Massachusetts DUI Blog

Defendants in Massachusetts who are charged with subsequent offenses which carry enhanced penalties are entitled to a separate trial on the issue of whether the defendant is the same person named in the prior offense. A statute found in General Laws chapter 278, section 11A governs the procedure. It states, in relevant part: If a defendant pleads guilty or if there is a verdict or finding of guilty after trial, then before sentence is imposed, the defendant shall be further inquired of for a plea of guilty or not guilty to that portion of the complaint or indictment alleging that the crime charged is a second or subsequent offense. If he pleads guilty thereto, sentence shall be imposed; if he pleads not guilty thereto, he shall be entitled to a trial by jury of the issue of conviction of a prior offense, subject to all of the provisions of law governing criminal trials. A defendant may waive trial by jury. The court may, in its discretion, either hold the jury which returned the verdict of guilty of the crime, the trial of which was just completed, or it may order the impanelling of a new jury to try the issue of conviction of one or more prior offenses. Upon the return of a verdict, after the separate trial of the issue of conviction of one or more prior offenses, the court shall impose the sentence appropriate to said verdict.

In some DUI cases, the issue to be decided is not whether a defendant is guilty of the new offense, it is whether the Commonwealth is able to prove the prior offenses beyond a reasonable doubt. Sometimes, defendants admit guilt on the new offenses and go to trial on the priors alone. Given the lifetime look-back that Melanie’s Law introduced, the Commonwealth may be forced to rely upon old court records to prove the priors at this trial. And, where the proof is questionable as to the identity, or otherwise insufficient, the court or jury will be warranted in finding the defendant not guilty. Although the Registry of Motor Vehicles will count all convictions when calculating its license suspension, an acquittal on the subsequent offense trial can save defendants from mandatory terms of imprisonment.

Make sure that your DUI attorney knows how to protect your rights. Call Brooks & Crowley LLP today at 781-251-0555.

In the recent case of Padilla v. Kentucky, decided March 31, 2010 (read the full text of the opinion here), the United States Supreme Court held that an attorney’s failure to properly advise his client that a guilty plea carried a risk of deportation was a violation of the client’s Sixth Amendment right to counsel. This 7-2 decision means that, as a matter of federal law, counsel must correctly inform a client when a guilty plea carries a risk of deportation. Unlike past cases, where the Court stated that immigration consequences are a “collateral matter” and not directly related to the court’s disposition of a case, the Padilla Court stated that deportation is an “integral part” of the penalty that may be imposed on a non-citizen defendant who pleads guilty to specified crimes.

Padilla, a lawful United States resident for 40 years, pleaded guilty to drug charges in Kentucky after he was incorrectly advised by his attorney that he did not have to worry about deportation. In fact, Padilla’s deportation was mandatory under federal law. The Kentucky Supreme Court rejected Padilla’s claim of ineffective assistance of counsel on the grounds that deportation was a “collateral” matter. The Supreme Court reversed, holding that Padilla sufficiently alleged a constitutional violation, because deportation is “intimately related to the criminal process.”

While the prevailing viewpoint in Massachusetts is that first offense DUI convictions alone would not typically result in deportation proceedings in the absence of substantial aggravating factors, third or greater offense DUI’s are felonies under Massachusetts and federal law and certainly carry such a risk. For this reason, the immigration consequences of DUI convictions must be considered in all cases where deportation may result.

For Massachusetts prosecutors, proving prior DUI convictions has just gotten easier. In the recent case of Commonwealth v. McMullen, decided April 2, 2010, the Massachusetts Appeals Court held that prosecutors may use certified records from the Registry of Motor Vehicles and District Court in order to prove that a defendant had previously been convicted of operating under the influence. Also of significance, the court decided that the prosecutor did not need to show that the defendant was represented by an attorney (or waived his right to counsel) in the prior case before being able to use the conviction to enhance a sentence. Applying a legal fiction called the “presumption of regularity,” the court stated that a defendant is generally presumed to be represented, so the prosecution need not come forward with proof on the point unless the defendant first makes a showing that the conviction was obtained without representation by counsel.

This case ignores the reality of how some district courts conducted business prior to the 1994 inception of the so-called “green sheet” that the court promulgated in order to comply with Rule 12 of the Masachusetts criminal rules. Prior to the 1990′s, many judges failed to properly advise defendants of their due process rights, and DUI charges were often resolved by a sixty-second-long hearing at arraignment and $100 fine. Later, and long after the tape of the hearing was destroyed by court policy, the legislature decided to count all DUI offenses in a person’s life, not just the recent ones where the court would have necessary advised the defendant of his rights. This system, akin to changing the rules of a football game after all the downs have been played, hurts defendants because it hampers their ability to litigate the issue of whether the earlier conviction was constitutionally valid.

This situation often arises where there is an actual box on the first page of the official court docket that the court official is required to check, stating whether the defendant was advised of his right to counsel and whether he either had an attorney or properly waived his right. Many times, we see that this crucial box was left blank, and there is nothing noted on the docket that speaks to the issue. Unfortunately, a defendant is not allowed to assert any “presumption of regularity” to state the reality that often was the case in district court: that the docket correctly memorialized what took place.

Where the official court docket is silent on the question of whether a defendant had or waived an attorney, and no appearance of counsel is noted on the docket or in the court file, how is this proper evidence that an attorney was involved in the case? This is why I referred to the “presumption of regularity” as a legal fiction. It is my sincere hope that, although judges may be free to presume that an attorney was involved, despite the lack of any evidence that one in fact was, thoughtful judges will continue to decline to do so. If convictions long thought closed are going to be used to enhance penalties twenty five or more years later, resulting in exposure to mandatory jail sentences, then the court should require indefinite electronic storage of the recordings of these crucual hearings for later review, or in the alternative, be required to live with the information that is in its own official court records.

On April 2, 2010, the Massachusetts Appeals Court decided the case of Commonwealth v. Dale McMullen. On appeal from his conviction for a fourth offense operating under the influence, Mr. McMullen challenged the use by the prosecution of certified copies of Registry of Motor Vehicles and District Court records to prove that he had been convicted on three previous occasions. McMullen contended that the 2009 United States Supreme Court case of Melendez-Diaz v. Massachusetts should be interpreted to mean that his constitutional right to confront and cross-examine witnesses was violated by the use of only documents to prove the prior convictions. The Appeals Court disagreed, ruling that the records in question were created for the administration of the entity’s affairs, and not for purposes of proving a fact at trial. Since they were not testimonial in nature, the Sixth Amendment’s confrontation clause was not violated by their admission at the subsequent offense trial.

In Massachusetts, individuals convicted of DUI are entitled to a separate trial on the issue of whether they have been previously convicted of the same or similar offense. At the trial, the normal Massachusetts evidentiary standards apply, and the defendant is entitled to have a jury or judge hear the evidence. Since the two Supreme Court cases of Crawford v. Washington and Melendez-Diaz, both of which were favorable rulings for defendants, practitioners were hoping to expand these decisions to DUI cases and require live testimony on the issue of whether defendants had been convicted in the past of the same or similar offenses. Following the Appeals Court’s decision in McMullen, and unless the Massachusetts Supreme Judicial Court rules otherwise, prosecutors will not be required to produce live witnesses in order to prove prior offenses.