Boston Criminal Attorney Blog

I have a very interesting case development to report today in the area of drunk driving in Massachusetts. As a Dedham, Massachusetts OUI/DWI defense lawyer, I’m often asked “What happens if a person is found by a police officer to be drunk and sitting in the driver’s seat of a car, but the car is parked and the engine is turned off? Can you be charged with drunk driving in Massachusetts under those circumstances?”

I’ll get to this in a moment, but first, it’s important to understand that a person can always be charged with OUI/DWI – or with any crime: Whether those charges will stand up in court, is an entirely different question, and that’s why you should always have an experienced and talented OUI defense attorney represent you if you’re ever charged with this crime.

Now, to answer the question: Prior to this past week, the correct legal answer to this question was always as follows: If the engine was not running, then the “Operation” element of the charge could not be sustained, and hence the case would almost certainly have to be dismissed. That is, one of the requisite elements of this crime, articulated in Massachusetts General Laws. Chapter 90 Sec. 24, is that the defendant must have been “Operating” the vehicle at the time he was arrested. “Operation” always meant a number of different things under both statutory and case law, but central to the prosecution satisfying that element, was that the driver’s key had to be in the ignition, in the “Engine On” position, and the engine had to be running. Hence, if a police officer found someone parked on the side of a public way and suspected the driver was operating under the influence of alcohol or other drugs, and the driver’s key was in the ignition but the engine was not running, then that person could not be convicted of OUI/DWI, because the statutory requirement of “Operating” the vehicle would not have been satisfied. As long as the engine was not engaged or running, a defendant could not be successfully convicted of OUI/DWI.

That has now changed, in a ruling of first impression handed down earlier this week by the Massachusetts Appeals Court. In Commonwealth vs. Robert S. McGillivary, Appeals Court Case No. 09-P-507, the court ruled that a defendant who was found by police slumped over the steering wheel of a vehicle, with the key in the ignition but with the engine not running, was properly charged with operating under the influence of alcohol. As anyone who has ever driven a car knows, there are three positions in any standard vehicle ignition switch: 1) “Off” (Allowing the key to be extracted); 2) “Accessory” position, which allows electricity to power accessories such as the radio; and 3) “Engine On” position, which, of course, is the position the key is in when the engine is engaged and running. Here, the defendant was found by police to be under the influence, but he argued that since the ignition key was not in the “Engine On” position, but only in the “Accessory” (electricity on) position, and the engine was not running, he could not be properly convicted of the “Operation” element required under Section 24 of Massachusetts General Laws. Chapter 90.

Surprisingly, the Appeals Court disagreed with the defense counsel’s argument on this point (stunning him, I’m sure.) Writing for the court, Judge Gary S. Katzmann found that, under the Supreme Judicial Court’s 1928 decision in Commonwealth v. Uski, “‘[a] person operates a motor vehicle within the meaning of G.L.c. 90, §24, when, in the vehicle, he 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.” Katzmann wrote that, “As a matter of law, the evidence that the defendant, who was found in the passenger’s seat, turned the ignition key — an act which the jury could have found to be the first step in a sequence to set in motion the motive power of the vehicle — was sufficient to permit the jury to conclude that he ‘operated’ the motor vehicle,”

This important decision marks an extremely important change in the law governing Massachusetts drunk driving offenses, one that many people should know about. If you or someone you care about has been arrested or is facing a Massachusetts OUI/DWI offense, contact us for a free consultation. As Massachusetts OUI attorneys, we have practiced for over twenty years in this area of law, and we know how to very effectively defend these types of cases. As you can see with this decision, the courts are continuing the trend of becoming very strict and aggressive with these types of cases. There may be a lot of good reasons for this, but regardless, any defendant facing these types of charges needs the best lawyer he or she can find.

Don’t take chances: Contact us for a free consultation. We know how to get you to the best legal outcome possible, and we have the results to prove it.

Gov. Deval Patrick likes to fashion himself as a typical “man-of-the people” Democrat. Except that he’s anything but that, and knows very little about the everyday workings of the “average person” on the street. That should come as no surprise to anyone, given that he’s a multimillionaire who made his money in the corporate world, but his latest legislative proposal concerning legal practice only underscores his cluelessness about real world economics, and the way state government really, actually works.

Patrick’s latest proposal revolves around how indigent criminal defendants are provided legal counsel in Massachusetts. As anyone who’s ever heard of the Miranda Rights knows that if a person is charged with a crime in any state in the United States, and cannot afford an attorney, one will be provided for him or her free of charge. Different states fulfill this federal requirement in different ways. In Massachusetts, for decades now, defense lawyers for indigent criminal defendants have been provided almost completely by a network of private attorneys, who are contracted with the state to provide these services. The agency that administers this program is called the Massachusetts Committee for Public Counsel Services (“CPCS”,) and operates under the Massachusetts Judicial Branch.

These attorneys, known as “Bar Advocates”, must first complete appropriate CPCS training and certification requirements before they can become eligible to represent indigent criminal defendants. It is Bar Advocates who defend 90% of indigent defense cases in courtrooms across the state, from Pittsfield to Provincetown; Methuen to Martha’s Vineyard. The other 10% of these cases, the vast minority, are handled by lawyers who are full-time state employees, complete with annual salary and benefits. Private duty Bar advocates are paid anywhere from $50 to $65 per hour, to defend people charged with a variety of crimes, 99% of which can land them in jail for anywhere from a day to life. However, court-appointed attorneys also represent indigent clients in extremely important non-criminal cases, such as representing families that are involved with the Department of Social Services, and people who are at risk of civil commitment and forced medication.

As a Norfolk County criminal defense lawyer, I used to be a Bar Advocate, and I know first-hand how hard these attorneys work and how devoted they are to the clients they are appointed to represent. Given that most criminal defense lawyers charge much more than what Bar Advocates are paid, these services are a bargain for the state. Not so, according to Gov. Patrick. He wants to create a new state bureaucracy (operating under the aegis of the Executive Department, not the Judiciary as CPCS now does,) staffed with 1,000 full-time lawyers to provide these services – each receiving a full-time salary and benefits. In total, the new agency could employ as many as 1,500 employees.

Not only is this a foolish use of state money, it is the more important issue of the quality of legal services that indigent defendants would receive under such a scheme, which makes the case against the proposal. Indigent criminal defendants would cease to become clients of individual attorneys with whom they have a unique attorney-client relationship and who are dedicated to their defense; they’d become numbers in a bureaucratic nightmare. Have you ever tried to deal with a state agency? If you have any doubts about how such a new agency would operate in the real world – not the high-minded, theoretical one envisioned by Gov. Patrick, but the real, everyday world - think of the Wal-Mart of criminal defense services. Is that what you’d want for yourself or someone you care about, if you were in such a situation? If you lost all your money today, were charged with a crime tomorrow and needed a dedicated defense attorney to defend, is this what you'd want? Supporters of this plan should think about that, long and hard.

This plan should stop before it starts. The Massachusetts Association of Court-Appointed Attorneys plans to fight this proposal vigorously, and I wish them well. Everyone concerned in this debate – principally criminal defendants who cannot afford attorney, as well as taxpayers, will be better served if the idea is dropped now.

More stringent financial screening of defendants claiming indigency, to assure that these services are being provided to people who truly don’t have the money to pay for a private attorney? Absolutely. Demolish the present CPCS/Bar Advocate system and replace it with massive state bureaucracy that will surely deliver inferior legal services to people threatened with imprisonment? No way.

The Supreme Judicial Court ruled this week that foreign nationals, including illegal aliens, must be provided with the opportunity to be in contact with diplomats from their home country when facing criminal charges in Massachusetts. The court ruled that the right is guaranteed by the Vienna Convention, which is an international treaty adopted by the United States in 1969.

More so, the SJC also ruled that foreign nationals who are convicted of a Massachusetts crime will be allowed to seek a new trial if they can satisfy two tests: 1) That they were not informed about this right; and 2) That the lack of this information played a role in their conviction. At least one prosecutor reacted to the decision by saying that it has the potential to unleash a flood of costly litigation. Essex County District Attorney Jonathan W. Blodgett commented that “There is no limit to this, we will be flooded with motions for a new trial.’’ Blodgett asserted that even though the Vienna Convention is a treaty between sovereign nations, the SJC has made a foreign treaty part of the fabric of individual rights in Massachusetts. Blodgett plans to file legislation asking the Massachusetts Legislature to reverse this decision. On the opposing side, immigration lawyers and criminal defense lawyers say the court’s ruling merely reinforces rules that have already been on the books in Massachusetts for many years.

The unanimous 7-to-0 ruling noted that even though the United States had ratified the Vienna Convention in 1969, the International Court of Justice in The Hague ruled in 2009 that the United States had not complied with the Convention’s rules on diplomatic contact when dealing with Mexican nationals. Justice Robert Cordy wrote that Massachusetts will now take steps to bring the state into compliance with that treaty: “In order to enable the full effect to be given to [the Vienna Convention], we conclude that the notifications it requires must be incorporated into the protocols of the state and local law enforcement agencies of Massachusetts.’’

As a Dedham, Massachusetts criminal defense lawyer, I can assure my readers that many of the criminal defendants who appear before the District Courts and the Superior Courts of the Commonwealth, are foreign nationals -- whether here legally or not. Therefore, this decision will indeed have a very large impact on police and prosecutorial actions in the future.

Last Friday, a Hampden County Superior Court jury returned a verdict that a lot of people on either side of the gun control debate had been watching closely.

Called informally the “Uzi Death Case,” the former Chief of the Pelham, Massachusetts Police Department, Edward Fleury, was charged with involuntary manslaughter and multiple counts of Massachusetts firearms violations in the October 2008 death of an 8 year-old boy, Christopher Bizilj of Ashford, Connecticut. The young boy was attending a gun fair that was held at the Westfield Sportsman’s Club in Westfield, Massachusetts. While the gun fair was held on the grounds of the Westfield Sportsman’s Club, the event was organized by a company that Edward Fleury owned and operated. While attending the fair with his father, Dr. Charles Bizilj, the young boy lost control of an Uzi submachine gun he was holding, and shot himself in the head in front of shocked onlookers. Those onlookers included the boy’s father and his brother. Prosecutors alleged that Fleury was criminally reckless by allowing children to illegally shoot loaded machine guns, while being “supervised” by a firing range “officer” who was 15 years old at the time, and who possessed neither proper licensing nor firearms training.

Sounds pretty bad, but Fleury’s defense lawyer had some powerful facts to argue to this jury: 1) Principally, the boy’s father, (Dr. Charles Bizilj) had signed a waiver at the fair, acknowledging the risks (including death) involved in letting his son shoot a loaded gun; and 2) The fact that the event had been held for several years previous to this accident, without any problems. Legally, what these two facts did, was seriously damage (if not altogether destroy) the Hampden County District Attorney’s argument that Fleury was “criminally reckless”, a core of the Commonwealth’s charges against him. These facts also undercut prosecutors’ counts of illegally furnishing a machine gun to a minor. Had the above two facts not been present, Fleury may well have been convicted on these charges. If he were, he would have faced combined sentences of up to 50 years in state prison.

Even with these facts present, this case could have gone either way. One principal reason for this, was emotional rather than strictly legal: Young Bizilj’s tragic and violent death was captured on video tape - by his own father, who was recording his son’s turn to fire the gun that killed him. Prosecutors played the 15-second video tape to the jury. It was reported to be (naturally) horrific: The Uzi submachine gun that the boy was firing, suddenly tilted upward and then backward toward the boy, a bullet piercing his skull. To spare the jury and avoid inflammatory footage, the video was frozen at the precise instant when the bullet pierced the boy’s head, but with him still standing yet mortally wounded. The jury did not see his body fall. Before jurors viewed the footage, the boy’s Charles Bizilj, testified that immediately after the gun fired he rushed to his son’s side, discovering that “a large portion of his cranium was missing.’’

Fleury cried at the jury’s verdicts, saying that he regretted holding the machine gun event and vowing that he will never do it again. He said that his arrest and the trial were devastating and that he would "rather be dropped into hell than go through this again.’’ >“I want to express my heartfelt sympathy to the Bizilj family,’’ Fleury told reporters. “It was always meant to be an educational event for people, and it’s unfortunate this terrible accident happened.’’

This is the kind of terrible thing that can happen to people facing Massachusetts firearms charges: Most of these defendants are not violent criminals, but otherwise law-abiding people who got caught in terrible circumstances surrounding the use or ownership of guns and other firearms. Exhibit A on that point? Edward Fleury was the former Chief of Police in the town of Pelham.

If you or someone you know faces charges involving Massachusetts firearms violations, contact us. We are very expereinced with these types of cases, and we can very effectively defend you, securing the best legal outcome possible. To use slang, don't "mess around" with these types of charges: These cases can become extremely complicated. Don’t take chances with an attorney who isn’t adequately experienced in this area of law. We know what we’re doing. And we’ll stand in front of you until the best legal outcome is achieved.

Understandably, the members of the Massachusetts Parole Board are on the receiving end of a lot of anger, even rage, in the wake of the December 26 2010 murder of Woburn police officer John B. Maguire by a freed convict.

By all official accounts, investigators say Domenic Cinelli fatally shot John Maquire during a robbery attempt. Those same officials describe Cinelli as a career criminal, who never should have been released by the Parole Board. Police chiefs from across Massachusetts, together with several state senators, ratcheted up the pressure on the state Parole Board yesterday, to both account for their November 2008 decision to release the career criminal who murdered Maguire, Domenic Cinelli, as well as call a halt to all parole hearings until a formal investigation reveals why and how Cinelli was released. About 75 police chiefs and several state senators – interestingly, from both sides of the aisle, joined in loudly condemning the Board’s actions in releasing Cinelli, and in calling for a halt to all future release hearings until the official investigation ordered by Governor Deval Patrick is completed.

These reactions from both the general public, public safety officials and elected politicians, is very, very understandable. I say this as someone who makes his living, in part, as a Boston criminal defense lawyer. Who can blame anyone for feeling this way?

“This is a responsible, measured action, and time is of the essence, to protect public safety,’’ commented state Senator Bruce E. Tarr, a Republican from Gloucester who is the Senate minority leader. “We all have been horrified.’’ Tarr’s calls were echoed by several Democrats who joined the State House press conference. Senate President Therese Murray has said that she also supports a moratorium on parole hearings. Senators at the press conference said they anticipated that the investigation ordered by Governor Patrick would be completed within a couple of weeks, but they do not want to allow scheduled parole hearings on Jan. 11, 20, and 25, in the event the review takes longer than anticipated. The governor’s office said later that it had suspended making decisions on inmates with life sentences as of last week, when the review was first announced. State law requires the Parole Board to conduct public hearings for convicts with life sentences 60 days prior to their parole eligibility dates. But executive sessions, which are where decisions on granting parole are made, have been suspended. Therefore, no additional inmates will be released until this inquiry is completed, and until any agreed-upon recommendations are implemented within the Parole Board. However, John Grossman, undersecretary for the Massachusetts Executive Office of Public Safety, said that the public portion of the parole hearings have not been suspended, because victims and their family members have previously made lengthy travel plans to attend them in some cases.

In commenting forcefully, Charles Maguire, a retired probation officer who is the victim’s brother, said that “a 3-year-old’’ would have known that Cinelli, 57, had a violent criminal record and that he posed a threat to public safety. He said his brother John was dedicated to the police force and that “his whole life was there, he loved it.’’ Woburn Mayor Scott D. Galvin has called for the resignations of all Parole Board members. Northborough Police Chief Mark Leahy, president of the Massachusetts Chiefs of Police Association, made his anger clear, saying that “if every member of the Parole Board resigned, I’d be very happy about that.’’ Leahy said that Cinelli earned “seemingly every merit badge you can earn in the corrections system . . . any clear-thinking person’’ should have understood that he posed a threat. “If it’s predictable, it’s preventable,’’ he said.

As a Dedham, Massachusetts criminal defense lawyer, I understand where these feelings come from. And I support a temporary moratorium on future decision by the Parole Board until a thorough review is completed, and recommended changes are implemented. I would only ask an angry public to realize that because this has happened, we cannot in good conscience halt any and all future consideration of all parole applications. Believe it or not, some convicts pay their debt to society responsibly, and wish to return to an active, productive life within society. Many convicts are not incarcerated for violent offenses, as was Cinelli, and they deserve to be at least heard.

But clearly, it seems someone or several people in charge dropped the ball here, and tragically so. Important changes need to be made. Let’s make sure this doesn’t happen again. Let’s proceeded carefully, and prudently. But let’s not destroy any sense of fairness or criminal justice in the process.