William D. Kickham
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Governor Charlie Baker filed a bill this past Wednesday adopting a state panel’s recommendations to deal with police stops of drivers suspected of being impaired due to cannabis use. Even though I’m a very serious safety advocate, as a Massachusetts OUI/DWI attorney, I have one major objection to this bill, as presently written.

The Special Commission on Impaired Driving, which is part of the Massachusetts Cannabis Control Commission was created within the law that legalized recreational marijuana use. It made 19 recommendations that were almost passed unanimously, with the one dissenter on the commission being the American Civil Liberties Union (ACLU). I don’t normally agree with the ACLU on a variety of legal issues, but as a Massachusetts drugged driving lawyer I believe the ACLU’s objection here is sound. Essentially, that objection is based in scientific research that has fairly convincingly established three important points: 1) While marijuana does impair operating a motor vehicle, the level of impairment is closer to distracted driving – far less than the impairment posed by drunk driving; 2) Currently, no medical or scientific tests exist which can accurately measure a driver’s level of impairment while using marijuana, in the manner that a breathalyzer can measure with alcohol. That’s because there is no clinical correlation between the level of THC in a person’s bloodstream (cannabis’ main psychoactive compound) and a level of impairment. Most experts say that such tests are most likely three to five years away from commercial use. 3) Presently, any blood tests for cannabis can only reveal past marijuana use, not present impairment. THC remains in the bloodstream for days after use – thus, you could be blood-tested for pot use today, not have used it for several previous days, and yet it would appear “present” in your blood test. This could lead to innocent people who were not impaired at all by pot while driving, being convicted and punished.

This is extremely important because, under the bill’s proposals, if drivers who are stopped by police and suspected of being stoned, refuse police demands for a biological (blood) test, they would lose their driver’s licenses for at least six months – the same penalty for suspected drunk drivers that refuse to take a breathalyzer test. On this point, the Massachusetts ACLU chapter has commented that “Motorists shouldn’t be faced with losing their license for refusal to submit to a test that does not measure impairment,” That point, I agree with. However, as the ACLU is want to do, they also stated, “In addition, this [penalty of six month loss of drivers license if a driver refused a chemical test for pot] could exacerbate the problem of racial disparities in enforcement.” That point, I disagree with (one more example of the ACLU never seeing a public safety law that it didn’t oppose.)

In my immediately preceding post on this subject, I discussed the background of how it was discovered that a high number number of breathalyzer test results in Massachusetts OUI/DUI cases across the state, were tainted by failures by the Massachusetts Office of Alcohol Testing (OAT) to either make sure that their testing equipment was calibrated properly, as well as that office intentionally withholding exculpatory evidence in a variety of OUI prosecutions. All this litigation began back in 2015, and a decision was ordered in February 2017, which mandated that breath test results prior to September 2014 be presumptively excluded at OUI prosecutions in cases within the affected date range, since OAT had not established written protocols for the annual certification of the Drager Alcotest 9510 units, which are the most common breathalyzer machines used by police departments across Massachusetts. When the attorneys who brought the suit discovered that the court did not have the exculpatory documents from the OAT when the February 2017 ruling was made, the defendants’ attorneys filed a motion to re-open the case, and consider what sanctions against the Commonwealth were appropriate. Judge Brennan then asked the parties to meet and try to negotiate a resolution to the motion, and a settlement was negotiated, signed by all prosecutors offices, and accepted by the court in May of 2017. Continue reading

As I’ve reported on previously in this blog, the office within the Massachusetts Department of Public Safety & Security that is responsible for the maintenance and annual certification of Breathalyzer machines used by police departments in Massachusetts – the Office of Alcohol Testing (OAT) – has for over two years been embroiled in a scandal over its inability to properly conduct alcohol breath tests in OUI/DUI cases. In fact, certain attorneys who regularly defend Massachusetts OUI/DUI cases discovered that patterns were emerging over two years ago with these breath test results, after they studied a variety of the alcohol testing worksheets that were provided to the court by OAT, Based on those suspicious test results, Springfield Atty. Joe Bernard filed a motion for sanctions (penalties) against the Commonwealth, citing the Commonwealth’s intentional withholding of exculpatory (i.e., potentially exonerating) evidence, on behalf of selected Massachusetts OUI/DUI defendants. The suit against the Commonwealth that these attorneys brought, alleged that OAT had intentionally withheld virtually all of the annual Draeger Alcotest 9510 certifications – some 432 of them – that had failed to produce passing results.

Stunningly, it was discovered that OAT was doing this all over the state. It’s important to clarify a key point here: None of the 13 separate county District Attorneys’ offices across Massachusetts appeared to be aware of what was being done by OAT, nor is there any evidence that any prosecutors cooperated with OAT to produce these false test results. Procedurally, it’s important to understand how breathalyzer tests are used in a Massachusetts DUI/OUI case: Once a police officer administers a breathalyzer test to a driver, if that breath test result indicates that the operator registered a .08 or higher Blood Alcohol Content (BAC), and the operator is then arrested and prosecuted for drunk driving, the breath test result becomes the key evidence in plea negotiations or trial. The annual certification is employed to make sure that the machine results are correct. What was discovered in the litigation surrounding the Draeger Alcotest 9510, was that OAT, for 20% of those certifications, had intentionally and widely withheld problem certification results, to heighten the likelihood of convictions. A central focus of this litigation were these withheld alcohol testing worksheets, which are supposed to provide a foundation for each breathalyzer test result produced by OAT. The litigation surrounding this issue was consolidated before a single judge of the District Court Department, Judge Robert Brennan, for ultimate resolution.

Let me make an important point here, as a Massachusetts OUI/DUI defense attorney: While I fight tooth and nail for all my criminal defense clients – in all kinds of criminal defense cases – I also believe that law enforcement has a right and a responsibility to keep us all safe when driving on the roads in Massachusetts. Every state has that right and responsibility. It’s very possible that you are alive and well and reading this post, because a drunk driver was pulled off the road at some point in your past, who might have otherwise hit you or a loved one. So I do not oppose reasonable laws that are enforced responsibly and legally, as they are intended to. But when government agencies intentionally break the law and falsify documents in order to convict people that might otherwise be proven innocent of a criminal charge, that is entirely unacceptable, and those responsible must be made accountable, and the entire system re-vamped to assure that future such actions do not occur.

Here we are:  The end of another year.  Or, as John Lennon once wrote, “Another year over, a new one just begun” (at least, a few hours from now.)  I thought of what to say to my readers as a Boston criminal defense lawyer on this final day of the year?   There a lot of things I could talk about, each at some length:  Massachusetts domestic violence charges; Massachusetts drug charges; Massachusetts sex offense charges; Massachusetts larceny charges; Massachusetts show-cause hearings, on and on.   But there’ll be plenty of time to talk about those important topics, and of how everyday people can become charged with these crimes, a few days from now, in the new year.

Right now, I want to talk about how readers can start the new year positively and intelligently – today.  Whatever you do today or tonight at New Year’s Eve festivities – whether in public facilities, restaurants, nightclubs or private homes – do not drive after drinking alcohol.  One drink within 90 minutes can leave some people legally impaired – i.e., registering a blood alcohol level (BAC) of .08 or higher.  Of course, police checkpoints – visible and hidden – will be everywhere in Massachusetts tonight – and this exponentially increases drivers’ chances of being arrested for operating while under the influence.  These seen and unseen police patrols are necessary and appropriate to assure everyone’s safety.  But even if an intoxicated driver weren’t caught by police, no such driver should consider that a “win”:  It’s still quite bad.  It’s downright foolish conduct to drive any motor vehicle after having had more than one drink over a 75-90 minute period – a single beer, glass of wine, or cocktail.  All of these contain the same amount of alcohol, and all can impair a driver’s perception, reaction and response time.   And that impairment can mean the difference between life and death – potentially your own,or worse, an innocent person. Courting this kind of terrible risk is simply not worth a “buzz.”

As a Boston OUI defense lawyer, I fight tooth and nail for my clients – guarding their every legal right at every stage of the prosecution.  But that’s after an arrest has been made:  After you’ve been charged and your life has been turned upside- down.   No one really wants to have to go through that kind of stress and financial expense.  So start the year off smart:  If you’re going to drink tonight — or take part in any marijuana (that’s another legal topic that I’ll be discussing soon, with the expanded roll-out of Massachusetts recreational pot shops), get a designated driver first:  Someone who swears off on having a single drink or toke.  If you can’t find a designated driver, call Lyft or Uber.  Both ride-sharing services have special programs for New Year’s Eve, that provide discounted rides for New Year’s Eve and New Year’s Day.  Click here to learn more.

My previous post on this subject discussed new regulations proposed by U.S. Education Secretary Betsy Devos, for use by colleges and universities that investigate allegations of sexual abuse, sexual assault or sexual harassment by students. Under the proposal, fewer allegations would be considered “sexual harassment”, and colleges and universities would be responsible for investigating only incidents that are related to campus programs and activities, that were reported to school authorities. Importantly, schools would be allowed to apply a higher legal standard when weighing evidence, than the lower standard of “preponderance of the evidence” that was encouraged by the Obama administration. I thoroughly endorse this change, as the correct evidentiary standard to apply when considering such serious criminal allegations, is, as anyone who has ever watched a crime show on TV or read a legal thriller is aware, “Beyond a Reasonable Doubt.”  Keeping that higher standard of evidence is critical when such serious accusations of sex crimes are leveled at a student.

Another major change in the proposed federal regulations, allows defense attorneys representing accused students, to cross-examine accusers and witnesses. As a Boston sex crimes defense attorney, I was stunned that the Obama administration would ever suggest the elimination of this central procedural safeguard. How anyone could ever claim to argue that any investigative process could ever reflect due process, or be substantively fair in any way without allowing the accuser to be cross-examined, is beyond me. This procedural right is central to any investigative or adjudicative process to ferret out the truth of any given criminal charges, and that this fundamental right was ever abandoned, was an outrage.  Shamefully, but not surprisingly, the association representing university presidents, the American Council on Education, has issued statements actually criticizing the restoration of this fundamental procedural safeguard when investigating or prosecuting accusations of criminal conduct. One excerpt of their comments: “[Restoring the process of cross-examination] goes too far in incorporating legal concepts into a school disciplinary setting. This would permit one student to hire a highly paid legal pit bull to grill another student in a campus disciplinary hearing. We are not courts. I’m not sure we should try to act like courts.” Continue reading

U.S. Secretary of Education Betsy Devos earlier today released a long-awaited series of formal proposals for how colleges and universities respond to accusations of “sexual assault” and conduct investigations into such incidents. The proposed revisions would update “guidance recommendations” previously put in place buy the Obama administration, and predictably, Democrats and “#MeToo activists”, howled their opposition, claiming the proposal would allow, perhaps even encourage, sexual assailants to prey on college campuses everywhere as well as allow schools to evade civil liability.

This is no surprise, as these “women’s rights activists” will never cease at their un-reasoned exercises in hyperbole and extremism, when ever anyone has the audacity to disagree with their imbalanced ideas of legal due process and, even, basic fair play. The proposed regulations originate from a 1972 federal law called Title IX, which was initially passed to prevent sex discrimination at colleges and universities that receive federal funding. Most of the law’s focus is on universities, but it also applies to and any other schools that receive federal monies.   The Obama administration had previously issued “guidance” to schools, which wildly favored accusers and nearly stripped accused students of almost any meaningful legal protections provided by the U.S. constitution.  Obama’s Education Department was able to accomplish this end-run around procedure, because their recommendations to schools were made outside the normally-required formal rule-making process.  The result?  Those “guidance recommendations” threw out almost any meaningful substantive and procedural legal rights for anyone accused of sexual assault — and furthermore, under the Obama “guidelines” – the definition of “sexual assault” was broadened so wide as to subject almost anyone to such an accusation.  Predictably, before reading any further, left-leaning feminist activists will interpret this post to be “anti-women” – or, to employ the prevailing lexicon they so favor, “misogynist”.  Not, neither this post, not any of my opinions, are “anti-women”:  They are pro-due process; they are pro-fairness; they are in favor of determining the truth in any given circumstance – not conducting a kangaroo court to satisfy the loudest protect group of the moment.

Employing the Obama administration’s “guidelines” (vs. formal rules), allowed Obama’s Education Department to essentially manufacture new proceedings that had no basis in any relevant statute or Supreme Court opinion.  Again, these “guidelines” – which despite being called “guidelines”, almost every campus in America adopted given the fact that over 95% of them are bastions of liberal thought, were the ultimate in an end-run around appropriate federal protocol. They were the product of militant feminist “activists”, who never cease in their proclamations of victim-hood and “oppression” – even in an era when women occupy, justifiably and with good reason, some of the most powerful positions in the country – in law, in government, in commerce & business, in medicine, in academia, and more.  These activists simply never cease their drumbeat of trying to convince people that every woman, everywhere, is oppressed, abused economically, and sexually pursued and harassed, wherever they go.  Odd – I don’t see that in any of the women I know, of a variety of ages, professions and backgrounds – and I’ve asked many women I know for their opinions on this subject.  Yet we’re told by militant feminists that this conduct is ubiquitous; omnipresent; everywhere, universal; constant.  Really?  As a Massachusetts criminal defense attorney who is in the courts every day, this sounds more to me like the dying breaths of once-active organizations like the National Organization for Women, which given all the advancements made in women’s interests, are now largely irrelevant, but to avoid a natural death, continue to declare otherwise through such dramatic claims of “oppression, everywhere”

Today’s post concerns Massachusetts sex assault accusations and charges – and I want to be very judicious and careful in what I’m going to say here. Sex assault and rape charges are very serious, and should therefore should not be dismissed lightly. As part of this reality, more than a few people can sometimes ask me, “Why do you defend people who are accused of sex assaults?” My answer is usually easy:  “Because they may be innocent, and they are entitled to a legal defense.”

Before going any further, I’m going to say something very sincerely, and I want my readers to know that I mean it 100 per cent: I have all the sympathy, and indeed, empathy, for anyone who advances a credible, believable claim of sexual abuse, indecent assault & battery, or rape by another person.  Man or woman. Young or old.  Of any background whatsoever.  But when such accusations are made, and the accused’s life, liberty and welfare are on the line, such accusations must be supported by persuasive, compelling testimony.   Just because someone is accused of sexual assault or rape, does not automatically mean that they are guilty of having done so.  Over many years in my career as a Massachusetts sex crimes defense attorney, I can’t (and obviously never would, due to attorney-client privilege issues), tell you of how many clients I have defended who have been accused of some type of sex offense – and yet they were entirely innocent of those crimes. Continue reading

I was interviewed by the Boston Globe yesterday about the testimony that unfolded before the U.S. Senate Judiciary Committee surrounding Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court. Before going any further, I’m going to say something very sincerely, and I want my readers to know that mean it 100 per cent: I have all the sympathy, and yes, empathy, for anyone who advances a credible, believable claim of sexual abuse, indecent assault & battery, or rape by another person.  Man or woman.  Young or old.   Any background whatsoever.   But when such accusations are made, and the accused’s life and welfare are on the line – never mind the stakes involved in the instant matter with the Supreme Court such accusations must be supported by persuasive, compelling testimony produced by the critical procedural element of cross-examination. If not, they remain what we have here, now: Uncorroborated accusations.

Let me also get something else – something very important – out of the way now: I direct this specific comment to the radical elements of the #MeToo movement, who denigrate and assassinate the characters and motives of anyone who dares to disagree with them, or call into question their motives about matters involving allegations of sexual abuse:  Such people are immediately maligned by militant feminists as being fossilized, backward thinking relics of 50+ years ago – the intellectual and social equivalents of knuckle-dragging troglodytes. And one word never spared in their attacks on anyone who has the audacity to disagree with them?  “Misogynist”, of course.  (“Women-hater” is often thrown in for good measure.)  To those militants I say:  Save it – That won’t work with me. That’s because I see people as gender-neutral. I don’t judge people based on gender, or ethnicity, or anything else other than their deeds and actions; in the words of MLK, “The content of their character.”  Trite, isn’t it? But I happen to firmly believe in that ideal.

Dr. Christine Blase Ford gave some emotionally riveting testimony yesterday. From my distance, it seems quite possible that something happened to her in her past, involving some kind of sexual assault. And if that is so, anyone with any decency, compassion or empathy would feel for her. But amidst all the drama raised by her testimony, here are facts that collectively pose inescapable problems with her testimony:

Reacting to several recent tragedies where criminal defendants killed police officers and innocent civilians while they were free on bail before trial, Gov. Charlie Baker filed legislation last Thursday that would make it easier for judges to keep in jail dangerous defendants that are charged with felony offenses.

Baker’s bill largely focuses on the state’s “Dangerousness Statute”, M.G.L. Ch. 276 Sec. 58A, which allows District Attorneys to request a “Dangerousness Hearing” where prosecutors ask a judge to hold a defendant in custody while that defendant awaits trial, instead of releasing the defendant.

Under the governor’s proposal, the list of crimes that trigger the prosecution’s right to a dangerousness hearing would be expanded to include assault and battery against a police officer, several additional sex crimes, as well as human trafficking.  Another important change the bill proposes, is that judges would not be prohibited, as they are now, from taking into account a defendant’s criminal history when making his or her ruling on the issue of a defendant’s dangerousness.  That’s a major change.  In addition, prosecutors would be allowed to seek a dangerousness hearing at any stage during a criminal case. Presently, if the prosecution wants to requests a dangerousness hearing, it can only do so only at the defendant’s arraignment, not later – so it has only one chance to ask a judge to hold a defendant in jail before trial. The governor’s bill would expand that ability. Continue reading

My post today requires an important caveat at the start. It concerns Massachusetts drunk driving charges – and I want to be very judicious and careful in writing this material. I don’t want my readers to take away the wrong message from it. So I will reiterate what I have said many times before, in writing and in comments to the media: Drunk driving, driving while intoxicated, driving while impaired, or any of several other terms of art commonly utilized to describe driving drunk or drugged, is NOT “okay.” It is NOT acceptable. And in my view as a Massachusetts OUI defense lawyer,aside from important legal issues, it is not morally acceptable to knowingly drive while drunk or chemically impaired. To do so while knowingly impaired, can be the moral equivalent of saying, “Yes, I could kill someone with this one-ton construction of steel and glass, but I don’t care – I’ve got someplace to go.”

Thus, I want to be very judicious here, and not send the wrong message about drinking and driving being in any way “okay.”  However, it is also a very important fact that many, many people are stopped and arrested by Massachusetts police departments every month and year, and charged with drunk driving when they were not legally drunk at the time they were arrested.  Every defendant accused of a crime deserves a vigorous and zealous defense, and that includes such drunk defendants, as well.

At this time last year, I wrote of how a dedicated group of Massachusetts criminal defense attorneys had exposed a cover-up involving defects surrounding the most common breathalyzer machine used by the majority of Massachusetts Police Departments. The cover-up wasn’t initiated or participated in by any of the state’s 11 District Attorneys’ offices across Massachusetts. Ultimately, it turned out that the Massachusetts Office of Alcohol Testing (OAT) was responsible for attempting to cover-up widespread failures of the Drager 9510 Breathalyzer, which has been the most commonly used breathalyzer in Massachusetts for several years. The story broke in 2015, when the Massachusetts Executive Office of Public Safety office first acknowledged that “some” breathalyzers were flawed.