John E. DeVito Esq. of DeVito and Visconti, P.A. is an experienced criminal defense lawyer who is dedicated to serving clients in Massachusetts. A former assistant district attorney in Norfolk County, he now provides aggressive defense representation and lends his knowledge to articles that explore common issues related to the prosecution and defense of criminal charges:

Field Sobriety Tests in OUI Cases

Are they valid?

The case of US v. Horn 185 Fed Supp. 2cd 530 (D Md 2002) challenged the admissibility of field sobriety testing in operating under the influence (OUI/DUI) cases. The challenge was a Daubert challenge, that is, a challenge to the scientific basis for those tests. The government intended to present evidence through the arresting officer that the defendant, Horn, failed the walk-and-turn test, the one-leg stand test and the horizontal gaze nystagmus test. The officer further intended to give his opinion on how the defendant performed on those tests and how that performance correlates to a quantifiable blood alcohol content (BAC), which in this case, he determined was above the legal limit. The court ruled that the officer could describe the tests that he administered and the defendant's performance on those tests, but he could not testify about the correlation between the blood alcohol content (BAC) levels and the test results.

The government had to show that the field sobriety tests had been peer-reviewed and accepted by the scientific community, as opposed to the law enforcement community. Without that scientific proof, the police officer could not call them field sobriety tests; he could only call them procedures. He could not refer to the standardized clues, which indicate intoxication in the police training manuals; he could only describe the defendant's performance. He could not give an opinion of whether the defendant passed or failed the procedures. The officer was restricted to his lay opinion regarding intoxication and could not bolster that opinion by concluding that the field sobriety testing establishes a quantifiable blood alcohol content above the legal limit. Only if the arresting officer could have been qualified as an expert in the area field sobriety testing could he give an opinion. The fact that the officer had a field sobriety testing course through his police training did not qualify him as an expert.

Odor of Marijuana

The Massachusetts Supreme Judicial Court recently examined legislation that decriminalized less than one ounce of marijuana and how it impacts on certain aspects of search and seizure jurisprudence. In the case of Commonwealth v. Benjamin Cruz, S JC - 10738 (April 19, 2011) the Supreme Judicial Court determined that a faint odor of marijuana was not sufficient to justify the search of a motor vehicle. In that case Benjamin Cruz was charged with possession with the intent to distribute cocaine. Police approached a vehicle that was parked in front of a fire hydrant. This was a civil motor vehicle infraction, which justified police inquiry. During the course of inquiry the police detected a faint odor of marijuana. As a result they requested the defendant exit the vehicle, where he was searched and cocaine seized. The court determined that the faint smell of marijuana did not establish the necessary probable cause that the defendant possessed more than an ounce of marijuana to justify a search. The search was illegal and the cocaine seized was suppressed.

Whether the court will extend this decision beyond a faint odor of burnt marijuana is yet to be determined. If the Commonwealth can establish that the odor of marijuana is so overwhelming that it suggests that more than an ounce of marijuana is present, the court may be persuaded that a search is justified.

Storage of a Firearm

Massachusetts General Laws states that "...a firearm, rifle or shotgun be secured in a locked container or equipped with a tamper resistant mechanical lock or other safety device properly engaged to render it inoperable by any person other than the owner if it is not being carried or under the control of the owner..."

This past year this statute has become the subject of much discussion. Its constitutionality was challenged in the case of Commonwealth v. Runyan 456 Mass. 230 (2010). The Supreme Judicial Court upheld the constitutionality of the statute because "The gun owner's obligation to secure the firearm in accordance with the statute arises only when the firearm is stored or otherwise outside the owner's immediate control." The Massachusetts Supreme Judicial Court found that the Massachusetts statute was unlike a Washington D.C. statute that was declared unconstitutional because it required storage of a weapon not being carried on the person. That statute was challenged in the case of District of Columbia v. Heller, 128 S. Ct. 2783, 2797 (2008). In that case the Supreme Court found that the Second Amendment to the United States Constitution guaranteed the right to possess and carry weapons in the case of confrontation. Because the Massachusetts statute included the term "outside of the owner's immediate control" the Massachusetts statute was upheld as being constitutional.

How the Massachusetts courts interpret the term "outside the owner's immediate control" is yet to be determined. Whether further challenges will be raised, is also to be determined.

Massachusetts Registry of Motor Vehicle Restricted by Massachusetts Appeals Court

With the passage of Melanie's Law (the new drunk driving statute in Massachusetts), the number of license suspensions has dramatically increased. The Massachusetts Registry of Motor Vehicles (RMV) has been interpreting the law in a fashion to restrict license suspensions beyond what Melanie's Law intended. In the case of DiGregorio v. Registry of Motor Vehicles (2011), the Massachusetts Registry of Motor Vehicles was challenged. Mr. DiGregorio sought to have his license restored after an eight-year suspension as required by statute. The RMV wanted his license to remain suspended for 12 years. Mr. DiGregorio had been convicted of a first operating under the influence of alcohol case in Massachusetts and a second and third operating under the influence case in Connecticut. The last conviction occurred in Connecticut in November of 2004. Massachusetts law recognizes out-of-state convictions and mandates that an individual convicted of three operating under the influence cases, including out-of-state convictions, will lose his driving privileges in Massachusetts for eight years. In this case the Massachusetts RMV claimed it had not received notice of the out-of-state conviction until 2008; therefore, Mr. DiGregorio should not have his license restored until 2016. It should be noted that the National Data Registry had been notified by the state of Connecticut of his license suspension in Connecticut. The Massachusetts Appeals Court did not accept the interpretation by the Massachusetts Registry of Motor Vehicles and instead ruled in favor of the Mr. DiGregorio. His license was restored in 2012.

Lost or Destroyed Evidence

The Massachusetts Supreme Judicial Court recently rendered a decision in the case of Commonwealth v. Williams, SJC 10245, establishing a new standard regarding evidence that is lost or destroyed by the Commonwealth. If the Commonwealth has lost or destroyed potentially exculpatory evidence, the defendant bears the initial burden of demonstrating the exculpatory nature of the evidence using a Neal standard (see Commonwealth v. Neal 392 Mass. 1 (1984). That standard requires the defendant to establish a reasonable possibility, based on concrete evidence, that the evidence lost or destroyed is exculpatory.

Once the defendant has met that burden, that a reasonable possibility exists, the court then balances the Commonwealth's culpability, the materiality of the evidence, and the prejudice to the defendant in order to determine whether the defendant is entitled to relief.

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