Cannabis DUI

Marijuana and derived cannabis products are now legal for private, at-home consumption in Massachusetts. With the use of THC products now legal and in the open, it becomes even more important to remember continuing legal restrictions on and best practices surrounding their consumption. One of the foremost issues at the intersection of law, good citizenship, and cannabis is that of driving under the influence of marijuana and marijuana-derived products.

Most people are familiar with the laws surrounding DUI, or at least they think they understand these laws. Let’s take a moment to review the laws regarding alcohol and the operation of a motor vehicle in Massachusetts. While it is true that in Massachusetts, like all fifty states,the legal limit for blood alcohol content (BAC) is 0.08 for people of legal drinking age, this is not the end-all, be-all determiner for the filing of DUI charges. The responding officer’s discretion plays a major role in DUI arrests:even if someone’s BAC is below the legal limit of 0.08, if their performance in a field sobriety test is poor, or if their driving is erratic, an arrest may occur, because the law stipulates that “impairment” is the requirement.

Driving while impaired is an arrestable offense,regardless of the source of the impairment. This is the portion of the law that bans driving under the influence of marijuana or cannaboid products, along with prescription drugs and any other substance that may impair drivers’ abilities.While no Breathalyzer test exists for marijuana intoxication, police officers rely on the same prudential metrics to determine impairment as they would with suspected drunk driving: field sobriety tests and erratic driving.

Another similarity between the law governing drunk driving and high driving is the ban on open containers in the passenger compartment of a motor vehicle. In the same way that an open can of beer in the cup holder would lead to legal problems, so would an open container of edibles in the same spot. Just as a police officer can cite the smell of alcohol on a driver’s breath or person as reasonable suspicion of DUI, so too can the smell of marijuana on clothes, hair, or car interiors lead to an arrest.

Of course, with so much dependent on the judgement of police officers, who are only human, there exists the possibility of error or misunderstanding leading to an unjustified arrest. As even Breathalyzers in Massachusetts cannot be counted on to give accurately calibrated readings, the notion of “objective” proof of DUI is coming more and more under siege.

While it is always safest—physically and legally—to have a designated driver, misunderstandings and mistakes do happen. If you find yourself wrongfully charged with DUI for enjoying legal cannabis products, call our office today to discuss your options.

Rear-end collisions and the rush to settle

Rear-end collisions are not uncommon, but they are not simple or routine. Repeat after me: there is no such thing as a ‘simple’ rear-end collision. Again, there is no such thing as a “routine” rear-end collision.

Rear-end collisions come on a sliding scale, ranging from the annoying to the frightening to the downright devastating. A long-haul trucker whose brakes fail at an off-ramp can total cars, wreck bodies, and take lives. On the other hand, a distracted driver letting his foot of the break in snail’s-pace traffic will probably result in a dinged bumper and frayed nerves. What rear-end collisions often have in common is insurance companies’ haste in settling. Why could this be?

Liability in rear-end collisions is clear: whoever was in the second, following car assumes liability. This is true across the board: if someone slams on the brakes on the highway, going from sixty to zero, without warning, the driver of the following car is held liable for not maintaining “a safe following distance.” Without the need for much investigation to establish liability, there seems to be a reasonable explanation for why a settlement could be quickly reached.

Not so fast—insurance companies, whether representing the at-fault party or not, are for-profit entities that are not necessarily concerned with a just settlement. Often, a fast settlement is a way of foreclosing on the possibility of greater damages being paid out.

In the case of a catastrophic collision, like with the hypothetical eighteen-wheeler mentioned above, expediting the settlement process may be to the benefit of the at-fault party’s insurer for a number of reasons. Accepting a settlement typically involves a signed agreement by the injured party not to seek further compensation. This could mean accepting payment before the full extent of injuries are known and then having no further recourse to the civil courts to pay mounting medical bills. Additionally, limiting the period of discovery prevents the uncovering of key evidence that could extend the circle of liability, such as proof of shoddy maintenance by the trucking company that makes them at-fault as well.

For less-catastrophic accidents, like the fender-bender in traffic, there is still a strong profit motive for insurance companies to settle quickly. Again, the full extent of injuries such as whiplash may take weeks to months to become known. Additionally, while fender-bender rear-end collisions may be “an annoyance” they are never “just” an annoyance. Days without a car, paying for a rental, worrying about a big road trip or family event that was scheduled for just a few days after the collision—all of these are stresses and anxieties that the injured party deserves compensation for and for which the at-fault party’s insurance does not want to pay.

No matter its scale, accidents are always nerve-wracking and stressful, to a greater or lesser degree. While you are emotionally vulnerable, you may be inclined to “get it over with” and accept the first settlement offered. Don’t let insurance companies take advantage of you when you are in a difficult place in the aftermath of an accident: call our office today to discuss your options.

Handling A Wrongful Death Claim

When a family member suspects wrongful death of a loved one, they can file a particular type of personal injury claim known as a wrongful death claim. Even if no one is criminally responsible for the death, someone can be held civilly liable through a wrongful death claim. Common causes of wrongful death claims include accidents, defective products, exposure to hazardous materials, and medical mistakes.

In Massachusetts, the decedent’s estate has three years from the time of death or time of discovery to file a wrongful death lawsuit against the liable parties. Spouses, children, and parents are given priority when filing a wrongful death claim. Other relatives may file if the deceased left behind no immediate family members.

Trial versus Settlement

When it comes to receiving payment from a wrongful death claim, there are several options. While many cases go to trial, they don’t always go to court. A wrongful death case can drag on and take years for a claim to be settled in court. Due to the time-consuming commitment to see a case to the end, many choose a settlement option.

While a judge determines a plaintiff’s award in a court case, the plaintiff or the defendant can propose settlement terms. When deciding on a settlement, it’s important to ensure that the settlement will cover current and future damages.

What about Damages?

Damages awarded in a wrongful death lawsuit belong to the estate. The Commonwealth of Massachusetts has a cap of $500,000 on all non-economic damages in medical malpractice cases. The damages that can be compensated in a wrongful death lawsuit include pain and suffering, medical and funeral costs, lost wages, lost benefits, loss of consortium, and loss of inheritance.

Before You Settle

There are several factors to consider before deciding on a settlement. The amount the lawsuit is worth, the length of the trial, and how long it will take to go to trial are all crucial considerations. Additional factors include the ability to obtain a favorable judgment, the other side’s ability to pay the judgment if it is obtained before the trial and the ability to pay after an expensive trial, the other party’s desire to settle out of court, and whether there is the chance of arriving at a partial settlement.

Settling Out Of Court

There are two options for settling outside of court, mediation or arbitration. These options are considered a middle ground between accepting a settlement and going to court.

The process of mediation involves the two parties meeting and discussing the case at hand with a mediator. After hearing both sides, the mediator will offer their expertise and advice regarding how the case could be settled. Similarly, parties can meet with an arbitrator who will make a ruling based on his or her interpretation of the situation.

Mediation and arbitration are viable alternatives to litigation. These options do not cost as much as court and legal fees do, and they do not take up as much time as a trial would.

The decision to file a wrongful death claim isn’t easy. Our skilled attorneys can advise you on how to proceed through this difficult time.

Can I legally smoke recreational marijuana in public in the state of Massachusetts?

While marijuana use is legal in Massachusetts for people 21 and older, that doesn’t mean you can use it anywhere you want.

Only adults 21 or older can legally purchase and possess marijuana, except for those who are registered patients. Consuming even legally purchased cannabis in Massachusetts at a public place is illegal under state law. This covers smoking, vaping, and cannabis-infused foods.

While your safest bet is smoking in your home, if you have roommates or a landlord who doesn’t want you smoking there, you might be out of luck. Landlords can place restrictions on whether you can smoke in your home, just like they can with cigarettes.

The civil penalty for consuming marijuana in public or smoking marijuana, where smoking tobacco is prohibited is up to $100. While consumption in public is illegal, if you are 21, you may possess up to 1 ounce of marijuana on your person.

Local police may handle public use of marijuana by applying the law which prohibits public consumption of marijuana in Massachusetts and may result in a $100 fine. While the law does not apply to medical marijuana, officers in towns which have accepted a public use bylaw may enforce public use of medical marijuana as well, which may range from a $100 to $300 fine.

Keep in mind, Massachusetts law also forbids open containers of marijuana in vehicles and is enforceable by a $500 fine.

If you have any questions regarding the legal use of marijuana in Massachusetts, give our office a call for assistance.

What factors do courts consider when determining child custody?

Courts primarily base their decision on what is in the child’s best interest, using the Child’s Best Interest Standard. Factors vary from state to state, but the overall goal is to make a decision that promotes the health and wellbeing of the child.

Parents are encouraged to come to an agreement on matters of child custody and visitation to submit to the court. However, if the judge finds the settlement agreement is not in the child’s best interest, it can be rejected.

Courts will generally determine the stability of each parent’s home environment and their interest and commitment to caring for the child. Other factors include the health of each parent, both physical and mental; the special needs of the child, if any; the child’s own wishes if they are old enough to say so; whether there is evidence of illicit drug use, or drug/alcohol abuse; and adjustment to the community, such as where they go to school, proximity to other caretakers, etc.

In Massachusetts, the best interests of the child are the overriding guiding principle for judges making custody decisions. State law also says that the child’s “happiness and welfare” are paramount and that the parents’ rights are equal unless a parent has been found to be currently unfit.

Child custody cases can be complicated and always require extensive knowledge of family law. When facing a child custody issue, you will probably have several questions. Please call our office for experienced advice regarding your family law concerns.

I was injured as a passenger of an Uber driver, who is responsible for damages?

If you’re injured in a ride-sharing vehicle, such as Uber or Lyft, you have a right to get compensation for your injuries and other damages.

Financial responsibility typically falls on the insurance company of the at-fault driver, which may be the ride-sharing company’s driver or another driver involved in the accident who caused the crash.

The ride-sharing driver’s car insurance coverage will apply to passenger injuries only if the driver has a commercial insurance policy or a personal car insurance policy with a special provision providing insurance coverage while engaged as a ride-sharing driver. However, many ride-share drivers do not have such coverage. Additionally, personal car insurance policy will probably have a “business use exception” that won’t cover damages and injuries that occur while the insured is acting as a for-profit driver.

In the event the driver’s insurance will not cover passenger injury, Uber and Lyft carry third party liability insurance coverage which pays up to $1 million for personal injuries and property damage per accident. The third-party liability insurance will only cover costs when the ride-sharing driver is at fault for the accident, the ride-sharing driver’s own insurance has been exhausted, or, if the responsible driver is unknown, doesn’t have car insurance, or doesn’t have enough car insurance to pay for your injuries.

If the above insurance policies do not fully compensate you, or the insurance companies refuse to pay out, you can try going after the ride-sharing company itself. However, this should be considered a last resort option.

If you’ve been injured in a car accident and specifically while riding in an Uber or Lyft, contact us immediately to discuss your options.

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.

I was bitten by a neighbor’s dog a year ago, can I file a personal injury lawsuit now?

Each state has a law that sets a deadline for filing a personal injury lawsuit in the state’s civil court system after an accident. This law is called the “statute of limitations,” and the state of Massachusetts gives you three years to file a personal injury lawsuit.

The three-year time limit typically starts on the day of the accident, which would be the case in the event of a dog bite. If you don’t get your lawsuit filed within three years, you’ll lose your right to have a court hear your injury case.

Many states have a “one bite rule” where dog owners are protected (to some degree) from injury liability the first time their dog injures someone if they had no reason to believe the dog was dangerous. In Massachusetts, however, a specific statute makes the owner “strictly liable.”

The strictly liable laws state regardless of the animal’s past behavior, the dog owner is responsible for a personal injury caused by his/her dog. The dog bite statute holds the defendant liable if the plaintiff was legally allowed to be where he was when the bite occurred, and the plaintiff did not provoke the dog at the time of the dog bite.

If you have questions regarding a personal injury case, contact our office today.

My son and daughter-in-law are divorcing. As a grandmother do I have visitation rights?

Grandparents do have legal rights, however, regarding visitation, may require a court order under Massachusetts law.

In the event the grandparents and parents can come to an agreement regarding visitation, court intervention is not required. When no such agreement can be made, there are certain situations grandparents may be granted a court order allowing visitations.

Under Massachusetts law, grandparents have the right to ask a court for visitation if the parents were married and then divorced; the parents are still married, but they live apart, and there is a court order about the separation; or one or both parents are deceased.

In the event the parents never married and are living apart, paternal visitation, the grandparents on the father’s side, may be granted if the father has signed a “Voluntary Acknowledgment of Parentage” or there is a court judgment saying that he is the father, paternal visitation may be granted. Grandparents on the mother’s side, considered the maternal grandparents can ask for visitation if the father has not signed a “Voluntary Acknowledgment of Parentage” or there is no court judgment stating who the father is.

At a court hearing, the requesting grandparents will need to show visitation is in the child’s best interest, a relationship has been established, and that it will be very harmful to the child’s health, safety, or welfare in the absence of the grandparents.

Even if the grandparent did not have an important or well-established relationship with the child before the case began, the court could still grant visitation rights to protect the child from “significant harm.”

To have questions about your specific situation answered, give our office a call.

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.