Massachusetts Criminal Defense Attorney Blog

The Law Offices Of Stephen Neyman Succeeds In Reversing Restraining Order

July 21, 2008 | by Stephen Neyman Criminal Lawyers

On January 12, 2007 a college student applied ex parte for and obtained a restraining order pursuant to G.L. c. 209A. Her supporting affidavit stated that earlier that day the defendant, also a college student verbally harrassed her, calling her names and using profanities. Her affidavit further stated that the two had dated for two and one half years and broken up on two occasions. The complainant had not seen the defendant in over 5 months. He had however been contacting her electronically.

The judge scheduled a date for the defendant to be heard and to defend against the allegations. At the time the defendant was represented by an excellent well respected Boston lawyer. Through cross-examination the lawyer clarified that there had been no contact between the parties for 6 months. Significantly, in response to a voicemail the complainant called the defendant herself. Three times he hung up on her endeavoring to avoid any contact. The defendant’s lawyer presented cell phone records to confirm this fact. Nevertheless, the judge extended the restraining order.

The defendant called our office seeking to reverse the order and clear his name. Attorney Neyman appealed the ruling and on July 17, 2008 the Massachusetts Appeals Court reversed the lower court’s order. Slip Opinion July 17, 2008, WL 2756567. It further ordered that all records of the erroneous order be destroyed.

Drug Trafficking Conviction Reversed Where Defendant Did Not Sign Written Waiver Of Jury Trial

July 20, 2008 | by Stephen Neyman Criminal Lawyers

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.

Blood Alcohol Results In OUI Case Thrown Out Due To Improper Administration Of Breathalyzer Test

July 17, 2008 | by Stephen Neyman Criminal Lawyers

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.