Criminal Law

When you have been accused of committing a crime, you need a strong advocate on your side. The consequences can affect the rest of your life. A guilty plea can impact your ability to find employment or to obtain credit, even if you avoid incarceration. I will aggressively defend your rights, and make sure you understand your options along the way.

I represent clients effectively in all stages of the criminal case, from investigation to trial. Because each client is unique, I take the time to investigate your case to determine the best possible outcome. I will consult with you in establishing an appropriate course of action that you feel comfortable with. Criminal charges do not necessarily result in “guilty” or "not guilty" findings – there is a range of possible outcomes.

Hiring the right attorney may well be one of the most important decisions you'll ever make. The right attorney should take the time to thoroughly get to know your case, and understand how the outcome may affect your life. Your attorney should be available to answer questions and return calls. You need a criminal defense lawyer that you feel comfortable with.

If you are facing criminal charges, contact me today at (781) 326-4466 for a free phone consultation.

Court Procedures

1. The Arraignment
   Your first appearance in court is for arraignment. At this time, the court advises each defendant exactly what is the nature of the charge and enters a plea of not guilty to that charge. Unless you've got a criminal history, with prior court defaults or some egregious activity in your arrest, it is more than likely that you will be released on your own personal recognizance to appear back at court for pre-trial conference. If the District Attorney's Office is requesting a bail be posted to ensure your return to court, you will be entitled to a bail hearing. If you do not have an attorney with you at your arraignment, the court will provide an attorney for you for the limited purposes of that bail hearing.
2. Pre-Trial Conference
   The pre-trial conference is typically the next court date after your arraignment. It is designed as the first opportunity for a defendant and attorney to meet with the prosecutor and conduct a meaningful discussion of the case. By the time of the pre-trial conference, the parties have had an opportunity to review relevant police reports and to identify if there is additional outstanding material available, pertinent to the case. The court encourages that the parties attempt to identify by the time of the pre-trial conference whether a trial will be necessary for this case or if there is some possibility of resolving the case short of trial by way of a disposition. Under the current Massachusetts Criminal Court Procedures, every defendant now has a right to tender an admission or plea to the charges and request a disposition be imposed. If the court accepts this disposition, then the case can be resolved upon terms which the defendant has suggested. If the court is not inclined to accept that disposition and suggests a greater penalty, the defendant has the option of accepting that counter offer or rejecting the disposition and preserving their trial rights. If the case is not disposed of at pre-trial conference, then a motion hearing date or a trial date is scheduled.
3. Motion Hearing
   In a drunk driving case, just as any other criminal case, there are oftentimes many pre-trial motions that can be filed and argued that may be dispositive of the charges against you. Motions to suppress evidence are regularly used to attempt to exclude damaging evidence against you that may have been secured by some improper action of the arresting police department. Motions to dismiss may also be filed in certain instances to achieve a dismissal of the charges against you, based on some technical violation.
4. Trial
   OUI trials are typically held in the courthouse where the pre-trial dates have been conducted. In some instances, if a jury trial is elected by the defendant, the case may be transferred to another courthouse, within that county, that has the facilities and jurisdiction to conduct a jury trial. A defendant in an OUI charge, pending in the district court, has a right to a trial before a judge or a jury of six persons. The decision of whether to try the case before a judge or a jury is typically not made until the day of trial.
5. Sentencing
   In the event that your case proceeds to trial and there is a verdict against you, sentencing is usually conducted immediately following the trial. After the jury reports their verdict and have been excused, the judge then proceeds to the sentencing phase if there is a guilty finding. The Commonwealth proceeds first and requests a specific disposition and offers reasons in support of that recommendation. Your attorney is then allowed to make a recommendation on your behalf and to provide pertinent personal and factual argument in support of that recommendation. The judge will typically enter the disposition at that time.

 

Operating Under the Influence

Today, drunk driving is one of the most aggressively enforced crimes on the Massachusetts books. What is drunk driving, operating under the influence (OUI), driving under the influence (DUI) or driving while intoxicated (DWI)? Contrary to the term drunk driving, one does not actually have to be drunk to be arrested and convicted for drunk driving. Massachusetts law states that an operator only has to have his ability to safely operate a motor vehicle impaired by the consumption of alcohol to be guilty of operating under the influence of alcohol. This terminology creates a very ambiguous standard of measure that is subject to the subjective opinions of various jurors, judges and police officers. In Massachusetts, as it is in most other states in this country, an operator is per se under the influence of alcohol if he has a .08 percent blood alcohol content (BAC). In Massachusetts, effective July 1, 2004 a breath test of .08 or higher can be considered as proof of intoxication. While OUI is not the most serious crime on the books in Massachusetts, it is one of the most aggressively prosecuted crimes and carries mandatory minimum dispositions for convictions or pleas. All of these dispositions carry a Registry of Motor Vehicle (RMV) license suspension, in addition to court-imposed penalties. Effective, November 29, 2002, any conviction (or CWOF) for OUI can and will count against you for the rest of your life. In October of 2005, Melanie's Law was passed and put into effect in Massachusetts. Melanie's Law is one of the most comprehensive and dramatic revisions to the Massachusetts OUI law. Melanie's Law imposes very serious license suspensions and criminal penalties. Melanie's Law is primarily aimed towards repeat OUI offenders. It is important you understand all of the various penalties and ramifications imposed against you in disposing of your OUI case.

Here is a brief summary of the statutory penalties for a conviction or plea in an OUI case. There is a wide and varied realm of possibilities. In addition to criminal penalties, there are a wide range of driver's license suspensions that come into play. Changes like the lifetime lookback for prior offenses, the .08 Per Se violation and Melanie's Law have all made drastic changes to the Massachusetts OUI law, the consequences of this offense and the proceedings both in court and at the Registry of Motor Vehicles. This is designed to give you a brief, thumbnail sketch of the basic penalties involved. It will be necessary to consult with your lawyer as to the actual and specific full range of penalties that you may be exposed to for a conviction or plea to the charge of OUI. Massachusetts General Law Chap. 90, Sec. 24 regulates the charge of Operating Under the Influence of Alcohol. A disposition in an OUI case can occur as a result of a conviction after a trial, a guilty plea or an admission to sufficient facts. Like all other charges in Massachusetts, your OUI charge will be a part of your permanent Board of Probation record. Even after the case is ultimately terminated or dismissed, this charge and disposition are still reflected on your record.

NEW SATUTORY REVISIONS

Lifetime Lookback:  Effective November 29, 2002, the 10 year lookback period for subsequent OUI offenses charged under M.G.L C 90, s.24, has been revised to a lifetime lookback period. This means that if you have an OUI conviction or Continuance Without A Finding (CWOF) anywhere in your lifetime history, a new OUI charged will be enhanced to the appropriate number subsequent offense. Previously, any conviction more than 10 years old would have no effect on subsequent offense charges or mandatory sentencing. If you have any prior OUI convictions in your lifetime, you should consult with an experienced drunk driving defense lawyer to see if they can be vacated.

Per Se - .08:  Effective 7/1/03, a defendant's Blood Alcohol Content (BAC) of .08 or higher can be considered as "per se" evidence of intoxication. The government can now prove OUI by proving beyond a reasonable doubt: (1) the operator's right to operate was impaired by the alcohol they consumed, and/or; (2) the defendant's BAC was .08 or higher and therefore he was intoxicated, by law. Prior to 7/1/03, the government had to prove beyond a reasonable doubt the operator's ability to operate a motor vehicle safely was impaired by the alcohol they consumed. The law stated that a judge or jury could consider a defendant's BAC in determining whether the operator was under the influence of alcohol and their ability to operate a motor vehicle safely was impaired. This was considered a rebuttable presumption.

PENALTIES

First Offense

• Incarceration: Not greater than 2½ years in the House of Correction.
• Fine: Not less than $500, not more than $5,000.
• $250 Head Injury Fund,$250 State Fee, $50 OUI Assessment, $50 Victim Witness Fee,
• License suspension for one year: A work or school hardship consideration is available in 3 months, a general hardship consideration is available in 6 months.

Alternative Disposition

• Probation with the entry and completion of an alcohol education program at the expense of the defendant.
• License suspension for not less than 45 days, not more than 90 days. The license suspension is 210 days for drivers under the age of 21.
• Hardship license available once the defendant is registered with the alcohol education program, 3 business days from the date of disposition.
• Second offenses occurring beyond 10 years of the finding of the prior offense are allowed to have this disposition imposed.Tthe license suspension should be 45 daysto 90 days.The RMV must honor the 24D license suspension of 45 days - 90 days. The RMV is, however, still imposing a 3 year loss of license for the Breath Test Refusal. You will be eligible for the hardship license through the remainder of this period of suspension with the condition of the installation and maintainence of an Ignition Interlock Device (IID). The RMV will also require that you install and maintain an Ignition Interlock Device for 2 years as a condition of the full reinstatement of your license.

Second Offense

• Incarceration: Minimum sentence of 60 days with 30-day incarceration mandatory and not to exceed 2½ years in the House of Correction.
• Fine: Not less than $600, not more than $10,000.
• License suspension is for 2 years: A work or school hardship is available for consideration after 12 months, a general hardship consideration is available after one 18 months of the suspension. Any hardship license is conditioned upon the installation of an Ignition Interlock Device. You will be required to install an Ignition Interlock Device for 2 years upon the full reinstatement of your license.

Alternative Dispostion

• Probation for 2 years.
• 14-day in-patient treatment program at the expense of the defendant. The Defendant will also have to complete a 60 hour Second Offender's Aftercare Program (SOAP).
• License suspension for 2 years: A work or school hardship consideration available after 12 months, a general hardship consideration is available after 18 months. Any hardship license is conditioned upon the installation of an Ignition Interlock Device. You will be required to install an Ignition Interlock Device for 2 years upon the full reinstatement of your license.

Third Offense

• Incarceration not to be less than 180 days with a 150-day incarceration mandatory and not to exceed 5 years in the state prison (felony).
• The incarceration may be served in a secure treatment facility in lieu of the House of Correction.
• Fine: Not less than $1,000, not more than $15,000.
• License suspension is for 8 years: A work or school hardship consideration is available after 2 years, a general hardship consideration is available after 4 years. Any hardship license is conditioned upon the installation of an Ignition Interlock Device. You will be required to install an Ignition Interlock Device for 2 years upon the full reinstatement of your license.

Fourth Offense

• Incarceration not to be less than 2 years with a 1-year minimum incarceration mandatory and not to exceed 5 years in the state prison (felony).
• Fine: Not less than $1,500, not more than $25,000.
• License suspension is for 10 years: A work or school hardship consideration is available after 5 years, a general hardship consideration is available after 8 years. Any hardship license is conditioned upon the installation of an Ignition Interlock Device. You will be required to install an Ignition Interlock Device for 2 years upon the full reinstatement of your license.

Fifth Offense

• Incarceration is not less than 2½ years with 24 months minimum incarceration mandatory and not more than 5 years in the state prison (felony).
• Fine: Not less than $2,000, not more than $50,000.
• License suspension for life with no possibility of hardship consideration.

OPERATORS UNDER 21 YEARS OLD

Massachusetts General Law Chap. 90, Sec. 24 provides a detailed and intricate range of penalties for operators under 21 years old charged with and/or convicted for OUI. The most significant difference between the under 21 penalties and the adult penalties is the increase in license suspension for under 21 operators. Operators under the age of 21 years old face license suspension from a minimum of 180 days to a maximum of 390 days. It is necessary to speak with an experienced and qualified criminal defense lawyer to fully understand the under 21 years old penalties available for your case.

SUBSEQUENT OFFENSES

Massachusetts General Law Chap. 90, Sec. 24, effective November 29, 2002, established a lifetime lookback period for determining subsequent offenses. The lifetime period encompasses the date of the conviction or finding of the prior OUI offense to the date of arrest of the subsequent OUI offense. If an operator only has 1 prior conviction in his history and that conviction occurred more than 10 years prior to the date of the new offense, the operator can receive a first offense disposition. It is unclear at this time, as detailed above, whether the license suspension will be for the 45 days allowed for a first offense or for the 2 years required for a second offense. Outside of a first offense committed by an operator with no prior criminal record, it is still within the deciding judge's discretion to impose penalties beyond the mandatory minimums. In any criminal case a judge will review a defendant's entire criminal history record in sentencing.

LICENSE REINSTATEMENT FEES AFTER CONVICTION

• 1st Offense - $500.00
• 2nd Offense - $700.00
• 3rd Offense - $1,200.00
• License Reinstatement Fee - Administrative Suspension - $100.00

Administrative License Suspension

• License Suspension
  As mentioned above, if you refuse the breath test after your OUI arrest, your license will be suspended for at least 180 days, and up to a life suspension if you have 3 or more prior OUI convictions. If you submit to and fail the breath test by registering a reading of .08 percent (BAC), your license will be suspended for 30 days. If either of these suspensions occurs, your license will be immediately confiscated by the arresting police department.
• There is, however, a provision in the OUI statute that states that if you are found NOT GUILTY or if the OUI charges are dismissed before the refusal suspension has expired, you are presumed to have your license reinstated immediately.
• There is no hardship license available for this administrative suspension.

FIELD SOBRIETY TESTS

Field Sobriety Tests (FSTs) are the roadside examinations administered by the police officer in investigating whether you were operating your vehicle under the influence of alcohol. Field sobriety tests are standardized tests and were developed and sponsored by the National Highway Traffic Safety Administration (NHTSA). The standardized field sobriety tests, if given in a prescribed manner, under a standardized setting, supposedly demonstrate validated indicators or cues of a person's impairment. When the tests are administered in the manner detailed by the NHTSA and an officer observes these cues, it allows him to establish probable cause to believe an operator is impaired and arrest that person for OUI. Many times the FSTs are administered incorrectly, in an inappropriate setting or to an inappropriate candidate. Even if administered correctly, according to the NHTSA, there are large degrees of unreliability applicable to these tests, as much as 35%. According to the National Highway Traffic Safety Administration, if any of the standardized criteria for the administration of the tests is compromised, the validity of the test results is diminished beyond the already high degrees of unreliability. Additionally, the "scoring" of the test performances by police officers is highly subjective. There are very few objective findings in field sobriety testing. The scoring format is negative scoring. The subject does not get credit for how much of the test he or she does correctly, but rather how many things are done incorrectly. The three primary standardized field sobriety tests are:

Horizontal Gaze Nystagmus

In the performance of this test, an officer asks a suspect to following a pen or small flashlight, tracking left to right with his eyes. A person's eyeball jerking (nystagmus) is magnified by the amount of impairment due to alcohol. There are, however a large number of causes of nystagmus other than alcohol. This test is regularly deemed inadmissible in Massachusetts as the officer lacks the qualifications to interpret the eye movements to properly evaluate this test. Despite its non-evidentiary use, police officers conducting tests roadside regularly utilize this test in the formation of probable cause to place a suspect under arrest for OUI.

Nine-Step Walk and Turn

The nine-step walk and turn test is a divided attention examination. One part of the test is the cognitive phase. The officer is conducting observations of the operator's ability to understand and follow instructions during the course of this phase of the test. During this time, the officer is verbally instructing and physically demonstrating how he wishes this test to be performed. The operator is advised to stand still, feet together, hands at his side during the performance of the instruction phase. He is also instructed not to start the test until all of the instruction and demonstration is complete. The officer will typically make and record observations of an operator during this phase. The second phase is the performance of the test. What is required in the physical performance of the test is that the subject walk on a straight line, one foot in front of the other, touching heel to toe, keeping his arms to his side, counting the steps out loud. The subject is required to take nine steps out, articulate a turn at the end and take nine steps back in the same manner. During the performance of this test, the officer is watching for eight clues of impairment:

1. Loses balance during instruction
2. Starts test before instructions are finished
3. Stops during performance of test to steady self
4. Fails to touch heel to toe
5. Steps off of line
6. Uses arms for balance
7. Loses balance or turns improperly
8. Takes the wrong number of steps

If a suspect demonstrates two of these eight clues at any time during the performance of this test, the subject is deemed to have failed this test. This test supposedly demonstrates a 68 percent reliability that the subject is under the influence of alcohol and has a BAC of .10 (now .08) or more. In the proper administration of the 9 Step Walk and Turn Test there are 93 opportunities for the subject to demonstrate a clue. A subject could successfully complete 91 of the 93 opportunities to demonstrate a clue and still have the test deemed to be a failure.

One Leg Stand Test

Like the nine-step walk and turn test, the one leg stand test also is a divided attention test, cognitive and performance. During the instruction stage, the suspect is required to stand with his feet together and his arms at his side. The officer should verbally instruct and demonstrate the performance of this test for the subject. The performance stage of this test requires that the subject stands with one foot of their choice approximately 6 inches off the ground, straight out in front of them and counts out loud by thousands for 30 seconds. The suspect is advised not to hop on the one foot or to use his arms for balance. During this test, the officer is trained to observe for four clues of impairment:

1. Swaying while balancing
2. Using arms for balance
3. Hopping to maintain balance
4. Putting foot down before completion of test

If an officer observes two or more of the above clues, this test supposedly demonstrates a 65 percent reliability that the subject has a blood alcohol content of .10 (now .08) or more. The One Leg Stand Test has 151 opportunities for a subject to demonstrate a clue. 149 out of 151 clue opportunities of the test could be successfully completed and it would still be a failure.

Conditions

There are certain conditions, under which the tests should be administered, as required by the NHTSA. The tests are to be administered on a hard, dry, clean, non-slippery, level surface in a well-lighted area. Tests that are administered in less than standardized conditions diminish the already marginal results, which an officer might obtain. Additionally, the physical condition of the Defendant can affect the test performance. Persons who have problems with their neck, back, legs or feet can have a difficult time doing these tests successfully to the degree necessary. Other problems like ADD, ADHD or Anxiety can greatly impair a person’s ability to do these tests. The tests that are mentioned above are the only tests that are validated for use by an officer in detecting intoxication in an operator. Oftentimes you will see or hear about tests such as touching finger to nose, picking up coins, and counting backwards being utilized by officers as field sobriety tests. There is no scientific validation for these tests and they offer little or no documented reliability for the officer to accurately detect impairment. Remember, if any element of the standardized field sobriety test is altered or compromised, then the validity and reliability of the test is compromised. These compromises work in your favor in court.

Can I refuse the Tests?

In Massachusetts, an operator has a right to refuse to perform field sobriety tests. By performing field sobriety tests, you are only providing evidence to the officer in forming his OUI case against you. As noted above, these tests have to be performed almost 100% correctly to be considered a "pass". Many officers don't understand the FST's criteria or remember them from the police academy. Oftentimes it appears that the operator was already going to be arrested before the tests were even administered, and they were administered so the officer could record some observations for his report. The roadside field sobriety tests are also almost never recorded by the poilce. This creates a situation at trial where it would be your word against the police officer's word if you disagreed with his description of your performance on the tests. In the typical administration of field sobriety tests, a police officer will not describe to the subject the criteria he is looking for in the performance of this test. The officer typically will not describe to the subject the various clues he is looking for. The officer typically will not describe the number of clues necessary to formulate the failure of the test by the operator. In a typical stop, the officer will ask the operator to perform several field sobriety tests. At the conclusion of those tests, the officer will inform the operator that he is placing the subject under arrest. Prior to advising the operator they are under arrest, the officer will have virtually no discussion with the operator about the performance of the tests. It is not uncommon to have persons arrested for OUI to state that they did well on the FSTs only to see a completely different description of their performance as described by the officer in his arrest report.

Remember, everything you say and everything you do can and will be used against you in a court of law. Be smart and protect yourself.

Disclaimer

This article is intended as an overview of basic field sobriety tests administered by local police departments as instructed by the NHTSA. The foregoing is provided for information purposes only. For a more encompassing discussion of field sobriety testing, you should consult in person with a qualified criminal defense lawyer.

 

Assault and Battery

Assault and Battery is a serious charge, and carries serious penalties. I will work hard to protect your rights. Every case is unique, and I will give yours the attention and time it deserves. Your freedom depends on it.

According to Massachusetts Criminal Law, Assault and Battery is defined as:

Touching another person, without having any right or excuse for doing so.

The prosecution must prove that:

• You intended to touch the victim, and
• The touching was either likely to cause bodily harm, or was done without the victim’s consent.

Assault, by itself, does not require the actual touching of the victim.

Penalties for Assault and Battery:

You can face up to 2½ years of incarceration and/or a fine of up to $1,000.

In the following situations, the penalties can increase to 5 years of incarceration and/or a fine of up to $5,000:

• Causing serious bodily injury to another person, or
• Assaulting and battering a victim who you know or should know is pregnant, or
• Assaulting and battering a victim who has a restraining order against you

"Serious bodily injury" means that the injury results in a permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death.

The maximum penalty increases even further, to 10 years of incarceration, when:

•  The perpetrator uses a dangerous weapon, or
• The victim is 60 years or older and a dangerous weapon is used.

The maximum penalty increases to 15 years of incarceration and/or a fine of $10,000 when:

• The perpetrator uses a dangerous weapon and causes serious bodily injury, or
• The perpetrator uses a dangerous weapon on a pregnant victim, or
• The perpetrator uses a dangerous weapon and in violation of a restraining order, or
• The perpetrator, 17 years or older, uses a dangerous weapon on a victim under the age of 14.

 

Drug Offenses

MARIJUANA DECRIMINALIZATION

In 2009, Massachusetts decriminalized the possession of less than one ounce of marijuana. This means that it is no longer a misdemeanor. Instead, it is a civil offense and you can be fined $100. However, police sometimes use that to conduct a more thorough search of your residence, vehicle, or yourself. The effects of this change in law have not fully played out, although recent court decisions have clarified some of law enforcement’s obligations and defendants’ rights.

A recent court decision has established that the police do not have a right to search a vehicle simply based on the smell of marijuana. There needs to be more evidence to establish probable cause. Another court case makes it clear that although possession of up to an ounce is not criminal, possession with intent to distribute, even under an ounce, is still a crime.

If you are under 18, possession of less than an ounce carries additional penalties. In addition to the $100 fine, you will need to complete a drug awareness program and your parents will be notified. If you fail to complete the drug awareness program and any required community service, the fine may be increased to $1,000.

CRIMINAL DEFENSE LAWYER FOR DRUG TRAFFICKING OR POSSESSION

Any time you are accused of drug trafficking or possession, at either state or federal level, you should arrange for legal representation by an experienced Criminal Defense Lawyer who has specific knowledge of this area of criminal law.

Both crimes are severely punished at state and federal levels. It is important that you get the best possible defense to protect your rights and your freedom. It is possible to get charges dismissed or a minimum sentence imposed instead of maximums. Call today to get the best possible outcome.