North Andover Coach Is Arrested For Child Pornography And May Be Defeated By Search And Seizure Trap – Attorney Sam’s Take

While it is true that the duties of a good coach exist both on the field and off, North Andover 60-year-old high school wrestling coach David Castricone (hereinafter, the “Defendant”) has learned that they do not extend to the locker room.

The locker room of the opposite sex, at least.

That’s how suspicion apparently began in the Defendant’s case. He has been One of the most successful high school wrestling coaches in Massachusetts. The only thing is, there were questions about him. For example, why was he constantly being found in the girl’s locker room?

Police say that information was received last week that prompted a search of the Defendant’s home. According to court documents, the Defendant "got nervous" as police searched his attic. He then told his daughter to leave the kitchen.

The police say that he then waived his rights and told police he had pornography in the attic,.

When asked to describe the pornography, the police say that he stated he had pictures of girls.

A police report filed in court says investigators found pictures of girls who appeared to be unaware that they were being photographed

The Defendant has pleaded not guilty to a charge of possessing child pornography. He was released on $1,500 bail from Lawrence District Court.

He has resigned his position in the school,

Over the past 25 years or so, I have investigated, prosecuted and defended many sex crimes cases.

Lately, there seems to have been an increase in child pornography casesThis should send warning shots over the bow of anyone who regularly works around kids. The message is that any reason for suspicion can be a career and liberty-ender. Let’s face it. Even assuming the Defendant is found to be not guilty at trial, his career at schools, no matter how successful, is over. If the result after trial is different, he is likely to be looking at involuntary Commonwealth housing.

While the school has gone on record to assure parents that none of their kids are in the photographs, the fact is that the rest of us do not really know…yet. The fact that the girls in the pictures look like they are unaware of the camera is not conclusive. The internet is full of pictures that have been posed for in the guise of being unaware of the camera.

Clearly, if girls from the school are in the pictures, the Defendant has a host of problems. Not only will the age-range be easily established, but there will likely be charges other than the fact that they are child pornography. It is illegal to hide a camera in such a location and film unsuspecting people. If not, it might be a different story.

“What do you mean, Sam? I mean, after all, he was nervous when talking to the police about it.”

Wouldn’t you be…even if you had no pornography, illegal or otherwise?

“And he had his daughter leave the room”.

Many men would prefer not to talk pornography with police officers in front of their kids.

By the way, you might notice there is no word of a warrant in this case. It would seem that the Defendant could have refused to talk to the officers or let them into the house.

So why did he?

“Fear of losing his job otherwise?”

Maybe. But then, if the pictures were discovered, that was clearly going to happen anyway.

As we have discussed many times, investigating police officers can be persuasive. Further, some people have greater faith in their abilities to convince police officers than they ought to be…!

You may be one of the cleverest people in the world...but police officers do this for a living. Chances are...they are going to be better at it than you. In other words, you are better off not playing the mind games with investigators. Contact an experienced criminal defense attorney at the first opportunity and let hin or her advise and, if necessary, defend you.

After all, we handle these situations for a living too.

If you would like it discuss a criminal matter with me, please feel free to call me to arrange a free initial consultation at 617-492-3000.

To view the original story upon part of this blog is based, other than radio (1030 am) accounts, please go to : http://www.bostonherald.com/news/regional/view.bg?articleid=1316916&srvc=rss

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Boston Police Department Investigates Officers For Court Misconduct – Attorney Sam’s Take

I guess it is a good thing that I am vacationing in New York as I write this; the Boston Police Department just broken my heart!

Imagine my excitement after all the blogs I have written about police misconduct...particularly the off-an-on relationship law enforcement seems to have on the stand when it comes time to testify. I found an article on the Boston Herald announcing, “BPD eyeing possible ‘misconduct’ of 4 officers”

My hopes even grew as I learned that said misconduct involved what they did in court!

“Oh boy, oh boy, oh boy”, I thought. “Finally, this is going to be addressed. Hurray for law and order and no-nonsense prosecutors”, I thought.

But then I read on.

“Testilying”, as it was called in Brooklyn, was not what everybody was worried about.

You see, it is true that a Boston police detective sergeant is on paid leave and three other officers are on administrative duty while internal affairs and prosecutors investigate the possible misconduct, according to a police statement. However, the “misconduct” has nothing to do with robbing citizens of their liberty through blatantly breaking the law against perjury.

Instead, the transgression has to do with making too much overtime.

Kind of a white collar sort of thing. Kinda sorta.

You know, the kind of thing that would be called "fraud" if you or I did it.

You see, police officers make overtime pay for court appearances that fall on their days off or at times that are not part of their regular shift. The concern, according to Boston Police spokeswoman Elaine Driscoll, is whether four officers went to court when they were not supposed to go.

“At this point we’re trying to determine the facts and circumstances relative to this investigation,”Ms.. Driscoll explained.

She further explained that the situation has led the department to audit the system it uses to manage police officers’ court appearances. In a message from Boston police Commissioner Edward Davis to the entire department, Davis said the investigation involves “several” officers from Area E-5 Hyde Park/West Roxbury.

A vital and necessarily huge investigation like this cannot be handled by the police department alone. And so, Suffolk District Attorney Daniel Conley’s office is cooperating with the department and monitoring its investigation a spokesperson for the DA announced. She said that “The commissioner has called for an audit of the court reporting system...At this point, it’s a citywide audit. It’s just good management, being extraordinarily thorough.”

As you can imagine, serious allegations like this requires a vigorous defense. It should therefore be no surprise that Gerry Sanfilippo, president of the Boston Police Detectives Benevolent Society, has weighed in, saying that the union remains firmly behind its members as the investigation moves forward.

He further explained “We always support our members to the fullest.”

Oh, thank G-d. I thought that the Commonwealth’s priorities had somehow collided with common sense in my absence!

Over the past quarter century, both as a prosecutor and a defense attorney, I have had a great deal of experience dealing with law enforcement and police testimony.

My eyes moisten as I remember the early days, in Brooklyn, when I was preparing an officer to testify on a search and seizure matter in a drug case. I asked the officer how the search happened, trying to find a way to make two inconsistent stories somehow consistent.

His answer was, “Which was is better?”

Smile, smile, nudge, nudge, wink, wink.

He actually seemed somewhat confused when I told him, “The way it actually happened.”

Police officers are given a great deal of deference by judges and jurors when they testify. It is assumed that they always tell the truth. Of course, it is also assumed that were the officers to stray from the truth after taking that all-important oath, the prosecutors would surely prosecute.

You remember the last time something like that actually happened?

No, I didn’t think so.

Naturally, the powers that be are not concerned with such things. After all, who do they hurt...defendants? Come on, things are much too tight to worry about them.

After all, there is money involved here!

So, don’t look to the Commonwealth for considerations of fairness and an even playing field.

If you want a shot at that, look for an experienced criminal defense attorney who knows the situation to argue for it on your behalf.

If you want to talk to me about a case, feel free to call me at 617-493-3000.

In the meantime, have a great, safe and law-abiding weekend!

To view the original story, please go to : http://www.bostonherald.com/news/regional/view.bg?articleid=1317663&srvc=rss

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Revere Man Charged With OUI Plowing And Assault With A Dangerous Weapon (The Plow) – Attorney Sam’s Take

This winter has presented us with various seasonal weathers...from seemingly Alaskan blizzards to mild Massachusetts spring. It is enough to confuse and to irritate anyone. Apparently, Michael Ciarlone, a 54 year-old Revere gentleman (hereinafter, the “Defendant”), is someone who indeed lost his “cool”.

Allegedly.

According to the Commonwealth, it started when the Defendant used a pickup truck and plow to push snow around a car he believed had parked in his spot on January 14th. When the car’s owner and others came outside, the Defendant is said to have shouted at them and then backed into one man with the truck. Finally, the Defendant is accused of kicking that man in the head and later punching another man in the face, breaking his glasses. According to the Commonwealth, the Defendant was inebriated at the time.

Both recipients were apparently treated for injuries at the scene.

The Defendant was treated to a later arraignment in Chelsea District Court for various charges, including assault and battery with a dangerous weapon, malicious destruction of property, and operating under the influence of alcohol.

At arraignment, the defense denied the charges and argued that the Defendant also was injured in the fracas. In fact, he had been taken to a hospital with a bone fracture on his face. Counsel also alleged that the medical records indicated that the Defendant had not been drinking at the time of the accident.

Over the many years in which I have been practicing criminal law, I have found that many, if not most, assault-type cases take place in the heat of the moment or, as I prefer to describe it, “one very bad moment”. It is the emotion of such a moment that alter, and sometimes end, lives.

In the instant case, I am not aware of what, if any, history existed between the people involved. Generally, the two things that dictate who gets the label “victim” and who gets called the “defendant” are who gets to the police first and who is more injured.

Here, two men were injured as well as the Defendant. Everyone was injured. However, it was the two men who were declared the victims and the one man (the Defendant) who got charged.

As you can see, math does not always rule in the criminal justice system any more than logic does.

In any event, one moment of losing control can result in felony criminal charges. Assault and battery with a dangerous weapon is a felony charge, for example. You may have been surprised to see the Defendant charged with drunk driving. Driving any motor vehicle in a public way under the influence is a crime. That includes plows.

Apparently, there is nothing here to indicate that he tried to out-run, out-wit or out-fight the police. This was an example of taking a bad situation and, while you could make it worse, taking the better part of valor and minimizing damages.

Thus, the Defendant is free today answering to the pending charges.

So, while there are things the Defendant may have done that you might not want to do, copy the one thing he did right. Do not challenge the officers. Keep the peace until you can retain and experienced criminal lawyer to act on your behalf.

If you would like it discuss a criminal matter with me, please feel free to call me to arrange a free initial consultation at 617-492-3000.

To view the original story, please go to : http://www.boston.com/news/local/massachusetts/articles/2011/02/17/revere_man_charged_with_assault_on_neighbors/?p1=Local_Links

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Malden Armed Robbery Sting Operation Yields Three Arrests – Attorney Sam’s Take

Sting operations in Massachusetts are not uncommon. They are employed by law enforcement to investigate various types of crimes from drug dealing to prostitution.

Oh yes. And guns.

Robert C. Kenney, 56, Christopher P. Littlejohn, 30, and Ramone Arakelow, 34, all from Beverly, (collectively, the “Defendants”) have now learned this lesson. They were arrested last week in such an operation. They allegedly thought they were planning a home invasion in Malden with “legitimate” co-conspirators.

The victim-to-be was a drug dealer.

The victim-to-be was not a legal citizen.

The victim- to be…did not exist.

The would-be victim was simply part of a fictitious scenario created by authorities who had been investigating the Defendants. What the various law enforcement agencies (FBI, State Police and various local police departments) were really after was weapons. One of the Defendants is suspected of selling seven illegal firearms in the Boston and North Shore areas, State Police said. The other two are suspected associates.

The authorities monitored the Defendants as they made their way along Route 99 in a green and gray pickup truck. A State Police helicopter was also tracking the truck. When the truck stopped in Saugus, allegedly the spot used to prepare for the night’s festivities, they were arrested.

Inside the truck, authorities say they found knives, a ski mask, duct tape, and paraphernalia indicating the men planned to pose as federal immigration agents during the home invasion, including a fluorescent jacket like those worn by police officers, emergency lights that could be mounted on a dashboard, and zip ties, used by police as handcuffs.

The Defendants face a host of charges, ranging from conspiracy to commit armed robbery in state court and, potentially, gun charges in federal court.

As a long time experience criminal defense attorney in Boston, I have often criticized police officers for not for being creative and not limiting themselves to the truth. There are, however, Cases in which police officers are creative, manipulating the truth, but simply doing their jobs.

This would include sting operations such as that which is mentioned in today's story.

"But Sam, isn't this entrapment?"

No it is probably not. It might be entrapment if officers enticed an individual who would never otherwise commit such a crime to commit it. This does not seem to be the case in this story.

I have often reminded you that, in the course of the investigation, police officers are allowed to lie for a number of reasons. We have discussed times where officers lie to suspect in order to get statements from him or to trick him into letting the officers into his home. They are also allowed to actais undercover officers and trick people whmo they believe would otherwise commit a crime pretend to join in the fun with them.

Far from finding this unfair, the law considers this "good police work". When the case involves people who might otherwise do home invasions or possess weapons, the law is particularly pleased with the police manipulations.

"Well I know that people are not allowed to lie to police officers, that is a felony, right?"

Yes, that's right.

"But then isn't it unfair that they were allowed to lie to us?"

Perhaps it is unfair, but it is the state of the law. After all, these are police officers and it is assumed that they are always acting for the public good. They are, after all, protecing us.

The rest of us are apparently not so laudable. So, trying to save your own skin, or that of a loved one, is not a good enough reason to lie.

You do have the right to keep your mouth closed, though. Usually, when contacted in an investigation, the wise thing is to do just that until you have a chance to contact an experienced criminal defense attorney. Especially if the person being investigated is you.

You may or may not end up cooperating with police. But making that decision alone can cost you years in the end.

The part of reality that the system does not seem to recognize is that, good or bad, after a certain point in an investigation, the officers decide what they believe the truth to be. By the time they get to interviewing you, little you say is likely to convince them that they were wrong.

If you would like it discuss a criminal matter with me, please feel free to call me to arrange a free initial consultation at 617-492-3000.

In the meantime, have a great Valentine's day!

To view the original story, please go to : http://www.boston.com/news/local/breaking_news/2011/02/three_beverly_m.html

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Duxbury Woman Is Assaulted By Hanover Drunk Driver – Attorney Sam’s Take

Mike Hennebury, a 37-year-old man from Hanover (hereinafter, the “Defendant”) is in trouble as this week comes to a close.

According to the police, the Defendant was on his merry way Tuesday night, driving drunk, when he ran off the road. Say what you will about the Defendant, he is apparently consistent. He has had three prior drunk driving cases in the past.

When the Defendant left the comfort of pavement, he ended up in the front yard of a home in an otherwise peaceful Duxbury neighborhood. There, his car came to a rest and was apparently having difficulty moving. Yes, it was stuck in the snow.

The good news is that a nice 72-year-old woman came out of her home, concerned that he needed help.

The bad news is that he apparently did not want any help. He really did not want any help!

According to law enforcement, the Defendant expressed this lack of desire by knocking the woman down and kicking her in the face with his boots (aka a dangerous weapon – shod foot).

The woman was finally able to make it back into her home, where she called the police. Meantime, the Defendant stayed where he was...stuck among the snow mountains.

He was not difficult to find when the police arrived.

The Defendant is looking at a host of charges, including the felonies of assault and battery with a dangerous weapon and assault and battery on a person over 60. This being his 4th OUI, he will be looking at additional time, under Megan’s Law, should he be convicted of that.

Lord help him if he was on probation at the time...!

As you know, I have been practicing criminal law for over a quarter of a century. That not only makes me old, but it reflects many years of experience handling all sorts of criminal cases.

The reality of “no good deed goes unpunished” is not terribly new to me.

“Well, Sam, it sounds like this guy was crazy! Is that likely to be his defense?”

Maybe. However, the Commonwealth will indicate that he was not insane...merely drunk.

“Well, if he was so drunk he did not understand that it was an older woman and she was trying to help him...doesn’t that mean that mean that he was sufficiently removed from reality so as to make it impossible for him to intend to assault the woman?”

Well, no. Not unless, perhaps, his body was flailing this way and that in a seizure or something that made his actions truly involuntary. However, there could be issues with this as well because voluntary intoxication is not a defense.

“Self-defense?”

Yes, good luck with that.

In the past, I have reminded readers that, when they are pulled over by the police, not to try to outwit, outrun or outfight them. Perhaps this is a good time to remind everyone that that goes for non-police too. Especially the last one. No need to beat up on the elderly when they come out to inquire.

To put it in ther perspective of this week's blogs, it is bullying of a different sought. And the laws against this kind have plenty of teeth!

Somebody needs a very experienced criminal defense attorney here, and it is not the woman.

If you find yourself sobering up from such an episode and find that your wallpaper suddenly has bars on it, get one of those. If you would like it to be me, please feel free to call me to arrange a free initial consultation at 617-492-3000.

In the meantime, have a great, safe and law-abiding weekend!

To view the original story, please go to : http://boston.cbslocal.com/2011/02/10/duxbury-police-say-senior-citizen-woman-beaten-by-drunk-man/#

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Former South Hadley Prosecutor Testifies At Boston Bullying Hearing – Attorney Sam’s Take

How do former Massachusetts prosecutorial politicians and general politicians admit that they were wrong? Well, they don’t. They simply, and quietly, try to seek a “do over”, as young kids would say.

And so it was that former South Hadley prosecutor, Elizabeth Scheibel (hereinafter, “EXDA”), joined with others yesterday to address the fact that her and other heroic (and speedy) legislators’ measures regarding bullying do not seem to be working very well.

You remember EXDA, don’t you? In response to the public outcry of Phoebe Prince’s suicide, she is the political prosecutor (“PP”) who made headlines, instead of sense, when she indicted a bunch of kids for, when it comes down to it, bullying. Rather than doing further investigation (which the media did later for her), it was more palatable for her to ruin the lives of the other kids involved.

The transparently political move, while gaining accolades at first, soured in the light of day and she thereafter retired. However, the damage had been done. Part of that damage was to “up the ante” with her fellow politicians regarding bullying. So, in true political fashion, they pushed through what they called “the toughest anti-bullying law in the country” Unfortunately, the awesome law did little save give a false sense of security to the general public and confuse those who had to actually read the thing.

Oh. And it also gave us "No Name Calling Day".

Well, since the bullying problem is, if anything, getting worse, folks are meeting to figure out what to do. A hearing took place at the State House in Boston yesterday. It was convened by PP Attorney General Martha Coakley, who is leading a seven-member panel charged with assessing the anti-bullying law enacted last year.

There were various participants testifying. For purposes of this blog, EXDA was the most interesting of them. One of the obvious problems that she addressed was that there are no “teeth” in the bill as described in this blog on Tuesday.

EXDA opined that the anti-bullying law should be more like laws governing child abuse, a criminal offense, which require a broad range of caretakers to report suspected abuse or face civil penalties.

The law does urge school officials to refer anything that could be considered criminal to law enforcement. EXDA, however, feels it should go further. She suggested that administrators report to prosecutors all episodes they have determined to be bullying, not just those they believe are criminal, as the law currently demands.

EXDA explained that referring credible bullying cases to law enforcement would not increase the number of criminal prosecutions because law enforcement officials share school administrators’ hopes of keeping students out of the criminal justice system.

Apparently, this is a bad thing in EXDALAND.

However, EXDA explains, prosecutors do not have such an odd reluctance. Further, she says, that district attorney’s offices are better equipped to make the call when criminal charges are appropriate.

Coakley declined to comment on Scheibel’s testimony.

I have been imbedded in the criminal justice system for over 25 years. I have been on both sides of the aisle. I think I have a fairly accurate picture of who the players and their mindsets.

Judges judge. They are human, of course, and therefore susceptible to various influences like the rest of us. However, they try to rise above that and they judge. Defense attorneys defend. It is what we are supposed to do and it is what we do...when the job is done right.

Prosecutors, though, are not meant to simply prosecute. Their job description is to “do justice”. While most assistant district attorneys probably want to do that (again, with their own frailties and prejudices), they must obey office policies and directives. These are handed down by the particular PP who’s office it is.

Doing “Justice” is not necessarily the goal of a politician who knows that he or she will be judged simply on whether they were “tough” enough on crime.

I do not hate to say “I told you so”, so I will just tell you that I did. While it was all happening. Just check the blogs from back then. It is no surprise that the problem has simply gotten worse and that school officials, PPs and legislators are all scratching their heads at the problem.

Just like it is not brain surgery to suggest that putting prosecutors in charge of all bullying instances is sheer lunacy. On the other hand...look who suggested it

The issue of bullying is an age-old one and it is not going to be solved by knee-jerk quick political answers.

So, assuming you have no affiliation or interest in schools or kids. What does this posting have to do with you?

It is a reminder that is not often presented with such a clear illustration. However, it is an important one and, thanks to EXDA, I have a great illustration.

As mentioned, prosecutors prosecute. It is the mindset as well as the political motivation.

I meet many people who still believe that if they just “play ball” with the prosecution and tell the truth, as they see it, then everything will be ok and those investigating officers will simply go away.

This is naivety.

When the investigation leads to your door….call a lawyer!

An experienced criminal defense attorney is your best bet in having….to be kind to my friends representing the Commonwealth…another mindset involved.

One that cares about you.

If you have a criminal case and would like to discuss it with me, , please feel to call me to arrange a free initial consultation at 617-492-3000.

To view the original story, please go to : http://www.boston.com/news/local/massachusetts/articles/2011/02/10/activists_urge_lawmakers_to_extend_law_on_bullying/

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Attorney General Finds Widespread Breathalyzer Inaccuracies; Police Shut Down All Machines

If you are accused of DUI or DWI, a reading results in a legal presumption of guilt; if charged with driving with a blood-alcohol content of .08% or higher, the machine is the only evidence of blood-alcohol.  In essence, either way you will be facing a "trial by machine".

So how good are these machines?  Good enough to constitute "proof beyond a reasonable doubt"?  Or are they just "close enough for government work"?

As regular readers know, one of my pet peeves is the unreliability and inaccuracy of breathalyzers (or, more accurately, any of the various breath testing models sold by a handful of manufacturers).  See, for example, Breath Alcohol Testing: "State of the Art?, Why Breathalyzers Don’t Measure Alcohol and Report: Breathalyzers Outdated, Unstable, Unreliable. 

D.C. Attorney General Drops Drunk Driving Cases

Wash. DC.  Feb. 8 — The District’s attorney general has dropped dozens of drunken driving cases since Jan. 31 and hundreds of others could be dropped as the police department shuts down its troubled alcohol breath-test program. Problems dating back more than three years with the city’s breath analyzers were first revealed in February 2010, when it was discovered the machines’ results were inaccurate. Since then, the D.C. medical examiner’s office has refused to sign off on the accuracy tests of new analysis machines, officials said.

"The alcohol breath-analysis program? It doesn’t exist anymore," said Ilmar Paegle, who discovered problems with the Intoxilyzer 5000s soon after he took over the city’s breath-analysis program on Feb. 1, 2010. Paegle’s contract ended last week. As he left, he said, the police department pulled off the street the Intoximeter, which replaced the Intoxilyzer last spring. "It’s a royal mess," Paegle said.

A spokeswoman for D.C. Attorney General Irvin Nathan said he couldn’t be pulled from a meeting to comment Tuesday. Nathan dropped eight more drunken driving cases Tuesday.

City policy requires the medical examiner’s office to certify the program, and it has not done so, citing concerns raised by the problems with the previous models, Paegle said. Although officers had been using the Intoximeters, the results were not being included as evidence, according to Paegle and internal police e-mails obtained by The Washington Examiner.

The medical examiner’s office declined to comment, citing pending litigation. Dozens of defendants have sued the city after being convicted on potentially faulty breath-test results.

Assistant police Chief Patrick Burke said officers are now taking urine samples to test blood alcohol levels for potential future prosecutions.

Meanwhile, the two police officers who account for a third of the city’s 1,400 annual drunken driving arrests have had their trial testimony called into question. They are the subjects of an internal affairs investigation that began after they spoke out about problems with the breath analyzers.

Officers Jose Rodriguez and Andrew Zabavsky learned that the medical examiner hadn’t signed off on the program and began mentioning that in their trial testimony last spring, according to an e-mail from Zabavsky to police Chief Cathy Lanier. Later in the spring, the attorney general’s office began an investigation into the officers, saying a woman they arrested for driving under the influence in June 2009 had complained the two watched her take a urine test.

In December, the case was turned over to internal affairs.

"On a day-by-day basis, cases are being dismissed because the officers involved are being investigated," said defense lawyer Bryan Brown.

The result, police union chief Kris Baumann said, is "our ability to enforce DUI laws in the District has been crippled".

The breathalyzers involved are the most commonly used across the country.  Do you really think only those in Washington D.C. are giving false results? 

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The Metamorphosis of a Crime

Drunk driving is bad.  It’s potentially dangerous to human life.  It should be punished.  So, many years ago a law was passed: 

"Thou shalt not drive drunk."

It was a fair law and it addressed the problem.  So…what happened?  Why do today’s laws punish drivers when they are neither "drunk" nor "driving" — nor even in a "vehicle"? 

"Drunk"

The original laws prohibited driving a vehicle "under the influence of alcohol" — commonly referred to as "DUI".  In some states, it’s called "DWI" (driving while intoxicated) or "OUI" (operating under the influence).  In other words, the accused had to be (1) driving (2) a vehicle (3) while intoxicated to the extent that he or she was unable to safely operate it.

This changed a few years ago with the passage of so-called per se laws.  Prosecutors and groups like MADD were frustrated with the difficulties in proving that a driver was, in fact, under the influence.  So legislators, anxious for re-election endorsements from prosecutors, police and MADD, passed a new law:

"Thou shalt not drive with a blood alcohol level of .10% or more."

Well, this made it much, much easier to convict citizens suspected of drunk driving.  First, prosecutors no longer had to prove that a driver was impaired in his judgment, reflexes, perception and coordination.  All they had to do was produce a number: .10%.  Never mind that the American Medical Association conducted studies and announced in 1938 that a driver was only "impaired" at .15%.  Never mind that MADD was later successful in getting the number reduced further down to .08% (and is lobbying for further reduction to .05%).  And never mind that every person’s tolerance to alcohol varies widely — that some drivers may be under the influence at .07%, while others may not be intoxicated at .11%.  The law was no longer interested in whether the driver was a danger or not: the crime was in having alcohol in your body.

The second reason the new per se laws were wildly popular with prosecutors, police and MADD was that the arrested citizen could now be charged with both crimes — DUIand .08%.  This had two big advantages.  First, it gave the prosecutor two shots at the defendant; if he didn’t get him for one, he might get him for the other.  Second, it gave juries that were unsure of the defendant’s guilt an option: convict him of one charge but acquit him of the other.  Juries that were not unanimous could use this as a compromise — even if some jurors felt the accused was not really proven guilty.

Just to make it even easier, many courts have followed the California Supreme Court in ruling that the breath alcohol reading cannot be questioned on the grounds that it does not accurately reflect the alcohol actually in the person’s blood.  See Bransford v. California.  (One dissenting justice in that case, less concerned with politics than with common sense, wrote: "The majority…has on its own created the new crime of driving with alcohol in one’s breath.")

"Driving" 

The second half of drunk driving is…"driving".  This would seem obvious: how can you be driving under the influence if you’re not…well, driving?

No problem.  If you have judges who do not want opposition from prosecutors, police and MADD at the next election, you will have strange judicial interpretations of what "driving" means.  And in recent years there has been a flood of judicial interpretations which have stretched the word beyond recognition.  A couple of examples:

Sleeping in (or near) the car.  See my posts Sleeping Under the Influence, How to "Drive" Under the Influence While Sleeping, Convicted of Drunk Driving Without Driving and When Does the Insanity End?

Sitting in a parked car.  See Parking Under the Influence and Sitting in a Parked Car  

"Vehicle"

Just as the judges stretched the meaning of "driving" beyond the limits of credulity, so they also expanded the definition of what constituted a "vehicle".  Now, a "vehicle" is commonly understood to mean a car or truck, and so it has been applied for decades.  But this, too, has been slowly expanded to include such "vehicles" as:

Bicycles.  See my posts DUI on Bicycles, Felony DUI Bicycle and DUI While Walking a Bicycle

Lawnmowers.  See More News From the Front and The "War on Drunk Driving" Marches On

Horses. See DUI on a Horse

Wheelchairs.  See DUI in a Wheelchair

Toy bikes.  See DUI on a Foot-High Toy Bike 

Golf carts.  See The War on Drunk Driving Continues

Zamboni ice machines.  See News From the Front

As Humpty Dumpty explained to Alice so many years ago:

"When I use a word”, Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean — neither more nor less.”

“The question is”, said Alice,”whether you can make words mean so many different things.”

“The question is”, said Humpty Dumpty, “which is to be master — that’s all.”

We used to have laws punishing drunk drivers. They were good laws, designed to protect citizens.  Whatever happened to them?

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Boston Area Men Are Arrested For Drug-Related Arson-Attorney Sam’s Take

The Boston Housing Authority has had to close a nine-unit building for repairs, displacing nine families after three men allegedly set fire to a unit at the Bunker Hill housing development this week. The police say that the intended victims escaped through a window. Boston firefighters extinguished the two-alarm fire, but also had to rescue second-floor residents who were trapped by heavy smoke and fire.

Thankfully, no serious injuries were reported. According to the BHA, the families have been at hotels while the new apartments for them are sought. In the meantime, the families are being aided by the Red Cross.

James Burrell and Dashaun Lanair James, both 32 and of Charlestown, and Daniel Grayson, 28, of Roxbury, (hereinafter, collectively, the “Defendants”) have been charged with the blaze and have pleaded not guilty to arson of a dwelling and other related charges.

Bail was set at $150,000 for Burrell, $85,000 for James, and $50,000 for Grayson.

The Commonwealth believes that the arson was committed in connection with a drug debt. According to police, Burrell had been arguing with a man over said drug debt. Then, police say, the Defendants were standing in a hallway of the building shortly after midnight when a flammable liquid was poured under a unit’s door. Burrell is said to have ignited the liquid and then the Defendants all allegedly ran into a neighboring apartment building on Decatur Street.

Inside his apartment in that building, police found Burrell in his bed.

Tipped by a “concerned community member,’’ police also found James and Grayson inside a vehicle which had been spotted driving away from Decatur Street.

While not as common as assault, arson is a crime that any experienced Massachusetts criminal defense attorney has had to deal with.

The crime is treated particularly seriously when the fire caused was in a residence. It is also one of those felonies where, if someone dies from the fire, said death is considered foreseeable. Therefore, “I didn’t think anybody was home” is not a defense.

The charge would be murder.

Because such fires are rarely set in front of an audience, the evidence is these cases tends to be fairly circumstantial and scientific. After all, the prosecution needs to prove not only that the defendant committed the crime, but that a crime was committed at all.

In the instant case, there is clearly much more that the police suspect than has been released. For example, why were the Defendants named at all? Did someone allegedly overhear the drug money argument? Why would the two defendants in the car be suspected? Why was their car noticed?

After all, it is not unusual for two men to be in a car together. It is not suspicious that a man would be in his bed in his own apartment at night.

Because this evidence is likely to be eyewitness testimony, it presents even more issues for the prosecution. For example, since the informant seems to know the people involved, could he have some vendetta against these defendants? Was he part of the drug trade? Finally, could he have started the fire and pinned it on the Defendants?

This would not be the first time that such actions were taken to eliminate debts or competition in the drug trade.

A key item the Commonwealth will be looking to will be whether the scientific evidence is consistent with what the witness says.

If not…they will have to choose.

Choosing under such circumstances tends to have the odor of reasonable doubt about it.

As with any type of criminal case, you want an experienced defense attorney to aid you if you are accused. If you want to discuss such a matter with me, feel free to call me for a free initial consultation. I can be reached at t 617-492-3000.

To view the original story on which this blog were based, please go to : http://www.boston.com/news/local/massachusetts/articles/2011/02/09/3_held_as_ars

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Why should I retain your firm to defend me?

Posted On: December 14, 2010 by Bruce M. Robinson

Funny thing happened to me while I was in DUI Court today. My client was facing a pending jail sentence so we went to Court to try to change that; we were successful and kept him out of jail. Another satisfied client; but, that is not the reason for this post. The reason for the post is one of Howard County's men in blue was present in the Court room and he asked where my blog articles were, the officer said "you have not posted anything in a while". I asked him, do you actually read what I post regarding DUI and drunk driving. He said "we do".

Wow! The police actually read what we have to say, that's great. Maybe it helps on all sides, maybe it helps get better behavior on both sides of the DUI equation. Maybe not, maybe it only helps them be tougher on the DWI Defendants. Either way, our goal here is to seek fairness on both sides of the DUI equation so Defendants can be treated fairly in Court. Unfortunately, there are many Courts in Maryland where a Defendant is guilty merely because s/he walked into the Courtroom.

That means, citizens should know their legal rights and utilize them as they see fit. That means, knowing that one does not have to do a field sobriety test at a DUI stop and knowing that anything they do can and will be used against them in Court. Knowing that right, and then electing to perform roadside gymnastics is totally up to the person. However, not being coerced into incriminating oneself is an important Constitutional Right that we all share.

Then comes that pesky breath machine. Do I blow? Do I not blow? I get asked that question everywhere I go. It's an important question which does not have a simple answer to fit all people. The answer changes based upon individual circumstances. However, it is refreshing that the police are required to advise you of your legal rights before asking a Defendant to make that important decision. You also have the right to communicate with an attorney prior to making that decision. Refreshingly, most police officers will let you exercise that right. Those that do not will suffer the consequences of that decision in Court.

Finally, I remind the reader that time is always of the essence after an alcohol related stop. You should seek the consultation and advice of a qualified DUI attorney at once so as to not compromise your rights and/or lose your license to drive.

So, getting back to the original question which is why should I retain your office?

Well, aside from nearly 20 years of DUI defense experience and know how, I can also say that if the police are taking their time to read and follow what we have to say regarding alcohol and drunk driving, you should too.

Call anytime for a free consultation: We are always available nights and weekends for your convenience. 410-484-1111.

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Former California Firefighter Gets Nine Year Sentence in DUI Death

Mitchell Green, of Kern County, California, near Bakersfield, served in the army for six years in Bosnia and Afghanistan, and he was a firefighter on the local force. He didn’t have a criminal record to speak of, and his friends called him a model citizen.

Before the night of February 2, 2010 , that is. On that night, Green drove drunk, and he got into a car accident. He collided with a vehicle carrying Michelle Maxwell and her teenage daughter. Michelle Maxwell died, and Mitchell Green now faces nine years in prison for charges related to California DUI, according to the Bakersfield Californian.

Her husband, Jerry Maxwell, acknowledged that, no matter what the sentence was, their lives were forever changed by Green’s decision. Judge Charles H. Brehmer noted during the sentencing that Green didn’t mean to hurt anyone, much less cause their death.

Maxwell’s mother, Marceline Seberger, spoke in court about the loss that she had suffered, emphasizing that there was no way that Green could know the way that they felt. She did believe that Green was remorseful, however, following the trial, saying that she could see the emotion in Green’s eyes. The last thing she said to Green was, “May you make peace with God before you see him face to face.”

Maxwell’s daughters told the Californian that they forgave Green for his actions the night his DUI caused their mother’s death. But they acknowledged the continued pain they would face. “She will never be able to spoil my children or even meet them,” said Michaela Maxwell, who was in the car the night of the crash.

Jerry Maxwell felt less kindness in the hours following the crash. Green was in a hospital bed near his family, according to the Californian, and he acknowledged a desire to hurt Green after learning that his wife had died. But his wife’s memory stayed his hand. “I heard my wife’s voice saying, ‘It’s not worth it,’” he told the paper.

Green had plead no contest to the felony gross vehicular manslaughter charge in December. His pickup truck collided with the Hyundai Sonata occupied by the Maxwells. Green had run a red light, and he didn’t brake even as he hit the smaller car.

His blood alcohol content registered at .13, over the .08 legal limit across the country.

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Howard County DUI - Serious Case -Serious Defense

Luckily the overwhelming majority of DUI cases in Maryland are relatively bland, that is, the driver had a little too much to drink and was stopped by Maryland's law enforcement for speeding or driving on the shoulder; nobody gets physically hurt. However, occasionally a very serious case comes along which necessitates an extremely high level of defense or the Defendant is going to jail for a very long time.

In this very serious Howard County DUI case, my client mistakenly proceeded the wrong way on the highway and struck a Mac truck head on. The driver of the truck escaped with very minor injuries, however my client was brought back to life at the scene of the accident by the highly skilled Howard County Medics. She was taken to shock trauma where she spent the next month having multiple surgeries and clinging to life from her life threatening injuries including breaking almost every bone in her body. Following a month of Shock Trauma it was off to a rehab facility to learn how to walk.

Unfortunately for this client, her BAC (blood alcohol content) was in the .20 range which is very high. She is a professional and had never been in trouble with the law before. She retained Robinson & Associates to provide her defense in this very serious case and we were able to comb through her case and find several weaknesses in what appeared to be a very strong case against this defendant.

On the day of her trial, following pretrial motions and several meetings with the State's Attorney, we were able to walk our client out of court that day with no conviction and unsupervised probation, a Herculean result in Howard County. If you have a DUI in Howard County Maryland and need experienced and aggressive counsel to protect you and your family, give us a call, anytime, we'll be glad to discuss your case at no charge.

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Police Seek Dorchester Burglary Suspect Who’s Phone May Turn Him In - Attorney Sam’s Take

An unnamed gentleman was apparently going about his business in Dorchester Monday. Said business is known as "home invasion".

The break-in was on Beaumont Street and took place on Monday morning while the occupants were out. One was at work and the other...coincidentally enough...was on jury duty

The burglar took an awful lot of stuff, including all the electronics that he could find. This would include a laptop computer, television set and Nintendo Wii game system as well as other goods. The rooms were found, according to police, . “in disarray, draws (sic) opened, closets opened, items ransacked.”

However, the mystery thief apparently left a gift behind.

His blackberry cell phone. It was found on the bathroom floor. Near the broken window.

As a result of the helpful device, a warrant has issued for the arrest of the mysterious gentleman.

A mailman also told investigators that he saw two suspects climb into a white vehicle with “a loud engine” and take off. Another witness told police she saw two men carry a large object down the driveway and put it into what looked like a white hatchback.

While the phone is aiding law enforcement in tracking down one of the alleged suspects, the police may have to rely on eye witness identification to charge the second man.

As an experienced Boston defense attorney, I have handled many cases wherein the government’s case involves either eyewitness testimony or circumstantial evidence. Each type of evidence brings about its own strengths and weaknesses.

The cell phone has apparently already helped the Commonwealth arrive at a chief suspect, namely, the owner of that phone. However, the fact that said phone was left at the scene of the crime and was not there when the occupants left earlier in the morning is not conclusive of the issue of whether the owner was either one of the burglars or even at the scene of the crime. Perhaps the owner had previously been robbed of his cell phone. Perhaps it had been taken by someone who wanted the police to believe that the owner was the culprit.

After all, the leaving of a cell phone is not necessarily the result of carelessness. It could be the result of an evil plan to shed suspicion onto someone else.

And then there are the eyewitnesses. Well, clearly, there will be all kinds of issues to bring about regarding their ability to observe. Further, if they had indeed seen what looked like a robbery, why didn’t they call the police?

In other words, while the leaving behind of the cell phone might bring about a chuckle, it does not spell “game over” for the future defendant(s). Neither do the eyewitnesses even if they identify suspects.

The only question is….with the defense attorney(s) have the experience or talent to make the best out of these, and other, issues?

Well, I guess that will be for whoever is arrested in this case to decide.

Might I suggest , if you someday find yourself in their position, that you opt for a lawyer with talent and expertise? It might be more expensive…in terms of money. However, it might be much cheaper in terms of years in obligatory Commonwealth housing.

If you would like to discuss a criminal case with me, please feel to call me to arrange a free initial consultation at 617-492-3000.

To view the original story, please go to : http://www.bostonherald.com/news/regional/view.bg?articleid=1314030

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Maryland DUI: Deplorable & Shocking Police Behavior

Posted On: May 23, 2009 by Bruce M. Robinson

Regarding bogus DUI arrests in Maryland, I have had clients tell me about the nefarious behavior of officers for years, however I have never witnessed the behavior personally, until last night. On Friday, May 22nd at 10:50 p.m. I left Chilly's Restaurant on Route 32 and Londontown Blvd in Carroll County, Maryland, with my fiancee and her mother. I was lawfully sitting at the red light waiting to turn onto Route 32 North. At that time a female State Trooper (didn't get her car number, wish I had) drove past the intersection where I was waiting on the light and proceeded northbound towards Finksburg. The traffic was light at this hour as I was the only car at the intersection- mind you, just sitting there. After the trooper past me the light changed and I pulled onto 32 northbound as well.

At the next traffic signal, with the trooper several hundred yards in front of me, she strangely turned right and pulled into an empty parking lot of the medical facility, which I observed. Figuring she was up to no good I watched her. She then turned around and pulled out and began to follow. me. I'm thinking, well maybe she got a call, maybe she is not being evil, so I gave her the benefit of the doubt and executed a right turn onto a small street to see what she would do- mind you there have been zero traffic infractions as she just passed me at a red light.

I execute my right turn and what do you know, she executes a right turn behind my vehicle. This is unbelievable! I have done nothing and she is following me around hoping that I will screw up so she can pull me over. Getting madder by the moment, I pull into a private driveway and she slowly drives past my vehicle. I turn around in the driveway and wait a few minutes and what do you know, this female trooper with nothing better to do turned around again and drives past my position on the driveway and keeps going back out to route 32.

I need to travel down 32 to go home so I figure I'll see her again. I pull onto route 32 and a few seconds later, boom, there are the flashing emergency lights of the Maryland State Trooper. However, they weren't for me! Seems while she was on the side of the road "baiting" her next poor unsuspecting victim (hoping it to be me I gather), she got some other victim. I drove past her, went home and decided to put the word out.

Now Carroll County is tough, everybody knows that. You can't drive on the streets of Carroll County, particularly at night without seeing a police officer; nothing wrong with that, keeps the streets safe for the good citizens of this county. However, this baiting, victimizing behavior by a State Trooper, is completely unacceptable! She was intentionally trying to force a situation (a stop) where there was none. The tactics employed include stopping you the minute you touch either lane marking (which is essentially a bad stop depending on degree), stopping you the minute you exceed the speed limit, riding your tail until you exceed the speed limit, looking for a tag light out etc. Basically, if they want to stop you bad enough, they will find a reason.

It's one thing to police our streets and make them safe from alcohol offenders, it's entirely another when troopers have quotas or personal requirements and essentially force drivers to engage in some behavior which then allows troopers like this to stop the vehicle. The courts and the judges do not hear this side of the story very often and if they did, they would not believe it anyway as more credence is given to the officer's version of events. This is deplorable and despicable!

Now, I only drank ice tea that night which is my normal, but bear this in mind: One might say, well, if your not drunk you have nothing to hide, so who cares of this trooper pulls this crappy, dubious, borderline illegal behavior. Well, consider this, the legal limit in Maryland is .08. The signs say it, the billboards over our highways say it and we all know it. However, I was just retained earlier this week to defend a .04. That's right, .04, roughly 2 beers, half the legal limit and the poor client is arrested and charged and now his life is in turmoil until I fix this situation.

Thus, what we have are over enthusiastic troopers and law enforcement (again, not all of them but this female trooper was out of control) who will stop your car at any expense. Then, despite a .08 BAC legal limit, if you blow a .04, half the limit, meaning you are presumed to be Not under the influence, they write you anyway. Embarrassing you in the community, before your family, costing you money, threatening your job, causing emotional turmoil, etc.

This behavior is totally unacceptable and should not be tolerated by the community, by the brass in the police department, or the courts and judges.

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Arrested In Boston For Drunk Driving With A Little Warrant In Between- Attorney Sam’s Take

Boston police got a 2-for-1 bargain earlier this week in the area of drunk driving.

They stopped an automobile near Columbia Road and Holden Street in Roxbury. It was initially stopped, according to law enforcement, because it had not stopped at a red light.

As part of normal practice, the driver was asked to produce his license and registration

Guess what?

Whoops! The driver’s license had been revoked. Whoops again...the driver had an outstanding warrant for his arrest due to a pending drunk driving charge.

So, the driver was about to become a guest of the Commonwealth. He asked the officers if his passenger could drive the vehicle home so that it would not have to be impounded.

Whoops a third time!

Upon checking the passenger out, it was discovered that she, too, had a drunk driving warrant out for her arrest.

Ironically, there is nothing in the story to indicate that either arrestees were suspected of being intoxicated when they were arrested.

Over the past 21 years as a Boston criminal defense attorney, I have handled more than my fair share of drunk driving cases...not to mention cases in which an outstanding arrest warrant has “dropped” upon a semi-unsuspecting citizen.

As I have mentioned in the past, the Commonwealth takes drunk driving and driving to endanger cases quite seriously. Obviously, matters are made even worse when one has a warrant out for their arrest.

Once law enforcement finds out that there is an outstanding warrant for your arrest, you are immediately placed under arrest.

“But Sam, it is a pretty busy Commonwealth. Surely they have better things to worry about than putting me in jail just because I forgot to show up in court to answer a mere vehicular crime.

Not so. The Commonwealth may be busy, but they still have time enough for you. Courts take defaults seriously and, often, if a person returns to court by way of handcuff, bail will be raised or completely revoked.

Now, if you put together that there is a warrant out for drunk driving, you do not have a valid license and you are still driving anyway...well, it does not make a particularly impressive picture.

On the other hand, if your aim is to create a challenge for whichever attorney is arguing bail on your behalf, it is a nice approach.

Speaking of which...if you wait to be brought into court unexpectedly by law enforcement your chances of steeper bail conditions go up. It is best to be proactive in these cases. Come back on your own terms, voluntarily. It will help a great deal. Want to improve your chances even more? Hire an experienced criminal defense attorney to help ease the way beforehand and appear with you when you return.

It’s more of a “prodigal son” type of approach.

If you want to discuss a criminal case with me, feel free to call me for a free initial consultation. I can be reached at t 617-492-3000.

In the meantime, have a great, safe and law-abiding weekend!
To view the original story about which this blog was based, please go to : http://bostonist.com/2011/02/01/boston_blotter_armed_robbers_caught.php

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We take ourselves too darn serious

Here I am enjoying a lazy Sunday afternoon and staying current on the latest Maryland DUI issues which may effect my DUI clients when I came across the following alcohol related article regarding a DUI charge on a bar stool. I thought that was a little weird so I figured I'd remind the public about Maryland DUI law as it relates to unusual (and sometimes silly) "vehicles".
First, the Maryland legislature has past Maryland Transportation Article 11-176 which says in pertinent part that the definition of vehicle means any device in which a person or property may be pulled or towed on a highway
. Alright, that sounds reasonable right? Well, that includes motorized bar stools. So if you are creative enough to build a motorized bar stool in order to whisk yourself off to the local watering hole, you could have a problem on the way home (sorry Norm).
The problem with such an expansive definition of vehicle as it relates to Maryland Drunk Driving however is that it is quite expansive and I would argue, overreaching. The definition of vehicle would include service animals such as horses, it would include a child's wagon, a riding lawnmower, a bicycle and the like. There are instances of all the foregoing in the news and on youtube.com. There are videos of a guy being stopped on his riding lawnmower on a street in his neighborhood and another of a guy on his horse. I suppose there are arguments that could be made regarding the propriety of riding a lawnmower drunk on a small neighborhood street or riding a horse but I don't think it should rise to the level of a DUI in a personal vehicle. Do you disagree, if so, no more enjoying a cold beer on a hot day while cutting your lawn. Well, there is always the story of some poor guy in a child's wagon being arrested and charged with DUI. Now come on, that's just ludicrous!
Remember, the Maryland statute does not allow a citizen to operate a "vehicle" (Read=lawnmower or wagon) anywhere (public property or private) while impaired. Thus, if your riding your ATV on your own personal property and the police somehow stop you and detect alcohol on your breath, your popped. As an ATV rider, I'm not suggesting it's a good idea to engage in this behavior but I am suggesting that it strikes me as unusual that the government has a hand in what I elect to do on the privacy of my own property. Put another way, if your enjoying a weekend cook out at your house and consume some cold beers and subsequently sit in your child's wagon and ride down the driveway (you must be intoxicated), you can be arrested if the police happen to be driving down the street and observe erratic wagon operation. Moral of the story, if your going to operate a wagon after drinking, stay right of center and don't tailgate.
So there you have it, just a primer reminder to advise all Maryland citizens that the consumption of alcohol above or close to the legal limit of .08 (remember the limit is actually less than .08) combined with the operation of any type of vehicle (engine or not) will not be tolerated by the police/courts and that the behavior subjects you to criminal and traffic penalties and fines for DUI.

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But your Honor, he was Polite & Cooperative

Posted On: December 7, 2008 by Bruce M. Robinson

So, you get arrested for DUI/DWI in Maryland, what do you do? The trial Judge may ask the arresting police officer if you were "polite and cooperative" and the officer's response can, in some instances, play a role in what the Judge does with you. However, what does this really mean?

If you were charged with a more serious crime than DUI you would know that you have rights, Miranda rights that is and hopefully you would know to stay quiet and say nothing until you had the benefit of sage wisdom of counsel. However, in DUI arrests, the Miranda warnings are rarely imparted upon suspects. Is that legal you ask? Well, in a word, yes. It's legal. Reason: Miranda warnings are not a requirement for a legal arrest. They are a requirement for the police to gain admissible information following a legal arrest.

Thus, in the DUI DWI scenario, the I/O or investigating officer is perfectly within her rights to arrest you and never give you the Miranda warnings. However, there are two things you want to know. One: after you are actually arrested (handcuffed) anything she asks you then requires the Miranda warnings or your response is not admissible. Two: the police typically ask you all the damning questions prior to the actual arrest (ie. the handcuffs). They can do that. If they gather oral evidence against you prior to the arrest, no Miranda warnings are necessary at all as the courts have determined that you are not arrested and therefore don't need said advice.

Getting back to polite and cooperative. The police have a job to do just like everybody else. Moreover, a good portion of the police out there have feelings too, thus being polite to the police officers is a good idea. It will make the transaction go easier that night and it may subsequently help in court. However, cooperative strikes me as a strange and different concept. If a Defendant were charged with a serious crime, would that Defendant be expected to be "cooperative" and make incriminating statements which will then lead directly to his conviction? I should hope not, that's why we have Miranda warnings. So why is DUI different then any other offense? A DUI suspect faces very serious and permanent consequences. The police and the government must meet their burden and prove the charge just like any other offense. Being "cooperative" and making incriminating statements to the police, such as those darn field sobriety tests is NEVER a good idea. Many cases may be won or lost based solely on what a suspect has done or told the arresting police officer.

Bottom Line: It's important to be a gentleman or a lady, ie. be courteous, not to scream and yell, kick the interior of the car, threaten, etc. Why wouldn't you be? Butting heads with the officers on the street is not a good idea. You will loose that battle. However, "cooperative" to the extent of giving the state any evidence that it will then use to convict you in court, please! The government can either prove its case against you or it can't. But it's sure not your job to help convict yourself and I hope that you will not assist in that endeavor.

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Milford Sleepy Driver Charged With Driving To Endanger - Attorney Sam’s Take

This past year, there was a lot of attention paid to Massachusetts drunk drivers and those who drive negligently. For example, a new law was passed to prevent people from texting while driving.

We also had more than our fair share of vehicular homicide cases, including the killing of a police officer due to Massachusetts motor vehicle crimes.

There was one vehicular homicide matter, however, that may not have gotten enough attention. I say this only because it happened again.

Two cars were involved in an accident this weekend which left two cars overturned on interstate 495. Fortunately, nobody was killed.

The cause according to the Commonwealth?

One driver, Jenifer M. Scott, 43, of Milford (hereinafter, the “Defendant”) fell asleep and so lost control of her vehicle. A second driver, at 51-year-old man from Harvard, took measures to avoid the Defendant’s Toyota Corolla and, as a result, went over the guardrail and rolled down an embankment. His 56-year-old female passenger was taken to Marlborough Hospital with minor injuries.

The Commonwealth says that the Defendant will be summoned to court to face a charge of operating to endanger.

As a Boston criminal defense attorney, I have handled a wide range of motor vehicle cases from driving without a license to drunk driving to endanger to vehicular homicide.

The Commonwealth has become less and less forgiving regarding these cases. This is likely to increase given what seems to be an increase in traffic-related deaths. What has also increased prosecutions is the feeling that, when a tragedy occurs, it must be somebody’s fault. “Mere accidents” that are not criminal seldom happen.

In a way, of course, it makes sense. Driving a motor vehicle is not considered a “right”. It is a “privilege”. Further, one makes a conscious choice to get behind the wheel, whether you be tired, medicated or drunk. Therefore, the Commonwealth believes that if you feel you are likely to fall asleep because you have had very little sleep, then you should not get behind the wheel.

“But, Sam, when I am sleepy, medicated or drunk I don’t generally think very clearly.”

Yes, I see. But the law does not. Voluntary intoxication is not a defense to making that fateful decision to drive. You are expected to be thinking clearly...or keep away from the driver’s seat.

We have also discussed cases wherein folks pulled over for erratic driving further exercise their lack of judgment by trying to outsmart, or outrun, the police. This seldom works. It makes matters worse.

So, the bottom line is that you had best be thinking with crystal clarity when you decide to drive. Is it possible that you could be sleepy or drunk and yet NOT the cause of an accident that takes place? Sure. In fact, we covered one such case not so long ago. However, such cases are in the distinct minority.

What to do? You know the answer to that. If the unthinkable happens, you want to contact an experienced criminal defense attorney as soon as possible to guide you through the process and advocate on your behalf.

If you want to discuss such a case with me, feel free to call me for a free initial consultation. I can be reached at t 617-492-3000.

To view the original story, and charming photograph about which parts of this blog were based, please go to : http://mobile.boston.com/art/30/news/local/massachusetts/articles/2011/01/30/two_car_crash_blamed_on_a_sleepy_driver/

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Maryland DUI Consequences & your CDL License

Posted On: May 19, 2009 by Bruce M. Robinson
So you got a DUI/DWI charge in Howard County, Baltimore County, Anne Arundel County or any other county in Maryland and you have a CDL (commercial driver's license). Your CDL is required for you to work, so what happens now? Well, in a word, you have a problem. First, the fact that you were not
driving a CDL vehicle at the time of your DUI arrest does NOT matter, you still have the same problem. Yes, it's not fair but that's the way your Federal Government set it up. Now, where to go from here? It's a little confusing so if the following CDL-DUI advice is not working for you, feel free to give us a call.
A conviction or a PBJ on the 21-902A, C or D offense will result in you loosing your CDL license for one full year. The fact that you need your CDL to work for a living, to provide for your family or the fact that you were not driving a CDL at the time of your stop or arrest is not relevant to the consequences. The mere fact that you possessed a CDL at the time of the arrest is enough.
A conviction for the 21-902(B) offense or a PBJ does NOT result in the immediate loss of your CDL, that's the good news. In fact, a PBJ (probation before judgment) on the 21-902(B) offense is a good thing for a CDL holder, you want that assuming your case may not otherwise be won. Also, a conviction
on the B offense is workable too, it does not automatically result in the loss of your CDL, it does result in 8 points on your record however which then results in a points suspension hearing (which you must request) where you can ask for a lesser period of suspension of your license. The MVA is typically looking a 6 months suspension for 8 points related to DUI or alcohol which means 6 months suspension of your CDL license in this DUI arrest.
Now, having said that, what about the administrative MVA hearing secondary to DUI stop, ie. the administrative suspension (this is that onion skin Officer's Order of Suspension paper you received when they liberated your license from your wallet).
1. If you blew less than a .15, that's good. You can request an MVA hearing within 10 days of your arrest and request any modification you might seek, worse case scenario is that the MVA does not see it your way and you loose your license for 45 days. When you loose your license you loose your CDL. If you get a modified driver's license, you still loose your CDL. It is very important
to understand that for whatever period of time you have a "modified" driver's license or a suspended license, you will loose your CDL license. However, for 45 days you might be able to swing something with your employer, ie. maybe you can drive a regular vehicle or do other work.
2. The CDL license CANNOT be modified like a regular license; the CDL license will be suspended for whatever period of time the holder receives either a modification or a suspension of his regular license. That is to say that a modification of the CDL is NOT possible. It will just be flat suspended while the driver may have a modified regular license.
3. This is a problem for the CDL driver for more than the obvious reason of his loosing a CDL. If a driver requests an MVA hearing, they may get whatever modification they seek, like maybe the interlock or maybe a work restricted license to drive an employers car which is generally good news, but the problem is that during any period of modification of suspension of regular license, the CDL will actually be suspended.
4. This problem becomes more evident when talking about a BAC (breach alcohol content) of .15 or greater or a refusal case where the person may face 90 or 120 days and then the CDL holder seeks an interlock at the MVA hearing or may voluntarily place the interlock on their car. Either way the CDL license will be suspended for the entire period of the modification (ie. 1 year if the interlock is obtained). This obviously is a big problem because the time period of suspension of CDL just went from 90-120 days to 1 year, big difference.
5. The most likely solution is to NOT to request an MVA hearing at all when talking about a .15 or refusal case and have the licensee loose their license for the given period of time because they will get their CDL back much faster that way. Unless, the CDL holder determines that they don't need the CDL and can get by driving for their employer in a non CDL vehicle, then a hearing to get an employee exemption/modification may be appropriate.
6. Of course all this needs to be considered in light of the merits of the MVA case in chief. If there are serious weaknesses in the MVA's case this will further complicate the situation because winning has clear advantages but if the licensee looses, he must be ready to indicate if he desires the interlock or would rather just take a flat suspension, which may be the better option based on the foregoing.
Each DUI case regarding a CDL holder is different or there may be other competing consequences, since the decision regarding the MVA and the CDL is a complicated one, a CDL holder is strongly encouraged to seek the advise of a qualified DUI lawyer in Maryland on this matter and the ramifications of any decision.

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Dorchester College Student Is Arrested For Bringing Gun To School

A Dorchester college student is currently being held without bail after being arraigned at Dedham District Court. According to law enforcement, the lad, Darryl Max Dookhran, 18, (hereinafter, the “Defendant”) was carrying a semi-automatic firearm in his backpack at Massachusetts Bay Community College in

According to the Wellesley police, detectives acted on a tip that the Defendant had the gun. They say that they then approached the Defendant as he was standing in line at the registrar's office. They then walked him into a nearby room. The Commonwealth says that the Defendant, upon this confrontation, backed against a wall and then kicked at detectives when they attempted to pat him down.

What followed, according to the Commonwealth is described as a “furious struggle with police”

Detectives say they found a Tec-9 gun in his backpack, with a loaded 18-round magazine.

He apparently says that it is not his gun and he has no idea how it got into his backpack.

He stands charged with a number of crimes, including possession of a large capacity firearm, being a felon in possession of a firearm, illegal possession of a firearm, possession of a high-capacity ammunition clip, and resisting arrest.

Attorney Sam’s Take:

This is a classic example of someone making their situation worse.

First of all, there is no question that the prosecution was not going to believe that the mysterious machine gun simply appeared in the Defendant’s backpack unbeknownst to him.

However, if the Defendant had any hope of arguing to a jury that he did not know about the gun, he has made it even harder on himself by struggling with the police.

First of all, struggling with the police has earned him another criminal charge. It has also given the Commonwealth additional evidence of “consciousness of guilt”. If the Defendant did not believe he had something to hide, why struggle with the police?

Of course, people who are used to the criminal justice system know that there may be many reasons why someone would struggle with the police. However, a jury is not likely to be so versed. They will simply go to the most obvious reason….that he knew he was being caught with his gun.

The Defendant clearly has other criminal justice issues beyond this case. At the ripe old age of 18, he has already been convicted of a felony.

“So, Sam, there is no defense?”

You know me better than that if you are a regular reader to this daily blog.

First of all, there may well be search and seizure issues regarding the recovery of the gun. Should the defense be successful in challenging the seizure of the gun, the gun will be suppressed. This means that the Commonwealth will not be able to use it against him. No gun…..no case. I suppose The prosecutor might still be able to go for resisting arrest, but that is the least of the Defendant’s problems at the moment in terms of a potential prison sentence.

I wonder what the Defendant’s prior case was about. Could it have had something to do with an assault? What if it were and, as an aftermath, the Defendant still had some enemies out there? Most people know that being found in possession of a gun is big trouble. Many people know that if you are found in possession of the gun and you have already been convicted of a felony that is even more trouble. Of course, if the Defendant is still on some kind of probation from that earlier felony, which is quite likely, this arrest in and of itself is a violation of probation and is enough to send him to prison.

Of course, in this modern era, tests may be able to be performed on the gun to check for
fingerprints, hair or DNA on the gun to see if anything matches the Defendant..

The bottom line is that the Defendant is in a lot of trouble. Trouble that could forever alter any plans he had for the future. This means it could not get much more serious.

If he has not already, my suggestion would be to get an experienced criminal defense attorney to guide and defend him.

If you have a criminal case and would like to discuss it with me, , please feel to call me to arrange a free initial consultation at 617-492-3000.

To view the original stories, please go to : http://www.boston.com/news/local/breaking_news/2011/02/mass_bay_studen.html and http://www.boston.com/news/local/breaking_news/

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Another Roadblock case

Posted On: February 19, 2010 by Bruce M. Robinson

I recently tried another DUI Roadblock case in Howard County District Court. Yes, another roadblock case, I have written extensively regarding the legality of roadblocks and the DUI Defendant's responsibility in Maryland. For those who are interested, the seminal case is Little v. State which spells out the Government's obligations to you (the people of Maryland) and your legal rights under this evasive big brother type of traffic stop scenario in which the Government has placed their stamp of approval.

It is an "evasive big brother" type of traffic stop because the police are stopping your car with no probable cause and with no "reasonable articulable suspicion" that the driver has committed any crime or traffic infringement whatsoever (this is required by case law to stop a vehicle). The people of this country are protected (used to be protected) against stops like this by the U.S. Constitution. However, the Government has saw fit to override your Constitutional Protections in light of the nefarious drunk drivers and boisterous arguments advanced by MADD. Drunk driving is indeed dangerous and stupid, it hurts people and cannot be tolerated in any form; however, the way to go about the problem is not to trample the Constitution and stop every car for an "inspection" like Nazi Germany, the way to handle the problem is through highway supervision like it is normally done, where there does exist reasonable suspicion protections to pull drivers over when they are weaving, speeding or exhibit some other transgression on the roadway.

In the DUI Roadblock case, drivers do have certain important rights which I will reiterate here. When those rights are violated by the police, as happened in my recent DUI/DWI case in Howard County, the Court will throw out illegally obtained evidence and you can win your case, even if you blew an illegal breath alcohol (BAC) number.

At a roadblock, there MUST be physical signs leading up the roadblock to advise drivers what is going on down the road, you have the absolute right to make a LEGAL turn and go the other way and not be molested by the cops. A legal turn is one that does not violate any laws, such as in illegal U-turn. If you do make an illegal turn, they will of course stop you at that point.

If you do not turn away, you have the legal right NOT to roll down your window when directed to do so by the authorities. They can speak through the window, as you can and if they don't notice any other documentable reasonable suspicion, then asking you to pull over will not stand in court. To that end, you do not need to even speak with them at all when they try to engage you to do so, they will note your "slurred" speech when you do speak and use that against you as a basis for the stop. That's not to say that you will have slurred speech (and if you do, you shouldn't be driving) but they will note it anyway.

Finally, there will be a stop sign placed at the check point which you must legally stop at, but after stopping, you are actually free to carry on about your business, ie. no eye contact, no talking to them . They will most definitely follow you out of the checkpoint as you have not succumbed to their authority in an attempt to identify poor driving, but assuming that you have not been drinking, you should not exhibit any poor driving, speeding etc. If they do "order" you to pull over when you refuse to speak with them, you must follow their orders, or you will get in breach for failure to follow their order, but they will have not legal basis for the stop and their case will be very weak or non-existent in Court. As usual, you are under NO obligation to do any field sobriety testing and you should not. Nor should you speak to any police following arrest without first speaking to counsel.

Welcome to America....

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Massachusetts School Districts Break Bullying Law-Attorney Sam’s Take

Massachusetts bullying is not simply old news these days. As predicted, many people have made the mistake of assuming that the rushed so-called “anti-bullying” statute would solve the problem. They figured that the schools, following the clear
guidance our elected officials presented would take care of it.
It didn’t. Maybe because the “guidance” presented was anything but clear.
To date, more than a third of Massachusetts school districts have failed to present complete antibullying plans by the end of 2010. This deadline was one of the few clear and presumed urgent things presented by the law, but why quibble? These figures, by the way, were by the state Department of Elementary and Secondary Education.
On the other hand, some school districts have
complied... sort of. In 13 percent of those plans, at least a quarter of the elements required by the law were not clearly addressed.
If I may add a little note here...since the legislative “cure all”, I have actually seen a growth
of calls regarding severe bullying problems about which the schools seem to have turned a blind eye...no matter what evidence was placed before said eye. An example of how bad the problem is can be illustrated by the simplest of requirements of the new law, namely, contacting parents of the kids involved. Even this seemingly simple exercise seems to be too much for the schools to handle.
Elizabeth Englander, the director of the Massachusetts Aggression Reduction Center at Bridgewater State University, who helped shape the law, seems to have escaped disillusionment. She explains “This was always going to be a work in progress...I think I was operating on the assumption that maybe half of the schools would really get it right the first time.’’
One can certainly understand how difficult requirements like contacting parents would be something that would take several tries to get right.
Of course, private schools have not failed to perform as required. The “strongest anti-bullying law in the country”, as the lawmakers had dubbed it, does not include private schools, with the exception of schools for special education students.
You might think that failing to comply with the law would bring about its own penalties for the school districts. After all, this was considered urgent legislation pushed through in answer to bullying victims' suicides.
Nope. No penalty.
Some people believe that, since school board members are elected, they should be punished by removal or lack of votes for not complying.
Maybe. We’ll see.
The problem of bullying or violent kids may be changing, however. It seems to be getting worse.
A new study suggests that the longer teenager from abroad live in the United States, the more likely they are to become violent.
The study, by Northeastern University researchers who surveyed hundreds of Boston teenagers, found that local high school students who arrived recently from foreign countries are significantly less violent than their American-born counterparts. However, the researchers found that as the immigrant teens spend more time in the United States, their behavior deteriorates.
What surprised researchers at Northeastern was how quickly youths who came to the United States began adopting bullying and violent behavior.
“Within a matter of four years of being in this country, the youths’ rates of violence were converging with those of us born here,’’ said Joanna Almeida, associate research scientist at Northeastern’s Institute of Urban Health Research. “It’s not even that it takes a generation. It’s happening within a handful of years.’’

Community leaders who work with young immigrants said the study confirmed what they already knew.

Valerie Batts, executive director of Visions Inc., a Roxbury-based group that promotes diversity, said young men born outside the country who have participated in the group’s programs have said they felt they needed to bully others, and even carry a gun, to avoid becoming victims.
As an experienced Boston criminal defense attorney, I howled in this blog when there was suddenly a movement, led by a, now, ex-district attorney to solve this problem with felony indictments. I warned that, in the overnight creation of anti-bullying bill would virtually force schools to do nothing about bullying but pass the problem over to law enforcement. I argued that this would ruin many lives.
What I did not expect was that so many of the schools would simply do nothing.
The law itself, which I have also criticized in the past, is unduly vague. It was the product of politicians not wanting to be outdone by elected prosecutors and so wanting to seem “tough on crime”. What they came up with was this overnight mishmash.

In short, it was what I would expect them to come up with in so short a time.
But schools are different. They are supposed to be experts in dealing with these issues. For them to do next to nothing, if not actually nothing, to obey the new law would be as unforgivable as the lawmakers providing no penalty for breaking the law.
Oops, sorry. That’s what happened, isn’t it?
Having no leadership from lawmakers or schools, I wonder how kids will handle the bullying problem.
Actually, that is not true. It is quite clear how they are handling it. And new American kids are learning the environment, and how to survive in it, very quickly.

So, what does this have to do with you?
Plenty, if you are either a student or care about one. I have seen a number of cases where students, like those mentioned above, feel they must bully or else be bullied. However, as these situation tend to escalate, the original victim, thinking they are merely surviving, may breach the criminal law. Or should I say that they could be the one who gets caught.

So, if there is a bullying problem in which you are involved, on either side, it is best to hire experienced counsel. Students can, and will, be wrongfully accused. Others may have a back story to explain the situation. Further, others may be getting tired of being the victim in a microcosm which is doing little to help them and be about to take matters into their own hands.
All this while we remain complacent because our “daring” law makers rushed a law that was incredibly vague and had no teeth which is virtually ignored by many schools.
After all, it is our kids we are talking about.

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Jurisdiction v. Baltimore County DUI

The jurisdiction in a DUI case is where the DUI was effectuated; which is essentially where the police pull you over and make an arrest. The local police, such as Baltimore County or Howard County Police are charged with the responsibility to protect their given jurisdiction; they are not authorized in normal DUI/DWI cases to travel into adjacent jurisdictions to arrest except in special circumstances. The Maryland State Police conversely have jurisdiction throughout Maryland and therefore are not limited by County.

I was recently hired to defend a DUI case in Baltimore County. The arresting officer (an off duty Baltimore City Cop) was driving home and stopped my client in Baltimore County. After the alcohol stop he called the local police who came and proceeded with the arrest, field tests, etc. The defendant was taken to the Baltimore County Police station and blew an illegal blood alcohol content whereupon he was charged with DUI, DUI and related offenses.

At the trial of this Defendant I explained to the State's Attorney that they had a jurisdiction issue. That an off duty Baltimore City police officer may not effectuate a stop in Baltimore County because he lacks the authority, he must instead call the local authorities or a State Trooper to make the stop. That is to say, an off duty cop out of his jurisdiction has the same rights that a regular citizen has. If he exceeds those rights, as he did in this case, the stop and subsequent arrest become illegal. Once you have an illegal stop, any evidence flowing from that illegal stop may be suppressed. Once the state or the Judge agrees, the case can be dismissed, as it was in this instance.

When defending a DUI charge, there are many nuances both prior to the actual arrest and the procedure of the arrest itself that must be properly identified by experienced DUI counsel in order achieve the best possible result in any given case.

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Boston Mass Assault Results In Multi-Defendant Murder Trial- Attorney Sam’s Take

Two years ago, a group of men capped off a friend’s funeral by allegedly committing murder. These gentlemen were in South Boston and are now hereinafter referred to, collectively, as the “Defendants”.

It was August, 2009, and the Defendants, dressed in their red tuxedos had apparently decided to go “clubbing” to drown their sorrows after the funeral. According to the Commonwealth, they had a verbal disagreement with 22-year-old Jose “Danny Alicea and two of his friends outside Club 33 on Stanhope Street.

These exchanged words were then capped by one of the Defendants’ allegedly throwing a bottle at their sparring partners. Yes, as in assault with a dangerous weapon (to wit: a bottle).

A melee erupted between the two groups.

Police arrived to find Mr. Alicea lying on the ground, bloody and unconscious. People were trying to wake him.

They couldn’t. He was dead.

The first group of the Defendants, Jason Benalfew, 28; Daniel Ek, 24; and Johan Garcia, 30, all of Lynn; and Anthony Villalobos, 23, of Revere, began their second-degree murder trial on Monday. A second group of the Defendants will be tried at another date.

In his opening statement, the prosecutor acknowledged to the jury that none of the Defendants intended to actually kill Mr. Alicea. “But make no mistake about it”, he explained, “This was no accident.”

All four defense attorneys decided to make opening statements on behalf of their clients. They argued that law enforcement had unfairly lumped their clients together amid the chaos. They further pointed out that, under the law, merely being present at the scene of a homicide is not a crime.

One defense attorney predicted that the case will be too confusing to reach a verdict. He told the jurors, “You will have more questions than answers about who did what.“You won’t be able to tell whether one is going in the direction of the (brawl) to help, to watch or to fight.”

Through my quarter century of experience in criminal law practice, I have brought many cases to trial. Through many years of training less experienced attorneys and law students on trial practice, I have been intimately involved in many more trials.,

Trials are the “moment of truth” in the trenches. It is the front line of the mounting battle between defense and prosecution in any given case. While every case is different, certain things tend to happen more times than not.

For example, beginning a trial telling the jury that they are unlikely to understand what the heck happened in the case they are about to hear is generally not a great idea. First of all, the prosecution has just laid it out for them. While it is fine to say that the Commonwealth is not going to be able to prove the allegations beyond a reasonable doubt, starting the trial by basically insulting the jury is not terribly wise.

It basically challenges them to be sure to keep their facts straight in spite of you. “in spite of you” translates to they do not like you. Not liking you is not going to help your client.

These type of cases do have their difficulties built into the prosecution. After all, this was a melee by all accounts. There will unquestionably be issues as to who did what. Even if the Commonwealth’s witnesses offer clear accounts about how events transpired, there will be questions as to their ability to perceive.

Is that the end of the prosecution’s hope to prove their case beyond a reasonable doubt?

No.

As we have often discussed, the Commonwealth’s theory in these cases are that the Defendants acted in a joint enterprise. It is a conspiracy-type of theory. Should they be able to show that the Defendants acted together, each defendant will be responsible for what their co-defendants did. True, the defense may argue that this is not fair, but the judge and prosecution will tell the jury that it is the law.

This is not a “Murder One” case. The prosecution does not have to show that there was “deliberate premeditation”. Merely “Malice aforethought”. There are differences, which the court will explain to the jury. Additionally, the jury could convict the Defendants if it finds that the killing was caused while in the commission of a felony not punishable by life imprisonment.

Yes, assault with a dangerous weapon qualifies.

So, the bottom line is that this case is not a “slam dunk” for any side.

Clearly, an experienced trial attorney will increase chances of success. But then, I have told you that many times already.

If you have a criminal case to face, and would like to discuss it with me, please feel to call me to arrange a free initial consultation at 617-492-3000.

To view the original story, please go to : http://www.bostonherald.com/news/regional/view.bg?articleid=1313770

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