Boston Criminal Defense Lawyer Blog

A Haverhill Massachusetts man, Anthony McLaughlin, has been charged with operating under the influence of alcohol for a third time. According to The Lawrence Eagle Tribune, McLaughlin was arrested at 4:40 Saturday morning as he slept behind the wheel of his car. The arresting police officer, Penny Portalla, claimed that the headlights and taillights to the car were on and the car was running. She also claimed that the interlock device that was inside of the center console was unplugged. Defense counsel argued that if the interlock device was unplugged the car could not have been running. Apparently, neighbors became concerned about the car. When Portalla arrived to check out the situation she claims that she had a hard time waking up the defendant.

The Essex County District Attorney’s office moved to have McLaughlin held without bail and be found as a danger. Following a “dangerousness hearing” Judge Stephen Abany declined to hold the defendant without bail and ordered that he be held unless and until he can post three-thousand dollars cash bail.

In order for the Commonwealth to prove its case it must prove that the defendant was driving a motor vehicle, on a public way while under the influence of alcohol. In this case, they have the additional burden of proving that the defendant was convicted two times previously.

Although all of the facts are not known at this time, it appears that the government may have a problem proving operation and public way. The Massachusetts model jury instruction relative to operation explain that “operation” is not only doing all of the well-known things that drivers do as they travel on a street or highway, butalso when doing any act which directly tends to set the vehicle in motion.The law is that a person is “operating” a motor vehicle whenever he or she
is in the vehicle and intentionally manipulates some mechanical or electrical part of the vehicle — like the gear shift or the ignition — which, alone or in sequence, will set the vehicle in motion. Thus, a person may be found to be operating a car even if he or she is not actually driving the car down the street or highway.

The Tribune indicated that the car was parked off the road, thus the defense may be able to claim that the motor vehicle was not on a public way. To prove that the defendant operated the car on a “public way.” In Massachusetts a public way is any street that is open to the public and is controlled and maintained by the government. This obviously would encompass a state highway and municipal roads. Indicia of a public way include testimony that the road was paved, has streetlights, street signs and fire hydrants. The presence of these items indicate that the roadway is likely maintained by a municipality. This may be one element that the defense can focus on to seucre a not guilty verdict.

In order to prove that a defendant has previously been convicted of operating under the influence the Commonwealth must have certified copies of the prior convictions in which the defendant is clearly identified and it can be shown that he or she was represented by counsel or waived an attorney. There is not time limit on how many years back the prosecution can go to prove the prior offenses.

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Shayna Fernandez from Lawrence Massachusetts is charged with operating a motor vehicle while under the influence of alcohol, motor vehicle homicide and negligent operation of a motor vehicle following a car crash on June 11th that killed two people. According to The Lawrence Eagle Tribune, over the objection of the Assistant District Attorney, Judge Timothy Feeley reduced Ferndandez's bail from fifty-thousand dollars to twelve thousand five hundred dollars. However, even if she makes bail she will be restricted to house arrest with conditions that she abstain from alcohol and driving, stay away from the victim's families and remain on an electronic monitoring device. The Tribune reports that Ferndandez takes care of her severely disabled younger sister and lives at home with her mother.

According to sources, Ferndandez admitted to the police that she had been drinking beer up to four thirty in the morning; two hours before the accident. Although Ferdnandez escaped the crash without injuries, the driver of the other vehicle and one passenger were killed. Another passenger in the other car was treated and released from the Lawrence General Hospital.

Recognizing that all of the facts are not known at this time, it appears that at the time of the incident Ferndandez stated that the accident occurred when she was traveling in the left lane and a Blazer with a small watercraft and trailer attached were in the center lane. As Ferndandez attempted to enter the center lane the Blazer began to change lanes and the cars collided.

In order to prove the charge of operating under the influence of alcohol the Commonwealth must prove that a defendant was driving a motor vehicle on a public way while under the influence of alcohol. In most cases, the contested issue is usually whether the defendant was “under the influence” of alcohol. Massachusetts does not call this crime “drunk driving” as the Commonwealth does not have to prove beyond a reasonable doubt that a defendant was “drunk.” Being “drunk” and “under the influence” are two different things. It is not a crime in Massachusetts to have alcohol and drive. However, the Commonwealth does not have to prove that a person is “drunk” to secure a conviction for driving under the influence of alcohol.

In Massachusetts the Commonwealth must prove beyond a reasonable doubt that a person’s ability to operate a motor vehicle safely has been impaired by alcohol. In many cases the way that the District Attorney’s Office tries to prove its case is to present evidence of poor driving, odor of alcohol, slurred speech and red glassy eyes. This type of testimony by the police officers coupled with observations of a defendant’s performance on “field sobriety tests” and perhaps breathalyzer results are a typical scenario for an “operating under the influence” jury trial.

Much of this type of testimony can be neutralized with an experienced Boston OUI lawyer. For example, during cross examination it is important to point out that law enforcement cannot tell how much someone drank or when someone had their last drink based simply on an odor of alcohol. Furthermore, there are many reasons that an individual’s eyes could be red such as allergies, tiredness and eyes strain. Also, there are specific guidelines that the police must follow in order for the “field sobriety” tests to be probative; many of these conditions are not always met. Finally, in the event that a defendant took a breathalyzer test a defendant must ensure that the breathalyzer machine was properly calibrated and functioning and that the breathalyzer operator was appropriately certified.

Continue reading " Lawrence Superior Court Judges Reduces Bail For Woman Charged With Operating Under the Influence Of Alcohol, Motor Vehicle Homicide And Negligent Operation Of A Motor Vehicle " »

Thirty-two year old Guarionex Pratts is charged with trafficking over 500 grams of heroin and trafficking over 28 grams of oxycodone. The Lawrence Eagle Tribune reports that a tip to the Drug Enforcement Administration Tipline led to the search of Pratts North Andover apartment located at 26 Royal Crest Drive Apartment #6. Apparently, Pratts consented to the search of his apartment in which investigators found 2.2 pounds of heroin, hundreds of oxycodone pills, $5,000.00 cash, drug packaging materials and heroin packaged for what investigators claim was for sale to customers. Pratts faces a fifteen year mandatory minimum sentence just on the heroin charge alone. According to the Tribune, the street value of the heroin is estimated at $150,000 and the street value of the pills is said to be valued at approximately $2,000.00. There was another drug raid at Royal Crest this fall which netted 54 kilograms of cocaine. Acting North Andover Police Chief Paul Gallagher stated that he has been working with the management at Royal Crest to start a Neighborhood Watch Program, which they evidently need!

One obstacle that defendants charged with drug offenses often face is that they often face mandatory minimum sentences. For example, if a defendant is charged with possession with intent to distribute or distribution of a controlled substance in a school zone, possession with intent to distribute a controlled substance or distribution of a controlled substance as a subsequent offender or trafficking a controlled substance he or she faces at least two years to two years and a day from and after to twenty years in state prison. A defendant is often at the mercy of an unsympathetic District Attorney’s Office to either reduce the charge from a school zone or a second and subsequent offense to a first offense or reduce the amount alleged to have been trafficked so that a defendant can receive a reduced sentence. When a defendant is sentenced to a “mandatory minimum” sentence THE WHOLE SENTENCE MUST BE SERVED!” A defendant will not receive a reduction in time to be served based on good conduct or work.

That being said, there are many strategies that an experienced Boston area defense lawyer can employ to successfully defend these types of case. The following is a list of pre-trial evidentiary and non-evidentiary motions that, depending on the facts of a case, can be filed:
Non-Evidentiary
• Motion to Disclose Informant(s)
• Motion For Informant Regulations
• Motion For Disclosure Of Any Payment To An Informant
• Motion For Locations For School Zone Measurement
• Motion For List Of Experts
• Motion For Prior And Subsequent Bad Acts Of Defendant To Be Used At Trial
• Motion For Surveillance Location
• Motion For List Of Evidence Seized As The Result Of Any Search
• Motion For Certificate Of Analysis
• Motion To Sever Cases (If Applicable)
Evidentiary Motions
• Motion To Dismiss
• Motion To Suppress Stop And Evidence
• Motion To Suppress The Search And Evidence
• Motion To Suppress The Stop and Search And Evidence
• Motion To Remand Case To A Clerk’s Hearing (Misdemeanors Only)
• Motion For A “Frank’s Hearing”
• Motion To Suppress Statements

Continue reading " North Andover Massachusetts Man Faces Drug Charges Including Trafficking In Heroin and Trafficking In Oxycodone " »