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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.

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