Daily Archives: February 4, 2020

SJC: Ask if Passenger Can Drive Before Impoundment

Police must ask an arrested driver whether they want a passenger to drive their vehicle to a safe location before authorities can decide whether it’s “reasonably necessary” to impound and conduct an inventory search, according to the Supreme Judicial Court. 

“We conclude that, where officers are aware that a passenger lawfully could assume custody of a vehicle, it is improper to impound the vehicle without first offering this option to the driver,” Justice Barbara A. Lenk wrote in a decision issued Monday. “Absent such an inquiry, the police cannot conclude that impoundment is ‘reasonably necessary.’”

Committee for Public Counsel Services appellate attorney Patrick Levin argued that the requirement for police to honor a practical alternative to impounding a vehicle “would be rendered meaningless if police were permitted simply to impound the vehicle without inquiring into an obvious, readily available alternative.”

Levin added that the police should have the burden to “make a reasonable inquiry” to the arrested individual’s wishes when there are alternatives to impoundment “readily apparent at the scene.”

Lawyers for the ACLU of Massachusetts and the Massachusetts Association of Criminal Defense Attorneys wrote an amicus brief siding with CPCS.

Randy Gioia Outlines Concerns about Videoconferencing

Randy Gioia

Defense attorneys across the Commonwealth have voiced concerns about the prospect of expanding the use of videoconferencing in criminal proceedings.

District Court Chief Justice Paul C. Dawley has been accepting comments on a draft standing order outlining the use of videoconferencing.

Randy Gioia, deputy chief counsel for the Committee for Public Counsel Services, explained his reservations about expanding the practice to Mass Lawyers Weekly for a recent article on the ongoing controversy:

Gioia said he appreciated Dawley’s willingness to listen to the bar’s concerns but fears the expansion of videoconferencing will be a “step backward” after great progress on criminal justice issues.

Gioia said he does not understand why judges look so favorably on a process that “detracts from the dignity of the court and dehumanizes the person on the other end of the screen.” …

Gioia noted that it is fairly common for a defendant in the courtroom to whisper to his attorney: “What the prosecutor said isn’t right. Here’s what really happened.”

But that conversation cannot happen with videoconferencing, at least not without a significant interruption of the proceedings, he said.

Theoretically, a judge could tell a defendant, “If at any time you need to say something to your lawyer, just let me know and I’ll stop the proceedings,” Gioia said. But he said he has never seen or heard of that happening.