Boston Criminal Defense Lawyer Blog

It was a bad day for seventy-one year old Edward Holden of Middleton when he was arrested and charged with a second offense of drunk driving in the Salem District Court. According to The Salem News, a Middleton police officer spotted Holden driving his PT Cruiser down a one way street the wrong way forcing other cars to swerve out of his way. According to reports, he was driving home after he was turned away from a package store. This past summer Holden was arrested and charged with his first offense of drunk driving after being involved in a head on collision while travelling the wrong way on Route 114.

The Essex County District Attorney's Office moved to have Holden held without bail because he violated a term of pre-trial probation on his previous arrest by driving. A Salem District Court Judge denied this request but imposed $5,000.00 cash bail. Holden will be held in the Middleton Jail until he posts bail. He is due in court later this month for a pre-trial conference.

In Massachusetts, in order for the Commonwealth to prove that a defendant was drunk driving they must show that the person was driving a motor vehicle, on a public way and was under the influence. A commonly litigated issue is whether the defendant was under the influence. In order to prove this the District Attorney's Office often relies on the observations of the police officers, the field sobriety tests, a breathalyzer (if any) and any statements of the defendant.
In order to counter the testimony of the officers, a good strategy is to emphasize all of the defendant's behavior that is consistent with sobriety. For example, illustrating that the defendant had not problem producing his or her license, no problem getting out of the car and could follow directions are fertile areas of cross examination.

Continue reading "Elderly Middleton Massachusetts Man Faces Second Drunk Driving Charge In Salem District Court " »

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Posted In: OUI/DUI

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Apparently, disgraced Senator Anthony D. Galluccio did not take advantage of the tremendous break he was given when a Cambridge District Court Judge allowed him to serve six months in home confinement. Galluccio received an early Christmas present when he was sentenced to six months home confinement on the condition that he submit to random alcohol testing, lose his license for five years and pay a $1,000.00 fine after he admitted to operating under the influence of alcohol, commonly referred to as "DUI" in Massachusetts, and leaving the scene of an accident causing personal injury. So far, Galluccio avoided serving the mandatory six month sentence in prison. However, he faces a detention hearing later on today.

According to The Boston Herald, because he failed "several" breath tests while under home confinement the probation department has issued a notice of detention which requires Galluccio to appear in court and explain why he should not be committed for violating his terms of probation. Apparently, Galluccio is blaming his toothpaste for his failed tests. The Herald reports that Galluccio stated the following after he was served with a detention notice, "[W]hile I knew that mouthwash or cold medicine would set the machine off, it did not occur to me that toothpaste would.” Despite the allegation, Galluccio maintains that he "fully committed to sobriety and continuing treatment, and remain focused on serving my constituents.”

In Massachusetts, a probation detention hearing is the first step that the probation department takes when seeking confinement for a probationer. Generally, notice of e detention hearing issues when a probation officer becomes aware that a defendant has not complied with conditions of probation. In this case, the probation department is claiming that Gallucio's failure to remain alcohol free is a violation of probation and warrants "detention" or "incarceration." During the initial hearing a judge will hear the probation officer's reasons for wanting the defendant held pending a final hearing that generally takes place within ten days if a defendant is held. At both the initial and final detention or surrender hearings the defendant is given a chance to present evidence as to why he should not be surrendered. Although all of the facts of this case are not known at this time, the Senator seems to have an uphill battle on his hands as the Plymouth District Attorney Timothy Cruz, whose office prosecuted the case, said last night Galluccio should have been tossed in jail in the first place.

If you are facing a probation detention hearing or a probation surrender hearing in Massachusetts it is important that you have an expereinced Boston defense attorney on your side. In many Massachusetts District Courts defendants are not committed to jail because of the initial conviction however, as the result of a probation surrender. The consequences for not prevailing at a surrender hearing are high as a defendant may face serving the maximum sentence allowed for the underlying conviction.

The standards that the probation department must meet during surrender hearings are lower than the "beyond a reasonable doubt" standard that the Commonwealth must meet at trial to sustain a conviction. If you are facing a surrender hearing it is imperative that you have a qualified Massachusetts lawyer on your side to navigate you through the process.

Continue reading "Galluccio Facing Probation Surrender In Cambridge District Court For Violating Terms Of Probation On Drunk Driving Conviction" »

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

Posted In: OUI/DUI , Probation Surrender Hearings

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A stop for what police believed would be a routine drunk driving arrest resulted in a Lawrence man, Silver Dubon, being arrested on outstanding warrants for threats, assault and battery and attempted murder. Dubon was initially pulled over on route 110 in Lawrence and charged with speeding, failure to use care in stopping, a marked lanes violation, driving without a license and operating under the influence of alcohol. According to The Lawrence Eagle Tribune, after the police determined the identity of the driver, he faced additional charges. Reports indicate that the outstanding warrants relate to a case of alleged domestic violence dating back to 2008. Although all of the facts of the case are not known at this time, the Tribune reports that over one year ago Dubon allegedly had an argument with his wife that escalated into a physical fight.

In Massachusetts operating under the influence of alcohol and assault and battery are considered misdemeanor offenses. Assault and battery by means of a dangerous weapon and attempted murder are felonies. A charge is a misdemeanor when the most that a defendant could be sentenced to is a committed sentence in jail or in the house of correction. If the potential penalty for a crime is committed time in state prison then the offense is considered a felony.

If you have been charged with a crime you should have an experienced Boston defense attorney on your side. If you are facing charges in Peabody, Lowell or Lawrence having a local defense lawyer on your side can make a big difference in the outcome of your case. In cases where a defendant is charged with "domestic violence" a 209 A civil restraining order is often sought by the complaining witness. Although the order itself is civil, a criminal charge may issue if there is an allegation of a violation of the order. Thus, preventing the issuance of the order by having an attorney present your side of the case is crucial.

Continue reading "Lawrence Massachusetts Man Arrested For Drunk Driving Faces Old Charges On Outstanding Warrants" »

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

Posted In: Assault and Battery , Assault and Battery By Means Of A Dangerous Weapon , Domestic Assault and Battery , OUI/DUI

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A car accident on Lafayette Street in Salem Massachusetts resulted in one of the two drivers being charge with operating under the influence of alcohol. According to The Salem News, thirty-eight year old Cheryl Wall will be summonsed to court to face charges of driving under the influence of alcohol causing serious bodily injury, driving to endanger, driving with a suspended license and driving to endanger. According to reports, the car that Wall was driving crossed lanes and crashed into a car coming in the other direction. The driver of that car was trapped inside and eventually extricated with the help of the Salem police department. He was taken to the Massachusetts General Hospital and was recently listed in good condition.

In order for the Commonwealth to prove operating under the influence it must prove beyond a reasonable doubt that a defendant was operating a motor vehicle while under the influence of alcohol on a public way. In Massachusetss, operation is not simply driving a car in the traditional sense. A person “operates a motor vehicle” within meaning of the law when he or she intentionally does any act or makes use of "any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle." The Massachusetts Appeals Court has affirmed convictions in cases in which defendants were found in parked cars with the keys in the ignition and the engine running. The government is allowed to rely on circumstantial evidence to prove its case. Also, the prosecutor is required to prove that the driver was "under the influence" not that he or she was drunk. In order to prove public way the Commonwealth must prove that the operation took place on a way “to which the members of the public have access as invitees or licensees.” Shopping mall parking lots have been held to constitute a public way for purposes of the operating a motor vehicle while under the influence of alcohol statute.

If you have been charged with operating under the influence of alcohol or drugs you must have an experienced Boston attorney on your side to ensure that all of your rights are protected. Although a conviction for a first offense is a misdemeanor, it has serious consequences including license loss and a potential of two and one half years in jail. Also, if you are charged with a subsequent offense for operating under the influence, the potential penalties increase with each additional charge.

Continue reading "Swampscott Massachusetts Woman Charged With Operating Under The Influence Of Alcohol Following Car Accident In Salem" »

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Posted In: OUI/DUI

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According to The Lowell Sun, a 34-year-old Lowell Massachusetts man, who was convicted for motor vehicle homicide and operating under the influence of alcohol causing serious bodily injury six years ago found his way back to prison after serving most of his 5 to 6 year committed sentence. The defendant was released from prison to a five year probationary term. However, this week a Superior Court Judge sitting in Lowell Massachusetts found that the defendant violated the terms of his probation after being arrested on charges of domestic assault and battery and malicious destruction of property in an incident involving his sister-in-law. According to reports, he was sentenced to serve the rest of his two-year jail sentence on his conviction for operating under the influence causing serious bodily injury.

If you have been served with a notice from the probation department that they are looking to surrender you because you violated the terms of your probation it is imperative that you contact an experienced Massachusetts trial attorney. The rules that apply during a probation surrender hearing are different from the rules that apply during a trial.

The Massachusetts Supreme Judicial Court has held that “the due process clause does not place a per se prohibition on the use of hearsay evidence at probation revocation hearings.” Commonwealth v. Durling, 407 Mass. 108, 115 (1990). Rather, “[u]nsubstantiated and unreliable hearsay cannot, consistent with due process, be the entire basis of a probation revocation." The court also considers whether the evidence at the hearing is entirely hearsay and whether there is good cause for not having direct testimony.

In Massachusetts, a probationer has only a conditional liberty interest. The probationer is expected to comply with the conditions of probation. A breach of a condition of probation constitutes a violation, and if the probation officer receives information tending to show that the probationer has breached, the officer may “surrender” the probationer to the court. During a trial, the government must prove its case beyond a reasonable doubt. However, the standard at a probation revocation hearing is lower. A probationer's probation may be revoked based on the probation department establishing a violation by a preponderance of evidence. In Massachusetts, the Courts position is that a probation revocation hearing is not part of criminal prosecution and, thus, a probationer need not be provided with the full panoply of constitutional protections available at criminal trial. However, the Courts have held that the revocation of probation does result in a deprivation of liberty within the meaning of the due process clause of the Fourteenth Amendment to the United States Constitution and thus, the Commonwealth must provide probationers with certain protections at surrender hearings. In Massachusetts, the hearsay on which the judge relies must be reliable.

If you have received notice of a "probation violation" it is important that you contact an experienced Massachusetts trial attorney to represent you at the surrender hearing. Effective representation can result in the court not finding you in violation or if you are found in violation convince the judge not to impose the sanction recommended by the probation officer. In certain situations, the submission of a memorandum opposing the finding of a violation is appropriate.

Continue reading "Lowell Massachusetts Man Found In Violation Of Probation Is Back Behind Bars" »

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

Posted In: Domestic Assault and Battery , OUI/DUI , Property Crimes

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The Massachusetts Appeals Court reversed a defendant's OUI conviction holding that a gated private road within a campground was not a public way as required to support a conviction. In Massachusetts, the government must prove that an individual drove a motor vehicle while under the influence of alcohol on a public way to prove its case.

The Commonwealth secured a conviction against Brian Stoddard in the Newburyport District Court for DUI . Stoddard appealled his conviction and claimed that the District Attorney did not satisfy its burden because the defendant operated his motor vehcile within the confines of the Rusnik Campground in Salisbury Massachusetts. Although the trial judge held that the road on which the defendant drove was a "public way" as defined in Chapter 90 section 24, the Massachusetts Appeals Court disagreed and reversed Stoddard's conviction.

The typical indicia that a road is a public way is if the way is maintained by the town or city, if there are hydrants and/or lighting along the roadside and if the road is paved and lined. In this case the Appeals Court held that the presence of a gate restricted general access to the campground. The Court continued maintaining that the evidence established that no motorist approaching the entrance to the campground could suffer any illusion that he was welcome to enter the campground and drive on its roadways.

If you have been arrested and charged with operating under the influence of alcohol it is critical that you have an experienced Massachusetts defense attorney on your side. A conviction for DUI has collateral consequences such as loss of license and for repeat offenders a mandatory committed jail sentence.

Continue reading "Massachusetts Appeals Court Vacates DUI Conviction For Defendant Tried In Newburyport District Court " »

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

Posted In: OUI/DUI

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According to The Salem News, Maureen Fogwell, 57, from North Hampton New Hampshire was arrested as she drove away from the Salem Massachusetts Courthouse last week following her arraignment for driving under the influence of alcohol as a second offense. After spending a week in the women's prison in Framingham, Ms. Fogwell admitted to the offenses and was sentenced to a 60 day mandatory minimum sentence for driving after her license was suspended for an OUI related offense. The judge also imposed a a six-month jail sentence which he suspended for two years. During this probationary term she must enter and complete a two week in patient alcohol program.

In Massachusetts, failing to complete terms of probation may result in a defendant receiving a notice of surrender and a surrender hearing occurs. During this type of hearing the probation officer must produce reliable evidence that the probationer violated the terms of his or her probation. In the event that an individual is found to have violated the terms of his or her probation, the penalty can be the maximum sentence that can be imposed for a conviction of the crime. In this case, Ms. Fogwell could face up to two and one half years in jail if she does not successfully complete probation.

In Massachusetts, the prosecution must prove that a defendant was driving a motor vehicle, on a public way and was under the influence to secure a conviction. An experienced defense attorney is necessary to review the particular facts of an individual's case to determine how to proceed at trial. Depending on the circumstances of the case it may be appropriate to demonstrate that the defendant was not driving, that the road was not a "public way" i.e., that the public did not have a right of access and that he or she was not under the influence. In the event that a defendant was arrested as the result of a roadblock, made statements or was in a motor vehicle that was searched, there may be grounds to file a motion to suppress evidence and/or statements.

Continue reading "Woman Arrested In Salem Massachusetts When She Drove Away From Court Following Her Arraignment For DUI Second Offense " »

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

Posted In: Motion to Suppress Statements , OUI/DUI

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Popular swimming phenom and eight gold medal winner Michael Phelps has been suspended by USA due to the picture of him holding what is believed to be a marijuana bong. The now famous picture of Phelps surfaced in Star magazine. According to reports, the incident occurred in November, when Phelps attended a house party while visiting the University of South Carolina. Phelps has apologized to his fans and referred to his behavior as regrettable. Phelps has never tested positive for any banned substance.

Phelps has been in the spotlight before for "regrettable behavior" including a previous conviction for operating under the influence of alcohol often referred to as driving under the influence or DUI in Massachusetts.

In Massachusetts, a conviction for driving under the influence can carry a sentence of up to two years in jail. The District Attorney has to prove that you were driving a car on a public way and that you were under the influence of alcohol. Any one of these areas should be challenged when defending an OUI case in a Massachusetts. To prove operation the District Attorney does not have to show that you were actually driving. Massachusetts Courts have held that starting the engine of the car or making use of the power provided by the engine constitutes operation. Massachusetts Courts have held that putting the keys in the car's ignition can be enough to establish operation.

Continue reading "Michael Phelps Suspended For Three Months By USA Swimming" »

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

Posted In: Celebrity Crimes , Drug Crimes , Motion to Suppress Statements , OUI/DUI

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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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