts, reportedly 80%, differs from the national average.

The investigation was prompted by a Boston Globe investigation that reported certain judges in Suffolk County are acquitting drunk driving defendants as much as 88% of the time; while other Plymouth County judges are acquitting up to 86% of the time.

In a statement issued today by the Massachusetts Supreme Judicial Court, the justices expressed that the Massachusetts judicial system "depends on judges being able to decide a case fairly but independently, without fear or favor." The justices further conveyed that the reason for the inquiry in OUI acquittals is to ensure that all judges abide by the principal that a case be determined fairly and to preserve the public's trust and confidence by being fair and impartial in all cases.

What is particularly disturbing about this investigation into district court judges is that is clearly presupposes that certain judges are not acting in a fair and impartial manner. Conversely though, I guarantee if it was the conviction rate that was above the national average, there were certainly be no inquiry whatsoever, nor would there be any concern of the public's confidence in the judicial system.

Additionally, I wouldn't be surprised if the Massachusetts District Attorney's Association has specifically made a push for the initial review by the Boston Globe, in order to draw media attention to the issue and force, by creating a public controversy, the Court to call the matter into review.

Notably, however, is that the overwhelming majority of state judges are former prosecutors.

Unfortunately, I am convinced that this is yet another media blitz by the District Attorney's Offices state-wide to give themselves an upper hand against the defense bar.

The real injustice that will now occur in our judicial system, is that judges will be afraid to rule on OUI / DUI cases fairly and impartially if that means ruling in favor of acquittal for fear of being targeted as anti-prosecution. Inevitably, cases will be decided, not on the facts, but upon statistics.

The true injustice then, will be to all citizens' Constitutional rights, which will then be infringed by the inevitable damage to the integrity of our 'independent' judiciary.

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October 28, 2011

Massachusetts Lawmakers Consider Tougher Drunk Driving Penalties


thumbnail.aspx.jpegThe Massachusetts State Legislature is currently considering a proposed bill that would impose stiffer penalties for Drunk Driving Law Violations.

The bill proposed by State Senator Robert Hedlund would effectively make mandatory the installation of an interlock device for anyone convicted of Operating Under the Influence of Alcohol, even for first-time offenders.

As they stand today, current OUI / DUI Laws only only require the installation of an interlock device on a person's vehicle for a Second Offense OUI / DUI, which also imposes a sentence of not less than 60 days in jail and up to 2.5 years, as well as a loss of license for a 2 year period.

Proponent of the bill to require interlock devices for even first-time offenders argue that a "habitual drunk driver" still drives, irrespective of whether he has a license or not. But the rationale doesn't make sense because a first-time offender cannot be considered a 'habitual offender' if he only drove drunk once...

MADD, or Mother's Against Drunk Driving, also support this bill, citing that Massachusetts drunk driving related deaths and injuries are down, and only 85 of 3,786 persons 'repeat offenders' who have interlock devices have since reoffended.

However, according to recent statistics, there are approximately over 15,000 DUI related arrested in Massachusetts each year. So in reality, the statistics don't support Senator Hedlund's rationale that every drunk driver should be considered a potential 'repeat offender.'

Accordingly, there should be concern for this proposal that would require the installation of an interlock device on ever a DUI / OUI First Offense. Yes, there are many people who are arrested each year for alleged drunk driving, and of those, a great deal of them who submit to a Breathalyzer Test blow a reading at 0.08% or above.

The reality, however, is that it is impossible and inappropriate to characterize each OUI offender simply by his arrest. The circumstances of each arrest should be evaluated on its own merits. For instance, there is a difference between an offender who might have had one drink too many versus an offender who has an alcohol problem. The penalties imposed in each instance, should vary according to the circumstances of each specific case.

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October 27, 2011

Admission at Trial of Expert Forensic Testimony in Massachusetts Drunk Driving Cases


The Massachusetts Appeals Court recently decided the case of Commonwealth v. McGrail, where that defendant was tried and convicted of OUI / DUI, and Leaving the Scene of an Accident.

In that case, it was alleged that the defendant was involved in an accident, but was located by police about 1/2 mile away from the scene. The officers alleged that, due to his smelling of alcohol, his staggering and apparent injuries, that he had been the operator responsible for the crash.

After a jury trial that resulted in a conviction of both Operating Under the Influence of Alcohol and Leaving the Scene of an Accident, he appealed his conviction claiming that the admission of expert testimony concerning DNA testing violated his Right of Confrontation pursuant to the Sixth Amendment of the United States Constitution. Specifically, the defendant took exception to the Commonwealth calling a DNA expert to explain how he used the results of another analyst to conduct his own statistical analysis.

The Massachusetts Appeals Court considered the issue in light of a recent United States Supreme Court decision, Bullcoming v. New Mexico. In Bullcoming, the Supreme Court ruled that the Confrontation Clause prohibits the prosecution to introduce forensic laboratory reports containing a testimonial certification, or assertions of fact, through testimony of a scientist who did not execute the certification, or perform or even observe the test reported in the certification. This, the Supreme Court explained, was a violation of the defendant's Right of Confrontation unless he was afforded the opportunity to cross-examine the analyst.

In the McGrail case, however, the Massachusetts Appeals Court distinguished between the two cases by noting that the expert in McGrail was an expert who was asked for his independent opining about underlying testimonial reports that were not themselves admitted into evidence.

Generally, an expert is permitted to give opinion testimony based on hearsay if the particular hearsay is independently admissible with a proper foundation, and if it is the type of evidence that experts can customarily rely on as a basis for forming an opinion.

Going one step further, expert testimony by a laboratory supervisor regarding the statistical probability that another's DNA matches another DNA profile does not violate the defendant's Right of Confrontation, even if the opinion is based on test data that is not admissible into evidence.

The Massachusetts Appeals Court noted, then, that the expert in McGrail did nothing more than express his own opinion expert testimony based on an independent analysis of the data presented to him, and this opinion was therefore independently admissible.

At the end of the day, the McGrail decision is unfortunate for defendants in Massachusetts Drunk Driving Cases or any other case where forensic evidence is at issue, as prosecutors can now technically call in their experts to form "independent opinions" to sidestep a defendant's right of confrontation.

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October 26, 2011

Dedham Man Charged in Alleged Drunk Driving Death of Dorchester Woman


A Dedham man was arraigned in Boston's Roxbury District Court on several Massachsuetts Drunk Driving Charges in connection with the accident and death of a Dorchester woman this past weekend.

Robinson Avendano, 38, was charged with Motor Vehicle Homicide by DUI / OUI; Operating Under the Influence of Alcohol; and Negligent Operation of a Motor Vehicle.

According to the Suffolk County District Attorney's Office and Boston Police, Avendano was allegedly operating his car when it collided into a tree on the Riverway in Boston. The rear passenger, a female, reportedly sustained injuries and was treated at a Boston hospital; while the front seat passenger, Diana Sanchez of Dorchester, died from her injuries.

The Boston Police reported that the rear passenger allegedly told them that the three had been out drinking at a bar in Allston, and that Avendano was allegedly speeding when he lost control of the vehicle.

The Massachusetts State Police Reconstruction team arrived on scene and state troopers also alleged that Avendano's eyes were allegedly red and glassy and he smelled of alcohol.

Following his arraignment, Avendano was held on an extremely high bail of $100,000.

The Massachusetts DUI Crime of Vehicular Homicide is punishable by imprisonment for a minimum of 1 year to the House of Corrections and up to 15 years in state prison.

Although at first glance this case may seem like a slam dunk for the prosecution, the government has a heavy burden in proving the necessary elements for the crime of Vehicular Homicide by DUI / OUI, which are:

  1. That the defendant operated of a motor vehicle;

  2. On a public way;

  3. That the defendant operating the vehicle while under the influence of alcohol;

  4. In a manner that was reckless or negligent so that the lives of the safety of the public might have been endangered; and

  5. That such operation ultimately caused the death of another person.
Under Massachusetts OUI / DUI Law, 'being under the influence' means that the defendant's ability to operate a motor vehicle safely was impaired - in other words, that he had consumed enough alcohol to reduce his mental clarity, self-control and reflexes, leaving him with a reduced ability to drive safely.

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October 25, 2011

Haverhill Woman Charged with DUI and Drugs After Asking Police for Directions


A Haverhill woman was arrested and charged with Massachusetts Drunk Driving and Drug Crimes after reportedly asking a police officer for directions.

According to the Methuen Police Department, the police officer suspected her of operating under the influence of alcohol after he smelled alcohol on her breath and her allegedly slurring her words. The police officer reportedly asked the woman if she had had anything to drink and the woman allegedly admitted to having had shots of of hard liquor.

She was eventually arrested after allegedly submitting to and failing Field Sobriety Tests.

Following her arrest, however, an inventory search of the car revealed over 30 grams of cocaine and 23 prescription pills, along with marijuana.

The Methuen woman was eventually charged with Operating Under the Influence of Alcohol, Drug Trafficking in Cocaine and Unlawful Possession of a Controlled Substance for the prescription pills.

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October 22, 2011

Boston Man Charged with 5th Drunk Driving Offense


A Boston man was indicted by a Suffolk County Grand Jury for allegedly violating the Massachusetts Drunk Driving Laws. Neftali Pastrana, of Roslindale, was indicted by the Boston grand jury in August for allegedly Operating Under the Influence of Alcohol, 5th Subsequent Offense.

According to the Boston Police Department, officers reportedly responded to a crash in Roslindale on Washington Street that involved a 72 year old West Roxbury woman who had gotten rear-ended by an SUV, allegedly driven by Pastrana.

Upon arrival, officers allegedly noticed a strong odor of alcohol on his breath and reported that he had 'glassy eyes'. Although Boston Police admit that Pastrana denied having consumed any alcohol, they then allege that he later told them that he had consumed alcohol at a local liquor store.

As they also do, the Boston Police alleged that Neftali Pastrana failed a series of Field Sobriety Tests, including the Alphabet Test, which notably is not a standardized recognized test.

A 5th Subsequent DUI / OUI Offense in Massachusetts is punishable by imprisonment for not less than 2.5 years and not more than 5 years in state prison. In addition, a person convicted of a 5th or subsequent drunk driving offense also faces a lifetime revocation of their driver's license, without the possibility of ever obtaining a hardship license; and the district attorney's office may also seek to forfeit the person's vehicle.

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October 19, 2011

Falmouth Man Arrested for 4th Massachusetts Drunk Driving Charge


A Falmouth man was arrested over the weekend and charged with his 4th Massachusetts Drunk Driving Offense. He was charged with Operating Under the Influence of Alcohol, 4th Subsequent Offense and Negligent Operation of a Motor Vehicle.

According to the Falmouth Police Department, the man was pulled over by police after the man's car was veering over the center line and allegedly almost hit a police cruiser. After being pulled over, the man denied having drank any alcohol, but the police officer allegedly observed slurred speech, glassy eyes, and an odor of alcohol coming from the man's breath.

The Falmouth Police officer reportedly gave the man two Field Sobriety Tests. One of the tests was the Walk and Turn Test, which is only 68% accurate according to the National Highway Traffic Safety Administration. He was also asked to count backwards from 100, which is technically not even a recognized Field Sobriety Test.

The man exercised his Constitutional right and refused to submit to a Breathalyzer Test. Under Massachusetts DUI Laws, if you have 3 or more prior OUI charges and refuse a breathalyzer, you could face a lifetime suspension of your driver's license.

The Walk and Turn Field Sobriety Test asks the person to take 9 steps, heel to toe, turn, and then take 9 steps back. In the 9 Step Walk and Turn Test, police officers are looking for a number of different behaviors that they would argue would be observed in someone with a blood alcohol content over 0.10%. Those behaviors that the police are looking for include:

  • Unable to keep balance;

  • Whether the person starts before the instructions are completed;

  • The person stops while walking;

  • Fails to touch heel to toe;

  • Steps off the line;

  • Uses his arms to keep his balance;

  • Does not turn properly; or

  • Takes the incorrect number of steps.
In ideal conditions, the Walk and Turn Field Sobriety Test should be performed in a straight line, on a reasonably dry, hard, and level, non-slippery surface. In reality, however, it's rarely possible for this test to be performed in ideal conditions. Often times, when someone is pulled over for suspected DUI / OUI and asked to perform field sobriety tests, it is done at the side of the road where there may may not be a straight line to walk on; there may be a great deal of debris; the lighting conditions may not be good; and if on a highway, the danger of getting struck by passing cars traveling at high speeds.

So, take it with a grain of salt when you hear that someone failed a Field Sobriety Test, because in reality, they're not all that accurate and most police officers, if they were to take the test sober, would also fail it.

Continue reading "Falmouth Man Arrested for 4th Massachusetts Drunk Driving Charge" »

October 18, 2011

Man Arrested for Drunk Driving, Leaves Children in Car


A man arrested by Massachusetts State Police for allegedly Drunk Driving Sunday had allegedly left his two children in the car, and were not discovered until the vehicle was at the tow lot.

Fredly Misere was before the Attleboro District Court for arraignment on several OUI / DUI Second Subsequent Offense, including Operating Under the Influence of Alcohol.

According to the Massachusetts State Police, Misere's car was parked along the I-95 when it was discovered by a passing state trooper. The trooper reported that Misere was allegedly passed out and had a bottle of beer in his lap.

Misere was eventually arrested on scene, and a tow truck was called to two the car. It was eventually taken to a tow lot, and only then did police discover that there was a 4 year old and a 4 month old in the back seat.

Following Field Sobriety Tests at the tow lot, Misere was arrested for OUI 2nd Subsequent Offense, Negligent Operating of a Motor Vehicle, and Child Endangerment While Operating Under the Influence of Alcohol.

The Massachusetts DUI / OUI Crime of Child Endangerment While Operating Under the Influence of Alcohol punishes those who operated a motor vehicle while under the influence of alcohol or drugs with a child 14 years of age or younger the car.

Child Endangerment While OUI is punishable by a minimum 90 days to 2.5 years in the House of Corrections, along with a Driver's License suspension for 1 year; or for subsequent offenders, 3 to 5 years in state prison, with a license suspension for 3 years.

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October 17, 2011

Massachusetts Police Chief Charged with Drunk Driving by Own Department


John Lundborn, the Police Chief of the Truro Police Department, has been charged by his own department this past weekend with allegedly violating the Massachusetts Drunk Driving Laws.

He was scheduled to be arraigned this morning in Orleans District Court on charges of Operating Under the Influence of Alcohol, but it appears that his arraignment has been postponed because Lundborn is currently "under medical care."

According to reports, Chief Lundborn was involved in an accident in North Truro on Cape Cod. Although it's not clear whether he was on duty or not at the time, reports indicate that he was allegedly driving a police cruiser at the time of the accident.

According to Truro Police, officers were called by a Cape Cod National Sea Shore Ranger who had discovered the single-car crash. Truro police who had responded to the crash reported that Lundborn allegedly admitted to having drank "a lot".

The penalty for OUI / DUI in Massachusetts is up to 2.5 years in the House of Corrections and loss of the person's driver's license for 1 year, along with up to several thousand dollars in fines/fees.

For first time DUI offenders, however, Massachusetts Drunk Driving Laws provide for an 'Alternative Disposition' available to offenders who change their plea to a Continuance Without a Finding. Under this alternative, the offender is placed on probation, ordered to enter and a complete a Drug-Alcohol Education program, and loses his licenses for a period of between 45 and 90 days. There are also fines, fees and assessments in the area of $1,000.

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October 11, 2011

Massachusetts Woman Charged with Drunk Driving After Crashing Into Billerica Home


Melissa Rich, of Dracut, was charged with Massachusetts Drunk Driving Charges after she allegedly crashed into a home in Billerica last week. She has been charged with Operating Under the Influence of Alcohol.

According to the Middlesex County District Attorney's Office, Rich, who was driving a van for special needs individuals, was allegedly driving under the influence of alcohol at the time. The incident reportedly occurred in Billerica last Wednesday when Rich allegedly swerved across the road, struck two mailboxes and a telephone pole, and finally crashed into a home.

Three passengers in the van, reportedly special needs, were reportedly injured.

She was arraigned this morning in Lowell District Court for OUI / DUI, Operating Under the Influence of Alcohol Causing Serious Injury; and Negligent Operation of a Motor Vehicle.

Following her arraignment in Lowell District Court, Melissa Rich was released on her own personal recognizance.

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October 10, 2011

Daughter-In-Law to Boston Bruin Bobby Orr Arrested for Drunk Driving


Chelsea Orr, daughter-in-law to former Boston Bruin Bobby Orr, was arrested last week by Cohasset Police on Massachusetts Drunk Driving Charges.

Orr was arraigned in Quincy District Court for Operating Under the Influence of Alcohol, Second Subsequent Offense.

According to the Cohasset Police Department, Chelsea Orr's car was involved in an accident. EMT's, who were reportedly already on scene, told police that Orr allegedly ran from her car towards her house but hid in the bushes, eventually agreeing to come out to be evaluated.

Cohasset Police then reported that Orr allegedly admitted to drinking earlier in the evening prior to the crash and also allegedly failed Field Sobriety Tests.

OUI / DUI 2nd Offense in Massachusetts carries a sentence of imprisonment to the House of Corrections for not less than 60 days and not more than 2.5 years. In addition, a second drunk driving conviction will result in a driver's license suspension for 2 years and require the installation of an Interlock Device upon reinstatement of the person's license.

Notwithstanding these penalties, Massachusetts DUI / OUI Laws also provide an 'alternative disposition' for second time offenders. The alternative disposition, upon a change of plea, would involve being placed on probation; completion of an in-patient alcohol treatment program; loss of license for 2 years; and the installation of an Interlock Devine on the vehicle when the license is reinstated.

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October 6, 2011

Massachusetts Governor's Aid Stopped for Drunk Driving in Brookline


Ronald Bell, an aide to Massachusetts Governor Deval Patrick, was stopped by Brookline Police this past weekend and charged with Drunk Driving.

According to Brookline Police, Bell was pulled over for allegedly speeding on Route 9 and swerving into another lane. Once pulled over, the officer reported smelling alcohol on Bell's breath and repeatedly ordered him to show his hands as Bell was searching for something on the floor area.

After being ordered to exit the vehicle, Bell allegedly failed Field Sobriety Tests and admitted to having drank two beers a few hours earlier. He did, however, refuse to take a Breathalyzer Test.

Brookline Police further reported that Bell repeatedly name-dropped that he worked for Deval Patrick and that he has powerful friends. Apparently, the officer either didn't care who he was or the name-dropping only encourage the police officer to arrest him...

Bell was arraigned in Brookline District Court Monday morning and charged with Operating Under the Influence of Alcohol and released on Personal Recognizance.

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