The OUI Case You Shouldn’t Miss Out On!

        Wishing you a blessed day and a beautiful week ahead! This week, I want to bring before you an OUI case which was reversed on two counts and affirmed on one. I thought this case was interesting because I had no idea a breathalyzer, namely the Draeger machine, could be deemed unreliable. Breathalyzers are highly relied upon by police officers and play a major role in criminal convictions. An unreliable breathalyzer is counterproductive for the justice system. For those of you interested in Criminal Law, I especially think you will find this to be a great read.

        The Defendant was convicted after a jury trial on three counts: (1) operating a motor vehicle with a percentage, by weight, of alcohol in his blood of greater than 0.08, second offense, G.L.c. 90, Section 24(1)(a)(1); (2) leaving the scene of an accident with property damage, G.L.c. 90, Section 24(2)(a); and (3) negligent operation of a motor vehicle, G.L.c. 90, Section 24(2)(a). The Defendant appealed. 

        The Defendant was tried on two theories with regards to count one: (1) operating a motor vehicle with a percentage, by weight, of alcohol in his blood of 0.08 or greater; and (2) operating a motor vehicle under the influence of intoxicating liquor. The jury found the Defendant guilty on the first theory. The Defense argued that such a conviction on count one should be reversed because the Draeger machine that was used as a breathalyzer, was not reliable. 

       The Defendant was given the breathalyzer test at the Swansea Police Department using a “9510 Draeger machine” (Draeger machine). The Defendant voluntarily provided two samples, as required, to get a valid test result. The Draeger machine reported that the Defendant’s blood alcohol level was above the 0.08 legal limit. 

        The Defense argued that in light of their expert testimony, “A reasonable jury could not have found the results to have been accurate”, based on a prior Superior Court action that had challenged the reliability of the Draeger machine, and that, “There was insufficient evidence to support the jury’s finding that the Defendant had a blood alcohol percentage greater than 0.08.” The Commonwealth agreed that reversal of the Defendant’s per se theory of an OIU conviction should be reversed supported by the Superior Court ruling but they do not concede the evidence was insufficient. 

        The Appeals Court concluded that, “The verdict in this case cannot operate as either an acquittal or a conviction, and that consequently, double jeopardy principles do not bar the Defendant’s retrial on the impair operation theory”. The Court made this finding based on the case of Commonwealth v. Brown, 470 Mass. 595 (2015). Therefore, for the first count, the judgement was reversed the verdicts were set aside and judgement was entered for the Defendant. The court also stated the Defendant may be retried on this count. 

        The Defense then argued on the second count of “Leaving the scene of an accident with property damage”. The Defense argued that the Commonwealth presented insufficient evidence that the Defendant indeed committed the offense. Specifically, the Defense argued that the Commonwealth failed to prove that the property in question, a side guardrail off of I-195, was, in fact, damaged. There were no pictures nor any other evidence of the guardrail prior to the alleged offense.

           In conclusion, the Court reversed Defendant’s convictions on Counts one and two, and affirmed the decision on count three (article mainly focused on counts one and two). The Defendant was to be retried on the charge of driving while under the influence of intoxicating liquor. (Referenced MA Lawyers Weekly, V. 49, No. 30)

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      Do You Agree with the Judge’s Decision? Comment Down Below Your Thoughts on This Case!

All About Self-Motivation and Staying Focused - You Got This!

Here we are, 5 weeks into the Fall semester of 2020. How are you doing? The purpose of this post is to provide some encouragement, some positive vibes, and to remind you that you have what it takes to successfully make it through law school and thereafter, through life! You are here, you got accepted to law school and you’ve made it through this far, whether you’re a 1L, 2L, or 3L student. You would not even be here in the first place if you did not have the capability to handle 3 rigorous years of learning the law.

I’m going to tell you a story about myself. When I was a child, I knew I wanted to be a lawyer, I just knew. Whenever anyone would ask me what I wanted to be when I grow up, each time I would proudly say, “A lawyer!” That was not the typical answer a child would give, as it has nothing to do with unicorns, arts & crafts, or princesses. But I was just so sure of myself. Then as I grew older, many people questioned my career choice since I was known to be the “shy and sweet” girl. Sometimes it bothered me and made me question whether I was able to become a lawyer. After watching TV shows and movies entailing courtroom settings where lawyers would yell and intimidate the witness, I highly questioned my ability to ever do something like that as a lawyer. Then college started and I had to start thinking seriously about my career choice. After doing much research and listening to what people around me were saying, I decided to change my career choice from law to dental. I majored in Biology in undergrad, typical of any Indian student. I enjoyed my classes, despite the fact they had nothing to do with law, and I became very involved in dental club. I even became a dental assistant, working at a dental office for a little over two years. I really thought this was it, this is my life calling, until I got an email for an interview at a dental school in Arizona. 

At the interview, I felt so blessed to be there, the school was nice, Arizona is a beautiful state, but extremely hot! The day started off with a welcome from the dean of the school. He was very sweet, very knowledgeable, but what made him really stand out to me was that he said he achieved his DMD degree as well as his JD degree. For some reason, I hooked onto those words, “JD Degree”. It was as if I stopped paying attention to everything he said after that moment and started doubting myself and questioning whether I wanted my JD degree or DMD degree. I continued with the day and proceeded through the multiple rounds of interviews all with the same thought in the back of my head. I got back home and that’s when I did some major research on law schools across the US and decided that any law school that didn’t require an LSAT score, I would apply to, just to see if I even had a chance without having to lose a whole year just to take the LSAT. I found some schools, but out of all, I found that MSLAW had a curriculum that was flexible, had many classes to offer, and most importantly for me at the time- no LSAT was required! I immediately spoke to my parents about applying, just to see if I would get in and they were nothing but supportive. I applied, flew in for the interview, and soon after, received a letter in the mail stating I was accepted. You would not believe the joy I felt when my dad told me that I got into law school. I was thrilled! I can tell you, as a 3rd year law school student, I am so blessed to have made such a sudden career change and for MSLAW to be there at the right time for me. I can say with confidence, I am so happy I chose to get my JD degree over a DMD degree! I am also reassured that as an attorney, you do not have to yell in a courtroom at a witness to get them to answer you in a way that’s most favorable to you; I’m sure the judge wouldn’t be pleased with you if you actually did, nor the jury. 

Hope I didn’t bore you with a chapter of my life! The moral of my experience is that you shouldn’t limit yourselves to the thoughts of those people around you. People will always have an opinion about anything you do, anything you decide on, anything and everything! However, they are nowhere close to knowing you and who you really are, what you are capable of, and what your goals are. You are the only person who knows yourself the best. You must own yourself and push yourself to turn your dreams into goals. You must believe in yourself and take a step outside your comfort zone and you will come to realize you can run. You must have confidence that you will do well, and indeed you will. These are all lessons I have learned when choosing my career path. I know some days may seem very tough, as if you’re unsure whether you can make it. Those are natural thoughts to have, but don’t dwell on them. Surround yourself with positive people who will help you grow, take the walls out of your mindset that are limiting you from your true potential, and don’t be afraid to get back up and keep pushing forward. In the end, no one is going to live your life for you, you must live it yourself and choose to live a life you’ve always dreamed of. Focus on the positive aspect of things and you will find yourself to be happier. Someone once told me, “If it won’t matter in 5 months, don’t spend more than 5 minutes thinking about it”.  It is very easy to be angry; it takes close to no effort to be upset or angry, but it takes a mature person to overcome such emotions and keep pushing through, focusing on the positives, and staying focused on what really matters: your happiness. 

I hope reading this helped you in some positive way. I want to end off with saying that if any of you feel the need for some motivation or some encouragement, I am open to speak with you. I understand the importance of positive thinking and I hold true to it. With that, I hope to say nothing more than to recite a quote by Nelson Mandela: 

“A winner is a dreamer who never gives up”.

Do You Have a Favorite Quote That You Hold True to Yourself During Tough Times? Share with us Down Below!

You Cannot Miss This One - A Case Surrounding a Noncompete Agreement!

I came across this case and thought it was very interesting and one which you could benefit from. Not too many people place a lot of thought into signing a noncompete agreement, but it is crucial for all individuals looking to get a job to pay attention to such a clause. It is crucial for an employer to ensure an employee signs a new noncompete agreement, even after they are re-hired by the same company but for a different position. Otherwise, there is a high likely chance that the employer, upon the employee’s termination, just allowed their ex-employee to work for a competitor.

In this case, a Plaintiff Employer filed a motion for a temporary restraining order (TRO) against the Defendant, a former employee of the Plaintiff, seeking to enforce a confidentiality and noncompete agreement. To give you a little context, the Defendant started working for the Plaintiff, a pharmaceutical company, in 2015. Thereafter, the Defendant was laid off of work for some time, but fortunately was rehired by the Plaintiff on December 7, 2016. During the process of being rehired, the Plaintiff prompted the Defendant to sign a second confidentiality and noncompete agreement. The Defendant signed such agreements.

            Then on June 20, 2018, the Plaintiff sent the Defendant a letter informing him of the termination of his employment as his position was being eliminated as part of a “realignment of [the Plaintiff’s] business”.

            The Defendant then applied for another vacant position at the same Plaintiff company and, after an interview, was awarded the job. The previous position was set to expire on August 3, 2018 while the new position was to start on August 6, 2018. Upon starting his new position with the Plaintiff, no new noncompete agreement was required to be signed.

            About a year and a half later, on January 6, 2020, the Defendant resigned from his position. Soon after, the Defendant moved on to work for a competitor of the Plaintiff. Upon hearing this news, the Plaintiff sought a TRO against the Defendant.

            The noncompete agreement specifically prohibited the Defendant from working for a competitor in certain positions for a year after the end of his employment with the Plaintiff and from ever disclosing any confidential information. The Plaintiff argued that the Defendant was never laid off in 2018, but rather, “transferred positions within the company”. The Court found no merit in this argument.

            The U.S. District Court found in favor of the Defendant and denied the Plaintiff’s motion for a TRO because it found that the Plaintiff, “Could not show a likelihood of success on the merits”. The court further found that the Defendant was no longer bound by the noncompete portion of the agreement because, “Those provisions expired 12 months after the termination of the Defendant’s employment on August 3, 2018 and the [Plaintiff] rehired the Defendant on August 6, 2018 without having him sign a new noncompete agreement.

            The Plaintiff appealed this order; however, the Appeals Court affirmed the lower court’s decision stating, “We see no abuse of discretion in the district court’s finding that [the Plaintiff] was not likely to succeed on the merits. Nor do we find any abuse of discretion in its decision not to analyze the remaining factors in the test for a preliminary injunction before denying the motion, particularly because [the Plaintiff’s] likelihood of success is so low”. (Referenced MA Lawyer’s Weekly, V.49, No. 28).      

 

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Do you Agree with the Court’s Decision? Comment Down Below!

What’s Your Opinion on Remote Learning? Here’s What Your Fellow Classmates Think!

 

            Remote Learning in the Spring of 2020 at MSLAW was an experience that was forced upon us by Covid-19. It was an unexpected situation we were all confronted with after our spring break. I wanted to know how such a change affected the students of MSLAW. After asking around, I received a balance of responses to the concept of remote learning. While one student stated, “I did not like remote learning at all” another student stated, “I liked how informative the school was during the process.” Remote learning is a method to which both students and faculty and staff have to work together to make it work.

            Personally, being an out-of-state student, I believe switching the second half of the spring semester to remote learning was a smart choice to make by MSLAW. I would much rather distance myself from my fellow classmates and professors for their safety and mine, than being in class with them when Covid-19 was a high risk and spreading fast. Though, the one thing I wish happened was for the school to inform us earlier about the high possibility of having remote classes once spring break was over. The reason being is because I am an out-of-state student and so I go home to IL for spring break, leaving behind my law books in my apartment here in Massachusetts. If the school had warned me about the possibility of having remote classes upon the end of break, I would have definitely brought my law books with me just in case classes were indeed online. Unfortunately, that was not the case, so I still had to fly back to MA from IL since all my books were here and by then, it was too dangerous to fly back home to IL due to Covid-19 so I was forced to stay back in MA, away from home. While that was saddening, one good thing was that I had plenty of time and peace of quiet to study and prepare for my final exams! If I were home with my dog, Stevie, guaranteed I would be interrupted while studying from his cute face and his untimely request of wanting to play ball or go outside!

            Below are some thoughts of our MSLAW students on their experiences. “They updated us constantly on the plan. What I didn’t like is that every professor had a different approach so it was confusing at first.” (Anonymous student). “I like the efficiency of how swiftly the school’s ‘technology department’ (i.e. Mick and Dan) took action and were able to get online classes running via zoom and accepting assignments via TWEN. At first I was super hesitant and worried about remote learning because I am a student who hand wrote all of my law school exams…luckily I was able to acclimate.” (Solonge El-Hachem). “I liked being able to go through the recorded audio material at my own pace. I think the Professors took extra care in explaining the material, as we didn’t have the opportunity to ask live questions.” (Eddie Street). “I enjoyed how some professors (Malaguti) provided an abundance of material and offered extra help sessions. This was crucial in order to be able to handle and actually accomplish learning the subject. As for other professors, I found it very counterproductive to reduce the material provided, yet still hold the expectation of students to learn the subject as if we were still in the classroom. Often times, I found myself reaching out via email only to never hear a response or feedback.” (Anonymous student).  

I want to shed light on the great effort and planning the MSLAW faculty and staff went through to make this whole remote learning experience go as smooth as possible. Student’s access to a laptop/computer, their access to the professors, faculty, and staff, their personal schedule with kids, scheduling for summer classes, how final exams would be taken, what assignments would be due, etc. are all concerns which MSLAW had to consider when deciding the best way to implement remote learning. Personally, I believe they did a great job, truly admirable. We cannot forget that Covid-19 came into all of our lives as a surprise. When was the last time we had to deal with a pandemic like this? It’s a challenging time, but MSLAW did a great job in making the transition as functional, easy, and with as little confusion and hardship as possible. From extending the final exam times for students to take it even early in the morning when their kids are asleep, to posting lecture videos and recordings of classes and having zoom review sessions, MSLAW kept students their number one priority during such a difficult time. Thank You to all MSLAW faculty, staff, and all those who spent their valuable time to plan and make this whole remote learning experience a great one for our MSLAW students.

 

                            What part of Remote Learning Did You Like/Did Not Like?