Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

If you commit a crime in Massachusetts, you may find yourself in court, paying hefty fines, and possibly even doing time in jail or a state prison. Maybe you’re a first-time offender and your crime was an honest mistake. Maybe you have an extensive criminal record. Whatever the circumstances of your individual case, the help of a Boston criminal defense lawyer can help you determine your rights and options.

The statistics on MA crimes change from year to year, but the following criminal offenses tend to remain at the top of the list each year:

  • Assault and battery
  • Drug possession
  • OUI (multiple offenses)
  • Vehicular homicide
  • Firearms and weapons charges

Penalties for the Most Common MA Crimes

If you are charged with any of these crimes, you may face the following penalties:

  • Assault and battery: If you are convicted of assault and battery against another person, you could pay up to $1,000 in fines and serve a jail sentence of up to two-and-a-half years. If, however, the crime was committed against a child, you could face up to fifteen years in a state prison if the child was seriously harmed. Fines in cases involving children, government officials, and pregnant women may also be substantially higher.
  • Drug possession: Penalties for drug possession, as with other offenses, are largely dependent on criminal history. They are also based on the type of drug in your possession. A class A drug such as heroin, for example, carries penalties of up to $2,000 in fines and up to two years in jail. A second offense, however, may put you in a state prison for up to five years. Charges for Class B possession, including cocaine and LSD, are a bit less severe, with up to $1,000 in fines and up to one year in jail.
  • OUI: First time OUI offenders may face a license suspension of up to 90 days, fines, and jail time. Penalties for second and subsequent offenses increase dramatically. A third offense becomes a felony and comes with up to $15,000 in fines and an eight year license suspension. You may also do up to five years in a state prison for a third OUI conviction. A Massachusetts OUI defense lawyer can help you determine the best legal strategy if you are facing OUI charges.
  • Vehicular homicide: A person may be convicted of misdemeanor vehicular homicide if he or she caused a fatal motor vehicle accident while committing a misdemeanor offense (such as speeding). The penalty for misdemeanor motor vehicle homicide is up to two-and-a-half years in jail and fines of up to $3,000. If the defendant was engaged in reckless behavior (such as speeding while under the influence of drugs or alcohol), the resulting death may lead to a felony conviction. This could land you in a state prison for up to 15 years.
  • Firearms and weapons charges: Possession of an unlicensed firearm could result in a prison sentence of up to five years. Although a sentence for a first-time offender isn’t likely to be that severe, gun crimes carry a mandatory minimum sentence of eighteen months. As with other crimes, prior convictions play a significant role in the penalties you face if convicted of this crime.

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On February 21, Governor Charlie Baker filed a bill as part of an effort to reform the criminal justice system in Massachusetts. “Over half of the people leaving our Houses of Correction and state prisons wind up back in the court system at some point after their release,” Baker said. If passed, the bill will allow some inmates convicted of nonviolent drug crimes to reduce their time behind bars upon successful completion of various programs.

Gov. Baker’s bill is part of a larger initiative to reform the state’s criminal justice system. Other changes being discussed include eliminating mandatory minimum sentences for nonviolent drug crimes and expunging criminal records for juveniles. Lawmakers are also considering increasing the age of “juveniles” from 18 to 21. The proposed bill would raise the age one year at a time over a three year period.

Will Mandatory Minimum Sentences Be Eliminated?

Should individuals convicted of nonviolent drug crimes face the same mandatory minimums as violent offenders? Some MA lawmakers have been saying no for years. “Judges ought to have the ability to look at all the facts when they do sentencing,” said Senator Cynthia Creem, D-Newton. Consulting a MA criminal defense attorney can help you determine how this new bill may impact your case.

Improved Diversion Program Opportunities for Adult Offenders

In MA, a juvenile charged with a drug crime will likely be fast-tracked into substance abuse or mental health programs, instead of to jail. However, this isn’t the case for adults. A proposed bill would permit certain young adults between the ages of 18 and 22 to have the same opportunity. The goal here is to allow young people who may have just made a mistake to move on with their lives without a criminal record. Repeat offenders wouldn’t be eligible for such a program. If you’ve been charged with a drug crime, a Boston defense attorney can help you determine if you qualify for a diversion program.

Should a Juvenile’s Criminal Record Be Expunged?

As it stands, a juvenile’s criminal record is sealed after a three year period. However, certain individuals and entities (including college admissions officers and landlords) may still be able to access this information. A bill proposed by Senator Karen Spilka, D-Ashland would allow an individual with a felony offense committed prior to age 21 to have their record expunged upon successful completion of their sentence. “Over the years, we’ve heard story after story of young adults being prevented from getting jobs or housing or scholarships from college because of a prior criminal record that happened when they were a juvenile,” said Spilka. “Kids deserve a second chance.”

Bail

Too many people spend time behind bars for minor offenses because they don’t have the funds to cover bail. A bill proposed by Senator Ken Donnelly, D-Arlington, would change the bail system from cash-based to risk-based. Essentially, bail would be set based on the the defendant’s risk of committing another crime or not showing up in court. If those risks are low, the bail may be as well. “We need to make sure people who deserve to be in (jail) are in, people who don’t deserve to be in are not in,” said Donnelly. “It shouldn’t be how much money you have.” Continue reading

In Massachusetts, if you fatally injure another person while recklessly or negligently operating a motor vehicle, you may be charged with vehicular homicide. The severity of the charges you’re facing will be largely dependent on the unique circumstances of your case. For example, if you were committing a minor, misdemeanor offense when the accident occurred – such as speeding – you will likely be charged with a misdemeanor offense. If you were intoxicated at the time, however, the charge may be elevated to a felony offense. A skilled MA criminal defense attorney can help you determine the next steps if you are facing these serious charges.

Misdemeanor Vehicular Homicide

Although serious, penalties for this charge are dramatically different from that of a felony offense. If you are charged with a misdemeanor offense, you may face the following penalties and fines:

  • Mandatory 30 days in jail
  • Up to two-and-a-half years in jail
  • Up to $3,000 in fines
  • Up to a 15 year license loss

Vehicular Homicide Involving Drugs or Alcohol

If you kill someone while driving drunk, you don’t need to have been driving recklessly to get convicted of vehicular homicide. However, fatal accidents caused by a drunk or drugged driver typically involve some level of reckless driving. If you were intoxicated and driving recklessly when the fatal accident occurred, you will likely be charged with a felony offense. The penalties for this type of crime include:

  • Mandatory one year in jail
  • Up to 15 years in a state prison
  • Up to $5,000 in fines
  • Minimum license suspension of 15 years

To secure a conviction, the prosecution must prove that you were above the legal limit at the time of the accident. If they cannot do that, beyond a reasonable doubt, a felony charge is not likely. This is where having a skilled MA OUI attorney can make all the difference in the world.

Vehicular Manslaughter

If you kill someone while driving drunk or drugged, you may also be charged with vehicular manslaughter, which is essentially the same as vehicular homicide involving drugs or alcohol, but the prison penalties are more severe. If convicted of vehicular manslaughter, you will face a mandatory five year prison sentence, and you could be behind bars for up to 20 years. Fines are also increased, at a max of up to $25,000.

As you can see, vehicular homicide and manslaughter charges are quite serious. Whether you’re in jail for 30 days or in prison for 20 years may rest largely in the skill and experience of your legal counsel. Don’t make the mistake of hiring the wrong attorney when it comes to vehicular homicide. Remember, an intent to kill is not necessary for a successful conviction. The prosecution only has to prove that your reckless or negligent driving resulted in the death of another. Continue reading

Following a shooting that occurred at the South Shore Plaza earlier this month, town officials are meeting to discuss how to improve security at the mall. The meeting between South Shore’s General Manager Rick Tonzi, the town’s mayor Joseph Sullivan, and Chief of Police Paul Shastany is not the first of its kind to discuss the incident. On Wednesday, Tonzi refused to attend a meeting of the town council’s public safety committee, emailing the following statement about the policies of the mall’s owner, Simon Property Group: “Simon does not publicly comment on what we do and don’t do on security at South Shore Plaza.”

Tonzi’s failure to attend the town council meeting was met with displeasure by Town Councillor, Charles Kokoros. “I think it’s a little disrespectful to the council and the committee,” he said. The shooting, which occurred in the shoe department of the Macy’s store, is believed to be linked to Boston gang rivalries. According to investigators, previously “neutral” territories have become fair game in these gang wars.”It’s a serious incident and we’re treating it very seriously,” said Sullivan.

A statement from mall management claims that management has a good relationship with the mayor’s office and Braintree police and that it practices joint training exercises with law enforcement “to ensure that all organizations are adequately prepared in emergency response procedures.”

Town Councillors and attorneys for the mall believe that the shooting was an isolated incident that happened in the mall, but not because of the mall. Even so, it’s a grave reminder that previously “safe spaces” can become dangerous if gang activity is not kept in check. “Wherever they encounter, that’s the venue for violence,” said Shastany.

What is the Solution?

Dealing with the underlying issue of gang violence is paramount to improving safety in Boston and the surrounding areas. But this is not a problem that can be eliminated overnight. In the meantime, South Shore Plaza and similar shopping centers can take safety precautions to protect customers and the general public. Kokoros would like to see increased law enforcement presence and security cameras at South Shore Plaza, for instance. Currently, there are three police officers on duty at the mall.

And the argument for more cameras may be a good one. According to Shastany, pictures from the existing security cameras were instrumental in identifying shooting suspect Michael J. Spence. The 24-year-old Quincy man is facing firearms charges for his role in the shooting.

The Rise in Gang Violence

Fortunately, no one was injured in the South Shore Plaza shooting, but gang violence is on the rise in Boston and the surrounding areas. Consider the violent street gang, MS-13, whose motto is “Mata, viola, controla” or kill, rape, control. MS-13 is based in El Salvador and has about 30,000 members worldwide, many in the Boston area. MS-13 targets young people, often as young as 14 or 15. To become a “homeboy” the young person is told to commit a serious crime, sometimes the murder of a rival gang member. If you are worried that a child or loved one has been swept up in this kind of violence and crime, it is in your best interest to contact a MA criminal defense lawyer as soon as possible. Due to their young ages, gang members may be able to avoid jail time and the more severe penalties reserved for adults. However, without the help of a skilled Boston criminal defense attorney, violent offenders may still be tried as adults. Continue reading

It’s common knowledge that getting behind the wheel when you’re intoxicated is a bad idea. But determining whether you’ve had too much to drink isn’t always as cut and dried. In Massachusetts, a blood alcohol concentration (BAC) of 0.08 percent is above the legal limit. If a large man has three drinks with dinner, his BAC may be the same as that of a small woman who has one drink on an empty stomach. Without a breath or blood test, it’s impossible to know. Therefore, it’s always wise to err on the side of caution. If you’re going to drink, designate a sober driver. And if you think getting an OUI is no big deal, read on. The potential consequences of an OUI conviction may change your mind.

Consequence #1: Fines and Fees

Even for a first offense, you will likely find yourself paying fines and license reinstatement fees if you are convicted of an OUI. Fines range from $500 to $5,000, depending on the circumstances of your conviction, and you may have to pay a license reinstatement fee of up to $1,200. For a second offense, the fine can be as high as $10,000 and you may be out of pocket for up to $15,000 if convicted of a third offense.

Consequence #2: Jail Time

If this is your first offense, you probably won’t see time behind bars unless aggravating circumstances deem it necessary. But it’s a different story for second and subsequent offenses. For a second offense, you’re looking at between 30 days and two-and-a-half years in jail. For third and subsequent offenses, you could actually be sent to prison for up to five years.

Consequence #3: Ignition Interlock Device (IID)

Some first-time offenders get slapped with this requirement, but it’s mandatory for second and subsequent offenders. The installation of an IID requires the driver to blow into a device with alcohol-free breath before the engine of his or her car will start, and at periodic intervals while driving. In addition to being a hassle – and a bit embarrassing on a date – IIDs aren’t cheap. And guess who gets to pay for the installation? We all make mistakes. If you’ve been charged with an OUI, don’t make another one – consult with an experienced OUI defense attorney right away.

Consequence #4: License Suspension

From first-timers to serial-OUI offenders, everyone faces a license suspension. If it’s your first offense, you’re looking at up to 90 days without wheels. For second offenders, the suspension increases to two years, and it skyrockets to eight years for the third offense. Fourth offenders may have their license permanently revoked.

Having an OUI on your record is no laughing matter. This can impact future job and housing applications, as well as send your car insurance rates through the roof. In addition to the consequences above, you will likely be required to enroll in an alcohol education program at your expense. The bottom line is, OUI charges are serious. Your best line of defense if charged with an OUI is to consult with an experienced OUI defense attorney immediately. A skilled attorney can be the difference between dismissed charges and time behind bars. Don’t let a mistake ruin your life. Continue reading

In many ways, OUIs don’t discriminate. Rich or poor, young or old, male or female, white, black, Hispanic, or Asian, no group is immune to getting arrested for OUI. There is one group that accounts for more OUIs annually in the US than any other – young, white males. The facts and figures below shed some light on the “who, why, and where” of OUIs. If you’ve been charged with an OUI offense, don’t attempt to “go it alone.” An experienced OUI attorney can make all the difference in the world.

OUI Statistics

  • Nearly 30 people die in alcohol-related motor vehicle accidents in the US every day.
  • Alcohol-related crashes cost more than $59 billion annually.
  • In 2013, nearly one-third of all traffic-related deaths in the US involved alcohol.
  • Over 1.4 million drivers were arrested for OUI in 2010.
  • One of out of every three drivers with blood alcohol concentrations (BAC) above 0.08 percent involved in fatal crashes is between the ages of 21 and 24.
  • About 18 percent of motor vehicle driver deaths involve drugs other than alcohol.
  • In 2011, 17 percent of fatal crashes during the week involved drunk drivers, versus 31 percent on the weekends.
  • According to the National Highway Traffic Safety Administration (NHTSA), 8.3 percent of weekend drivers assessed in a 2013/2014 study had alcohol in their systems.
  • Males are more likely to drive drunk than their female counterparts (15.1 percent vs. 7.9 percent).

Some Good News and Some Bad News About OUI Statistics

Drunk driving actually seems to be on the decline. In fact, according to the NHTSA, the incidence of over-the-limit drivers decreased by about 80 percent between 1973 and 2014. That’s a significant drop. However, as these numbers decrease, the statistics on drugged driving has skyrocketed. Studies conducted by the NHTSA show that more than 15 percent of drivers tested positive for one or more illegal drugs. OUI charges apply to drugged driving just like drunk driving. If you made a mistake and got behind the wheel after a few too many drinks or after using recreational drugs, you may be facing OUI charges. The best line of defense is the help of a skilled Boston OUI defense attorney. Don’t let a mistake jeopardize a future job or housing. Get help today.

OUI Penalties

If you have been charged with an OUI offense, you may be facing the following penalties:

  • First offense: Driver’s license suspension of up to 90 days, fines of between $500 and $5,000, and up to two-and-a-half years in jail.
  • Second offense: Driver’s license suspension varies, mandatory installation of an interlock ignition device (IID), up to $10,000 in fines, and up to two-and-a-half years in jail.
  • Third offense: Driver’s license suspension varies, mandatory installation of an IID, possible felony charges, a license suspension of up to eight years, up to $15,000 in fines, and up to five years in prison.

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In MA, the act of stealing a vehicle may be classified as motor vehicle theft, carjacking, or joyriding. Vehicle theft is costlier than all other property crimes combined. According to the Federal Bureau of Investigation, a total of 721,053 vehicles were stolen in 2012, accounting for a nationwide loss of $4.3 billion.

Motor vehicle Theft:

You may be charged with motor vehicle theft if you steal a vehicle or any part of a vehicle, if you intentionally damage a vehicle, or if you take control of a vehicle that you know is stolen. If you are facing charges for vehicle theft, it is in your best interest to consult with a Boston vehicle theft lawyer as soon as possible.

A manufacturer of alcohol breath testing equipment used across the state of Massachusetts is conducting an inspection of several hundred breathalyzers following the discovery of a defect. On February 3, Draeger Safety Diagnostics testified that the machines in question were improperly programmed, resulting in the use of an incorrect value which may affect the accuracy of OUI-related breath tests. The admission, which was a surprise by all accounts, was made during a court hearing concerning reliability of the company’s Alcotest 9510 breath test model.

The court hearing was in response to multiple breath tests conducted between 2011 and 2015 that are alleged to include readings outside the allowable range. The Alcotest 9510 uses two sensors – an electrochemical cell and an infrared light – when measuring a person’s blood alcohol concentration (BAC). If the two sensors fall within the same range, it rules out the possibility that interfering substances may have mistakenly been detected in the person’s system. If the values given by the two sensors are too far apart, the device is designed to shut down due to the potential for inaccurate readings. However, according to reports, the device does not shut down when values are inconsistent, and the inaccurate readings are not subsequently flagged. If you feel that a defective breath test may have contributed to your charges, it is in your best interest to speak with a Boston OUI defense attorney as soon as possible.

MA Breath Test Defect May Have Resulted in False “Over-the-Limit” Readings

On February 3, a Draeger employee testified that the company’s breath test machines use an algorithm to determine whether the readings taken by the different sensors are within 0.008 percentage points of each other. The inspection of approximately 400 Alcotest 9510s did not turn up a single machine programmed with the appropriate value. The majority of the machines inspected actually used a stricter value, which would be favorable to defendants. However, approximately 20 percent used a lesser value, which would make the machine less sensitive to the presence of alternate substances on the breath. What does this mean? If interfering substances are not flagged, the machine could display an over-the-limit BAC reading when the individual’s BAC was, in fact, under the legal limit.

Hearing Stalls Thousands of OUI Cases

Draeger is cooperating with the Massachusetts Office of Alcohol Testing to quickly remedy this problem. A spokesperson for the company says he believes the mistake was a result of human error at the company’s Germany-based factory. According to prosecutors, the error only affected 15 of the 93,000 breath tests conducted in MA during that time period. Whether or not they are correct, the problems with Alcotest 9510 serve as a reminder that breath test machines can be unreliable. As a result of the Draeger case, several thousand OUI cases have been stalled. Continue reading

Assault, by itself, is a crime. But the penalties for that crime are largely dependent on the nature of the assault. You may have heard of the terms simple assault, aggravated assault, and assault & battery. What do these terms mean and what are the implications for someone facing these charges?

Simple Assault

The act of assault is committed if a person attempts to use force against another person, or even if he or she simply demonstrates an intention to use force against another. Basically, you can assault someone without ever physically touching that person, if he or she feared immediate physical harm. You can even be charged with assault if the person did not know about the intended assault. What does that mean? Well, consider the following example. If you attempt to punch someone in the back but the person bends down and you miss, you can be charged with assault even if he or she wasn’t aware of the incoming punch. If there was a  threat of harm, or the intention to harm, you may find yourself on the receiving end of an assault charge.

Assault & Battery

Although this act sounds significantly worse than “simple assault”, you can still be charged with assault & battery even if no injuries were suffered. As long as there is physical contact, without the victim’s consent, you may have committed assault & battery. In order for “battery” to be present the touching must have been intentional, harmful or offensive, and without the victim’s consent. Interestingly, intent to harm is not a prerequisite of battery charges, however, an intent to make bodily contact is. A skilled Boston assault & battery lawyer is your best defense against these very serious charges.

Aggravated Assault

When “aggravating” factors are present during an assault on a victim, the charge may be raised to aggravated assault. What is an aggravating circumstance? Basically, if a weapon is used, if the victim is a law enforcement officer, or if the victim suffered serious injuries, you will likely be charged with aggravated assault. You can also face aggravated assault charges if the injuries suffered were not serious, but the intent to cause serious injury can be shown. If you are facing aggravated assault charges, it is imperative that you seek the counsel of an experienced MA aggravated assault lawyer immediately.

Penalties for Different Types of Assault

Simple assault and assault & battery are generally considered to be misdemeanor offenses. If, however, you are facing the more serious charge of aggravated assault, you may be looking at felony charges.

  • Assault and assault & battery are both punishable by fines of up to $1,000 and up to two-and-a-half years in jail.
  • Assault that causes bodily injury to a child is punishable by up to five years in prison. If the bodily injury is substantial, the punishment can be up to 15 years in prison.
  • Committing assault & battery against a firefighter or a police officer is punishable by up to 10 years in prison.
  • An act of assault with the intent to murder, disfigure, or commit a felony is punishable by up to 10 years in prison.

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Court records are public domain. Essentially that means that anyone with a few bucks to spend can access your criminal record, arrests, and even your mug shot. An expungement is a process in Massachusetts whereby these records are sealed. Although criminal records are not erased, they become inaccessible to the public, which includes potential employers and landlords. Read on for more information about expungements, if you are eligible to have a prior conviction or arrest expunged, and how to accomplish this liberating task.

If you were arrested but found not guilty, an expungement is a relatively easy process. You can file for an expungement, which will prevent the record of your arrest from being viewed by the public. It will also prevent the record from showing up in an employment or housing background check. If you were convicted, however, things get a bit more complicated. If you have been charged with a crime, contact a MA defense attorney today.

Misdemeanor vs. Felony

If the conviction was for a misdemeanor offense, you can file for an expungement once five years have passed without another conviction. Basically, your record has to remain spotless. If you were convicted of a felony, however, the “spotless record” period increases to 10 years. And much is dependent on the underlying offense. If you were convicted of an OUI, the likelihood of an expungement is good. If it was a sexual offense, you must wait at least 15 years and the process becomes extremely complex. If you are considering getting a felony offense expunged from your record, contact a Boston criminal defense lawyer today.

The Process

Clearing your record of prior arrests and convictions can have an immensely positive impact on your life. No longer will you be filled with anxiety every time you apply for a job, housing, or even a loan. A positive outcome calls for experienced legal counsel. In theory, you can apply for an expungement on your own, but it is highly inadvisable. A minor error can be the difference between a clean record and a mistake that continues to haunt you for years.

Step one is to file a “Petition to Seal” with the District Court from which the case originated. This can include documents that support your petition, including disadvantages arising from public access to your record, evidence of rehabilitation, and other relevant evidence and circumstances. The next steps include:

  • Preliminary review of your petition: Once filed, the District Court judge will begin to review your petition. If you meet the preliminary requirements for expungement, you will be notified of a court hearing date. If you do not meet the preliminary requirements, you will be notified in writing.
  • Hearing: The purpose of the hearing is to give you an opportunity to tell the court why your record should be expunged. If you hire an attorney, in addition to filing all paperwork above, he or she can speak on your behalf at the hearing.
  • Decision: At the conclusion of your hearing, you will either be given an immediate decision or the judge will take the case under advisement. If the latter, you will be notified by mail of the final decision.
  • Appeals: If the initial decision is not favorable, you can appeal with the MA Appeals Court.

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