Case Summaries - For All Drug Charges & Crimes

Federal Court — Trafficking in Cocaine, Intent to Distribute Cocaine and Possession of a Firearm in Furtherance of a Drug Trafficking Crime

Based on information from a confidential informant, the police had the defendant under surveillance for probable drug distribution. They observed the defendant going to many locations around the city and leaving those locations after a short period of time. They observed that the defendant drove many different vehicles and they noticed he had transferred license plates between different vehicles. On one occasion they followed the defendant into Rhode Island. Rhode Island is where drug dealers often restock their drug supply, so the police presumed he was replenishing his stash of drugs. They observed the defendant in the Providence area; he stayed in that house for less than five minutes, returned to his automobile and drove back to Massachusetts. Upon entering Massachusetts, the police made a decision to stop the motor vehicle. They believed they had probable cause to stop the vehicle based on the above information, which they claimed was consistent with drug distribution. They surrounded the vehicle and ordered the defendant and his co-defendant out of the motor vehicle. They found $2,500 on the console in an elastic band. After further investigation they uncovered a hidden compartment that contained a large quantity of cocaine and a firearm.

The jury found the defendant not guilty of trafficking in cocaine and not guilty of distributing cocaine. The judge directed the verdict on the handgun charge as there was no evidence that a handgun was used in trafficking cocaine. Evidence was presented establishing why the defendant was at the various surveillance locations and why he was at those locations for a short period of time. The home in Providence was not a stash house; it was a customer of the defendant who gave the defendant $2,500 in an elastic band as a cash deposit for a used car that she was buying from the defendant. The defendant operated a small used car business and detail shop. He had access to multiple vehicles and operated all of them and transferred plates among those vehicles. The police failed to fingerprint the handgun, which had a smooth, shiny surface with a visible to fingerprint on it.

This was a classic case of poor police investigation.

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Superior Court — Kidnapping, Assault and Battery With a Dangerous Weapon, Firearms Violation, Trafficking and Intent to Distribute

The defendant was indicted on 28 counts ranging from kidnapping, assault and battery dangerous weapon, firearms violations, and trafficking and distributing in various drugs.

The police were drawn to the defendant's home, a single-family home in a wealthy community, as a woman had jumped through a glass window and ran up the street screaming for help. She was bleeding about the arms and legs and claimed that she had been kidnapped and assaulted by the defendant who lived in the house down the street. The woman was high on heroin and cocaine, and in a paranoid and delusional state. After one day in a hospital she recanted her story.

Prior to her recantation, the police rushed to the defendant's home and found the defendant outside on his back porch. They arrested him immediately and conducted what they called a protective sweep of the home. They found firearms (shotguns and ammunition) and drug paraphernalia in the home and, eventually, found a substantial quantity of drugs in bushes outside of the home. After three separate motions to suppress — two of which proved successful — the defendant was able to suppress evidence of the firearms and the drugs. Ultimately, the defendant successfully defeated 26 of the 28 indictments and received simple probation on the two remaining charges.

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District Court — OUI/DUI

The defendant was charged with a third offense for operating under the influence. The police arrived at the scene of a tire on fire. The tire had come off a van, which was 20 feet in front of the tire. Outside of the van was the defendant; he was the owner of the van. The police found the defendant to be under the influence of alcohol and arrested him.

The defendant had been at a restaurant earlier that evening and had a receipt for his purchase there. The restaurant was one quarter of a mile from the arrest scene. From the restaurant he went to his girlfriend's home, which was also a quarter of a mile from the arrest scene, where they shared a bottle of wine. While at the girlfriend's home, the van was stolen from the driveway. The girlfriend noticed the van pulling from the driveway and notified the defendant who ran out in the street after the van. As the van drove away he saw smoke coming from the right rear tire. The van drove a quarter of a mile up the street and came to a stop. The driver exited the van and left the door open. The defendant ran up to the van and immediately called the fire department. The police arrived first and arrested him for drunk driving.

The obvious defense was that the defendant was not driving the vehicle. At the scene of the arrest the defendant did not tell the police that he was not the driver. He said he came from the restaurant as he did not want his wife to know he was out with another woman. By the time the case came to trial the defendant was then divorced and he and his girlfriend could testify about happened. The receipt from the restaurant verified that he had been at the restaurant much earlier than the arrest. The jury acquitted the defendant.

This operating under the influence case was one of many cases we have defended in which the defendant had multiple prior offenses. The defendant with the most prior convictions was a defendant who had eight prior operating under the influence cases. Although attorney DeVito did not represent this defendant in the prior eight cases, he did represented to the defendant on the ninth case and the jury acquitted him.

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District Court — Motor Vehicle Homicide

The defendant was driving on a four-lane undivided highway (two lanes in each direction), during rush hour. A commuter bus stopped in the right lane of travel to pick up a pedestrian. The defendant changed from the right lane to the left lane to avoid the bus. In the process, the vehicle in the left lane in front of the defendant's vehicle almost came to a stop. The defendant hit that vehicle. The driver of the hit vehicle lost control and entered the opposite roadway. He was then hit head-on by another vehicle and then by a truck. The driver of the vehicle the defendant struck died and the defendant was charged with motor vehicle homicide.

The defendant was not drunk nor was he speeding or operating recklessly. The dent in the vehicle he struck was no larger than a silver dollar. The jury acquitted the defendant of motor vehicle homicide.

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District court - Worcester Lawyer Challenges OUI Breath Test and Wins:

On December 2, 2011 the Worcester jury found a defendant not guilty of operating under the influence of alcohol. The defendant took the breath test and blew a .09, which was .01 over the legal limit. Attorney John E DeVito challenged the breath test by calling upon an expert to discuss the workings of the machine. The challenge was not to the accuracy of the machine itself, it was to the type of the air that was blown into the machine by the defendant. Attorney DeVito did not argue that the machine was inaccurate; he argued that the only air that can accurately measure the blood alcohol level of the defendant at the time of his operation of a motor vehicle is deep lung air. Deep lung air is surrounded by tissue saturated with blood; thereby, providing what should be an accurate reading of the amount of alcohol in the blood. The problem arises if there is alcohol in the stomach at the time the defendant takes the test. Alcohol in the stomach is not digested and not in the blood. If stomach air is mixed with deep lung air, a false an elevated breath test reading will occur. One can conclude that there is alcohol in the stomach if there is a strong odor of alcohol on the defendant's breath or if the defendant has admitted to recently consuming alcohol. As a defendant blows into the breath test machine, particularly with a blow that is long and encompasses a large volume of air, stomach air is likely to be pulled into the mix and blown into the machine. The stomach air causes the false an elevated reading. That reading can be as much as twice the legal limit.

The argument was simple, did not involve complicated science and was easily understood by the Worcester jury. The Worcester jury accepted that logic and acquitted the defendant.

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Contact John E. DeVito Esq. of DeVito and Visconti, P.A., Today

If you have been charged with a crime there is no time to waste — you need a qualified criminal law attorney working on your behalf. Contact John E. DeVito Esq. in Dedham, Massachusetts, immediately for assistance.