Salvucci Harris, LLC Blog
Criminal Defense Posts

The short answer is no, you are not required to take a breathalyzer test or perform field sobriety tests if you are pulled over by the police on suspicion of drunk driving.  The only thing that you must do is give the officer your license and registration when asked.  Your refusal to perform field sobriety tests or to take a breathalyzer test cannot be used as evidence against you during your trial, but there are other consequences if you refuse to perform these tests.  Some factors to think about in deciding whether or not to take these tests are discussed below.

Field Sobriety Tests:  These tests can vary depending upon the officer who gives them to you, but can include: the nine step walk and turn, one-legged stand, reciting the alphabet, and the horizontal gaze nystagmus test.  These tests can be difficult to perform even under the best of circumstances.  Think about factors other than alcohol that may impair your ability to successfully perform these tests.  For instance, wearing high heels, being overweight, having a bad back, fatigue, poor weather and road conditions can all lead to difficulty in performing these tests.  I have seen police officers fail these tests when asked to demonstrate them, so please do not underestimate their difficulty.  If you elect not to perform field sobriety tests, you will most likely be arrested for OUI ("Operating Under the Influence"), but the case against you will be more difficult for the prosecution to prove in Court because you have given them less evidence to use.

Breathalyzer Tests:  Under Melanie's Law you will lose your license for 180 days for refusing to take a breathalyzer (unless you have a prior conviction(s) for OUI, or are under the age of 21 which will lead to a greater time period for the loss of license).  If you do take the breathalyzer and blow a .08 or higher, you will also lose your license (until the disposition of the case, but not greater than 30 days) and the prosecution can introduce the breathalyzer results as per-se evidence of your impairment while operating your car.  (A conviction will lead to further loss of license.)

The decision to take or refuse these tests is yours, make it wisely.  Think about the consequences of taking these tests and remember that if you are charged with OUI, the prosecution does not have to prove that you were "drunk", just that your ability to drive the car was impaired by alcohol.  Even if you do not feel that you are "drunk," you may fail either or both of these types of tests if you have been drinking.

The Massachusetts criminal courts can seem like a foreign place to those who are unfamiliar with them. The lawyers and judges speak in acronyms, rather than sentences, and things move at lightning speed. Therefore, knowing the language of the criminal courts is essential when you are being charged with a crime. Below is a list of the terms that people frequently ask me to explain, and their meaning:

1) "First Session" - the courtroom where you will appear for your first hearing, the arraignment, is often referred to as the first session. At this hearing, the charges against you are read, you will enter a plea of not guilty, an attorney will be appointed if you qualify, issues of bail will be addressed and the next court date will be set.
2) "BOP" - this refers to your Board of Probation record, your criminal record. It lists all of the crimes that you have been charged with and the outcome of the case. A copy is given to the judge, the prosecutor and your attorney at the arraignment.
3) "PTC" - this is a pretrial conference. At the PTC, your attorney will discuss issues of discovery and defenses with the prosecutor and also discuss the possibility of a potential plea.
4)"PTP" - Pretrial Probation is a type of disposition that may be given in a case. It is one that can only be given when the prosecutor is in agreement. It allows your case to be continued for a specified period of time without a disposition. If at the end of the time period you have met the conditions imposed by the court - typically having no new arrests - the matter will be dismissed. If something goes wrong, your case can be put back on the criminal list and it will proceed again. You will not have waived your right to a trial or to any defenses.
5)"CWOF" - is a type of plea that you may enter into, called a continuance without a finding. This is where there is an admission that the facts, if proven, are sufficient to support a finding of guilty of the charges, but a guilty finding does not enter. The case is continued for a period of time and there may be conditions. If you are successful in completing the probation period, the case will be dismissed and not guilty finding will enter. If you violate your probation, the court can enter a guilty finding and sentence you accordingly. You will have waived your right to a trial.
6)"DWOP" - this stands for Dismissed Without Prejudice. Typically this occurs when on the day of your trial the prosecutor does not have the witnesses or evidence needed to move forward with your trial.
7) "Suspended Sentence" and "Split Sentence" - with a guilty finding you may be sentenced to either probation or jail time, or a combination of both. An example of a split sentence is when a judge gives you 2 years in the house of correction, but only order that you serve 6 months of it now followed by 2 years of probation. If you successfully complete probation, you will not have to do the remaining year and a half in the house of correction. If you violate, the judge can send you back for the rest of the time. If you were given 2 years suspended for two years it means that you would be on probation for 2 years and if you violated you would serve a 2 year sentence.
8)"VOP" - is a violation of probation.
9)"Green Sheet" - when you tender a plea to the court, it is done on a form that is often called a green sheet because in many courts the paper that it is printed on is green. You will have to read the waiver of rights on the form carefully, and sign to acknowledge that you understand those rights.

This list certainly not all inclusive and I would welcome readers to ask about any other terms that they wish to learn about.

When it comes to recording conversations in Massachusetts, we are a two-party consent state.  This essentially means that both parties must be aware of the recording and/or have consented to the recording.  The Massachusetts Wiretapping Statute, M.G.L. 272, Sec. 99(c) (1), provides that "any person who willfully commits an interception (defined as secretly hearing or secretly recording by means of an interception device), or aid another to secretly hear or secretly record, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication" will be fined and/or imprisoned.  The broad definition of the crime includes concealing a cell phone video camera to obtain a video and audio recording without the consent or knowledge of all parties being recorded.

In Massachusetts, and other two-party consent states, the Wiretapping Statute has been misused by law enforcement officials to arrest individuals who have recorded them in the performance of their duties.  An attorney in Massachusetts was charged with violating the Wiretapping Statute in 2007 for recording the arrest of an individual by police officers that he believed was conducted using excessive force.  He made the recording without intruding upon the arrest, while holding his cell phone openly and in plain view of the officers, who later admitted that they were aware of the recording.  Because of the open manner in which the recording was made, the Boston Municipal Court dismissed the charges.  Moreover, the First Circuit Court of Appeals ruled in August of 2011 that the attorney had the right to sue the police officers for his false arrest because he had a clear First Amendment right to film the officers, who were acting as government officials in a public space.  The Court noted that "[s]uch peaceful recording of an arrest in a public space that does not interfere with the police officers' performance of their duties is not reasonably subject to limitation."

A recent ABA Journal article, found at http://www.abajournal.com/news/article/recording_cops_on_smartphone, notes that other Courts have begun to issue similar holdings, including the Oregon Appeals Court.  This trend towards protecting the right of citizens to exercise their First Amendment Rights to record public officials in the performance of their public duties, so long as conducted in a reasonable manner, allows the public to ensure that our police can be policed in the performance of their duties.  The right of the public to police government officials in the performance of their duties is particularly important when it comes to police officers and other law enforcement officers because, as the First Circuit noted, they are "granted substantial discretion that may be misused to deprive individuals of their liberties."

Image credit: pweiskel08, on Flickr. Used under Creative Commons.

In Massachusetts, a social host may be held liable in for the injuries of a third-party in cases where "an intoxicated guest's negligent operation of a motor vehicle where a social host who knew or should have known that his guest was drunk, nevertheless gave him or permitted him to take an alcoholic drink and thereafter, because of his intoxication, the guest negligently operated a motor vehicle causing the third person's injury."  See McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 162 (1986).  In the recent case of Juliano v. Simpson, the Plaintiffs sought to expand the common law doctrine of social host liability to include  social hosts who merely provide a venue for underage guests to consume alcohol, but who do not provide nor control the alcohol at the venue.  See Juliano v. Simpson, SJC-10843, February 21, 2012.  In this case, the injured Plaintiff was a guest at a party hosted by the underage Defendant.  The Plaintiff's boyfriend, who was also a guest at the party, came to the party with a bottle of rum and a 30-pack of beer.  He consumed some of the alcohol that he brought while at the party and then left the party with the Plaintiff to drive her home.  The driver was intoxicated and struck a utility pole on his way home, injuring himself and the Plaintiff.  The Plaintiff sought to hold the host of the party liable for her injuries because she provided and controlled the location where the party was held.  The Plaintiff argued that this form of social host liability should be allowed because there is a criminal law which penalizes furnishing alcohol to minors and which includes in its definition of "furnishing," knowingly or intentionally allowing an underage person to possess alcohol on their property.  The SJC declined to accept this reasoning, noting that the criminal statute does not impose civil liability.  The SJC declined to extend liability to either underage age or of-age hosts in such a situation.  I tend to agree with Justice Gants' concurring opinion, however, which suggests reserving any decision on the liability of a of-age social host until such a case is presented.  Justice Gants noted that "it is not difficult to imagine egregious circumstances where an adult of legal drinking age encourages underage guest to 'bring your own beer or booze' to get drunk at his or her house, one whom later kills or cripples someone while driving home, that might cause us to look differently at whether we should impose liability on such an irresponsible social host."  See Id. at pg. 8.

Image credit: Cocktails by Kirti Poddar, on Flickr. Used under Creative Commons.

Today the Supreme Court ruled in the matters of Miller v. Arkansas and Jackson v. Arkansas that "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition of  'cruel and unusual punishments'."  The Court noted in its decision that juveniles have "diminished culpability and heightened capacity for change."  In order for the punishment for a juvenile to be proportional to the crime that he/she committed, the judge must have the discretion to factor in youth in imposing a sentence on the juvenile. This decision is a positive step towards recognizing the increasing body of research demonstrating the diminished mental capacity of juveniles due to developmental delays in our criminal courts.

Image credit: Us Supreme Court by kjetil_r, on Flickr Used under Creative Commons.

The Supreme Judicial Court in Massachusetts made it harder for individuals who need court-appointed legal representation to get it in two separate decisions that came down yesterday. The Court ruled that "a criminal defendant who seeks to have counsel appointed at public expense bears the burden of proving indigency by a preponderance of the evidence." Commonwealth v. Porter. In evaluating the individual's income and ability to pay, the Court will consider the spouse's (or live-in significant other's) income and assets.  If a parent is substantially supporting the individual seeking assigned counsel, that parent's financial situation shall be considered as well in making an indigency determination..  Commonwealth v. Fico.  Be prepared to show documentation regarding the bills and expenses that you have, whether or not the other individuals in your household are willing and able to  contribute to your legal defense funds, and the value and ease of liquidity of any property that you may own.

Image credit: Creative Commons.

It has recently come to light that a chemist at the drug lab in Jamaica Plain mishandled drug evidence, altered the weight of drugs, failed to calibrate the testing machines correctly, and even manipulated samples to get positive results for illegal narcotics when the sample that was submitted to the lab was in fact not an illegal substance.

One Superior Court judge has already released an individual who was serving a lengthy jail sentence based upon evidence this chemist's mishandling of evidence and granted him the right to a new trial where he can challenge the drug evidence based upon the new information regarding the lab's mishandling of evidence.

If you or a loved one has been convicted, plead guilty or is awaiting trial on a drug case in the Massachusetts state courts, it is important to consult with an experienced criminal defense attorney to see how this scandal may impact your case.

Image Credit: Opium Presumptive Drug Test by Jack Spades, on Flickr

Successfully defended a client against charges of Larceny, Forgery, and Uttering in the West Roxbury Division of the Boston Municipal Court in December 2013.  A required finding of Not Guilty was entered by the trial judge on both Larceny and Forgery. The jury returned a verdict of Not Guilty on the one remaining count of Uttering.

Image credit: Courtroom by Clyde Robinson, on Flickr

After a Motion to Suppress, the Court ruled that the Defendant's request to suppress any and all out of court and in court identifications by the car owner was allowed. Additionally, the statements of the Defendant after his arrest were similarly suppressed at the request of Attorney Harris. At a subsequent bench trial in the West Roxbury Division of the Boston Municipal Court, the Commonwealth elicited testimony from three witnesses in an attempt to establish that the defendant was a passenger in a motor vehicle when it was involved in a single car crash five hours after it was stolen. After trial, Judge Shoptease found that the defendant was Not Guilty of the single charge of knowingly receiving a stolen motor vehicle.