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After a jury waived trial the defendant was convicted of two counts of cocaine trafficking in the Superior Court.  He appealed his conviction claiming that his waiver of his right to a jury trial was not effective in that he never signed the waiver form. 

G.L. c. 263 sec. 6 provides criminal defendants with the right to have their case heard by a judge or a jury.  The exception applies to capital cases and to cases in which there are co-defendants and one of the co-defendants elects to proceed before a jury.  Massachusetts Rule of Criminal Procedure 19(a) reflects this rule as well.  In 2006 the Supreme Judicial Court reviewed this issue and concluded that absence of the written waiver is fatal to the conviction.  See Commonwealth v. Osborne, 445 Mass. 776 (2006).  The Court in Osborne reasoned that G.L. c. 263 sec. 6 was designed to provide a record that persons waiving their constitutional right to a trial by jury were doing so in an informed manner.  It was further held that adhering to the letter of the statute would protect the defendant from falsely or accidentally waiving his or her constitutional rights. 

The decision of whether or not to proceed with a jury or a judge is not to be taken likely.  There are times when an objective determination of guilt or innocense by a jury is unlikely.  This can be the function of an unsympathetic defendant or a repugnant accusation.  In these situations your choice of lawyers is critical.  A lawyer’s familliarity with the judges is essential to the determination of whether to have your case tried with or without a jury. 

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The defendant was charged with OUI.  He took and failed a breathalyzer test.  He then filed and argued a motion to suppress the results of the breathalyzer test claiming that the test was improperly administered.  The trial judge allowed the motion to suppress and the prosecution appealed the ruling. The Massachusetts Appeals Court heard the appeal and affirmed the trial judge’s decision.

Code of Massachusetts Regulations (CMR) Sec. 2.55 advises that the test operator observe the defendant for a period of fifteen minutes prior to administering the test.  The regulation is designed to ensure that the suspect is not doing anything that might adversely effect the accuracy of the test.  For example, people experiencing reflux might burp or hiccough thereby bringing up from the stomache food or drink.  This action could provide a false positive result.  The regulation was designed to prevent this from occurring.  Massachusetts courts have ruled that it is not necessary that the observation actually occur in the breathalyzer room.  Rather, the observation can occur during the stop of the defendant, the administration of any field sobriety tests and during transport to the police station. 

In this case the officer who administered the test believed that the fifteen minute waiting period was for the purpose of letting the breathalyzer machine warm up.  He never offered his observations, particularly whether he observed a contaminating event.  Rather, he talked about the events that transpired and provided time estimates as to each event. 

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