OUI Law - Mass Court Allows Extraterritorial Arrest Under Inevitable Discovery Doctrine

In Commonwealth v. Lahey, --- N.E.2d ----, Mass.App.Ct. , 2011 WL 4790770 (Mass.App.Ct.) a police officer who was outside his jurisdiction, and returning to his territory following an ambulance escort to a hospital, came across a drunk driver travelling in the oncoming lanes, who ran him off the road. He turned around, caught up to the car, and ultimately arrested the individual for DUI. A police officer from the correct town was less than one minute away as a result of a dispatch he had received regarding the same vehicle.
On appeal, the court found that the original stop of the vehicle was improper, as it was an extrajurisdictional arrest by an officer without authority. The court also found that, even though the driver had 7 DUIs and therefore was committing a felony, the stop was not authorized under the felony exception to the law, since the cop had no knowledge of the priors until later. The appeals court also found that there was no community caretaking exception to the extrajurisdictional arrest doctrine, and held that it was up to the legislature to so carve an exception.
However, the appeals court did find that suppression was not available, under the inevitable discovery doctrine. The court found that the proper arresting authority, being so close to the event and having been specifically dispatched to the area for the purpose of finding the drunk driver, would have inevitably stopped and arrested the same.
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OUI Law - MA Law on Juror Replacement During Deliberations

In today's case the issue involved the replacement of a juror during deliberations. In Commonwealth v. Cameron, Slip Copy, 2011 WL 3341091 (Table) (Mass.App.Ct.) during jury deliberations, the trial judge dismissed a juror because of a communication problem raised by other jurors. The defendant appealed upon two grounds: (1) that the judge discharged the juror without good cause in violation of the defendant's due process rights; and (2) that the judge's failure to instruct the remaining jurors on the reason for the discharge prejudiced the defendant.







The appeals court found no error:







"The trial judge did not abuse his discretion when he removed Mr. B because he had language problems. Mr. B admitted that he was having difficulty understanding the deliberations. When the judge asked Mr. B whether he did not feel fluent enough, Mr. B's response—“To make a decide this case”—permitted the trial judge to find that Mr. B had problems with the English language. See Commonwealth v. Leftwich, 430 Mass. 865, 873 (2000) (noting that inability to perform functions of juror must be supported by record). An inability to speak and understand the English language disqualifies a person from jury service; thus it is good cause for discharge. See G.L. c. 234A, § 4; Commonwealth v. Acen, 396 Mass. 472, 479 (1986) (“It is unquestionable that an ability to speak English is a relevant and important qualification for jurors”). Additionally, the language problem was obviously personal to Mr. B and unrelated to the issues of the case."







As to instructing the other jurors as to the reason for discharge, the law on that issue in MA states:







“If a juror is discharged and an alternate substituted, the jury should be instructed not only to begin deliberations anew ... but also that the reason for discharge is entirely personal and has nothing to do with the discharged juror's views on the case or his relationship with his fellow jurors.” Commonwealth v. Connor, 392 Mass. at 845–846. However, “[a] judge is not required in every case to adhere to the precise language ... used in Commonwealth v. Connor.” Commonwealth v. Zimmerman, supra at 151. Some circumstances that surround the discharge of a deliberating juror “will leave no room for speculation as to the reason for the discharge, such that the failure to give a Connor instruction is not error.” Ibid .







The appeals court found no actual error. "This case presents the circumstances which do not require the Connor instruction. The reason for the discharge was obvious to all the jurors. The judge was informed that “several” jurors were having difficulty communicating with Mr. B. In each individual colloquy, the judge confirmed the issue by referencing a difficulty in communicating with Mr. B."

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OUI Appeal - Mass. Court Says Registry Records Violate Confrontation Clause

In our 3rd installment of a 3-day series on government records - admissibility and confrontation - is a case provided by Lloyd Boyer and Thomas Workman. In Commonwealth v. Parenteau, the Supreme Court of Massachusetts held that certain RMV records were admitted in violation of the Confrontation Clause. The document in question was actually a certificate from the registry of motor vehicles (registry) attesting to the fact that a notice of license suspension or revocation was mailed to the defendant, Peter L. Parenteau, on May 2, 2007:

"The thrust of the defendant's argument is that the admission in evidence of the registry certificate, in the absence of testimony from a registry witness, violated his right to confrontation under the Sixth Amendment. The defendant contends that the certificate was created exclusively for trial so the Commonwealth could prove a fact necessary to convict him, namely, that he had been notified of the ten-year revocation of his driver's license. Because he challenged such notice, the defendant continues, any attested document that served as evidence to the contrary was a testimonial statement that was subject to cross-examination. We agree."

The court discussed the basic confrontation clause prohibition:

"[T]he United States Supreme Court held that the out-of-court "[t]estimonial" statements of a witness are inadmissible at trial except where the witness is unavailable and the defendant had a prior opportunity for cross-examination. The Court stated that the confrontation clause applies to "witnesses" against the accused, "in other words, those who 'bear testimony.' " Id. at 51, quoting 2 N. Webster, An American Dictionary of the English Language (1828). " 'Testimony,' in turn, is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' " Crawford v. Washington, supra, quoting Webster, supra. Although the Supreme Court declined to articulate a "comprehensive definition" of "testimonial" statements, Crawford, supra at 68, it did describe various formulations of the "core class" of such statements:

"[ (1) ] ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially[; (2) ] 'extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions'[; or (3) ] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."

Explaining why this particular document violated the confrontation clause (as opposed to other RMV records), the court explained:

"We conclude that the registry certificate, like a certificate of drug analysis, is testimonial in nature. It is a solemn declaration made by the registrar for the purpose of establishing the fact that a notice of license revocation was mailed to the defendant on May 2, 2007, and, by inference, was received by him. The registry certificate was dated July 24, 2009, nearly two months after the criminal complaint for operating a motor vehicle after license revocation had issued against the defendant. As such, it plainly was made for use at the defendant's trial as prima facie evidence that he was notified of his license revocation, an essential element of the charged crime that the Commonwealth was required to prove. The certificate did not simply attest to the existence and authenticity of records kept by the registry but made a factual representation based on those records that a particular action had been performed--notice had been mailed on a specified date. See, e.g., State v. Jasper, 158 Wash.App. 518, 531-532 (2010) (affidavit from legal custodian of driving records attesting that records showed that defendant's driver's license was suspended on particular day was testimonial for confrontation clause purposes). The mere existence of a copy of the notice of license revocation in the registrar's files did not, in and of itself, constitute proof that it was mailed to the defendant. Because the certificate is a testimonial statement, its admission at trial in the absence of testimony from a registry witness violated the defendant's Sixth Amendment right to confrontation."

In rejecting the State's argument that the attestation was a business record, the court stated:

"[T]he Court pointed out in Melendez-Diaz, supra at 2538, that business records are not admissible at trial "if the regularly conducted business activity is the production of evidence for use at trial." See Palmer v. Hoffman, 318 U.S. 109, 114 (1943) (holding that accident report provided by railroad company employee did not qualify as business record where essentially prepared for use "in litigating, not in railroading"). It followed, therefore, that a clerk "was permitted 'to certify to the correctness of a copy of a record kept in his office,' but had 'no authority to furnish, as evidence for the trial of a lawsuit, his interpretation of what the record contains or shows, or to certify to its substance or effect.' " Melendez-Diaz, supra at 2539, quoting State v. Wilson, 141 La. 404, 409 (1917). The Court in Melendez-Diaz further explained that "[b]usiness and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because--having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial-- they are not testimonial." Melendez-Diaz, supra at 2539-2540. See Commonwealth v. Weeks, 77 Mass.App.Ct. 1, 5-7 (2010) (holding that admission in evidence of certified copies of docket sheets of defendant's prior convictions did not violate defendant's Sixth Amendment right to confrontation because such records are not testimonial). Thus, when determining the admissibility of a particular business record, a court must examine carefully the purpose for which it was created. See id. at 5.

"We agree with the Commonwealth that the actual notice of the defendant's license revocation, dated May 2, 2007, constitutes a business record of the registry, created and kept in the ordinary course of its affairs. [FN9] However, there is no evidence of the existence of a contemporaneous business record showing that the notice was mailed on that date. If such a record had been created at the time the notice was mailed and preserved by the registry as part of the administration of its regular business affairs, then it would have been admissible at trial. That would have been the correct procedure for the admission of a business record from the registry. Here, however, the only evidence that the notice was mailed to the defendant is the registry certificate dated July 24, 2009, three months before trial, attesting to that fact. Such certificate was not created as part of the administration of the registry's regular business affairs, but for the purpose of establishing an essential fact at trial. Accordingly, the registry certificate did not constitute a nontestimonial business record."

Concluding that the admission of the certificate of service was improperly admitted, the court reversed the conviction and remanded for further proceedings.


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OUI Appeal - Mass. Court Bars Probation Records Under Confrontation Clause

There appears to be a plethora of decisions recently involving the use and admission of certain records of prior convictions maintained by state agencies. Over the next 3 days, DAD will feature these decisions. Today's decision was provided by NCDD member Greg Oberhauser. In Commonwealth v. Ellis 10-P-419, the defendant was convicted of his fourth OUI offense.

The defendant's primary appellate challenges revolved around the admission of RMV records and of probation records of the South Boston Division of the District Court Department [FN1] during the subsequent offense trial. By exhibit A-1, the Commonwealth moved to introduce the certified docket of a 1990 conviction from that court to prove that the defendant previously had been convicted of OUI as a third offense. See Commonwealth v. Bowden, 447 Mass. 593, 599 (2006) ("A judgment of conviction for a third offense may appropriately be relied on to establish culpability for the first two offenses"). By exhibit A-2, the Commonwealth also moved to introduce a 2008 document entitled "Certification of Probation Information and Prior OUI Offense" and signed by an officer of that court's probation department who did not testify at trial. The probation document, among other things, indicated that a Norman A. Ellis, Jr., of a certain date of birth, address, and Social Security number, had been convicted in 1990 of OUI as a third offense. Finally, by exhibit A-6, the Commonwealth moved to enter various RMV records, whose preparers did not testify, as evidence of the defendant's identity as the prior offender. The defendant did not object to the certified conviction record, but did object to the RMV record and the probation certification based on the confrontation clause of the Sixth Amendment to the United States Constitution. The trial judge admitted all three exhibits.

On appeal, the court addressed the admissibility of exhibit A-1, the certified conviction record, the court stated:

"Certified court records of conviction are admissible under a hearsay exception for business records. Moreover, "[b]usiness and public records are generally admissible absent confrontation ... because-- having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial--they are not testimonial" (citing to Melendez-Diaz, 129 S.Ct. at 2539-2540)

With regard to exhibit A-2, the probation record, the court held:

"[T]here was error under Melendez-Diaz in the admission of the probation certification. This record does not qualify as a nontestimonial business record under Melendez-Diaz. Rather, this record, which was generated on June 24, 2008, has every appearance of having been prepared in anticipation of litigation--the litigation being the defendant's criminal trial for OUI as a fourth offense, which is the subject of this appeal. [FN6] In fact, the certification is addressed, as if it were a memorandum, to the assistant district attorney who would be the prosecutor. A record such as this, even if generated in the ordinary course of probation department business, is "prepared specifically for use at [the defendant's] trial" and is testimonial, "[w]hether or not [it] qualif[ies] as [a] business or official record[ ]." Melendez-Diaz, 129 S.Ct. at 2540. See Commonwealth v. Shangkuan, 78 Mass.App.Ct. at 832."

With regard to exhibit A-6, the Registry of Motor Vehicles (RMV) records, the court held:

"The defendant objected at trial to, and challenges in this appeal, the introduction of the RMV records. The contention that there was a Melendez-Diaz error in admission of these registry records, which list motor vehicle registration history, is unavailing. The registration records are kept in the ordinary course of the business of the RMV and were admissible as business records and as summaries of records regularly maintained by the registry of motor vehicles. * * * Unlike the certificates at issue in Melendez-Diaz, which are created solely to prove an element of the prosecution's case, RMV records are maintained independent of any prosecutorial purpose and are therefore admissible in evidence as ordinary business records under G.L. c. 233, § 78, as well as pursuant to G.L. c. 233, § 76")."

In affirming the conviction, the trial court concluded that:

"Notwithstanding the Melendez-Diaz error in the admission of exhibit A-2, the probation certification, we conclude that the introduction was harmless beyond a reasonable doubt because a certified copy of the conviction was introduced as exhibit A-1."

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DWI Appeal - Mass. Court Rules On Confrontation and Hospital Alcohol Testing

This case comes to DAD thanks to Tom Workman. In Commonwealth v. --- N.E.2d ----, Mass.App.Ct. , 2011 WL 2279076 (Mass.App.Ct.) the court decided issues relating to the confrontation clause and the use of hospital records to prove up a blood alcohol test taken for medical purposes, and also the admissibility of a 911 call from an anonymous source under the confrontation clause.

The defendant claimed three errors relating to the uncontested admission of his hospital records under authority of G.L. c. 233, § 79. First, he contended that their admission violated the very terms of the statute because their measurement of his blood alcohol content effectively referred to the ultimate question of his criminal liability. Second, he argued that the unavailability of the hospital record keeper at trial for cross-examination upon the accuracy of the certification of the records deprived him of his right of confrontation under the Sixth Amendment to the United States Constitution. Finally, he characterized the trial defense counsel's failure to object to the admission of the medical records as constitutionally ineffective assistance of counsel.

At trial, pursuant to G.L. c. 233, § 79, the Commonwealth introduced in evidence a copy of the defendant's hospital records and a signed form from a South Shore Hospital record keeper certifying “that the attached medical record is a true and accurate copy of the original documents.” The records contained a toxicology report. The Commonwealth then called toxicologist Donovan to explain the significance of the report. She described the process by which blood analysts use a person's serum alcohol level to calculate blood alcohol content. From the defendant's hospital toxicology report, she described his ethanol serum level as 303 milligrams per decileter. From that datum, she calculated that the defendant's blood alcohol content by weight on the night of the accident to have been between .256 and .270 percent, a level more than three times the legal limit.

In pertinent part, G.L. c. 233, § 79, as appearing in St.1959, c. 200, provides as follows:

“Records kept by hospitals ... may be admitted by the court, in its discretion, as evidence ... so far as such records relate to the treatment and medical history of such cases ... but nothing therein contained shall be admissible as evidence which has reference to the question of liability ”
The trial court first found that the records were admissible under the statute, and did not constitute "illegal references to liability.

Discussing the law in this area, the court stated:

"Objectively determinable facts resulting from medical tests and procedures conducted for diagnostic and treatment purposes and appearing in hospital records submitted under the statute may obviously bear on the ultimate question of civil or criminal liability but do not constitute improper allegations, opinions, or conclusions about liability. Subjective impressions or expressions about fault or guilt may not come in through such records. Trial judges will typically filter them out of the records. That material constitutes the forbidden “reference to the question of liability.” See Commonwealth v. Dargon, 457 Mass. 387, 394–395, 930 N.E.2d 707 (2010), and cases cited. See Mass. G. Evid. § 803(6)(B) & note at 260–262 (2011). By contrast, objective data constitute reliable information helpful to the fact finder upon issues of a technical medical nature. The test is the distinction between “a conclusory fact central to the jury's inquiry” and “physical observations from which inculpatory inferences flow.” Id. at 395, 930 N.E.2d 707, quoting from Commonwealth v. Baldwin, 24 Mass.App.Ct. 200, 202, 509 N.E.2d 4 (1987).

The court then held that the blood alcohol test reading belongs to the latter category of “physical observations.”

As far as confrontation, the defendant challenged not the introduction of the substance of the hospital records, but rather their certification by the hospital record keeper. He imputed a testimonial character to the certification of the accuracy of the record. The court stated as follows:

"The certification form has some testimonial characteristics. The keeper of the records signed the form under the pains and penalties of perjury, and created the form in response to a subpoena. However, in Melendez–Diaz v. Massachusetts, supra at 2538–2539, the United States Supreme Court made an explicit exception for “a clerk's certificate authenticating an official record—or a copy thereof—for use as evidence.” Id. at 2538. The Court acknowledged that this type of affidavit is “prepared for use at trial,” but held that the confrontation clause does not apply because such an affidavit merely “certif[ies] to the correctness of a copy of a record” and does not “furnish, as evidence for the trial of a lawsuit, [an] interpretation of what the record contains or shows, or ... certify to its substance or effect.” Id. at 2539, quoting from State v. Wilson, 141 La. 404, 409, 75 So. 95 (1917). See Commonwealth v. McMullin, 76 Mass.App.Ct. 904, 904, 923 N.E.2d 1062 (2010) (rejecting the defendant's argument that he suffered a deprivation of his confrontation rights because he did not have the opportunity to cross-examine the creator of an affidavit certifying records from the Registry of Motor Vehicles).

Holding that there was no confrontation clause violation, the court held that:

"It is clear that the certification form in the present case belongs within this categorical exception. The form certifies that the hospital furnished accurate copies of the defendant's medical records. The form does not vouch for the substance of those records as an accurate representation of the defendant's condition on the night of the accident."

With regard to the issue oif whether admission of the 911 call violated the confrontation clause, the court stated as follows:

"Did the introduction of reference to statements from unknown 911 telephone callers deprive the defendant of his right to confrontation under either the Sixth Amendment or art. 12 of the Massachusetts Declaration of Rights? FN8 Those provisions protect a defendant against the admission of out-of-court testimonial statements. Out-of-court statements “primarily aimed at enabling ‘police assistance to meet an ongoing emergency’ ” are not testimonial. Commonwealth v. Nesbitt, 452 Mass. 236, 248, 892 N.E.2d 299 (2008), quoting from Davis v. Washington, 547 U.S. 813, 828, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). In our circumstances, the 911 telephone callers were alerting the police to an ongoing threat posed by a conspicuously dangerous driver. They were urgent, and not testimonial, communications. See State v. Torelli, 103 Conn.App. 646, 658–662, 931 A.2d 337 (2007) (911 telephone calls reporting erratic driving are not testimonial, citing Davis v. Washington, supra at 822). No constitutional error occurred."

Since the court found that the admission of the evidence was lawful (or in some respects not discussed herein was 'harmless'), the court also denied the ineffective assistance claim and the conviction was affirmed.


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OUI Appeal - Driveway Not Public Way Says Mass Court

Some states only apply drunken driving laws to 'public ways' or 'highways' or 'public places'. Massachusetts restricts their law to a way to which members of public have access as invitees or licensees. In Commonwealth v. Virgilio, --- N.E.2d ----, Mass.App.Ct. , 2011 WL 1988395 (Mass.App.Ct.) the defendants vehicle was located on the driveway that is used by only two houses to reach their respective parking places. The court found that such a driveway was not a 'public way' within the meaning of the statute, and reversed the conviction:

"In no case brought to our attention has mere physical accessibility by one operating a motor vehicle and who is not a trespasser been deemed minimally sufficient, as matter of law, to qualify as a “way or place to which members of the public have access as invitees or licensees.” G.L. c. 90, § 24(1)( a )(1). See Smithson, supra (where the court found that the characteristics of the road on a holiday weekend were not such that members of the public could reasonably infer they had an invitation to travel despite the fact the public had physical access to the road). Here, in our view, the facts beyond its physical accessibility by nontrespassers, namely, that the driveway and parking area were shared by and accessible to the occupants and guests of two residential buildings, are not sufficient to bring these places under the statute's reach. To decide otherwise would be to essentially overrule the requirement that, in cases such as this, members of the public must be able to reasonably conclude, from the physical circumstances of the way, that it is open for travel to invitees or licensees. Doing so would read the word “public” out of the statute or treat as superfluous this word of limitation included by the Legislature, or add words to a statute beyond those the Legislature has chosen to include."

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DUI Appeal - Massachusetts Use of Medical Records to Beat Sobriety Tests

Commonwealth v. Gawlik, Jr. 2011 WL 1450346 In this short decision, the defendant argued that his attorney was constitutionally ineffective for failing to introduce available medical records to establish is inability to pass the field sobriety tests. The appeals court noted that in Massachusetts, a defendant may use medical records to supply a basis for failing to complete (or pass) field sobriety testing (see Commonwealth v. Schutte, 52 Mass.App.Ct. 796, 800 (2001)). Although counsel did not use the actual medical records, he did elicit uncontested evidence on cross examination about the defendant's ailments. Holding that the attorney's decision NOT to use the records could have been a tactical decision (i.e. the records might have revealed prejudicial information such as drug abuse or alcoholism) the appeals court affirmed the conviction.

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DUI Appeal - Massachusetts Drunk Driving, Refusing Field Tests, Admissibility

This case comes to DAD courtesy of Mass attorney and expert Tom Workman. In Commonwealth of Massachusetts v. Beaulieu, 09-P-1565 (2011), the defendant appealed his conviction claiming, amongst other things, that the introduction of evidence that he had refused field sobriety tests was error. It is well established that evidence of a defendant's refusal to perform field sobriety tests is inadmissible under art. 12 of the Massachusetts Declaration of Rights. Commonwealth v. Curley, 78 Mass.App.Ct. 163, 167 n. 11 (2010), citing Commonwealth v. McGrail, 419 Mass. 774, 779-780 (1995).



Defense counsel, unfortunately, pursued a defense that suggested that the officer had failed to conduct a thorough investigation. Defense counsel in his opening statement described in considerable detail the field sobriety tests that police officers typically request an individual to perform after being stopped on suspicion of operating a motor vehicle while under the influence of alcohol. Defense counsel informed the jury that the purpose of the tests is to determine if the person is intoxicated, and if the performance is satisfactory, the person is not arrested. The jury then was informed by defense counsel, "Now, the police officer, notwithstanding the [weather] conditions, never asked my client to do any of these things, absolutely none of these things."

On cross-examination of the arresting officer, defense counsel asked the witness to describe the various field sobriety tests. After the witness complied, defense counsel asked the witness if he ever asked the defendant to perform the field sobriety tests. The witness responded that he indeed had asked the defendant to perform the tests.



Holding that the defense counsel had opened the door to otherwise inadmissible testimony, the appeals court upheld the introduction of evidence that the defendant refused.



Editors note: This case is a good example of what happens when an eager defense attorney goes 'one step too far.' Always avoid making a statement to the jury about a fact which, although legally suppressed, is untrue. Such conduct not only will destroy the defense counsel's credibility before that judge and that jury, but it likely also destroyed the defendant's chance at winning. Lastly, this is the type of conduct that could lead to licensing sanctions.



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