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dutch-weed-1251539According to an article in the MetroWest Daily News, a Worcester man was recently arrested for various driving offenses because he admitted to officers that he had been smoking marijuana while operating his car. This past Wednesday, several officers were working on a detail on Union Avenue in Framingham when a passing Toyota sedan drew their attention. The article specifically states that all the officers noticed an “extremely strong odor of burnt marijuana” coming from the car as it passed. One of the officers pulled over the driver and spoke to him. The driver acknowledged that he had been smoking marijuana and handed the officer a joint. The driver went on to state that he “always” smokes and drives because it “relaxes” him. The officer then told the driver that it is “illegal to drive under the influence of marijuana” and proceeded to arrest him. The defendant was ultimately charged with driving under the influence of drugs (marijuana) and driving to endanger. Police also cited him for possession of less than an ounce of marijuana, as the driver provided the officers with a small bag of marijuana.

For the Commonwealth to obtain a conviction against the defendant for operating under the influence of drugs, it would have to prove the following beyond a reasonable doubt: (1) that the defendant operated a motor vehicle; (2) that he operated it on a public way; and (3) that while the defendant was operating the vehicle, he was under the influence of marijuana. As to the third element, someone is under the influence whenever he has consumed enough marijuana to reduce his ability to operate a motor vehicle safely by diminishing his alertness, judgment, and ability to respond promptly. This would include anyone who has consumed enough marijuana to reduce his mental clarity, self-control and reflexes, and thereby left him with a reduced ability to drive safely. The Commonwealth is not required to prove that the defendant actually drove in an unsafe or erratic manner, but it must prove that the defendant had a diminished capacity or ability to drive safely.

For the Commonwealth to obtain a conviction against the defendant for driving to endanger (under the same statute), the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the defendant operated a motor vehicle; (2) that he did so on a public way; (3) that he did so in a negligent manner so that the lives or safety of the public might have been endangered. As to the third element, a person acts negligently when he fails to use due care, that is, when he acts in a way that a reasonable person would not act. This can happen either by doing something that a reasonably prudent person would not do under those circumstances, or by failing to do something that a reasonably prudent person would do. The defendant acted negligently if he drove in a way that a reasonable person would not have, and by doing so created an unnecessary danger to other people, a danger that he could have avoided by driving more carefully. A person can be found to have driven negligently even if no accident resulted, and even if there was no one else actually on the road to be put in danger. A person is negligent if he drives in a way that has the potential to cause an accident or to endanger anyone who might be on the road. Continue reading →

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waiting-to-go-1524343According to an article in the MetroWest Daily News, a Framingham teen brought a stun gun to Framingham High School this past week. The article states that the school administration had received a tip that the juvenile was bringing the stun gun to school and the school called the police. An officer then confronted the teen at the school. He reportedly agreed to let the officer search his bag, which resulted in the recovered of the stun gun. The article states that there was no indication that anyone had used the weapon. The teen was subsequently charged with possession of a stun gun under G. L. c. 140, § 131J and carrying a dangerous weapon under G. L. c. 269, § 10.

To convict the defendant of possession of a stun gun, the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the defendant possessed and item; (2) that the item meets the definition of a stun gun – i.e., that the item is a portable device or weapon from which an electrical current, impulse, wave or beam may be directed, which current, impulse, wave or beam is designed to incapacitate temporarily, injure or kill; and (3) that the defendant knew that he possessed the stun gun.

As to this charge, the defendant appears to have a legitimate defense: namely that the statute outlawing the possession of a stun gun is unconstitutional because the 2nd Amendment the right to carry such a weapon. Specifically, in a recent case decided by the United States Supreme Court – Caetano v. Massachusetts – the Court stated as much, thereby eviscerating the constitutionality of the statute. In light of the court’s decision, the defendant can file a motion to dismiss and should prevail. Continue reading →

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money-3-1423590According to an article in the MetroWest Daily News, the Senate recently passed its version of the 2017 budget, which includes an amendment that will significantly impact the way that court fees are imposed on defendants in criminal cases. As the law currently stands, Massachusetts judges are required to assess various fees when certain criminal cases are resolved. Specifically, if a defendant is placed on any sort of probation, the court assesses a probation supervision fee of $65/month. Additionally, the court assesses a victim witness fee of $50 in misdemeanor cases, and $90 in felony cases. These fees are assessed regardless of the defendant’s financial situation.

Under the proposed amendment, Massachusetts judges would have new discretion over whether to impose fees on probationers. This amendment was adopted under a budget rider by the Senate in a 31-7 vote this past Thursday. The sponsor of the amendment, Senator William Brownsberger, who is co-chairman of the Judiciary Committee, stated that he sponsored the amendment because “we need to make it possible for people to get back on their feet, get out of the system, start living their normal life.” Sen. Brownsberger said judges now can waive probation fees if they make a “written finding of hardships,” and the language adopted by the Senate would “make it clear that it’s up to the judge.” The amendment also prohibits a court from finding that a probationer violated a condition of probation based solely upon failure to pay such fees or surcharges, and extending probation or incarcerating a probationer for such failure to pay.

In his statement, Sen. Brownsberger stated that the roughly $20 million in probation fees collected by Massachusetts courts goes into the general fund and judges should not be concerning themselves with revenue collection. He referenced the controversial reliance on court fees in Ferguson, Missouri, stating “this isn’t quite Ferguson where the courts were living and dying on how much in fees they could collect, but there is pressure on the judges of a financial nature to collect these fees.” He went on to state that “that pressure shouldn’t be there. This should be based on criminal justice policy as opposed to revenue-raising considerations.” Continue reading →

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music-1453613According to an article in the MetroWest Daily News, Worcester police recently arrested a Framingham High School music teacher on domestic violence charges. According to a second article, the court also issued a restraining order against the defendant under G. L. c. 209A, § 7. The articles state that the defendant and the alleged victim became romantically involved in 2011, shortly after the alleged victim graduated from the high school, where she was one of the defendant’s students. The relationship last approximately five years. The incident in question reportedly occurred when the alleged victim went to the defendant’s home in Worcester to discuss their relationship. Specifically, the alleged victim confronted the defendant about being in a relationship with another woman. An argument ensued, during which the defendant allegedly refused to let the alleged victim leave. The alleged victim also claimed that during the argument, the defendant pushed her into a wall, cabinets, and a door, slammed a door on her arm, and pushed her child, whom she apparently brought with her, into a bush. The alleged victim also showed police bruises, which she claims were the result of the defendant’s assault.

The defendant testified at the restraining order hearing in his defense, stating that he and the alleged victim had already broken up and that he was in the process of moving in with a new girlfriend. The defendant was ultimately charged with one count of kidnapping, two counts of assault and battery on a family or household member, two counts of assault and battery with a dangerous weapon, one count of witness intimidation and one count of assault and battery. Continue reading →

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various-abusive-drugs-489543-mAccording to an article on the American Civil Liberties’ website, thousands of criminal defendants impacted by the Annie Dookhan/Hinton Drug Lab scandal still have not received justice.  The article states that in May 2015, the Supreme Judicial Court issued a decision in Bridgeman v. District Attorney for Suffolk County.  The decision stated that Dookhan defendants have the right to challenge their convictions without fear of further punishment.  Specifically, the ruling stated that criminal defendants who brought a motion to vacate a conviction based on Dookhan related issues could not face more serious charges, or longer sentences following the allowance of such a motion.   The SJC then sent the case to SJC Justice Margot Botsford to determine how defendants would be identified and notified of their rights.  Justice Botsford subsequently issued a ruling requiring state prosecutors to produce lists of Dookhan defendants.  Despite her order, however, prosecutors have been slow – extremely slow – to respond.  Justice Botsford held a hearing on May 11, 2016 to discuss the need to notify defendants.  This past week, almost five years since Dookhan’s misconduct was uncovered, and one full year after the issuance of Bridgeman, prosecutors have finally issued the requisite lists.

The lists identify more than 24,000 drug cases in which people were convicted, or had other adverse dispositions, as a result of tainted drug testing completed by Annie Dookhan.  These Dookhan cases appear to account for 25 percent of all drug prosecutions that led to convictions in the seven counties that used the Hinton State Lab during Dookhan’s tenure, and one in six of such drug prosecutions in the Commonwealth, over a 10-year period.  Despite these staggering numbers, the vast majority of the defendants in these 24,000 cases have not received any official notice that Dookhan worked on their case, let alone legal representation to help them challenge their tainted convictions.

These revelations follow on the heels of a report issued last week from the Massachusetts Attorney General’s Office, written at the request of the Massachusetts Supreme Judicial Court, which found that Massachusetts is also confronted with a second enormous lab scandal arising from misconduct by chemist Sonja Farak at another state drug lab, in Amherst.  According to the report, Farak used drugs daily during her eight years on the job, and her misconduct likely affects thousands more cases. Continue reading →

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broom-shadow-1490808According to an article in the MetroWest Daily News, a Framingham man was recently arrested for assaulting his eight year old son.  The article states that the son had apparently gotten into a physical fight with another boy at the bus stop.  During the fight, the other boy apparently touched the son’s buttocks.  The son reported the incident to his mother and his father.  After the son told his parents what had happened, his father (the defendant) reportedly spanked the son and hit him on his backside with a broom handle.  According to the son, the defendant also slapped him in the face and neck.  The article indicates that the defendant was upset about the fact that the son had failed to report the other child’s inappropriate conduct to school officials – namely that the other child had touched the son’s backside.  The son did have visible injuries on his shoulders and neck as a result of the incident.  The son’s school principal reported the defendant’s conduct to the authorities and the police responded and photographed the son’s injuries.  As a result of the incident, the defendant was charged with domestic assault and battery with a dangerous weapon and domestic assault and battery.

Although the charges are serious, the defendant does appear to have a legitimate defense.  Specifically, the defendant can argue that he was simply using reasonable physical force to discipline his child.  Although the Massachusetts legislature does not specifically allow for the use of physical discipline by a parent, case law appears to indicate that a parent is authorized to use physical force to discipline a child under certain circumstances.  For example, in Commonwealth v. Rubeck, the Supreme Judicial Court seemed to recognize the parental right to discipline as a legitimate defense to the use of physical force against a child as long as the physical force was for the specific purpose of discipline, was conducted in a controlled manner rather than the result of an emotional outburst, and did not result in significant injury.  Since it is arguably inappropriate for an eight year old child to get into a physical altercation with another child, the defendant can argue that he was within his rights to put his hands on his child for the purpose of disciplining him. Continue reading →

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questions-1151886According to an article in the MetroWest Daily News, a Framingham man was recently arrested on domestic violence charges.  The article states that the police responded to the defendant’s apartment at approximately 3pm last Sunday after receiving a call for a “possible domestic dispute.”  When they arrived, the police spoke to both the defendant and his girlfriend.  The girlfriend told police that she was afraid of the defendant and that the two of them had gotten into an argument.  She further stated that during the argument, the defendant had thrown a coffee mug at her, but missed.

The girlfriend also claimed that the defendant had assaulted her nearly a month prior while she was giving the defendant a ride to work.  On that occasion, the defendant allegedly grabbed a travel mug and threw it at the girlfriend and it hit her in the face.  The cup reportedly left a bruise, which the girlfriend later photographed.  During that earlier incident, the girlfriend reportedly tried to drive to the police station, but the defendant told her not to do so.  The girlfriend apparently did not make any further attempts to report the incident. As a result of the girlfriend’s allegations, the defendant was charged with assault and battery with a dangerous weapon in relation to the earlier alleged incident, and assault with a dangerous weapon in relation to the more recent one.  The defendant was also charged with two counts of witness intimidation – one because he reportedly called the girlfriend’s daughter from jail even though he had been ordered not to do so, and the second because of his alleged statement telling the girlfriend not to go to the police.

At the defendant’s arraignment, his attorney indicated that the defendant was about to break up with the girlfriend because she had taken a debit card from him and withdrawn money without his permission.  The attorney further stated that the allegations were fabricated to get the defendant in trouble.  Continue reading →

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shooter-1569885According to an article in the Berkshire Eagle, the Supreme Judicial Court is scheduled to hear argument in a Berkshire OUI case – Commonwealth v. Neary French – that may impact the way drunk driving cases are prosecuted across the entire state.

The facts of the case are as follows: the defendant was seen making multiple attempts to pull out of a parking space in downtown Lenox at approximately 1:15pm on November 28, 2012.  According to the article, the police stated that “the vehicle was unable to navigate its way out of the parking spot,” and “collided with another vehicle slightly, several times,” despite the fact that “there was no real reason that vehicle couldn’t exit its parking spot.”  The police removed the defendant from the car, made observations of her, and had her perform field sobriety tests.  According to the police, the defendant “displayed all the signs of an intoxicated operator.”  The police then arrested the defendant on an OUI charge, first offense under G. L. c. 90, § 24.  At the police station, the defendant agreed to take a breath test, the result of which exceeded the legal 0.08 blood alcohol limit.

During the course of the court case, the defendant’s attorney moved to suppress the breath test result.  The attorney argued that the defendant should have had the option to contact an attorney before taking the test.  In her argument, the defendant’s attorney specifically cited to a defendant’s right to legal counsel under the Massachusetts Declaration of Rights, as well as the 6th and 14th amendments of the U.S. Constitution guaranteeing due process.  The attorney argued that a 2003 amendment to the OUI statute indicates that a breath test of .08 or greater is direct evidence proving legal intoxication, and therefore constitutes “a critical stage in the criminal process” (prior to this amendment, breathalyzer results were considered to be just one piece of evidence in determining the outcome of an OUI case).  The attorney went on to argue that because the breath test constitutes a critical state of the criminal process, a motorist should have the opportunity to consult with an attorney within a reasonable period of time before taking a breath test.  The attorney ultimately asked the court to find that the defendant was denied her right to legal counsel at the “critical stage” of the court case, in violation of the U.S. Constitution and the state’s Declaration of Rights.  Continue reading →

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knife-1417852According to an article in the MetroWest Daily News, a thirty-seven year old woman was arrested after a knife fight in Framingham. The article states that the police went to Phelps Road and found “a small child walking around holding a large kitchen knife.” It is unclear what led the police to respond to that location, however, the officers took the knife from the child upon their arrival. Officers then attempted to question people in the area in an attempt to determine what happened. During the investigation, the police recovered several weapons from the area, including a miniature novelty bat and several other wooden objects that witnesses identified as being used in the fight. Additionally, while the officers were questioning witnesses, one woman ran up to another woman and started screaming at her. The police attempted to separate the two, but were unable to do so and ultimately ended up handcuffing the woman who had initiated the screaming. She made statements to the police, including admitting that she had brought the knife to the fight. She indicated that she had done so because “they” had hit her sixteen year old daughter. Officers then charged the woman with assault with a dangerous weapon.

For the Commonwealth to convict the woman of assault with a dangerous weapon under G. L. c. 265, § 15B(b), it would have to prove the following beyond a reasonable doubt: (1) that the woman intended to put a person in fear of an imminent battery; (2) that she engaged in some conduct toward that person which the person reasonably perceived as imminently threatening a battery; and (3) that the assault was done by means of a dangerous weapon. Continue reading →

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1249008_glock_29_replica_4According to an article in the MetroWest Daily News, Framingham police found a loaded gun on a seventeen year old boy following a traffic stop last week. The article states that a police officer was attempting to pull over a car when the defendant, who was driving a different car, failed to pull to the right and get out of the officer’s way. The officer then decided to pull over the defendant. The defendant came to a stop, exited his vehicle, and reportedly “tried to talk his way out” of the situation. According to the officer, the defendant was “nervous and argumentative,” and kept “fidgeting with his hands in his pockets.” The officer reportedly told the defendant to show his hands, but he did not cooperate, and repeatedly asked the officer to let him go home. During the exchange, the teen reportedly took off running. The officer gave chase, apprehended the defendant, and placed him in handcuffs. Additional officers arrived and searched him. During the pat frisk, the police recovered a loaded Smith & Wesson semi-automatic pistol in the defendant’s waistband. The teen was charged with carrying a firearm without a license, possessing ammunition without an FID card, resisting arrest, possession of stolen property over $250, disorderly conduct, unlicensed operation, speeding and failure to yield to an emergency vehicle.

Although these charges are unquestionably serious, the defendant does appear to have a strong argument that the evidence recovered as a result of the search should be suppressed. A motion to suppress is a written request by a defendant asking the court to keep certain evidence from being introduced against him at trial because that evidence was obtained as a result of unconstitutional or illegal police activity. The Fourth Amendment to the United States Constitution guarantees a person’s right to be free from unreasonable searches and seizures. For the police to seize a person, they must have reasonable suspicion to believe that the person has committed, is committing, or is about to commit a crime. Under Massachusetts law, pursuit constitutes a seizure. Further, for the officer to pat frisk a person, he must also have a reasonable apprehension that the person is armed and dangerous. If the police lack the requisite reasonable suspicion and/or reasonable apprehension of danger, any evidence recovered as a result of the seizure and subsequent pat frisk should be suppressed. Continue reading →