Boston Criminal Lawyer Blog

May 2, 2023

Over 27,000 Massachusetts Drunk Driving Convictions Called Into Question

If you were convicted of drunk driving in Massachusetts, you may qualify for a second chance. The Massachusetts Supreme Judicial Court (SJC) ruled in April that due to problems with certain breath test machines — and the state’s handling of the issue — around 27,000 people can request to withdraw their guilty plea or seek a new trial.

The ruling follows an investigation revealing that breathalyzers used in a Massachusetts forensic testing lab may have malfunctioned over a period of nearly eight years, leading to potentially faulty results. Citing “egregious government misconduct,” the SJC ruled that alcohol breath tests performed on the devices between June 1, 2011 and April 18, 2019 must be excluded from criminal prosecutions.

Misconduct at State Testing Lab

May 2, 2023

What are the Criminal Consequences of Leaving the Scene of an Accident in Massachusetts?

by Altman & Altman

If you have a car crash in Massachusetts, you are legally required to stop your vehicle and exchange information with the other parties involved. But drivers sometimes leave the scene of an accident for a variety of reasons: they are unaware of the collision, they have issues with their insurance or driver’s license, or they simply panic and drive away.

While you may know you should stop at the scene of an accident, what happens if you don’t? Hit and run violations can have potentially serious consequences including traffic tickets, suspension or loss of your driver’s license, legal fines, probation, and even jail time. The exact criminal penalties for leaving the scene of an accident in Massachusetts depend on the specifics of the crash, including what kind of damage or injury occurred.

What Constitutes a Hit and Run in Massachusetts?

June 20, 2022

What Constitutes Disorderly Conduct in Massachusetts?

by Altman & Altman

What Constitutes Disorderly Conduct in Massachusetts?

Over 2,000 people a year find themselves under arrest for disorderly conduct in Massachusetts. But what exactly is disorderly conduct? Often used as a catch-all offense when someone acts in a way that is likely to upset others, disorderly conduct actually applies to a range of activities. So if you engage in any number of behaviors that annoy the public at large, you may face a charge of disorderly conduct in Massachusetts.

While each state has its own laws about what constitutes disorderly conduct, Massachusetts defines it as “behavior that tends to disturb the public tranquility or to alarm or provoke others.” It includes fighting and threatening, engaging in agitated behavior that causes a public nuisance, and acting in a way that poses a hazard to public safety or creates a physically offensive condition for no justifiable reason.

November 4, 2021

Applying for a hardship license in Massachusetts

by Altman & Altman

We often get the question here at Altman and Altman LLP, if I have lost my Massachusetts drivers license due to a criminal or motor vehicle infraction, am I eligible to apply for a hardship license? In general (though with some exceptions) the answer is yes. There are two instances where the hardship license is unlikely to be granted are as follows: If someone is serving a license suspension for refusing a breathalyzer test it is an uphill battle and very unlikely, In addition if someone had their license suspended for negligent or reckless homicide the answer is generally not likely as well. However, other than these two examples if you/we can make a compelling case for a hardship license you have a real chance to be granted the license. We have found that applying for a hardship license in Massachusetts is often not a futile or a time wasted process.

The best case scenario is that the Massachusetts Board of Appeals grants you a hardship license. The worst case scenario is that you are denied the hardship license, but the Board advises you as to why they are inclined to deny your request at this time. They will provide you/us with valuable information for the next time we apply for the license. For example, the Board may have wanted to see more of a work or family need for the hardship license to be issued, or the Board may have wanted to see the additional engagement of driving classes or courses. While there is some risk that that Board of Appeals will not permit you to re-apply for a certain period of time, we have found that they can be reasonable in that time frame, if they give any time constraints at all.

In our dealings with MA Board of Appeals and/or the DMV/RMV we have found them to be very understanding of one’s true need to have his or her driver’s license. This seems especially true in these pandemic/post pandemic times. While having a MA drivers license is a privilege and not a right. for many people not having the right to drive can be debilitating and potentially career threatening. Whether it be for employment, medical issues, or general family life, not having a driver’s license can be life altering. If we can successfully prove to the board that that you are not a danger to the public, that you have taken adequate steps to ensure that the reason you were suspended in the first place would likely not re-occur and if you have a true hardship, we believe that there is a reasonable chance that you will be granted a hardship license. That said, every case is taken on a case by case basis. But there should be a sense of optimism in obtaining a hardship license when going before the Board of Appeals. If you have questions about your potential hardship case, give us a call to talk with one of our experienced Massachusetts criminal defense lawyers.

August 27, 2020

What is the difference between probable cause and show cause hearings in Massachusetts?

by Altman & Altman

What is a show cause hearing?

A show cause hearing is held before a Massachusetts district court magistrate to establish whether or not there is probable cause that you committed the crime you are accused of. In other words, the prosecution must demonstrate that the evidence shows reasonable grounds for you to be charged with the crime. It is generally available to you if you are accused of committing a misdemeanor crime that you were not arrested for. You may request one within four days of receiving a motor vehicle citation that details misdemeanor charges. At this hearing you, the accused, may bring witnesses. The clerk magistrate will ultimately determine if there is sufficient evidence to constitute probable cause. If he or she determines there is, you will be given a date for your arraignment, where charges will be formally brought against you. If you were arrested, charged with a felony, or the magistrate determines that you may be dangerous, you are not entitled to a show cause hearing.

What is a probable cause hearing?

August 11, 2020

How Does Foreign Extradition Work In Practice?

by Altman & Altman

Foreign extradition is the process by which a criminal found within the United States, is handed over to another country for the sake of criminal proceedings in that country. This process is regulated by treaty and is handled by the federal government. The United States has agreements with over 100 countries. Often these treaties cover all acts that are considered crimes in both countries; however, some only apply to specific crimes. There are times when extradition is allowed without the presence of a treaty, but this will often only occur if the country offers reciprocity. In other words, the United States will not extradite to one country in the absence of a treaty unless the other country will extradite to the United States. The United States has even been willing to extradite people to another country, even when that country would not do the same. The bottom line: America is willing to extradite those within its borders to another country. If you are at risk of foreign extradition, contact one of our foreign extradition attorneys today.

What is an extraditable offense?

Extradition treaties must lay out specific offenses that warrant extradition. In cases where the specific offense is not listed in the treaty, extradition will not be allowed. Many countries, including the United States, may also refuse to extradite offenses that allow for the death penalty in the requesting country.

July 31, 2020

Open warrant in Massachusetts? What you need to know

by Altman & Altman

What is an open warrant?

Open warrants give police officers the authority to arrest a specific individual. Somebody with an open warrant against them may be pulled over. When officers pull you over, they run your name through their system. If there are any open warrants against you, you will likely be arrested on the spot. Open warrants are issued for many reasons. There are two types, default warrants and straight warrants.

Default Warrants

July 20, 2020

What to expect at a clerk magistrates hearing in Massachusetts

by Altman & Altman

Who is a clerk’s hearing available to?

A Clerk’s Magistrate Hearing, also known as a Show Cause Hearing, is an incredible opportunity for you to prevent a criminal case from appearing on your criminal record (CORI). You will receive a notice to appear for a clerk’s hearing if you were not arrested and brought in for arraignment. This is common for misdemeanor charges and for felonies for which the officer chooses not to arrest you on-site, or for crimes in which an officer was not actually present. The most common clerk’s hearing occurs in response to a Motor Vehicle Citation, or speeding ticket. In this case, you will not receive a notice to attend. Instead it is your responsibility to go to the court within four days of receiving the ticket. A clerk’s hearing occurs in lieu of an arrest when civilians ask the court to bring a criminal charge against you. Massachusetts law requires that, if the officer does not arrest you, the officer ask the court to notify you before a complaint is filed against you. You will then be issued the notice before you are formally charged. The notice typically comes in the mail. Many respondents see this as an indication that the matter is not serious. This is not the case.

What happens at the hearing?

July 17, 2020

What a sealed record means in Massachusetts?

by Altman & Altman

Criminal records have a way of following people, making it more difficult to secure employment or many other public benefits such as public housing. The fact is: most employers do not hire people with criminal records. Parents may face issues participating in parental involvement at their children’s schools as a result of an unsealed record.

Sealing your criminal record essentially makes it less accessible. Most employers and landlords will not be able to access it when the do a run-of-the-mill CORI check. You can legally tell employers that you have no record. You can get your record sealed either by mail or in court, depending on the outcome of the case. It is of note that when one of these parties looks up your CORI, it will not say that your record is sealed. It will simply not show your sealed records. This presents an incredible opportunity for a second chance. Your charges do not have to follow you around for the rest of your life, and we can help you seal them.

Sealing a conviction

Most cases allow for you to simply mail in a form to the Commissioner of Probation after waiting a certain period of time. For a misdemeanor, this period is three years, and for a felony, seven years. Convictions can only be sealed in this manner, with the exclusion of a first-time drug possession conviction which can also be sealed in court. If you were found guilty the period starts running from the date the verdict was found. If you were incarcerated after a guilty finding, the period starts running from the date you were released from prison. Convictions for violations of abuse prevention or harassment prevention, as well as convictions for sex offenses, are exceptions and carry longer waiting periods than other felonies.

Some convictions cannot be sealed. These include certain firearm offenses, crimes against the public, Ethics Act violation, or certain crimes if you are a registered sex offender. Individuals charged with possession of marijuana can now seal their records or expunge them in certain cases. Contact us to evaluate which option is better for you.

Other dispositions

Many people don’t realize that even if the case did not end in a conviction, they have a criminal record. If a case was dismissed, ended in a “not guilty” finding, or it was dropped by the prosecutor, the case can be sealed in court by a judge, with no waiting period attached. This also applies to the aforementioned first-time drug possession charge as long as the defendant followed the terms of their probation. Those whose cases result in these findings also have the option of sealing their record by mail after following the prescribed waiting period.

There are a few types of employers and agencies that can access information about your sealed record. This includes: The Department of Early Education and Care, The Department of Children and Families, The Department of Youth Services, and Criminal Justice agencies. This is a concern only when you are applying to work as a daycare working, trying to become a foster parent, or when you are convicted of a subsequent crime. Continue reading

July 8, 2020

MA lab has revealed that Alcotest may have glitches in readings? What happens next?

by Altman & Altman

The Office of Alcohol Testing (OAT) has now been involved in a scandal for several years for its inadequate testing and withholding of breathalyzer certifications relating to the Alcotest 9510 device. The Alcotest 9510 has been under scrutiny since 2017 when Draeger Safety Diagnostics, the manufacturer of the breathalyzers, called several thousand devices into question. The company admitted in court testimony that the device was improperly programmed, leading to incorrect values and affecting the accuracy of blood alcohol concentration (BAC) for OUI-related breath testing.

In Massachusetts, the maximum BAC if 0.08% for drivers over the age of 21 and 0.02% for drivers under the age of 21. In many cases, the driver’s punishment of a fine or even jail time is dependent on the number that appears on this little black box. As more than 1 million Americans are arrested for OUI each year, faulty breath testing is a huge issue in the state of Massachusetts, and everyone has an interest in guaranteeing that these tests are as accurate as possible.

The Alcotest 9510 uses two sensors to measure alcohol content in a driver’s breath: an infrared beam and an electrochemical fuel cell. The results of the two measurements should be almost identical, but if the results differ too much, the test should be rejected due to the potential for inaccurate readings. The issue with this device is that is does not shut down when values are too far apart, and inaccurate readings are instead treated as an indication of drugs or alcohol in the driver’s system. After an inspection of 400 machines in 2017, not a single machine was programmed correctly. Up to 20% were likely to produce false positive values for BAC, information which OAT was intentionally withholding. This means that the machine may display an illegal BAC reading when the driver is not actually over the legal limit.

In February 2017, the court ordered tests dating back to June 2011 be assumed inaccurate and excluded from evidence pending a demonstration on a case-by-case basis that the device was reliable. In January 2019, the court ordered that OAT comply with new standards and be on track for accreditation before this ban would be lifted. This presumptive exclusion was lifted on April 18, 2019, despite the fact that Draeger had not updated 90% of its machines. Breath tests can now be used as evidence for OUI charges in the Commonwealth, but the prosecution will have to demonstrate that the device used complied with OAT’s new standards.

New issues have surfaced recently. Kristen Sullivan the director of the State Police Crime Laboratory released a statement on June 10 revealing that over 400 breath-test or over-limit test results sent to the RMV had required sections left blank. On both types of reports, the sections included a certification that the officer preparing the report was the one that refusal was made to or who administered the test, as well as acknowledgement that the report was prepared under penalty of perjury. OAT found that 435 of these reports were incomplete or improper since the device went into service in 2011. Joseph D. Bernard, the lead attorney in the original case, has called for Gov. Charlie Baker to remove all devices from service until these inconsistencies can be resolved. Continue reading