Boston Criminal Defense Lawyer Blog

A thirty-eight year old mother of two was arrested and charged with operating under the influence of alcohol and two counts of child endangerment. The incident occurred on September 23, 2008 when two young boys ages 5 and 9 asked a female witness for assistance because their mother was "passed out drunk" in the car. A responding police officer reported that the woman was "pretty intoxicated" when he arrived.

According to reports, at approximately 8 p.m., the woman was on her way to the father of the children up at work when she pulled the car over in a parking lot close to an elementary school. The police responded and ultimately sent a cruiser to pick the children's father up at work. The children appeared to be "pretty shaken" up. The woman posted bail and an arraignment is set for November 3rd. The Department of Youth and Family Services will follow up on this matter.

If you, a family member or a friend is charged with driving under the influence of alcohol you should contact an experienced attorney immediately. In order for the state to prove the case against you it must prove that you were driving a motor vehicle, that you were under the influence of alcohol and that you were driving on a public way. The issue that is most contested at trial is whether an individual is "under the influence" of alcohol. A common misconception is that a person must be drunk to be convicted of this offense. However, the law only requires that if your "ability" to operate a motor vehicle is impaired, you may be convicted. Thus, it is not necessary for the state to prove that you actually drove in an unsafe manner.

In order to prove its case the Commonwealth usually presents evidence of road side sobriety tests performed by a suspect. The police officers often describe that a suspect used "slurred speech," that the suspect had an unsteady gait and that the suspect failed to follow directions. An experienced Boston Attorney is necessary to successfully discredit an officer's testimony in this area and illustrate the unreliable nature of these common "field sobriety tests." The District Attorney also often presents evidence of a breathalyzer result that is above the legal limit. A Massachusetts Attorney is essential to ensure that any breathalyzer test was properly administered. Any impropriety in the machinery or in the administration of the test can be grounds to file a motion to suppress. Successful litigation of the motion to suppress can lead to the exclusion of this evidence at trial.

The operation of a motor vehicle does not just encompass being behind the wheel of a car as it travels down the road. The state can prove this element when the car keys are in the ignition in certain situations. Additionally, the requirement that driving take place on a "public way" is often the source of contention at trial. A public way traditionally includes any road that is maintained by the state and on which the public has the right to access. Thus, in most situations a driveway and some parking lots may not qualify as a "public way." If the state fails to prove any one of these three elements you will be entitled to an acquittal.

If you are arrested and charged with operating under the influence of alcohol retaining the services of Kathleen M. McCarthy will ensure that every aspect of the case is examined so that she can mount a successful defense for you.

Posted by Kathleen M. McCarthy | Permalink | Email This Post

Posted In: OUI/DUI

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On September 12, 2008, the Massachusetts Appeals Court reversed Harold Pierre’s conviction for possession of a firearm holding that the search conducted by the police at the time of the defendant’s arrest was unlawful. The police were conducting a surveillance in an effort to arrest the defendant on an outstanding warrant. Positioned in the area of Pierre’s home, the police observed him exit his residence and walk towards his car. After observing the defendant, the police announced their presence and ordered the defendant, and the individuals that he was with, not to move and to show their hands. The defendant complied and dropped a white plastic bag that he was carrying and put his hands in the air.

One member of the group with the defendant disobeyed these orders and entered the car through the rear passenger door. A police officer observed this individual take a firearm from his waistband and put “something” under the front seat where a firearm was eventually recovered. That individual was charged with possession of that firearm. Pierre was placed under arrest within “thirty seconds” of putting his hands in the air. The white bag that the defendant had dropped was placed in the car because it was raining. A police officer testified that sometime between a half hour and an hour after the car was brought back to the station he assisted in doing an inventory of the car. During this “inventory” he picked up the white plastic bag and removed a pair of pants from the bag. When he removed the pants from the bag, a firearm fell out. Pierre was charged with possession of that firearm and possession of ammunition.

It is well settled law in Massachusetts that under the Fourth Amendment to the United States Constitution and the Article Fourteen of the Massachusetts Declaration of Rights a search conducted without a search warrant are presumed to be invalid. See Katz v. United States, 389 U.S. 347, 357 (1967); Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 226 (1992). When the police conduct a warrantless search the burden is on the Commonwealth to prove that the search fell within one of the narrow exceptions to the warrant requirement. In the event that you, a family member or a friend, are charged with a crime in which possession is an element that the Commonwealth must prove, the experience and knowledge of a Boston Criminal Defense Attorney is necessary in order to mount an attack on the search that led to the possession charge. By successfully challenging the police conduct in searching an individual, home, car or other location, the Court will suppress the evidence and the case will likely be dismissed.

In the Pierre case, the defendant argued that the search of the white plastic bag was improper because it did not fall into any of the exceptions to the warrant requirement. The Commonwealth argued that the search of the white plastic bag was proper as a “search incident to an arrest.” However, the defendant argued, and the Court agreed, that the search of the plastic bag after the defendant was arrested and the car had been towed was not a valid search incident to an arrest. In Massachusetts, the police may search the area within the person’s immediate control as long as the search is conducted contemporaneously with the arrest. The Massachusetts Courts have limited the spatial and temporal scope of searches that are conducted pursuant to an arrest. The Massachusetts Appeals Court reversed Pierre’s conviction and re-articulated the principle that a valid search incident to an arrest must occur quickly and close to the area of the incident and be considered part of the “natural part of the arrest transaction.” Commonwealth v. Turner, 14 Mass.App.Ct. 1023, 1024 (1982).

The filing of a motion to suppress evidence is the first step in defending against a charge of possession of a firearm, possession of marijuana, possession of cocaine, possession of a dangerous weapon and any other charge in which the Commonwealth must prove possession to convict a defendant. The Law Office of Attorney Kathleen M. McCarthy has the knowledge and experience to successfully defend possession cases in the Boston area.

Posted by Kathleen M. McCarthy | Permalink | Email This Post

Posted In: Firearm Offenses , Search and Seizure

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