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.

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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.

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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.

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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

No criminal charges will be filed in Prince’s fentanyl overdose, which resulted in the star’s 2016 death. On Thursday, authorities announced that there was no evidence linking a specific person or persons to his fatal dose of the powerful drug. Even so, Michael Schulenberg, the Minnesota doctor who treated Prince in the weeks leading up to his death, has settled a $30,000 civil suit for an illegal prescription.

According to reports, Schulenberg had written Prince a prescription for Percocet under the name of his bodyguard, Kirk Johnson, in an effort to protect the musician’s privacy. It is, of course, illegal to write a prescription for one person knowing it is intended for another. A Boston injury lawyer can help you recover damages if a physician’s negligence caused you harm.

However, Schulenberg maintains his innocence, saying that he never prescribed drugs for someone else with the knowledge that they would be used by Prince. In a recent statement, the physician’s attorney said that he ”is not a target in any criminal inquiry and there have been no allegations made by the government that Dr. Schulenberg had any role in Prince’s death.”

Prince’s Famously Private Life Hindered the Investigation

Although Prince had purportedly been living a sober life for some time, he became addicted to painkillers following a hip injury. At the time of his death, dozens of painkillers were found at his home, most of them Vicodin counterfeits. As fentanyl is commonly used in counterfeit pills on the black market, it is very possible that Prince unknowingly consumed the dangerous drug. Even so, the prosecution believes that, due to Prince’s extremely private life, it is more likely than not that others assisted him in his efforts to obtain illegal pills.

The famously discreet musician didn’t own a cellphone, which further complicated the investigation into his death.  According to investigators, the people present at his home on the morning of his death “provided inconsistent and, at times, contradictory statements.” A MA injury lawyer can help you determine how to proceed if you’ve been injured by another’s negligence.

Less than a week before his death, on the return trip from his last concert, Prince’s plane made an emergency stop in Moline, Illinois where he was taken to the hospital for an opioid overdose. However, no further drug tests were performed, and he was released that same day. Following the incident on the plane, Dr. Schulenberg prescribed the singer with a drug used in the treatment of withdrawal from opiates.

Where is Prince’s Doctor Now?

In addition to paying $30,000 to settle the civil lawsuit, Dr. Schulenberg must undergo two years of “heightened compliance requirements for logging and reporting his prescriptions of controlled substances to the D.E.A.” Following Prince’s death, the doctor changed jobs. He is still working as a doctor in good standing in a different Minneapolis suburb.

Between 2015 and 2016, fentanyl-related deaths more than doubled. In fact, Minnesota saw a surge of black market fentanyl around the same time as Prince’s death. Shortly after, two more musicians, Tom Petty and Lil Peep both died from accidental overdoses involving the drug. Most of these overdoses occur due to illegal fentanyl pressed into pill form in dealers’ basements. Users often think they are buying oxycodone, but these fentanyl-laced pills can be up to 100 times stronger. Continue reading

This week, Massachusetts’ top court ruled that the state’s stun gun and taser ban is unconstitutional. According to the ruling, stun guns cannot be fully banned because they are classified as “arms,” and therefore, protected by the Second Amendment. However, they can be regulated.

In its ruling, the Supreme Court stated that:

“Having received guidance from the Supreme Court, we now conclude that stun guns are ‘arms’ within the protection of the Second Amendment. Therefore, under the Second Amendment, the possession of stun guns may be regulated, but not absolutely banned.” A MA criminal defense attorney can help you protect your rights if you’ve been charged with a firearms offense.

“Restrictions may be placed on the categories of persons who may possess them, licenses may be required for their possession, and those licensed to possess them may be barred from carrying them in sensitive places, such as schools. But the absolute prohibition in [state law] that bars all civilians from possessing or carrying stun guns, even in their home, is inconsistent with the Second Amendment,” wrote Chief Justice Ralph Gants.

New Regulations

To implement new restrictions on the use of stun guns, MA must go back to the drawing board, as the entire stun gun prohibition statute was made invalid. However, the new ruling won’t go into effect for 60 days, which gives lawmakers ample time to consider what regulations may be most effective. Regulations may include restrictions on who is permitted to own stun guns, restrictions on where they can be carried (for example, no schools or government buildings), and a license requirement for anyone who carries one.

“We believe the current restrictions on stun guns can be updated in a manner consistent with the high court’s ruling and Massachusetts’ common-sense firearm legislation,” said Jake Wark, Suffolk County spokesman. A Boston gun crimes attorney can help you determine how to proceed if you’ve been charged with any type of firearms offense.

Penalties for Firearms Offenses in MA

If you have been charged with any type of firearms offense, you may be facing the following penalties. Unless you satisfy the requirements of one of the statutory exemptions, you will face a mandatory minimum sentence of 18 months in jail if you are convicted of any of the crimes below:

  • You knowingly possess a firearm without being present in your home or workplace, or having a license to carry (up to five years in prison);
  • You are carrying a loaded firearm while under the influence of alcohol or illicit drugs (up to two-and-a-half years in jail);
  • You are carrying a shotgun or rifle on a public way (up to two years in jail);
  • You are carrying a large capacity shotgun or rifle on a public way (up to 10 years in prison);
  • You remove, alter, or deface any type of identification number on a firearm (up to two-and-a-half years in jail).

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We have been talking about the tragic murder of Police Officer Sean Gannon and his reputed assassin, Thomas Latanowich (hereinafter, the “Defendant”).

Yesterday I shared with you a petition which is online to answer the latest call to penalize judges for the actions certain defendants take.

I think I made my position on that issue relatively clear. Now, let me explain why.

Attorney Sam’s Take On Judges, Powers And Criminal Sentences

First of all, let’s demystify how criminal cases end. There are three options. Either there is an agreement made between the parties, there is a trial or the case gets dismissed for a legal reason…such as there is no evidence that can be presented.

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