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Criminal Defense Questions

Does Massachusetts have a 3 Strikes Law?

Many states, including Massachusetts, have what is called a “Three Strikes Law.” This rule mandates life sentences for repeat violent offenders.

Under this law, a Massachusetts judge must impose the maximum sentence for a person’s third violent felony offense. Any single person convicted of three separate felonies can be sentenced to 25 years to life in prison, even if each felony only carried a two-year sentence.

A felony is the worst class of crime you can be charged with, after an infraction or misdemeanor. Any time a U.S. Citizen is charged with a felony, they are entitled to a jury trial and legal representation.

Only specific felonies can be considered under the three strike rule. Massachusetts law outlines 41 different felony charges that constitute a ‘strikeable’ offense. Persons convicted of a third strike will serve the maximum penalty and have no opportunity for parole. Since the implementation of the three strikes law, Massachusetts has gone from having one natural life felony with no possibility of parole, which was first-degree murder, to nineteen natural life felonies, if indeed the felony is a third strike.

The three strikes law has a severe impact on the sentencing of people convicted of criminal offenses. Anyone facing a felony charge in Massachusetts needs to be represented by an experienced criminal defense attorney.

If I’m pulled over for a traffic violation, can I be penalized for refusing to take a breathalyzer test?

While it may be tempting to refuse a DUI test, it is crucial to understand the possible advantages and consequences.

You have the right to refuse to submit to any type of sobriety test, including breathalyzers. However, your refusal can have several additional consequences. While no one can be forced to give testimony against themselves, implied consent laws operate under the theory that when driving on a public roadway, you consent to the rules regarding driving while intoxicated.

Implied consent law is active in Massachusetts, and means that if you refuse to submit to a chemical test, you will be subject to a fine and automatic license suspension ranging from 180 days to 5 years. The length of your suspension will vary depending on your offense.

It’s also important to know that DUI law is the exception to your constitutional right to remain silent. DUI law is one of the few which allow prosecutors to comment on a defendant’s right to remain silent in some states.

The decision to take a sobriety test is solely yours. Most states will not allow you to put off submitting a test until you call and consult with an attorney. In many cases, this invocation of the right to counsel will be considered a refusal of sobriety or breath tests.

If you know you are not intoxicated, you may want to consider taking the breath test or sobriety test. However, if you are visibly intoxicated, taking any type of sobriety test is only going to garner more evidence against you as you will likely be arrested either way.

For the most up-to-date information regarding DUI law, give our office a call.

Can the police look at my cell phone if I am detained or arrested?

The Fourth Amendment to the U.S. Constitution protects you from unreasonable government searches and seizures, including your electronic and smart devices. Whether you’re being held under detainment or arrest, you still have protective rights.

To start, before speaking to any law enforcement official, you can state you do not wish to answer any questions without your attorney present. In many cases, law enforcement will ask you for permission to complete a search. This is the most common way searches are conducted, by people consenting to a search. You do not have to say ‘yes’ to a search.

Even when under arrest, a search of your phone data can only be conducted under limited circumstances. Following an arrest, the police generally search the items on your person and in your pockets, as well as anything within your immediate control. This is within their rights.

If a phone or other digital equipment is found, they can only examine the physical aspects of the phone. For example, an officer may remove the phone from its case or remove the battery. In the event law enforcement believes evidence on the phone is likely to be immediately destroyed, they can search your devices without a warrant.

Contact our office to learn more about your privacy rights in Massachusetts.

Can the police look at my cell phone if I am detained or arrested?

The Fourth Amendment to the U.S. Constitution protects you from unreasonable government searches and seizures, including your electronic and smart devices. Whether you’re being held under detainment or arrest, you still have protective rights.

To start, before speaking to any law enforcement official, you can state you do not wish to answer any questions without your attorney present. In many cases, law enforcement will ask you for permission to complete a search. This is the most common way legal searches are conducted, by people saying yes when the police ask them if they can search.   You do not have to say ‘yes’ to a search.

Even when under arrest, a search of your phone data can only be conducted under limited circumstances. Following an arrest, the police generally search the items on your person and in your pockets, as well as anything within your immediate control. This is within their rights.

If a phone or other digital equipment is found, they can only examine the physical aspects of the phone. For example, an officer may remove the phone from its case or remove the battery. In the event law enforcement believes evidence on the phone is likely to be immediately destroyed, they can search your devices without a warrant.

Contact our office to learn more about your privacy rights in Massachusetts.

Does it really matter if I skip jury duty?

Yes—yes it does.

Skipping jury duty is an easy way to land yourself in completely unnecessary trouble. Massachusetts makes it rather difficult to miss or skip your service date. There are many chances to make right on your having skipped jury duty, but they are all time-consuming and potentially nerve-wracking.

After missing jury service, you will receive a “Failure to Appear” postcard. By phone or by mail, you can respond to this. If you have a reasonable excuse, such as illness, be sure to have a note from your doctor. You will then reschedule your service.

Ignoring this card (at your peril) will lead to a “Application for Criminal Complaint” summons to appear before a judge and explain yourself. You will likely receive a rebuke, and then be seated on the next available jury.

Not showing up to this initial hearing leads to the judge scheduling an arraignment date. Missing your arraignment date leads to a warrant for your arrest.

So don’t skip jury duty. Massachusetts makes it easy to make your service work around your schedule:

After receiving a summons in the mail, you should respond either online or in writing. You will receive a reminder notice in the mail about two weeks before your service date. The night before your service, you can call to see if you still need to report.

You can even reschedule your service online up to the day you are scheduled for. First-time rescheduling requests, by law, are always granted.

So stay out of trouble, show up for jury duty, and take pride in being part of our democratic legal system.

I hear police say they are detaining a suspect while putting them in handcuffs. What is the difference between detention and arrest?

It’s important to understand the differences between detention and an arrest because your rights change drastically from one to the other.

Anyone can be detained. The police only need reasonable suspicion to stop an individual. It is required by law that when an officer stops someone, the officer has either a search warrant, probable cause to search, or reasonable suspicion. The term reasonable suspicion refers to an officer having objectively reasonable circumstances to suspect that a detained individual is involved in, or about to be involved in a crime. A 20-minute detainment is considered a reasonable timeframe for detaining someone according to the U.S. Supreme Court.

When people are detained, it is typically for questioning about a person’s identification and purpose for being in the location. While being held, a person may be subject to a ‘patdown’ search if the police have reasonable suspicion that a person may be dangerous. While this does not mean police can immediately search pockets of bags without permission, however, if an officer comes across a weapon they may seize it to protect themselves.

Use of a metal detector, a drug-sniffing dog, or a computer search to determine if the individual has any outstanding warrants for their arrest there are other legal methods of searching during detention.

What constitutes “malicious” destruction of property?

“Malicious” is what separates a crime from an accident that happened to destroy someone’s property. It is also worth noting that the statute covers both “destruction” and lesser “injury” to another person’s belongings, physical or digital.

In Massachusetts, the law is primarily concerned with three things: intention, motive, and cost of the destroyed property. The Commonwealth’s General Code states that destruction of property must be done “willfully” and “maliciously” in order to be a crime.

The “will” of “willfully” refers to intention, which keeps accidents in the realm of the civil courts. If one ran over a neighbor’s tulips while trying to navigate a very narrow shared driveway, this would be unlikely to result in criminal charges. If one lined up the tulips in one’s sights before running them over, this would be a different story.

The other part of the statute covers motive; this is where “maliciously” comes into play. If the destructive act was done out of anger, hatred, or revenge, and specifically targeted at the owner of the destroyed property, then it is done “in malice.” Returning to the tulips—if one had just fought with the neighbor before the destruction of the tulips, this could be interpreted by prosecutors as motive.

Penalties for malicious destruction of property are stiff, with jail time running up to ten years, along with fines in proportion to the value of the property destroyed.

If you’re facing charges of malicious destruction of property, call our office today to discuss your situation.

The MA state police face ongoing scandals over altering police reports and overtime sheets. Does this give me grounds to contest or question state police reports used against me in court?

The ongoing revelations of misconduct by the State Police are certainly disturbing. If you have not been following the scandal over the past year, here is a summary of what we have learned so far:

-There has been widespread abuse of the overtime system by state troopers at least since 2011. Troopers would claim overtime for shifts they never worked. The practice was known about within the State Police at least since 2011, according to recent reporting in the Boston Globe.

-The overtime abuse was so rampant within Troop E of the State Police that authorities have dissolved it rather than attempt to salvage it.

-Separate from the overtime issue, the former head of payroll at the State Police pleaded guilty early this summer to stealing almost $24,000 from the agency.

-The top two officials at the State Police resigned after whistleblower troopers alleged they had ordered them to alter an OUI incident report because the driver was the daughter of a prominent judge.
It is this last scandal that provides the greatest opening for contesting State Police’s evidence, but since it is a one-time incident involving a high-profile defendant, it may not provide as much help to you as if the State Police altered police reports as often as they altered their overtime sheets.

Our attorneys are committed to pursuing all avenues to fight criminal charges against you or appeal your conviction. Schedule a consultation with us today to discuss the particulars of your situation and start putting together a plan for your legal defense.

Field Sobriety Tests in Massachusetts

In order to identify citizens who are driving under the influence of alcohol and certain drugs, police will often use Field Sobriety Tests to determine if a driver is under the influence. A driver is said to be under the influence of alcohol if their blood alcohol concentration is above 0.08%, and in commercial drivers the limit is set at 0.04%.

If a police officer believes that a driver is intoxicated, they may ask the driver to submit to several field sobriety tests. The horizontal gaze nystagmus test, the walk and turn test, and the one leg stand test are 3 field sobriety tests that are often used.

 The horizontal gaze nystagmus test can identify the use of alcohol or other drugs that depress the central nervous system by showing a nystagmus in the eye. A nystagmus is involuntary bouncing or jerking of the eyeball that occurs when one looks to the side. This involuntary bouncing or jerking can be either caused by alcohol intoxication or the use of other drugs such as inhalants or phencyclidine (aka PCP or Angel Dust). Alcohol and certain other drugs depress the central nervous system making it difficult for the brain to control the eye muscles. To administer the horizontal gaze nystagmus test, a police officer will position an object such as a pen or a finger about a foot away from the driver’s view. The officer will then note any bouncing or jerking movements of the driver’s eyes as they follow the pen with their eyes from side to side. [Read more…]

Are Parents Held Accountable for “Social Hosting” ?

It’s well-known that the legal drinking age in all states, including Massachusetts, is 21. However, what about “social hosting”? Social hosting refers to providing alcohol or other illegal substances to a minor that is not your own child on your property or in an environment you control. Especially during graduation time, some parents reason if they provide alcohol at a party at their private residence in a safe environment, ensuring that minors do not drink and drive, they are not committing a crime. Massachusetts’ “Social Host” law says that they are. Consider the consequences and situations covered by this law.

  • You could pay fines and go to jail. The penalty in Massachusetts for “social hosting” is a fine up to $2,000 and/or prison time for up to one year. Of course, if injury occurred, such as if a child died in an accident after leaving your home, you could be convicted of more serious crimes, resulting in a longer prison sentence.

[Read more…]

What is reckless endangerment of a child under Massachusetts law?

When applied to children, it’s putting a child in grave danger due to negligence of a particular act. In the state of Massachusetts, it usually works under two different legal scenarios. The first is the act of creating the risk, and the second is not doing anything to prevent that risk.

Creating Substantial Risk

The first half of the Massachusetts reckless endangerment law needs to be proven in court before any injury claims may be made. Evidence needs to prove that the person who created the substantial risk to a child under 18 did it in a way that caused severe bodily injury. Those injuries could be from driving recklessly in a vehicle to sexual abuse.

[Read more…]

Isn’t there a law in Massachusetts banning texting while driving?

Additional Information:  I was involved in a automobile accident in Marlboro a few days ago.  The other driver admitted that he was texting on his cell phone when he ran the red light and hit my car.  I was taken to the hospital and have a broken arm, and ribs and will need physical therapy.  Isn’t there a law in Massachusetts banning texting while driving? How will that affect my personal injury case?

Attorney Answer
First, yes there is a law that bans texting and the fact that he was texting is evidence of negligence which is what would have to be proved if you were to recover. The violation of any law such as the texting law goes to the heart of proving that the defendant was negligent and ultimately responsible for your injuries. Also the fact that he ran a red light is also a violation of law and evidence of his negligence.

If I know someone is dealing drugs do I legally have to tell the police?

Additional Information:

I’ve been dating this guy for about 4 months and found out he is dealing drugs. I’ve never been part of any of it, but I suspected it and just recently found out for sure when someone he obviously didn’t know came to his apartment in Boylston and there was an exchange.  I don’t want to get into any trouble and I don’t want him to get in any trouble.  Do I legally have to tell the police what I know?

ATTORNEY ANSWER:

This is very serious issue and you should definitely not speak to the police who if you provide evidence may also charge you with conspiracy. You should speak to legal counsel who can advise you regarding this matter to avoid legal action against you.  [Read more…]

Can we refuse to press charges so the case goes away?

Additional Information:

My friend and I got into a fight outside a bar in Berlin.  The police witnessed it and arrested us both for assault but neither wants to press charges against the other. So, is there anything we can do, like refuse to press charges so the whole thing goes away?

ATTORNEY ANSWER:

Unfortunately once the matter is in the Commonwealth’s hands, the District Attorney has the power to decide to prosecute and may do so if he has enough evidence to do so. There are a number of things that you both may do to avoid prosecution but you should speak to an attorney about a possible accord and satisfaction or a decision to invoke the 5th Amendment right not to testify or provide evidence. Under no circumstance should you try to negotiate with the District Attorney without legal counsel. [Read more…]

My 17 year old daughter was arrested for shoplifting. What’s the best way to handle this?

Additional Information:

My 17 year old daughter was caught for shoplifting at the Natick Mall.   She has never been in trouble with the law before and I was shocked she would try to steal a $20 DVD.  I thought it was handled by the store manager, but Natick police got involved and now she has to appear for a hearing.  She’s only 17 and has her whole life ahead of her.  I’d hate for this poor decision to follow her for the rest of her life. What’s the best way to handle this?

ATTORNEY ANSWER:

I would advise you to hire a criminal attorney familiar with the court system. While shoplifting cases are misdemeanors and it would not be likely to involve any harsh penalty, it would be very important to keep your daughter’s record clean as it may affect her for the rest of her life.  [Read more…]

Should we hire a criminal defense attorney for our son?

Additional Information:

Our son is a freshman in college at a Boston school and was home visiting for the holiday break.  While out with some friends he was arrested by the Sudbury police for possession of a small amount of cocaine. My wife and I want the best possible result for him and are contemplating hiring an attorney to defend him, but we’re not sure if it’s worth it.  Will he just end up with the same type of plea bargain?

ATTORNEY ANSWER:

Wouldn’t it be a shame to find out years from now that you should have hired an attorney to investigate and determine what defenses might be available to him. I often get calls from individuals who come to me years after the event and try to correct a situation that might have been remedied at the time. You should always hire an attorney when there is a serious charge like drug possession. That attorney would investigate whether your son has valid legal defenses and can advise you regarding the possible ramifications of any plea deal.  [Read more…]

Can you explain the law in MA regarding leaving the scene of an accident?

Additional Information:

My 22-year old daughter was involved in a minor accident in a shopping plaza in Framingham, MA.  She doesn’t know if she caused damage to the parked car she hit.  She left the parking area without leaving her contact information and now she’s wondering what she should do.  Can you please explain the law in this situation and her legal responsibilities? Thanks.

ATTORNEY ANSWER:

It is a crime to leave the scene after knowingly causing personal injury or property damage. There may be extenuating circumstances and she should contact a lawyer to discuss the facts of her case in order to determine how best to handle any charges that may be pending. [Read more…]

What is the difference between a felony and a misdemeanor in Massachusetts?

Additional Information:

What is the difference between a felony and a misdemeanor in Massachusetts? Does it have to do with whether you can go to jail or not if you get convicted or is it some other factor? Thanks.

ATTORNEY ANSWER:

Generally speaking the difference between a felony and a misdemeanor is the amount of time one would serve. A felony which is more serious  would be served in a state’s prison. A misdemeanor would be served in a house of correction or a jail. A felony charge would include crimes like murder, rape assault and battery with a dangerous weapon. A misdemeanor charge would include crimes like driving under the influence,larceny under $250.00 and a simple assault. [Read more…]