Earlier this year, an Arizona woman was killed when she was struck by an Uber self-driving test vehicle. Elaine Herzberg was crossing a Tempe street with her bicycle when the tragic accident occurred. In response, Uber immediately pulled all self-driving test vehicles from cities nationwide.

Although the Uber test vehicle was in autonomous (self-driving) mode when the fatal crash occurred, there was a human operator behind the wheel in case of an emergency. According to the Tempe Police Department, Rafaela Vasquez was watching Hulu when she was supposed to be watching the road. Police also commented that the crash was “entirely avoidable.”

Was it Criminal?

Tempe police were able to obtain records from the online service that was monitoring the autonomous Uber. Records showed that Vasquez was streaming “The Voice” for approximately 40 minutes, stopping at exactly 9:59 p.m., which also happens to be the “approximate time of the collision.” In addition, police say she took her eyes off the road for nearly seven of the 22 minutes leading up to the collision.

These findings were submitted to prosecutors, and criminal charges—such as vehicular manslaughter—may follow. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with vehicular manslaughter or any other crime.

What is Vehicular Manslaughter?

The definition and penalties vary somewhat from state to state, but manslaughter is generally defined as the non-premeditated killing of one person by another. In MA, vehicular manslaughter falls under one of two categories—involuntary manslaughter or motor vehicle homicide.

  • Involuntary manslaughter occurs when an individual unintentionally kills another while engaged in some form of reckless or wanton conduct. Reckless driving that leads to the death of another could be charged as involuntary manslaughter. In MA, punishment for involuntary manslaughter can be up to 20 years imprisonment.
  • Motor vehicle homicide, on the other hand, usually involves driving under the influence of drugs or alcohol. In MA, all motor vehicle homicide convictions carry a 15-year license suspension, up to a lifetime revocation (if you have a prior OUI conviction). If convicted of motor vehicle homicide, you may be facing up to 15 years in prison.

Wrongful Death

In addition to potential criminal charges, a civil wrongful death claim may be brought against both Vasquez and Uber. Although Uber has not commented, the ride-share giant claimed to be initiating a “top-to-bottom safety review” last month.

“We continue to cooperate fully with ongoing investigations while conducting our own internal safety review,” said an Uber spokeswoman. “We have a strict policy prohibiting mobile device usage for anyone operating our self-driving vehicles. We plan to share more on the changes we’ll make to our program soon.” A MA criminal defense attorney can help you protect your rights if you’ve been charged with a crime.

Although three drivers have been killed in Tesla Autopilot vehicles since 2016, the death of Elaine Herzberg was the first non-driver fatality involving a self-driving vehicle. Continue reading

It is illegal in all 50 states to purchase, and even to possess, alcohol if you are under the age of 21.  And although it is illegal for anyone to drive under the influence of alcohol, individuals under age 21 are prohibited from driving with even the slightest trace of alcohol in their system. For example, while in most states the legal blood alcohol concentration (BAC) is anything below 0.08 percent for “of age” drivers, a BAC of 0.02 percent or less can result in an OUI if you’re under 21. This law is referred to as Zero Tolerance.

In MA, due to Zero Tolerance Laws, it is a crime for drivers under the age of 21 to operate a motor vehicle with a BAC of 0.02 percent or higher. In layman’s terms, you don’t need to feel drunk—or even buzzed—to get an OUI if you’re under 21 in MA. Although these laws are intended to prevent the dangers of underage drinking, they can sometimes do more harm than good. Imagine, for example, that 20-year-old Brandi is home from college to celebrate her sister’s engagement. To toast her sister’s future, Brandi has a glass of champagne before heading to a local restaurant for a celebratory dinner. On the way there, she gets pulled over because her headlight is out. The officer asks Brandi if she’s been drinking and she innocently replies that she had one glass of champagne. The officer gives her a breath test and it measures her BAC at 0.02 percent. She is arrested and charged with OUI.

Isn’t Zero Tolerance a Little Excessive?

Zero Tolerance laws weren’t created to punish people like Brandi. According to the National Highway Traffic Safety Administration (NHTSA), when it comes to fatal car crashes involving 15 to 20-year-old drivers, nearly one-third are alcohol-related. Zero tolerance laws aim to combat this serious problem. Young drivers are about twice as likely to be involved in an alcohol-related crash. A Boston OUI defense lawyer can help you determine how to proceed if you’ve been charged with an OUI or underage drinking.

And MA is actually a bit more lenient on underage drinking and driving than some other states. The National Highway Systems Designation Act of 1995 made it a matter of law for every state in the nation to use a BAC of 0.02 percent or lower when determining if an underage driver can be charged with OUI. In addition, a BAC of 0.02 percent or higher will result in a “per se offense,” which means that intoxication doesn’t have to be proven to charge the individual with OUI.

Zero Tolerance Laws Seem to be Helping

The NHTSA conducted a study of 24 states—12 with Zero Tolerance laws and 12 without—to see if there were any noticeable differences in crashes involving young people and alcohol. The results revealed that Zero Tolerance states had 20 percent less fatal nighttime crashes involving single cars. Considering that nighttime crashes are far more likely to involve alcohol, these results are significant. A MA OUI defense attorney can help you protect your rights if you’ve been charged with underage OUI.

The bottom line—if you are under the age of 21, never get behind the wheel if you’ve had anything to drink. You don’t have to be drunk to get an OUI if you are underage. An OUI conviction can have longterm consequences, affecting your ability to get a job and increasing your insurance premiums, to name a few. Continue reading

No criminal prosecution will occur in a Florida case involving four teens, and an adult male who drowned as the teens watched, laughed, and filmed his struggles. On July 9 2017, Jamel Dunn screamed for help as he struggled to keep his head above water in a small pond in Cocoa, Florida. Not only did the young onlookers not help, they filmed the tragic situation and mocked Dunn as he took his final breaths.

In the video, which the teens later posted on YouTube, they can be heard mocking and taunting Dunn. “Ain’t nobody gonna help you, you dumb (expletive),” says one, and another laughs, saying, “We just (let) buddy die. We could have helped his (expletive), and we didn’t even try to help him.”

Not a Crime in Florida

According to the Cocoa Police Department, the state of Florida does not have a law requiring individuals to provide help in an emergency. Although such legislation was proposed earlier this year, it didn’t receive necessary support. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with a crime.

The boys, ages 14 to 16, admitted to being at the scene of the accident to smoke marijuana. Although they have expressed remorse for their actions—or lack thereof—many are up in arms over the announcement that no charges will be filed. And understandably so.

“I know that everyone was sickened by the callous disregard for human life exhibited by these young people,” said Seminole-Brevard State Attorney Phil Archer. “We can only hope that this was an isolated and rare circumstance that will never happen again. Unfortunately, Florida law does not address this behavior and we are ethically restrained from pursuing criminal charges without a reasonable belief of proving a crime beyond and to the exclusion of every reasonable doubt.”

Good Samaritan Law

Unfortunately, what Archer says is true. Florida lacks a statute requiring bystanders to provide assistance to a victim. There’s not even a risk of civil liability. There is a law protecting so-called “Good Samaritans” from liability if they accidentally harm someone while providing emergency treatment (which is intended to encourage people to help when they can), but there is no punishment for failing to act.

There is, however, a Florida law that requires individuals to report a known death to the medical examiner. According to reports, the State Attorney’s Office considered charges for violation of this law, but “could not find any similar incident in which this law was used for this purpose and we do not believe it would be appropriately applied under the facts of this case.”

Following the drowning, Florida Senator Debbie Mayfield proposed a bill that would make the failure to help someone in grave danger a crime. The bill didn’t pass.

Is it a Crime in MA?

In Massachusetts, failing to be a Good Samaritan can, indeed, carry criminal consequences. Here, it is every person’s duty to provide reasonable care to prevent harm to another. Basically, if you see someone need, and you are able to help, you are required to do so. Of course, there are certain defenses to such charges, the most likely being that you would have likely died in the attempt to save the person. In the drowning death of Jamel Dunn, however, that was far from the case. A MA defense attorney can help you protect your rights if you’ve been charged with a criminal offense. Continue reading

In Massachusetts, if you are stopped by police on suspicion of operating under the influence (OUI), there’s a good chance that you will be asked to submit to a breath test. This test measures the concentration of alcohol in your blood, also known as your BAC. You can refuse to take the test, but there are consequences for doing so. Namely, you will face an automatic, six-month license suspension. That being said, a reading above 0.08 percent will likely carry an even stiffer penalty.

Most folks have heard of a breathalyzer test, and know that a BAC below 0.08 percent is the legal limit in MA. But notably fewer understand the different methods used to measure BAC, their accuracy, and how to challenge results in court. The FAQs below provide answers to all of those questions, and more. A Boston OUI defense attorney can help you determine how to proceed if you have been charged with OUI.

How is BAC Measured?

Although the breathalyzer (breath test) is the most commonly used method for measuring BAC, it is far from the only one. In fact, a total of five bodily samples can be screened for BAC. These are breath, blood, hair, saliva, and urine. Having someone blow into a tube is much less invasive than, say, collecting urine or blood samples. As a result, breath tests are far more likely to be used by law enforcement during an OUI stop. Although saliva tests can be administered in an equally non-invasive manner, they are less common than breath tests. This is likely due to the ease of administering a breath test, and the fact that it doesn’t require the handling of bodily fluids (saliva).

How Does a Breathalyzer Work?

There are various types of breathalyzer machines. While some use the “wet chemical” technique to measure BAC, the most common technique, infrared spectroscopic analysis, measures the content of alcohol in exhaled vapors. These vapors absorb light waves of a specific frequency based on the concentration of alcohol. A computer, in turn, translates this information into a BAC measurement.

Can You Trick a Breath Test?

If you are actually intoxicated, none of the myriad “tricks” circulating out there can help you beat the test. Regardless of how many breath mints or onions you eat, or if you hide a penny under your tongue, the breath test will know if you are drunk. Some rumored methods of beating the test, such as gurgling with mouthwash, can actually raise your BAC.

Are Breath Tests Always Accurate?

Definitely not. However, breathalyzer results are widely accepted as accurate by law enforcement and most courts. The reality is, breathalyzer readings can be off by up to 15 percent when compared to a more accurate blood draw. Courts have thrown out plenty of breath test results since their inception, but fighting an over-the-limit reading requires the assistance of an experienced, and highly-skilled MA OUI defense attorney.

Can I Fight My Test Results in Court?

Of course you can. There are multiple regulations surrounding the use and maintenance of breath tests. A skilled lawyer can analyze the details of your arrest, and the device’s maintenance records, to determine if all regulations were followed to a T. Readings can vary based on the device’s temperature, the individual’s body temperature, the presence of hematocrit in the blood, poor device maintenance, and an improperly calibrated device. Continue reading

Earlier this week, the Ottawa Senators hockey team traded left winger Mike Hoffman to the San Jose Sharks, amid controversy involving the player’s fiance. According to news reports, Hoffman’s fiancé, Monika Caryk, has been cyberbullying the wife of Senators’ star defenseman, Erik Karlsson. In fact, Melinda Karlsson recently filed an order of protection against Caryk.

“Today’s trade showcases our determination to strengthen the future of the team by improving chemistry, leadership and character in the locker room and on the ice. We are confident it is a step in the right direction for the long-term success of this organization,” said Senators general manager Pierre Dorion.

According to the Ottawa Citizen, Caryk has been harassing Karlsson and her husband online since November 2017, even going so far as to make cruel comments about their baby who was stillborn earlier this year.

“Monika Caryk has uttered numerous statements wishing my unborn child dead,” said Melinda Karlsson in a sworn statement to the court. “She also uttered that she wished I was dead and that someone should ‘take out’ my husband’s legs to ‘end his career.’

“Monika Caryk has posted over 1,000 negative and derogatory statements about me as a professional.”

Is Cyberbullying Illegal?

If an action constitutes criminal harassment, it doesn’t matter if it takes place over the phone, in person, or online—criminal harassment is a crime. In addition, new cyber harassment statutes in some states may lead to more criminal charges. Nearly fifty percent of all states in the nation now include some type of “cyberbullying” legislation. Even so, most cases of cyberbullying remain a civil matter.

Following the death of their son, Erik Karlsson posted a picture of the baby’s footprints on Instagram. He thanked Senators’ fans and the city of Ottawa for their support, writing: “We feel very lucky to be Axel’s parents. Even though he was stillborn, we know we will hold him again one day under different circumstances and the joy he gave us will be with us forever.”

The post, which has received over 10,000 wishes of love and support, contained one cruel comment as well. A user with the name sandydandy45 posted: “I feel bad for the baby he didn’t have a chance with Melinda popping pain killer medication everyday.”

Hoffman Denies Any Wrongdoing

Mike Hoffman and his fiancé deny any involvement in that comment, or any other form of cyberbullying.

“There is a 150 percent chance that my fianceé Monika and I are not involved in any of the accusations that have been pursued (that are) coming our way. We totally understand there’s no place for cyberbullying. We’ve offered to cooperate and do anything it takes to find out who is doing this, and support (the Karlssons),” said Hoffman in a recent statement.

“Obviously this is a tough time that they’re going through, and we want to find out who is doing this, because for some reason it’s coming into our court, and it’s 150 percent that it’s not us. We have nothing to hide. We’re willing to cooperate in any way to solve this and figure it out, and prove that it wasn’t us.” Continue reading

Driving while drunk or under the influence of drugs is a criminal offense with serious penalties in MA. But if you are arrested for OUI with a child in the car, those penalties are likely to be significantly harsher. You may even face additional charges. Case in point – a West Virginia woman is facing felony charges for child neglect following her drunk driving arrest; she had an 18-month old in the car with her at the time of the arrest.

Getting an OUI conviction with a child in the car typically carries more serious consequences. As with all criminal offenses, however, penalties vary widely based on a variety of factors. If you have no prior criminal history and you were barely above the legal limit, for example, you will likely face a lesser charge than an individual with a criminal history and high blood alcohol content (BAC). If you have previously been convicted of multiple OUIs, you may be facing a felony charge, even without having a child in the car. But the presence of a child will almost certainly result in more serious charges.

To be safe, you should never drink and drive, especially with children in the car. But if you make a mistake, it is in your best interest to hire a Boston criminal defense attorney immediately.

OUI with Child Endangerment

In 2005, it became a separate criminal offense to operate a motor vehicle under the influence of alcohol with a child under 14 in the car. It was enacted as part of Melanie’s Law, legislation intended to enhance OUI-related penalties. If you have been charged with OUI with child endangerment, you may be facing the following penalties:

  • First offense – Up to two-and-a-half years in jail, with a minimum of 90 days. Fines of up to $5,000 and a one-year license suspension.
  • Second and subsequent offenses – Up to two-and-a-half years in jail, with a minimum of six months. Fines of up to $10,000 and a three-year license suspension.

If your actions place a child in danger of physical or emotional harm – whether negligently or intentionally – child endangerment charges may follow. In addition, the Department of Children and Families (DCF) may get involved to assess whether it would be in the children’s best interests to be removed from the home and placed in foster care.

A DCF investigation may also occur if no children were present in the car at the time of your arrest. If DCF believes that your actions may jeopardize the health and safety of your children, they can conduct an investigation even if your offense didn’t directly involve a child. In either case, it is essential to seek the help of experienced legal counsel. A MA criminal defense attorney can help you protect your rights if you have been charged with OUI with child endangerment or any other crime.  Continue reading

Brittany Smith (hereinafter, the “Defendant”), 29 years of age of Athol, was found guilty yesterday in a Home Invasion turned deadly case in Franklin Superior Court. The crime took place in Orange in October, 2016. As a result of the violent Home Invasion, two people died according to the Commonwealth. The victims were a 95-year-old man and his 77-year-old wife, Thomas Harty and Joanna Fisher. Mr. Harty died at the scene while Ms. Fisher, who used a wheelchair, died several weeks later.

The Defendant was convicted of two counts of first-degree murder.

The Defendant is the second person convicted in the case. Her boyfriend, 25-year-old Joshua Hart, was convicted last month.

Both face sentencing on May 10th.

According to Boston.com,Authorities say the pair wanted to steal a car and money so they could leave Massachusetts to avoid charges in unrelated cases.

Attorney Sam’s Take On Two Defendants Meaning Two Trials

You may be wondering why there had to be two trials in this matter, where the defendants were charged with the same crime.

Continue reading

Yep, sometimes things go wrong in the criminal justice system, no matter which side you are on.

But, no, not in the way we have been discussing in my last few postings.

We turn Northward, to Peabody. According to the Salem Daily News, A gent who had been labeled by a judge in February as an “uncontrollable danger” to women walked out of court yesterday a free man. Case dismissed.

Mark Papamechail, 55, of Peabody (hereinafter, the “ExDefendant”) had been ordered held without bail since the fall after a woman accused him of “date rape” in October. The allegations were that the woman had been in her 50’s, she had gone on a few dates with him, he invited her back to his place where he pressured her for sex and then forced himself upon her.

The allegations of the case were similar to those in a 2014 case involving another woman in her 50s who had met the ExDefendant on a dating website called Plenty of Fish. She too said he had invited her to his apartment after a date, where a sexual assault allegedly took place.

That case went to trial and, in 2016, he was found to be not guilty.

Continue reading

 

In the Cape Cod Times, the call that the criminal justice system’s “softness and weak” is to blame for the murder of the Yarmouth police office Sean Gannon. In the words of Rodney Collins, Mashpee town manager:

The tragedy of Officer Gannon is another indictment of the Massachusetts criminal justice system, which is overly soft and weak. Gov. Baker and state legislators can express sympathy and sorrow for this shocking loss; however, what they really need to do is act on criminal justice reform that will keep violent offenders from preying upon a civilized society. Call it the “Gannon bill” and make a real difference!

We had been discussing this topic on my postings of April 13, April 19  and April 20th. Feel free to review them.

Now, lets tie this issue up.

Continue reading

Disorderly conduct charges are some of the most common criminal charges in MA, and nationwide. You can get charged with disorderly conduct for anything from shouting in public late at night to getting into a bar fight. Not surprisingly, alcohol is a common factor.

Fortunately, disorderly conduct charges are usually for relatively minor offenses…but a criminal record is a criminal record. If you made an error in judgment and got charged with disorderly conduct, can your charges be dropped? A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with any type of crime.

As with any crime, it’s possible to get a disorderly conduct charge dropped, but your chances of success are highly dependent on multiple factors. Disorderly conduct, also referred to as disturbing the peace, covers a broad array of offenses and potentially criminal acts. Basically, in order for a charge of disorderly conduct to stick, the prosecution must prove that you recklessly or intentionally caused annoyance or alarm to the public.

There are some common defenses to disorderly conduct charges, including being a minor, acting in self defense, acting under duress, or mental incapacity. Even more important are the circumstances surrounding your offense. For instance, if a multiple-person bar fight broke out while you happened to be there—but you did not engage in the fight—and police arrested everyone on the scene, you could easily argue that you did not participate in the brawl.

Although a first time disorderly conduct conviction rarely equals jail time, it will give you a criminal record, and you may have to pay hefty fines. With the right attorney, getting disorderly conduct charges dropped is a very good possibility. A MA criminal defense lawyer can help you protect your rights if you’ve been charged with disorderly conduct or any other criminal offense.

What is Considered Disorderly Conduct in MA?

Under MA law, being a “disorderly person” is a criminal offense. Engaging in fighting, violent, or excessively noisy behavior, and creating offensive or dangerous conditions for others are all forms of disorderly conduct. You can even get charged with disorderly conduct for leaving trash in a public area. Public intoxication is not a crime, in and of itself, but you may be taken into custody if you are found to be excessively drunk in public. MA law further defines the crime of disorderly conduct to include:

  • prostitution;
  • annoying another person with offensive or threatening behavior;
  • engaging in lewd behavior of speech in a public area;
  • indecent exposure;
  • participating in a riot and refusing to disperse; and
  • disturbing the peace, which includes yelling outside late at night or being disruptive in a public setting.

What are the Penalties for Disorderly Conduct in MA?

If you are convicted of disorderly conduct or disturbing the peace, you will likely only pay a fine for your first offense. However, subsequent convictions can be punishable by a fine and up to six months jail time. You may also receive probation as part of your sentencing. Beyond fines, probation, and possible jail time, a disorderly conduct charge may have collateral consequences. An employer may view this as a reflection of your tendency toward aggression or reckless behavior. The bottom line is, if you are facing disorderly conduct charges, it is in your best interest to seek legal counsel immediately. Continue reading

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