Boston Criminal Attorney Blog

Today’s post is a real story about limits - in life, professionally and personally. Before I say anything else, let me emphasize the obvious: I’m a criminal defense lawyer. I make my living, in part, by powerfully and aggressively defending clients who are accused of crimes. I fight to the end for my clients. Philosophically, I’ve always cherished the constitutional presumption of innocence in our country, and I believe that presumption should never be diminished in any way. All that being said, there are also times when I believe that if a defendant has committed multiple offenses for a specific act (such as drunk driving,) and has received multiple convictions or other findings tantamount to a guilty plea on those offenses, then he or she is arrested yet again for the same offense, the time comes when that person must own up to their problem, and pay the price that the courts have decreed is appropriate for that offense. As a Boston criminal defense lawyer, I can tell you that this type of situation is most often witnessed in OUI/alcohol and sex offenses.

Which brings us to today’s topic. Within the state senate in Massachusetts (a body not known for the sterling reputations of all who have been elected to it,) there is a certain state senator by the name of Anthony D. Galluccio, who stands out as a poster boy for the “Enough Is Enough” doctrine I referred to above. Galluccio, a Cambridge Democrat, has previous to today’s date been convicted twice of Massachusetts drunk driving/OUI charges. Subsequent to those convictions, in December 2005 he also caused a four-car accident in downtown Boston at 2:00 AM. Following that incident, a clerk-magistrate ruled that he had been drinking, but could not find sufficient evidence to legally support a charge of driving under the influence of alcohol. File that under “lucky break.”

Predictably, it gets worse: Just two months ago, in October, Gallucio was charged with leaving the scene of a car accident, in which he rear-ended a minivan carrying a family of four, resulting in a 13-year-old boy and his father suffering minor injuries. Just prior to that accident, a bartender in Cambridge, where Galluccio had been drinking, called Cambridge police to request that Galluccio be driven home, as the caller felt Galluccio was was too inebriated to drive. Notwithstanding, Galluccio refused to comment on whether he had been drinking before the October crash, telling reporters only that, “I cannot overstate how regretful I am,’’ and that, “I made a firm decision that there will be no alcohol in my life.’’ As a result of that incident, this past Friday, Galluccio, 42, was sentenced to six months of home confinement and to two years of supervised probation. He was required to avoid all alcohol use, and required to submit to random testing for alcohol use.

Aside from the usual random urine tests for alcohol, his probation agreement required him to use a handheld electronic device called a “Sobrietor”, which allows probation officials to monitor his blood alcohol content while he is at home, through the use of that device. (The device is essentially a breathalyzer similar to the ones used roadside by police, except that it transmits and measures the breath sample over a modem installed in the person’s home.) Also as part of that judgment, Galluccio lost his driver’s license for five years, was ordered to pay a $1,000 fine, ordered to undergo alcohol treatment, and attend a half-day workshop by the Brain Injury Association. The one exception to his home confinement sentence, was that he was allowed to leave home to attend church on Sundays, and to travel to Boston to cast a vote in the state Senate, when needed. The terms of his probation stipulated clearly that if Galluccio violated any term of his probation, he could be sentenced to up to a year in a county jail.

Given that the October incident he was charged with was Galluccio’s fourth incident allegedly involving alcohol, as a Dedham Massachusetts OUI attorney, I can attest that this disposition was extremely lenient. Prosecutors had called for Galluccio to serve jail time. He escaped that. One would think that this sentence would do the trick, but not so. Just days after this rather lenient sentence, Galluccio failed several breathalyzer tests administered through the Sobrietor at his home. That’s bad enough, but what follows is worse: Galluccio has claimed that his toothpaste caused the breathalyzer to record alcohol. Yes, that’s correct. “My toothpaste did it.” Galluccio issued a statement claiming that the breathalyzer recorded low-level alcohol readings as a result of his toothpaste, to wit: Colgate Total Whitening and Sensodyne Toothpaste. He said he arrived at that determination after consulting (read “desperately seeking”) a doctor (read” “any doctor”), who pointed out that these toothpastes both contain sorbitol, a sugar alcohol that has been reported to trigger positive breathalyzer results.

Full disclosure: This argument is not without legal precedent. It’s never been successful, but it has been tried. In 2006, a firefighter in Arkansas fought his punishment for testing positive on a breathalyzer by producing a chemist to testify that the mints he ate contained sorbitol, which “could have” caused his positive test result. The legal outcome? Thumbs down - and Galluccio failed to mention that in his most recent press release proclaiming his innocence on this latest offense.

As a Norfolk County, Massachusetts criminal defense attorney, in my professional opinion, this latest claim stretches credulity beyond the breaking point, and it poses an interesting professional question of when a defense lawyer should re-think accepting a client who clearly has a serious addiction problem, and who clearly poses a threat to public safety. Zealous defense of my clients is a trait I'm known for - and I'm proud of it. But at some point, a lawyer must make a decision in a case like this, a decision that will serve the client, protect the public, and allow the attorney to sleep at night.

In my next post, I’ll discuss what happens next legally – which will serve as a good backgrounder on probation violation hearings.

What I’m going to write about today will be of interest to not only Massachusetts OUI lawyers such as myself, but to anyone who drives in Massachusetts. Previously, on July 1 of this year, I blogged about a case that was handed down by the United States Supreme Court earlier this year. While I didn’t cite that case by name in that blog, it was Commonwealth v. Melendez-Diaz. In that ruling, the U.S. Supreme Court held that lab reports offered as evidence by prosecutors to prove the chemical composition of substances that it (the prosecution) claimed were illegal drugs, would in the future require the in-person testimony at trial, of the lab technician(s) who actually tested the substance. This ruling was substantial for persons accused of Massachusetts drug crimes, as prior to this ruling, the prosecution needed to introduce only a certificate from the State Police Crime Laboratory, showing that the substance tested was a certain drug.

From that ruling forward, prosecutors would have to bring the specific lab technician who tested the substance into court, to allow the defense to cross-examine him or her as to various aspects of the testing, of their own qualifications and experience, the testing equipment used, etc., etc. The core of the U.S. Supreme Court’s reasoning in this case, was that “Confrontation Clause” of the U.S. Constitution, which requires the appearance of live witnesses who are testifying against a defendant, would be violated without the in-court testimony of the actual lab technician who conducted the drug testing. The decision was widely criticized by prosecutors not only in Massachusetts, but across the nation. (Notably, it was Massachusetts Attorney General Martha Coakley who argued – and lost - the case for the state of Massachusetts.) From the day the decision was handed down, prosecutors have argued that the requirement of personally producing state lab technicians to testify in person about these types of illegal drug possession and drug trafficking cases, would grind prosecutions to a halt: The argument was that District Attorneys’ offices across the state simply prosecute too many of these cases to be saddled with this “burden”.

Recently, things just got a lot more interesting in the Massachusetts criminal court system – and may get even more so in the next few months You see, the ruling on lab technicians in Melendez-Diaz, had been limited to cases where drug samples had been tested by state lab officials, in cases specifically involving Massachusetts illegal drug possession and distribution charges. But last month, in a Marlborough District Court case involving Massachusetts OUI charges, things took an interesting turn. First, some background: The case name is Commonwealth v. Parmenter ,and the defendant, one Brian Parmenter, had been in a motorcycle accident that resulted in severe injuries to him and his passenger. Though Parmenter appeared dead at the scene, a nurse who happened to live near the accident was able to revive him. Parmenter was taken to a hospital, and during his emergency room treatment, blood was drawn by hospital personnel and tested for alcohol for medical reasons.

Importantly, his blood was not tested for alcohol at the request of police or law enforcement authorities. Parmenter was eventually charged with Massachusetts drunk driving/OUI offenses, and prosecutors obtained a warrant for his medical records and test results. Prosecutors obtained these medical records, for the purpose of introducing those records at trial to prove that his blood alcohol level at the time of the accident was .09 or higher (the state limit is .08 – any higher than that, and there is a “per se” presumption in Massachusetts, that an operator was legally impaired.) In what was no surprise to me as a Norfolk County Massachusetts OUI attorney, the prosecution did not intend to call the phlebotomist who conducted the blood test. (No surprise, because prosecutors usually don't call technicians to the stand in Massachusetts OUI cases. Normally, they just have the arresting police officer testify as to Breathalyzer test results .)

This is where things get interesting: Parmenter’s lawyer filed what is called a “Motion in Limine” (which is a motion made at the start of a trial requesting that the judge rule that certain evidence may not be introduced in trial,) in which he argued that, per the Supreme Court’s ruling in Melendez-Diaz, the hospital blood test could not be admitted without live testimony from the medical technician who either drew the blood or tested it.

In my next post, I’ll explain what happened from there, and what these developments may mean for persons arrested for Massachusetts OUI offenses.

Continue reading "Supreme Court Ruling on Drug Prosecutions Applied to Massachusetts OUI Case: Part 1 of 2" »

Drunk driving and other criminal charges have been filed against a 22-year-old Falmouth man who was allegedly operating under the influence of alcohol in last month’s fatal car accident on County Road, in Bourne, Massachusetts, according to police authorities. Jonathan Muir was charged in Barnstable District Court with motor vehicle homicide, motor vehicle homicide while operating under the influence of alcohol, two counts of causing serious bodily injury while operating under the influence of alcohol, operating negligently to endanger, operating under the influence of alcohol, speeding, and a marked lane violation, according to the Bourne Police Department.

Police allege that Muir was driving a 1984 Porsche when it veered off County Road in Bourne and slammed into a tree around 1:30 a.m. on June 29. The car crash killed passenger Cassandra Flynn-Rakos, a 21-year-old Bourne resident and nursing student at Fitchburg State College. Muir and two other passengers, Erica Pouler and Sonya Dangelo, both 21, of Bourne, were seriously injured in the car accident. Muir could face up to 15 years in prison and $5,000 in fines for the motor vehicle homicide charge while under the influence, according to Massachusetts General Laws, or up to 2 1/2 years for motor vehicle homicide. Muir, who moved to Falmouth from Meridian, Connecticut, allegedly has a history of driving infractions in both Massachusetts and in Connecticut, according to registry records from both states. Muir lost his license for almost a year for failing to complete a driver training course in Connecticut within the required time. He was ordered to take the course after being convicted of speeding and driving an unregistered vehicle in April 2007.

He ultimately finished the course, paid the fines and his license was reinstated in July 2008. Following this motor vehicle accident, the Massachusetts Registry of Motor Vehicles immediately and indefinitely revoked Muir’s driver’s license.

This story, like so many others, is a tragic one. As a Massachusetts drunk driving defense lawyer, I can attest to seeing far too many of these cases. But it’s important to remember that this individual is entitled to his day in court to explain what happened and be provided with a vigorous criminal defense. Representing persons accused of OUI/DWI charges and other criminal offenses is what we specialize in at the Law Offices of William D. Kickham and Associates. If you or someone you know has been arrested for Massachusetts drunk driving or OUI/DWI charges, you need the best lawyer you can find to represent you on these charges – because you can’t rebuild the rest of your life, until you’ve first addressed these criminal charges. Call us, we can help.

The Law Offices of William D. Kickham and Associates represents persons accused of OUI, DWI, and several other criminal offenses in Massachusetts. We specialize in criminal defense, and provide coverage in all courts in eastern Massachusetts. If you or someone you know has been arrested or accused or a crime in Massachusetts, call us.

Here’s an interesting decision handed down from the Massachusetts Appeals Court recently. Seems a Barnstable District Court judge overstepped his authority in 2007 when he unilaterally upgraded, or beefed up, the charges that the Commonwealth had tried a defendant on involving a 2006 motor vehicle fatality on Cape Cod. The Cape and Island District Attorney’s office had charged the defendant, Gerard Williams, of Cotuit, with vehicular homicide while operating under the influence of alcohol, and also charged him with a separate count of operating a motor vehicle to endanger. After a jury-waived bench trial before Barnstable District Court judge Don Carpenter, the judge found the defendant guilty on the charge of operating a motor vehicle to endanger in the death of William Armstrong, 43, of Hyannis.

Armstrong was killed when his motorcycle collided with Williams’ car on Route 28 in West Yarmouth. On the more serious charge of vehicular homicide while operating under the influence of alcohol, the judge found Williams not guilty. This was chiefly due to the fact that the defendant’s .079 blood alcohol level – a fraction below the .08 legal limit for driving, as well as his four failed field sobriety tests – were ruled not admissible as evidence.

Citing his opinion that the defendant drove negligently in causing the accident, the judge decided to add a new, separate offense of negligent motor vehicle homicide, to the underlying guilty finding of operating to endanger conviction, and sentenced the defendant based on that new charge and finding. One reason that’s so important? On the “operating to endanger conviction,” a drivers’ license is typically suspended 60 days. Upon a conviction of motor vehicle homicide, drivers’ licenses are suspended for 15 years.

The three-judge Appeals Court panel found Carpenter’s change in the charges to be substantive because, among other reasons, the new vehicular homicide statute carries a more severe maximum sentence. Based on that finding, the panel found Carpenter was “without authority” to make the change.

So the Appeals Court’s message to lower court judges seems to be: While a hotel or an airline can make unilateral “upgrades” on their own, judges, thankfully, can’t.