William D. Kickham
William D. Kickham
William D. Kickham
William D. Kickham
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Whether and what kind of sobriety tests would be allowed in court to prosecute drivers suspected of operating while under the influence of marijuana, was a question just waiting to be answered from the moment pot was legalized in Massachusetts – whether for medical or recreational use.  Well, the legal community now has the first such indication of those legal boundaries.

In a decision released just two days ago, the Massachusetts Supreme Judicial Court (SJC) unanimously restricted the ability of police officers to testify as to their own, subjective opinions of whether or not a given suspect was driving under the influence of pot.  Before going further, some quick contrast is needed here to explain what evidence is allowed in Massachusetts OUI/DUI alcohol cases:  In traditional DUI arrests, officers typically require the driver to perform what are called Field Sobriety Tests (“FST’s”), which consist of various tests such as walking heel-to-toe, reciting the alphabet, standing on one leg, and an additional test known as a Horizontal gaze nystagmus test, which measures the responsiveness of the eyes to a moving object such as a pen.  All of these are scientifically accepted indicators of alcohol intoxication.  If a suspect fails those tests, an officer may testify in court that the defendant failed the tests.  However, in this important decision, the court ruled that, due to the fact that there is as of present date no scientific consensus that these Roadside Sobriety Tests can definitively prove that a person is intoxicated by marijuana, the court limited what an officer can testify to on the stand. Continue reading

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As I’ve said many times, people often ask me how I can defend certain types of clients accused of crimes such as, for example, drunk driving or sex offenses.  And I give them the same answer, every time:  “Because my client might be innocent.”

Just yesterday, (August 23 2017,) the Massachusetts District Attorneys Association, the statewide association representing the 14 county-based District Attorneys Offices across Massachusetts, announced that until further notice, their prosecutors would no longer use alcohol breathalyzer tests (“breath tests”) in current or future Massachusetts OUI/DUI cases.  Why?  That’s where, as a Boston and Wrentham Massachusetts OUI defense attorney, my constant answer above, becomes “Exhibit ‘A’”. Continue reading

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By now most people are aware that Gov. Charlie Baker recently signed the House-Senate Conference Committee bill on the new pot law, which hammered out differences the two chambers wanted to make in the ballot law that voters passed last November, legalizing recreational use of cannabis in Massachusetts for persons age 21 and older.  Here are the details on the provisions of the new law:

Limits on homegrown and personal possession of marijuana :  Anyone over 21 years of age can possess 10 ounces of cannabis inside their primary residence, and a maximum of up to 12 marijuana plants in the home.  Outside the home, the possession limit is 1 ounce, or not more than 5 grams of marijuana concentrate.  A person can also gift up to 1 ounce to another person. For persons under 21, it is also now no longer a crime for them to grow cannabis in their home.  If they are found to do so by police (a situation rather hard to envision,) they will face a civil offense if found to possess less than two ounces of pot, whether found inside or outside their residence.  Possession of more than 2 ounces does remain a crime for persons under 21.  However, if anyone under the age of 18 is found to possess less than two 2 ounces of pot, in addition to a civil fine the minor will be required to complete a drug education program. Continue reading

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Here in Massachusetts and indeed across the country, most of the public who have watched the sick and twisted saga of the murder of young Bella Bond, are understandably outraged at the extremely lenient sentence that the dead girl’s mother, Rachelle Bond, was given today by a Massachusetts Superior Court judge.  That sentence?  Time already served while incarcerated in this matter – approximately 2 years – plus 2 years of probation & drug monitoring.  She will walk free by this Friday, into a rehab program at a halfway house. Continue reading

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Predictably, the Michelle Carter verdict, my legal analysis of which I posted previously, has dominated both public discourse as well as legal debate over the last couple of days.  And with equal predictability, this debate has broken down along lines of civil liberties groups (such as the ACLU,) as well as so called “cyber rights” and “social media/internet free speech” groups, loudly criticizing it.  Critical re-emphasis of the contextual facts of this case, validating the judge’s verdict, is much needed here.

Those who disagree with this judge’s decision, base their positions on largely these two bases:

  • That because Massachusetts does not currently have a specific statute on the books criminalizing the act of “encouraging” a person to commit suicide, the judge’s finding is without legal foundation. This claim is entirely false as a matter of law, as I will discuss below.
Continue reading

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The long and painful saga of the trial of Michelle Carter, charged with Involuntary Manslaughter in the 2014 suicide death of her 18 year-old “boyfriend” Carter Roy III, is not completely finished.  Not on a legal level, because Carter has yet to be sentenced – that will come later.  And on a personal level, the case will in reality never be “finished” – not for the two families involved in this story of pathos and “progress” (i.e., technological.)  Certainly not for several others affected by it, either.

For it is a fact that a collision of forces took place in this young man’s death:  A combination of mental illness in the form of depression, of homicidal animus, and, yes, of moral decay within a society where the most intimate of relationships – including marriage – and now, yes, life itself- are ended by something called a smartphone.  Yes, this case is an indictment and a conviction of one person – Michelle Carter – for the suicidal death of Conrad Roy III.  But our society as a whole can be indicted here, as well:  For reducing the value of human life and human interaction to something so shallow and cowardly as an electronic text. Continue reading

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Just a couple of days ago, a man was arrested and charged with serious felony counts on Massachusetts drug charges, in Lawrence District Court.  Except this case is rather unique.  You see, this defendant didn’t end up in handcuffs or court in the usual way:  Being arrested by the police.  He ended up in jail because his 11 year-old son called the police on his father – effectively, turning him in.

The boy the called Lawrence Massachusetts Police Department on his father, Yamil Mercado, after allegedly seeing his father deal drugs out of their home there.  Mercado reportedly surrendered to police last Thursday, one day after the boy called police to say that he and his 13-year-old cousin had found what they believed were drugs in the father’s luggage, according to a police report. The boy reportedly also told police that he’d witnesses his father in a drug deal just a day few days earlier. Continue reading

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A lot has been reported in the media and debated since Aaron Hernandez – by all present appearances – committed suicide this past Wednesday.  Most of the debate has surrounded the public’s confusion over this business that Hernandez’ suicide means that he was “not guilty” over the murder of Odin Lloyd (which of course, he was convicted of in April 2015.)

So, what’s this all about?  A very old and little-used Massachusetts law, that’s what.  Its formal name is“abatement ab initio,” and it loosely translates to “removed from the beginning.”  It is a common law which has its roots in British law, when Massachusetts was still a British colony. The legal rationale behind this law was that, since it was possible that someone’s conviction might have been  legally defective in some manner, that person should have the right of a full appeal – and that if some intervening event prevented that appeal (such as the convict’s death,) then the person’s name should be legally “cleared.”   Massachusetts is only one of a handful of states in the U.S. that either still have this common law on the books, or that still recognize it as valid.  Many states have either modified it in some manner, or nullified its applicability to present cases.  In all of the states that have nullified this doctrine, it’s been done so in the name of the rights of crime victims.  It’s not hard to see why. Continue reading

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By now readers of this blog know that just a couple of days ago, the state of Massachusetts – through the Department of Public Utilities’ Transportation Division – pulled off the road more than 8,000 drivers for ride-hailing services such as Uber and Lyft.  Reason:  These people failed state background checks – but the worst part was that these drivers had already passed background checks run on them by Uber and Lyft.     Suffice to say, a very serious problem. Continue reading

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We live in the Age of Information; the Age of the smartphone.  An age in which the activities of almost every citizen are monitored by sources both public and private  – including your own cell phone, debit cards and credit cards.

Some examples we may not care to think about, but as a Massachusetts criminal defense lawyer, I can assure you of the following:  Your vehicle is tracked by video cameras run by government – local, state and federal government agencies –at intersections, on the Massachusetts Turnpike, and many highways.  Your own smart phone monitors your locations, tracking you wherever you go and whenever you go.  Numerous apps that you might use on your phone also – perhaps unbeknownst to you – track your movements and location.  When you are stopped at roadside by a police officer, an increasing number of police cruisers record the stop on both video and audio, via either dash-cameras or body cameras.  When you pay for a product at a store with a debit or credit card, that card also tracks where you were, and when. Your movements inside the store are recorded by video cameras.  Your movements outside the store are also being video recorded. Continue reading

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