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NEW SOBRIETY CHECKPOINT ANNOUNCED BY MASSACHUSETTS STATE POLICE

Joseph Coupal - Friday, April 30, 2010
On Thursday, April 29, 2010, the Massachusetts State Police announced that it will conduct a sobriety checkpoint on Friday, May 7 into Saturday, May 8, 2010. The roadblock will take place during varied hours on a secondary state highway in Norfolk County. Norfolk County is comprised of over a dozen cities and towns, including Quincy, Weymouth, Brookline, Dedham, Needham, Canton, Cohasset, Milton, and Plainville. The State Police often team up with local law enforcement officers when conducting these sobriety checkpoints. Portable breath testing equipment and mobile facilities for booking arrestees are deployed at the scene. Federal grant funding is often used, as part of the nationwide “over the limit, under arrest” mobilization. If you are arrested following a sobriety checkpoint, contact attorneys who know how to defend these cases. Call Brooks & Crowley LLP at 781-251-0556.

MASSACHUSETTS STATE POLICE ANNOUNCE NEW SOBRIETY CHECKPOINT FOR APRIL 30, 2010

Joseph Coupal - Wednesday, April 28, 2010
The Massachusetts State Police recently announced that a “Sobriety Checkpoint” will be implemented by the State Police beginning Friday, April 30 and continuing into Saturday, May 1, 2010. The roadblock will take place at an undisclosed secondary state highway in Hampden County. Hampden County is comprised of Springfield, Chicopee, Hoyoke, Wilbraham, Westfield, and several other towns. The State Police often team up with local law enforcement when operating these checkpoints, which may utilize over a dozen officers at a time as well as mobile breath testing equipment. Many of these roadblocks are part of the nationwide “Over The Limit, Under Arrest” mobilization, for which state and federal grant money is used to fund police overtime, equipment and education. The constitutionality of these sobriety checkpoints were recently upheld by the Massachusetts Supreme Judicial Court. However, the police must strictly comply with the many requirements that the Court has outlined in order for them to survive constitutional challenges, and the failure to do so may result in the exclusion of all evidence obtained against a defendant. If you are arrested following a roadblock or “sobriety checkpoint,” contact an attorney who knows how to defend these cases successfully. Call Brooks & Crowley LLP at 781-251-0555.

MASSACHUSETTS STATE POLICE ANNOUNCE A SECOND DUI CHECKPOINT FOR APRIL 24, 2010

Joseph Coupal - Saturday, April 24, 2010
On Friday, April 23, the Massachusetts State Police just announced a second DUI roadblock for this coming weekend. This sobriety checkpoint will take place at various hours beginning Saturday, April 24, 2010 and continuing into Sunday, April 25, 2010. While the previously-announced roadblock will take place somewhere in Middlesex County, this recently-announced one will be in Essex County. Essex County is made up of cities and towns north of Boston, from Amesbury and Danvers to Gloucester and Marblehead.

MASSACHUSETTS STATE POLICE ANNOUNCE NEW DUI SOBRIETY CHECKPOINT FOR APRIL 23, 2010

Joseph Coupal - Friday, April 16, 2010
The Massachusetts State Police have announced that a “sobriety checkpoint” will be implemented on a secondary state highway on Saturday, April 23, 2010 into Sunday, April 24, 2010. The roadblock will take place on a secondary state highway in Middlesex County. Middlesex County is the largest county in the Commonwealth of Massachusetts, consisting of numerous cities and towns including Cambridge, Newton, Somerville, Lowell, and Framingham. The State Police often team up with local law enforcement when operating these checkpoints, which may utilize over a dozen officers at a time as well as mobile breath testing equipment. Many of these roadblocks are part of the nationwide “Over The Limit, Under Arrest” mobilization, for which state and federal grant money is used to fund police overtime, equipment and education. In 2009, the constitutionality of these checkpoints was again called into question, but the Massachusetts Supreme Judicial Court rejected the challenge. However, the police must strictly comply with the many requirements that the Court has outlined, and the failure to do so may result in the exclusion of all evidence obtained against a defendant. If you are arrested following a roadblock or “sobriety checkpoint,” contact an attorney who knows how to defend these cases successfully. Call Brooks & Crowley LLP at 781-251-0555.

MASSACHUSETTS STATE POLICE ANNOUNCE NEW SOBRIETY CHECKPOINT FOR SATURDAY, APRIL 17, 2010

Joseph Coupal - Tuesday, April 13, 2010
The Massachusetts State Police has just announced that it will implement a “Sobriety Checkpoint” beginning Saturday, April 17, 2010 and going into Sunday, April 18, 2010 on a Secondary State Highway in Norfolk County. Norfolk County is made up of twenty eight towns, including Avon, Bellingham, Braintree, Brookline, Canton, Cohasset, Dedham, Dover, Foxborough, Franklin, Holbrook, Medfield, Medway, Millis, Milton, Needham, Norfolk, Norwood, Plainville, Quincy, Randolph, Sharon, Stoughton, Walpole, Wellesley, Westwood, Weymouth and Wrentham. The State Police often team up with local law enforcement when operating these checkpoints, which may utilize over a dozen officers at a time as well as mobile breath testing equipment. Many of these roadblocks are part of the nationwide “Over The Limit, Under Arrest” mobilization. State and federal grant money is used to fund police overtime, equipment and education. The constitutionality of these checkpoints were recently upheld by the Massachusetts Supreme Judicial Court. However, the police must strictly comply with the many requirements that the Court has outlined, and the failure to do so may result in the exclusion of all evidence obtained against a defendant. If you are arrested following a roadblock or “sobriety checkpoint,” contact an attorney who knows how to defend these cases successfully. Call Brooks & Crowley LLP at 781-251-0555.

MASSACHUSETTS STATE POLICE ANNOUNCE NEW DUI SOBRIETY CHECKPOINT FOR APRIL 16, 2010

Joseph Coupal - Saturday, April 10, 2010
The Massachusetts State Police recently announced that it would conduct a DUI sobriety checkpoint beginning Friday, April 16, 2010 and continuing into Saturday, April 17, 2010. The roadblock will take place during varied hours on a secondary state highway in Bristol County. Bristol County is made up of twenty cities and towns, including Taunton, Raynham, Rehoboth, Fall River and New Bedford. The State Police often team up with local law enforcement when operating these checkpoints, which may utilize over a dozen officers at a time as well as mobile breath testing equipment. Many of these roadblocks are part of the nationwide “Over The Limit, Under Arrest” mobilization. State and federal grant money is used to fund police overtime, equipment and education. The constitutionality of these checkpoints were recently upheld by the Massachusetts Supreme Judicial Court. However, the police must strictly comply with the many requirements that the Court has outlined, and the failure to do so may result in the exclusion of all evidence obtained against a defendant. If you are arrested following a “sobriety checkpoint,” contact an attorney who knows how to defend these cases successfully. Call Brooks & Crowley LLP at 781-251-0555.

UNITED STATES SUPREME COURT RULES THAT ATTORNEYS MUST PROPERLY INFORM DEFENDANTS WHEN GUILTY PLEA CARRIES RISK OF DEPORTATION

Joseph Coupal - Friday, April 09, 2010
In the recent case of Padilla v. Kentucky, decided March 31, 2010 (read the full text of the opinion here), the United States Supreme Court held that an attorney’s failure to properly advise his client that a guilty plea carried a risk of deportation was a violation of the client’s Sixth Amendment right to counsel. This 7-2 decision means that, as a matter of federal law, counsel must correctly inform a client when a guilty plea carries a risk of deportation. Unlike past cases, where the Court stated that immigration consequences are a “collateral matter” and not directly related to the court’s disposition of a case, the Padilla Court stated that deportation is an “integral part” of the penalty that may be imposed on a non-citizen defendant who pleads guilty to specified crimes. Padilla, a lawful United States resident for 40 years, pleaded guilty to drug charges in Kentucky after he was incorrectly advised by his attorney that he did not have to worry about deportation. In fact, Padilla’s deportation was mandatory under federal law. The Kentucky Supreme Court rejected Padilla’s claim of ineffective assistance of counsel on the grounds that deportation was a “collateral” matter. The Supreme Court reversed, holding that Padilla sufficiently alleged a constitutional violation, because deportation is “intimately related to the criminal process.” While the prevailing viewpoint in Massachusetts is that first offense DUI convictions alone would not typically result in deportation proceedings in the absence of substantial aggravating factors, third or greater offense DUI’s are felonies under Massachusetts and federal law and certainly carry such a risk. For this reason, the immigration consequences of DUI convictions must be considered in all cases where deportation may result.

MASSACHUSETTS DUI SOBRIETY CHECKPOINT SCHEDULED FOR SATURDAY, APRIL 10, 2010

Joseph Coupal - Thursday, April 08, 2010
The Massachusetts State Police recently announced that it will conduct a new “Sobriety Checkpoint” beginning Saturday, April 10, 2010 and continuing into Sunday, April 11, 2010. This roadblock will take place during varied hours on a secondary state highway in Hampden County. Hampden County is comprised of the cities of Holyoke, Springfield, and Chicopee, and several dozen towns. The State Police often team up with local law enforcement when operating these checkpoints, which may utilize over a dozen officers at a time as well as mobile breath testing equipment. Many of these roadblocks are part of the nationwide “Over The Limit, Under Arrest” mobilization, for which state and federal grant money is used to fund police overtime, equipment and education. The constitutionality of these checkpoints were recently upheld by the Massachusetts Supreme Judicial Court. However, the police must strictly comply with the many requirements that the Court has outlined, and the failure to do so may result in the exclusion of all evidence obtained against a defendant. If you are arrested following a DUI roadblock or “sobriety checkpoint,” contact an attorney who knows how to defend these cases successfully. Call Brooks & Crowley LLP at 781-251-0555.

PROVING PRIOR DUI OFFENSES GETS EASIER FOR MASSACHUSETTS PROSECUTORS

Joseph Coupal - Tuesday, April 06, 2010
For Massachusetts prosecutors, proving prior DUI convictions has just gotten easier. In the recent case of Commonwealth v. McMullen, decided April 2, 2010, the Massachusetts Appeals Court held that prosecutors may use certified records from the Registry of Motor Vehicles and District Court in order to prove that a defendant had previously been convicted of operating under the influence. Also of significance, the court decided that the prosecutor did not need to show that the defendant was represented by an attorney (or waived his right to counsel) in the prior case before being able to use the conviction to enhance a sentence. Applying a legal fiction called the “presumption of regularity,” the court stated that a defendant is generally presumed to be represented, so the prosecution need not come forward with proof on the point unless the defendant first makes a showing that the conviction was obtained without representation by counsel. This case ignores the reality of how some district courts conducted business prior to the 1994 inception of the so-called “green sheet” that the court promulgated in order to comply with Rule 12 of the Masachusetts criminal rules. Prior to the 1990′s, many judges failed to properly advise defendants of their due process rights, and DUI charges were often resolved by a sixty-second-long hearing at arraignment and $100 fine. Later, and long after the tape of the hearing was destroyed by court policy, the legislature decided to count all DUI offenses in a person’s life, not just the recent ones where the court would have necessary advised the defendant of his rights. This system, akin to changing the rules of a football game after all the downs have been played, hurts defendants because it hampers their ability to litigate the issue of whether the earlier conviction was constitutionally valid. This situation often arises where there is an actual box on the first page of the official court docket that the court official is required to check, stating whether the defendant was advised of his right to counsel and whether he either had an attorney or properly waived his right. Many times, we see that this crucial box was left blank, and there is nothing noted on the docket that speaks to the issue. Unfortunately, a defendant is not allowed to assert any “presumption of regularity” to state the reality that often was the case in district court: that the docket correctly memorialized what took place. Where the official court docket is silent on the question of whether a defendant had or waived an attorney, and no appearance of counsel is noted on the docket or in the court file, how is this proper evidence that an attorney was involved in the case? This is why I referred to the “presumption of regularity” as a legal fiction. It is my sincere hope that, although judges may be free to presume that an attorney was involved, despite the lack of any evidence that one in fact was, thoughtful judges will continue to decline to do so. If convictions long thought closed are going to be used to enhance penalties twenty five or more years later, resulting in exposure to mandatory jail sentences, then the court should require indefinite electronic storage of the recordings of these crucual hearings for later review, or in the alternative, be required to live with the information that is in its own official court records.

MASSACHUSETTS APPEALS COURT RULES MELENDEZ-DIAZ DOES NOT PRECLUDE USING DOCUMENTS TO PROVE PRIOR DUI CONVICTIONS

Joseph Coupal - Tuesday, April 06, 2010
On April 2, 2010, the Massachusetts Appeals Court decided the case ofCommonwealth v. Dale McMullen. On appeal from his conviction for a fourth offense operating under the influence, Mr. McMullen challenged the use by the prosecution of certified copies of Registry of Motor Vehicles and District Court records to prove that he had been convicted on three previous occasions. McMullen contended that the 2009 United States Supreme Court case of Melendez-Diaz v. Massachusettsshould be interpreted to mean that his constitutional right to confront and cross-examine witnesses was violated by the use of only documents to prove the prior convictions. The Appeals Court disagreed, ruling that the records in question were created for the administration of the entity’s affairs, and not for purposes of proving a fact at trial. Since they were not testimonial in nature, the Sixth Amendment’s confrontation clause was not violated by their admission at the subsequent offense trial. In Massachusetts, individuals convicted of DUI are entitled to a separate trial on the issue of whether they have been previously convicted of the same or similar offense. At the trial, the normal Massachusetts evidentiary standards apply, and the defendant is entitled to have a jury or judge hear the evidence. Since the two Supreme Court cases of Crawford v. Washington and Melendez-Diaz, both of which were favorable rulings for defendants, practitioners were hoping to expand these decisions to DUI cases and require live testimony on the issue of whether defendants had been convicted in the past of the same or similar offenses. Following the Appeals Court’s decision in McMullen, and unless the Massachusetts Supreme Judicial Court rules otherwise, prosecutors will not be required to produce live witnesses in order to prove prior offenses.

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