Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

MASSACHUSETTS VEHICULAR HOMICIDE LAW REVEALS INEQUALITY IN ITS ENFORCEMENT AND ATTORNEY SAM REALLY RETURNS TO REGULAR BLOGGING (PART TWO)

When I have been able to blog over the past few weeks, we have been discussing cases involving Massachusetts motor vehicle crimes. In particular, vehicular homicide cases involving negligent operation as a result of the driver falling asleep or otherwise losing consciousness. The two prior postings on this subject can be located at my posting of June 26th and July 7th.

You may think that I am making up the fact that the Commonwealth is prosecuting these cases of negligence as crimes despite the existing civil litigation.

I’m not.

Actually, our fearless leaders in the Massachusetts legislature have been working to make falling asleep while driving a crime in and of itself. Over the past few years, various statutes dealing with “drowsy drivers” have been debated.

Legislative efforts to reduce the number of drowsy drivers on the road are energized the result of various new findings in research, not the least of which are those that show the negative impacts of sleep deprivation.

An example of recent legislative attempts in 2014 would be SB 1688. It would create a new commission to study the impact of drowsy driving on state highways and require drivers wishing to obtain or renew a commercial drivers license with a body mass index of greater than 33 kg/m2 to undergo a screening for sleep apnea. It would further require the Department of Motor Vehicles to include education about the effects of sleep deprivation and driving as part of a drivers license application; creates a new standard for impaired driving if the driver has been awake for 22 of the past 24 hours or 140 of the past 168 hours.


One might wonder whether such new laws are necessary when the current ones are selectively prosecuted. For example, while the accident which led to my recent trial recounted in my last posting was in its early stages, Norfolk District Attorney Michael W. Morrissey was involved in a four-car crash of his own in Milton. Nobody died, but people were hospitalized.

The cause? District Attorney Morrissey lost consciousness while driving. He indicated that he had “fainted”.

In other words, he lost consciousness, which led to “inattentive driving”.

Interestingly, the local clerk magistrate’s office decided not to issue a complaint against him.

No, that does not mean that the prosecutor was found not to be at fault, of course. As a spokesperson for the state trial courts released, “District Attorney Morrissey was found responsible on a civil matter of failure to stay within marked lanes and a $100 fine was imposed.”

In other words, he broke the law negligently while driving.

According to the medical records of the prosecutor, he “suffered from a vasovagal syncope, which caused me to lose control of my vehicle.” A vasovagal syncope is a fainting spell usually caused by the body’s overreaction to certain triggers, like emotional distress, according to the Mayo Clinic. Morrissey added that he thought it was “a result of dehydration and fatigue on one of the hottest days of the year.”

In other words, he drove aware he was feeling fatigued, stressed and dehydrated.

Gee, that’s odd. The entire Commonwealth theory which put my client in front of jury was that he 1) fell asleep, which caused “inattentive driving”) and/or 2) that my client (despite no evidence to support the claim) was knew he was tired and so should have foreseen he might fall asleep.

Why was my client criminally liable and DA Morrissey was not?

Thank God for jurors!

Perhaps the problem would be better dealt with by putting serious thought behind how we enforce, nor not enforce, the laws already on the books instead of creating new laws which are needless, unenforceable and will also be twisted like pretzels to…particular situations.

What does all this mean to YOU?

Read me again…tomorrow when we will finish this topic (for now).

For the full story upon which this blog is based, please go to: http://www.lowellsun.com/news/ci_26081375/townsend-man-found-not-guilty-mv-homicide#ixzz36lyLLJqz
, http://www.ncsl.org/research/transportation/summaries-of-current-drowsy-driving-laws.aspx#current and http://www.bostonglobe.com/metro/2013/08/19/norfolk-michael-morrissey-quincy-court-for-closed-door-hearing-milton-crash/MT1IIJQ3Ei0YyuDkgEYYVM/story.html

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