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.

Dominick Cristino is a free man. Nearly two years since he was sentenced to up to two-and-a-half years in prison for stalking Milford’s police chief, the MA man’s convictions have been vacated. In addition to physically following the police chief he was convicted of stalking, Cristino also posted various “threatening comments” on Facebook. He was released in April, pending his appeal, and three Appeals Court judges made that release permanent last Friday.

Prosecutors alleged that Cristino’s comments were “true threats” and thus, not constitutionally-protected remarks. Initially,  Cristino’s motion for a required finding of not guilty was denied by Superior Court Judge Daniel M. Wrenn. He ruled that “there was clear evidence to establish that these were true threats rather than protected speech under the First Amendment.” But the appeals court disagreed.

“We conclude that the statements made by the defendant that were the basis for his convictions were constitutionally protected speech, and therefore could not be the basis for conviction,” ruled the court. They went on to say that the First Amendment protects political remarks made about public officials. In fact, these types of comments are at the First Amendment’s core. A MA defense lawyer can help you determine how to proceed if you are facing stalking charges.

Cristino’s Facebook posts were highly critical of both heads of the Milford police department, accusing them of everything from alcohol abuse and inappropriate relationships with criminals, to outright corruption. Cristino also painted critical messages on his truck, posted signs on his property, and followed the police chief throughout town, often driving past establishments frequented by the police chiefs.

While the Appeals Court did say that Cristino’s comments could be considered threats on their own, together they do not constitute stalking. “True threats” are direct threats of physical harm, actions, or words, that reasonably cause the victim to fear for his or her safety.

In an unpublished decision, the Appeals Court panel wrote the following:

“Having reviewed the Facebook postings that were the grounds for the defendant’s convictions and having considered the context of the videos, we conclude that they did not constitute threats of the kinds of unlawful acts of violence that render speech unprotected.”

“Rather, the defendant’s posts ‘primarily discuss issues of public concern,’ as they are clearly directed at exposing what the defendant considered to be shortcomings in the chief’s and deputy chief’s ability to properly perform their public positions,” ruled the court. “In accusing the chief and deputy chief of drinking on the job, spending time with known local criminals, and generally being corrupt, the defendant’s videos were obviously attacking their capacity to effectively serve as police officers.”

What are the Penalties for Stalking in MA?

Stalking crimes are punished harshly in MA. If you have been convicted of stalking, you may be facing the following penalties:

  • First offense: Up to five years in prison, and a fine of up to $1,000
  • Second offense: Up to 10 years in prison

As with all criminal offenses, experienced legal counsel is essential to a positive outcome. A Boston defense attorney can help you determine how to protect your rights if you’ve been charged with stalking. We often think of a stalker as a man who follows his female victim home at night and lurks outside her window. Although this is one example of stalking, this criminal act can take many forms and affects both men and women. Stalking can include physical following, emails, phone calls, and social media posts. And it’s quite common; about 6.6 million people are stalked in the U.S. annually. Continue reading

The answer to this question is that of the answer to most legal questions, it depends. An OUI can be a misdemeanor or a felony, depending on multiple factors. Was this your first OUI or your fourth?  Was anyone injured? Were there any aggravating circumstances, such as drug possession, at the time of your arrest? Third or subsequent OUIs are considered felony offenses. In MA, convicted felons are prohibited from obtaining a gun permit or Firearm Identification Card. Read on for more information about OUIs and their impact on your ability to purchase and carry a gun.

A felony is any crime punishable by at least one year in a state prison. Even if a person’s sentence is reduced to less than one year, he or she may still be classified as a felon. Although third and subsequent OUI offenses are automatic felonies, first and second offenses can be felonies under certain circumstances. For example, if someone is seriously injured or killed in an accident because you were driving under the influence, your first OUI may be elevated to a felony conviction. A Boston criminal defense attorney can help you determine your rights to purchase or carry a gun if you were previously convicted of an OUI offense.

What About My Second Amendment Rights?

A felony conviction results in the loss of many rights, including your second amendment rights. Although the Second Amendment of the U.S. Constitution guarantees U.S. citizens the right to bear arms, it excludes those convicted of felonies. Although a felony is a surefire way to remove your right to possess a gun, there are other situations in which U.S. citizens are prohibited from purchasing or carrying firearms. These may include:

  • Anyone convicted of domestic violence, even a misdemeanor offense
  • Individuals convicted of juvenile crimes
  • Anyone with an outstanding warrant
  • Individuals residing in mental health hospitals or addiction treatment centers
  • Individuals under the age of 18 who are in the U.S. illegally

What About My Spouse?

Unless your spouse is also a convicted felon, he or she can possess a gun after your felony OUI conviction. Unfortunately, this can present a sticky situation. Let’s say your wife owns a gun and you’re a convicted felon; if she puts the gun anywhere accessible to you – including the family home – she would be in violation of the law. Further, if you were unaware that the gun was in the home and it was discovered by law enforcement, you could be charged with unlawful possession.

What are the Penalties for Gun Possession Following a Felony OUI Conviction?

In MA, unlawful possession of a firearm is punishable by a minimum of two-and-a-half years in prison, with a maximum of five years in prison. To prove unlawful possession, the following circumstances must be proven:

  • The individual was in physical possession of the firearm, and was aware that he had possession of the firearm.
  • The firearm was a revolver, pistol, or other weapon from which a bullet can be discharged.

If you were convicted of a misdemeanor OUI offense, your right to purchase or carry a gun is unlikely to be impacted. However, an application and background check will provide confirmation. A MA criminal defense attorney can help you determine how to proceed if you’ve been charged with unlawful possession of a firearm following an OUI. Continue reading

Sealing is the process of sealing a criminal record. For example, let’s say you got an OUI five years ago. That offense may come back to bite you when you apply for a job, school or housing. If, however, you have the OUI conviction or CWOF sealed, the offense won’t show up in an employment or housing background check. But not all crimes can be sealed, and there are different timelines for different crimes. Read on for more information about how to seal a past criminal conviction, and how long the process will take.

  • Misdemeanor offenses: If you were convicted of a misdemeanor offense, such as a first OUI, petty theft, or simple assault, you will be eligible to have the record sealed as soon as five years have passed. This waiting period doesn’t begin until your case has ended, including any time behind bars. In order to qualify, your record must have remained clean since the offense in question. A Boston defense attorney can help you get your record sealed if you have been convicted of a misdemeanor offense.
  • Felony offenses: If you were convicted of a felony offense, 10 years must have passed before you are eligible for sealing. Again, this includes any period of incarceration, and you cannot have been convicted of another crime during that time period.

Before we get into the differences between a bench warrant and an arrest warrant, it’s important to state a crucial similarity between the two – they should never be ignored. Knowing that the police are searching for you can be scary, but warrants don’t just go away on their own. And turning yourself in will result in a better outcome than if you force police to track you down. Further, turning yourself in will prevent the embarrassing scenario of being arrested at home or – even worse – at work. So, now that we’ve covered the importance of not ignoring any type of warrant, let’s discuss the differences between a bench warrant and an arrest warrant.

Bench Warrant

Bench warrants can be issued in civil and criminal cases. In criminal cases, they are typically issued if a defendant fails to appear for a scheduled court date. In civil cases, they are often issued for witnesses who are being subpoenaed, as well as for individuals who fail to show up for their jury duty. Bench warrants may also be used in child support cases for parents who aren’t making their required monthly support payments. Generally, however, this only occurs when other efforts, such as wage garnishment, have been unsuccessful. A MA criminal defense lawyer can help you protect your rights if a warrant has been issued against you.

When it comes to bench warrants, police rarely conduct an active search for the individual. However, if you are stopped for another reason, such as a minor traffic violation, the warrant will appear and you will be taken into custody. At this point, you will not only be defending yourself against the underlying offense or issue, you’ll have the added disadvantage of being viewed as someone who attempted to dodge the justice system. Being proactive and taking care of warrants immediately, whether criminal or civil, is always advisable.

Arrest Warrant

An arrest warrant, on the other hand, is issued when there is probable cause that the individual has committed a crime. If law enforcement convinces the judge that you are responsible for a crime, the judge may issue an arrest warrant against you. A Boston defense attorney can help you determine how to proceed if you have been charged with any type of crime.

The main difference between arrest and bench warrants is that, police will actively search you if an arrest warrant has been issued against you. This is especially true if you are wanted for a violent or serious crime. Law enforcement can show up at your home, place of employment, and anywhere else that you frequent. They will look for you and can arrest you anywhere. Even if you end up being found innocent, getting arrested at work or at home can be an emotionally traumatic and highly-embarrassing situation. Don’t let this type of scenario ruin your reputation; take care of arrest warrants before police come looking for you. Continue reading

Before we get into the differences between a bench warrant and an arrest warrant, it’s important to state a crucial similarity between the two – they should never be ignored. Knowing that the police are searching for you can be scary, but warrants don’t just go away on their own. And turning yourself in will result in a better outcome than if you force police to track you down. Further, turning yourself in will prevent the embarrassing scenario of being arrested at home or – even worse – at work. So, now that we’ve covered the importance of not ignoring any type of warrant, let’s discuss the differences between a bench warrant and an arrest warrant.

Bench Warrant

Bench warrants can be issued in civil and criminal cases. In criminal cases, they are typically issued if a defendant fails to appear for a scheduled court date. In civil cases, they are often issued for witnesses who are being subpoenaed, as well as for individuals who fail to show up for their jury duty. Bench warrants may also be used in child support cases for parents who aren’t making their required monthly support payments. Generally, however, this only occurs when other efforts, such as wage garnishment, have been unsuccessful. A MA criminal defense lawyer can help you protect your rights if a warrant has been issued against you.

When it comes to bench warrants, police rarely conduct an active search for the individual. However, if you are stopped for another reason, such as a minor traffic violation, the warrant will appear and you will be taken into custody. At this point, you will not only be defending yourself against the underlying offense or issue, you’ll have the added disadvantage of being viewed as someone who attempted to dodge the justice system. Being proactive and taking care of warrants immediately, whether criminal or civil, is always advisable.

Arrest Warrant

An arrest warrant, on the other hand, is issued when there is probable cause that the individual has committed a crime. If law enforcement convinces the judge that you are responsible for a crime, the judge may issue an arrest warrant against you. A Boston defense attorney can help you determine how to proceed if you have been charged with any type of crime.

The main difference between arrest and bench warrants is that, police will actively search you if an arrest warrant has been issued against you. This is especially true if you are wanted for a violent or serious crime. Law enforcement can show up at your home, place of employment, and anywhere else that you frequent. They will look for you and can arrest you anywhere. Even if you end up being found innocent, getting arrested at work or at home can be an emotionally traumatic and highly-embarrassing situation. Don’t let this type of scenario ruin your reputation; take care of arrest warrants before police come looking for you. Continue reading

When a police officer stops your vehicle on suspicion of OUI, he or she will likely initiate a series of tests to determine if the suspicion is accurate. The officer will observe your eyes, your speech, and your overall demeanor. He or she will ask questions, such as have you had anything to drink.” If the officer believes there is probable cause, you will likely be asked to step out of the vehicle to perform a field sobriety test. You may also be asked to submit to a breath or blood test. These tests are performed to gather evidence, and any information obtained will be used against you in an OUI case. As such, it’s important to know your rights if you are ever stopped after having a few drinks.

 

  • Ask for a lawyer. There is very little information that you are required to give to police during an OUI stop. You must provide basic identifying information, such as your name and address, driver’s license and registration. But even a question such as have you had anything to drink tonight doesn’t require a response. Your best bet is to remain calm and courteous, and to politely ask to speak to your lawyer before answering any questions. A skilled Boston OUI defense attorney can help you determine how to proceed if you’ve been pulled over on suspicion of OUI.

 

  • Do not submit to the field sobriety test. Ok, before we move forward it’s important to note the following – you do have to get out of the vehicle if the officer asks you to do so. You do not, however, have to answer the officer’s questions or perform a field sobriety test. If asked to get out of your vehicle, do so politely, and then inform the officer that you do not wish to perform the field sobriety test, and that you would like to speak to your lawyer immediately. Field sobriety tests are designed to produce failures. People who are completely sober frequently fail these tests. Without the evidence of a failed field sobriety test, proving that you’re guilty becomes quite the hurdle.

 

Are there Consequences of Refusing a Field Sobriety test?

Well, refusal of a field sobriety test doesn’t carry the official consequences of refusing a breath test (we’ll talk about those shortly), but refusing a field sobriety test is a relatively surefire way of getting arrested. The same could be said for submitting to the test, however. In many ways, you’re damned if you do, damned if you don’t…but for one major exception; a failed field sobriety test may lead you to jail and – most likely – a conviction. A refused test may lead you to jail, but you’ll have a significantly better chance of having your OUI charge dismissed without that evidence to substantiate the charge.

Can I Refuse the Breathalyzer?

Breath and blood tests are an entirely different story. In MA, refusing a breath test carries an automatic 180-day license suspension. That being said, it may still be in your best interest to refuse the breath test. There is no one-size-fits-all answer to this problem. Your best course of action is to contact an experienced MA OUI defense attorney immediately if you find yourself in this situation. Continue reading

A misdemeanor is a minor criminal offense, but it’s a criminal offense nonetheless. As such, a misdemeanor conviction may result in hefty fines, jail time, and a criminal record. Facing a misdemeanor charge can be scary, especially when it originates somewhere other than your home state. If you were charged in MA but you live in another state, what do you do? Read on for more information about what to do, and what not t to do if you are facing an out of state misdemeanor charge.

Ignorance is Not Bliss

For starters, don’t ignore the charge. The criminal justice system will catch up with you eventually, and ignoring a criminal charge is the best way to ensure a conviction and additional charges. A MA criminal defense attorney can help you determine how to proceed if you’ve been arrested in MA but live out of state.

Penalties for Misdemeanor Offenses

Misdemeanors are not as serious as felonies, but that doesn’t mean you won’t face serious penalties. Misdemeanors includes crimes such as simple assault, petty theft, and some OUI offenses. If you are being charged with a misdemeanor offense, you may be facing the following penalties:

  • Jail You can face up to one year in jail for a misdemeanor offense.
  • Misdemeanor crimes carry fines from $50 all the way to $2,000 or more.
  • If your crime involved property damage or resulted in a loss of money for the victim, you may have to pay restitution to cover those damages.
  • Some misdemeanors include probation as an alternative, or in addition to, jail time.

Learn from Tom’s Mistake

Consider the following scenario, for example: Tom gets arrested for simple assault while on vacation in Boston. He was drunk and got into a bar fight. Tom spends the night in jail, and is released the next day. Tom is scheduled to appear in court in Boston, but he heads home to Oregon and vows never to return to the Bay State.

Not so fast, Tom. If you try to evade out of state charges, you’ll likely face additional penalties in the future. Even if you never return to MA, a simple traffic stop in your home state could reveal an out of state warrant, unleashing a snowball of consequences that generally far outweighs the penalties of your original offense.

You Need a Local Lawyer

But there are legal steps you can take to reduce or eliminate the cost of travel if you live far from the state in which you were arrested. For starters, you should hire a local lawyer. Depending on the circumstances of your case, you may be able to avoid returning to the state where you were arrested. Courts often allow the defense attorney to appear on behalf of the defendant. A skilled Boston defense attorney can help you protect your rights and reduce your travel expenses if you’ve been charged for an out of state misdemeanor in MA. Continue reading

Summer is time for relaxation and fun. If you take that fun too far, however, it can result in a number of less-than-fun consequences, including charges for criminal offenses such as OUI, disorderly conduct, or assault. You may even find yourself behind bars. Follow the tips below to have fun, and avoid getting charged with OUI, this summer season.

 

  • No open containers in the car. You don’t need to be drinking to get charged. It is illegal to have an open container in an unlocked compartment of your car. For example, a half-full bottle of rum in the center console, or in the back seat, can get you in big trouble. If you are traveling to a party and taking previously-opened containers of alcohol, make sure that they are all safely stowed in the trunk, where they can’t be reached while the vehicle is in use.

 

  • Zero tolerance for underage drivers. If you are under 21, you can get charged with an OUI offense for any amount of alcohol in your system. In MA, a driver is “over the limit” with a blood alcohol level of 0.08 or more. But even 0.01 can result in an OUI if you’re under 21. A MA OUI defense attorney can help you determine how to proceed if you’re facing charges for an underage OUI offense.

 

  • Even prescription drugs can lead to an OUI. If drugs – even prescribed medications – impair your ability to drive, you may find yourself facing charges for OUI. And the drugs in question don’t have to be controlled substances such as oxycodone or ADHD meds. Even antihistamines can result in an OUI if they impair your ability to drive safely.

 

  • Have a plan for how to get back to your home or hotel before the night begins. Prior to heading out for the night, talk to your friends and determine your end-of-night plan. Will you walk? Will you call an Uber? Is there a designated driver? And if you’re staying in an unfamiliar location, like a hotel, write down the address in case you aren’t as clear headed at the end of the evening.

 

  • If all else fails, contact your attorney. If you made a mistake and you’re facing OUI charges, a skilled Boston OUI defense attorney can help you fight them. Many OUI stops, especially during the busy summer season, are riddled with errors that can be used to your advantage. For example, a faulty breathalyzer test can result in inaccurately-high readings. It’s important to know your rights; you can refuse to take a breath test. However, there are some serious implications for doing so. Refusing a breath test carries an automatic license suspension of 180 days. There is no one-size-fits-all answer to whether or not you should refuse a breath test. If you have no prior OUIs and you passed the field sobriety test, you have a better chance of winning your case if you refused the test than if you took it and failed. But, as with most things in life, there are no guarantees.

Continue reading

Yes. But that doesn’t mean you want to refuse. On the other hand, it also doesn’t mean you should submit to the test. This conflicting advice may leave you feeling a bit confused, but with good reason; there’s no one-size-fits-all approach to the decision to refuse (or submit to) a breathalyzer test in MA. If you decide to take the test and it reads .08 or higher, you will lose your license for 30 days if it’s your first offense. If you refuse to take the test, however, you will receive an automatic 180-day suspension.

At first glance, it may seem that taking the test is in your best interest. But a failed breathalyzer test is hard evidence to overcome at trial. You have a much better chance of beating an OUI charge if a failed breathalyzer test is not on the table. A Boston OUI defense attorney can help you defend yourself in court, whether you took and failed a breath test or refused the test altogether.

Assess Your Situation

If you refuse the test and a skilled attorney is successful in defending you against the OUI charge, your license will generally be reinstated in less than 180 days. Remember, this favorable outcome is only likely if the circumstances of your case are equally favorable. If, for example, this is your second or subsequent OUI charge, and / or several witnesses claim to have seen you driving recklessly before you were stopped, your chances of success will be seriously limited. However, if this was a first offense and there were no other aggravating circumstances present during your stop or arrest, penalties for refusing the breathalyzer are much more likely to be waived.

In MA, a blood alcohol concentration (BAC) of .08 or higher is above the legal limit. If your breathalyzer results indicate .08 or above, that evidence will be hard to fight in court. If, however, you refuse the test, there will be no evidence of your BAC at trial, and – even better – the jury will not be made aware of your refusal. If you are found not guilty, your MA OUI defense attorney will file a motion arguing for reinstatement of your license prior to the 180-day period. Unless the prosecution can prove that your license should not be reinstated, you are likely to get it back in relatively short order.

What if I’m Under 21?

If you are 21 or older and you fail a breath test, your license will be suspended for 30 days. That is just the initial suspension; you will likely receive a later suspension if you are found guilty. However, there are some circumstances in which a failed breath test carries an automatic 180-day suspension.

  • If you are between the ages of 18 and 21 and your BAC is .02 or higher, you will lose your license for 30 days plus 180 days. In some cases you can waive this suspension by enrolling in a Youth Alcohol Program (YAP).
  • If you are under the age of 18, you will face a one-year suspension if you fail a breathalyzer. If you enroll in an approved alcohol treatment program, this suspension may be reduced to 180 days.

This may seem like an easy choice – I’ll lose my license for 180 days no matter what, so I might as well refuse the test, right? But the reality is, it’s not that simple. Although a failed breath test has an extended suspension if you are under 21, so does a refusal. If you are under 21 and you refuse a breathalyzer, your license will automatically be suspended for three years.

What if this isn’t My First OUI?

Things get a bit more complicated with second and subsequent OUIs. If you’ve previously been convicted of one OUI, a breathalyzer refusal carriers an automatic three-year suspension. And if you have two previous convictions, that increases to five years. If this is your third or subsequent conviction, a refusal will result in a lifetime suspension. Continue reading

Hello, folks! You may remember be. This is Sam Goldberg (AKA “Attorney Sam”). I used to be your friendly blogger on this site on a daily basis. When last we spoke, I told you that I would be back and also doing more regular blogs elsewhere. While I have not begun the latter, I thought I would revisit the Bostoncriminallawyerblog.com to make a few postings.

If nothing else, to remind you that I am still here.

The first thing I thought I would discuss is the recent verdict of “Guilty” in the Michelle Carter matter.

As you probably know, the case involved a suicidal young man, Conrad Roy III (hereinafter, the “Deceased”) who was a friend of Michelle Carter(hereinafter, the “Defendant”). Summed up, the Deceased was communicating with the Defendant via text while he as filling his truck full of lethal fumes in a suicide attempt.  Through it, the Defendant was encouraging him to follow through with the suicide. Even to the point of ordering that he get back into the truck at a moment when he was having second thoughts.

He obeyed…and died.

The Defendant was charged with of involuntary manslaughter. In a surprise move, the Defendant’s lawyer waived a jury trial and opted for a bench trial. In other words, a judge would decide the verdict, not a jury.

The gamble did not pay off.

Continue reading

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