New Sealing and Expungement in Massachusetts – Effective October 1st, 2018.

The sealing and expungement laws in Massachusetts have been revamped and will be taking effect on October 1, 2018.  While the procedures, time lines and nuances have yet to be worked out, there is a lot that is clear and known.

Prior to October 1, 2018, in order to have a felony conviction sealed, one would have to wait 10 years from his guilty finding and/or from when he was released from prison or jail.  The new law will change that waiting period from 10 years to 7 years.

In an effort to protect individuals from abusive situations, MA courts have been given the authority to issue restraining orders when a reasonable likelihood of harm is suspected. In many ways, this is a very good thing. No woman, or man, should be subjected to abuse. However, such broad authority to grant restraining orders also results in excessive issuance; some even use the system as a means of revenge.

A restraining order, or protection order (officially known as a 209A), is issued through civil court, not criminal. As such, a “preponderance of evidence” is all that is needed to meet the burden of proof for obtaining the 209A. In criminal cases, the burden of proof must be “beyond any reasonable doubt,” which is a far higher standard than a preponderance of evidence. If the judge believes that the evidence presented points to a likelihood that the alleged abuser will harm the petitioner, he/she will typically initiate the process.

What is a 10-Day Hearing?

The next step in the process is usually the 10-day hearing, at which point the defendant will have an opportunity to tell his/her side of the story. During the 10-day window between the petition and the hearing, the defendant will receive notice of the upcoming hearing. A Boston criminal defense attorney can help you determine how to proceed if there is a restraining order against you.

Temporary Order of Protection

The accused has a right to defend himself/herself at the 10-day hearing, but in cases involving imminent risk of abuse, the 10-day window could put the alleged victim in danger. A temporary (or emergency) order may be issued if the judge believes the petitioner is at risk of immediate harm. Emergency orders are actually relatively easy to obtain, as long as the alleged victim can prove a relationship with the alleged abuser. A private hearing will be held at which the petitioner states his/her reasons for requesting the temporary order. Because the person accused of abuse is not present at this private hearing, he/she won’t know about the restraining order until it’s served on them.

Do Not Go to the 10-Day Hearing Alone

Whether or not a temporary order was issued against you, it is a mistake to appear in defense of yourself at the 10-day hearing. An experienced MA defense lawyer can present evidence to the judge, perform cross-examinations, and even request that the order be dropped altogether. Not showing up for your 10-day hearing is the worst possible mistake you can make. By doing this, you will forfeit your right to defend your case, and the order will remain in effect for at least one year. If, however, you appear in court with skilled legal counsel and can prove to the judge that you do not present a reasonable threat to the alleged victim, the order will likely be vacated.

What Restrictions Might a 209A Include?

The specific orders of protection within a 209A vary based on the particulars of each case. They may include:

  • an order to leave the residence immediately;
  • an order to stop all forms of abuse;
  • an order to stay a certain distance from the alleged victim at all times;
  • an order to stay away from the children.

In addition to the possible orders of protection above, all 209As carry a mandatory order to surrender firearms. Continue reading

Facing a Malicious Damage Charge in MA?

Any type of property damage—from vandalism and graffiti to hitting another’s property with your car—can result in a criminal charge for malicious damage. As with most crimes, penalties for malicious damage are largely dependent on the circumstances of the case, the severity of the offense, and whether or not you have a prior criminal record.

What are the Penalties?

Penalties for malicious damage vary widely based on whether you acted deliberately or carelessly. Willful and malicious actions can carry a potential sentence of up to two-and-a-half years in jail and fines of up to three times the cost of the damage or $3,000, whichever is greater. If, on the other hand, you acted carelessly or wantonly, you may be facing a penalty of up to two-and-a-half years in jail and fines of up to three times the cost of the damage or $1,500, whichever is greater. Damage of less than $250 is punished much less severely, but can still land you in jail for up to two-and-a-half months.

Leaving the Scene

Let’s say you are driving one night when you hit and knock down a stop sign. Having just left a bar, you’re worried that you might be over the legal limit, so you leave the scene of the accident. Another driver gets your license plate number and reports the incident. You might end up facing two criminal charges—one for malicious damage and one for leaving the scene of property damage. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with any type of crime.

Can Malicious Destruction to Property be a Felony?

If you damage or vandalize certain types of property in MA, you may face felony charges. These specific buildings or locations have special protections due to their sacred or sensitive natures. If you destroy or deface any of the property below, you may be charged with a felony:

  • Church
  • Synagogue
  • Mosque
  • Any house of worship
  • Cemetery or any type of burial ground
  • Memorial
  • School
  • Community center
  • Educational institution

In addition, if you cause more than $5,000 of damage to any of the above properties, you may face up to five years in prison. At less than $5,000, the potential penalties are up to two-and-a-half years in jail and fines of up to three times the cost of the damage or $2,000, whichever is greater. A MA criminal defense lawyer can help you protect your rights if you’ve been charged with malicious damage or another crime.

What About Graffiti?

Even as graffiti becomes more accepted and celebrated as a form of art, intentionally making graffiti on another’s property remains a criminal offense. Property can include walls, fences, signs, monuments, or buildings. It even includes rocks. Graffiti, also known as defacement of property, carries a potential penalty of up to three years in jail, and up to three times the cost of the damage or $1,500, whichever is greater. A defacement of property conviction may also lead to a one-year license suspension. Continue reading

Since 2010, it has been illegal to text while driving in MA. And although drivers in MA were still permitted to talk on their cell phones for the next six years, a complete ban on the use of hand-held devices while driving was passed in 2016. The ban not only applies to cell phones; drivers are prohibited from entering information into a GPS, or any other hand-held device.

Currently, the fines for violating this law are $100 for the first offense, $250 for the second offense, and $500 for the third offense.

“Although traffic accidents and deaths are dropping, the number of accidents that are caused involving cell phones are going up,” said Senate President Stan Rosenberg, D-Amherst. “A lot of people’s lives are being put in danger as a result of people who are using their cell phones, and it’s just time to sweep that source of problem off the table here.”

And make no mistake, police are enforcing these laws. A MA motor vehicle accident attorney can help you determine how to proceed if you’ve been injured due to another’s negligence.

Fines Aren’t the Only Potential Consequence of Texting While Driving

Getting stopped for texting while driving often leads to other violations of safe driving laws. In fact, this is a likely motivation for police to stop a driver that they suspect of texting. The distracted driver might also be intoxicated, driving recklessly, or in possession of drugs or an illegal firearm. Other potential consequences of texting while driving include:

  • An increase in insurance premiums. Many insurance carriers use points for texting while driving to raise premiums.
  • Criminal penalties. If texting while driving leads to serious injury or death, the driver may face criminal charges.
  • A guilty conscience. Just think about the guilt you would feel if someone was seriously injured or killed while you were texting something as insignificant as “see you soon.”

Texting while driving can be devastating for everyone involved. A Boston car accident lawyer can help you recover damages if you’ve been injured due to another’s negligence.

Distracted Driving Statistics

Hundreds of thousands of people are injured in distracted-driving accidents in the United States each year. The statistics below illustrate the severity of this growing problem.

  • According to the National Safety Council, 1.6 million annual crashes involve cell phone use.
  • Texting while driving leads to 390,000 injuries annually.
  • One out of every four motor vehicle accidents in the U.S. involves texting.
  • You are six times more likely to have an accident due to texting than driving drunk.
  • Responding to a text typically diverts your attention from the road for at least five seconds.
  • Texting is the most dangerous of all cellphone-related activities.
  • According to a AAA poll, 35% of teens admit to texting while driving, even though 94 percent acknowledge it’s dangerous.
  • In 21 percent of fatal teen driving accidents, a cell phone was involved.
  • Teens are four times more likely than their adult counterparts to get into texting-related accidents.

Continue reading

Also known as larceny, theft refers to the taking of another’s property without their permission. It could be something as insignificant as a microwave, or something as valuable as a Lexus. Theft can be non-violent and occur on public property, such as when someone takes a purse that has been left on a picnic table. On the other hand, theft can involve violence or force, and the unlawful entry into someone’s home. Each type of theft is punished differently, and can range from a misdemeanor to a felony.

Petty Theft / Grand Theft

Theft that does not involve violence or unlawful entry is classified as either petty theft or grand theft. Petty theft applies when the stolen property is worth no more than $250. It is a misdemeanor offense, and carries fines of up to $300 and a max of up to one year in jail. Grand theft occurs when the stolen property is worth more than $250. It is a felony offense with a potential sentence of up to five years in prison and a fine of up to $25,000. As with all crimes, the penalties are largely dependent on the circumstances of the offense and any prior criminal history. The type of property stolen is also taken into account. For example, stealing a firearm is considered grand theft, even if it’s worth less than $250. And if the stolen property is a motor vehicle, a conviction of grant theft auto could land you in prison for up to 15 years.

Burglary

When a person breaks into the home of another person with the intent to steal something, it is considered burglary. Depending on the circumstances of the case, burglary can be charged as a misdemeanor or a felony. For example, if the burglary occurred in the middle of the night while the owner was inside sleeping, it is more likely to be charged as a felony than if it occurred during the day while nobody was home. Burglary penalties can range from probation to life in prison if it involved the use of weapons or force. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with burglary.

Robbery

Robbery is similar to basic theft because it involves the taking of another’s property without their permission, but it is different in that it involves violence. If you purposely assault someone with the intent to steal his/her property, it will likely be charged as a felony. This is true even if you were unsuccessful in your attempt. In fact, in MA, you don’t even need to use physical force to be charged with robbery; if the victim is intimidated and reasonably fears bodily harm, you could be charged with robbery. Robbing a convenience store with a gun is a good example.

Identity Theft

Identity theft occurs when someone uses another person’s identifying information, such as a name and social security number, or bank account, to obtain credit or services, or to purchase things. Identity theft can be very damaging to the victim, resulting in large financial losses and even destroying their credit rating. In MA, a conviction of identity theft carries a penalty of up to two-and-a-half years in jail and a maximum fine of $5,000. A MA defense attorney can help you protect your rights if you’ve been charged with identity theft. Continue reading

Getting charged with OUI is bad enough…don’t make it worse by making any of the serious mistakes below. From excessively high blood alcohol content (BAC) to driving drunk with children in the car, there are many aggravating factors that can turn your OUI from a bad mistake to extended time behind bars. You could even end up facing felony charges.

Underage OUI

Massachusetts, and most other states, have zero tolerance laws for underage OUI offenders. While 0.08 percent BAC is the legal limit for individuals 21 and over, anyone under 21 will fail a breath or blood test with a BAC of 0.02 percent or higher. Considering that even one drink can elevate a person’s BAC to 0.02 percent, those under 21 should avoid driving after any amount of alcohol. Further, if an underage person refuses to submit to a breath test, he/she will face a three-year driver’s license suspension.

Second and Subsequent OUIs

As far as the courts see it, you should have learned your lesson the first time. If you’ve already been convicted of OUI and you are charged with a second or subsequent offense, you’ll be facing higher fines, a longer license suspension, the installation of an ignition interlock device (IID), and probably even jail time, at a minimum. If this is your third or greater offense, you may be looking at a felony conviction, and you’ll almost certainly spend time behind bars. A Boston OUI defense attorney can help you protect your rights if you’ve been charged with a second or subsequent OUI.

Child Endangerment

Driving while intoxicated endangers everyone with whom you share the road, especially those in your vehicle. And if children are present, you will face some of the stiffest penalties possible. According to the National Highway Traffic Safety Administration (NHTSA), alcohol is a factor in nearly one in five traffic deaths involving a child age 14 or younger. In addition to hefty fines, license suspension or revocation, and jail time, your child custody rights may be in jeopardy if you are convicted of OUI with a child in the vehicle.

OUI Manslaughter

If you seriously injure or kill another person while operating a motor vehicle under the influence of drugs or alcohol, the potential penalties are severe. In such a situation, it is imperative to get immediate legal help. In 2005, Massachusetts passed Melanie’s Law to increase penalties and license suspension periods for individuals convicted of drunk driving. The law states that anyone who commits manslaughter while driving drunk or under the influence of drugs will be subject to a mandatory minimum sentence of five years in prison. The maximum sentence is 20 years imprisonment and a $25,000 fine.

According to the Foundation for Advancing Alcohol Responsibility, in Massachusetts, 8,541 people were arrested for driving under the influence in 2012. That’s 700 arrests per month! Do yourself, and everyone with whom you share the road, a favor—don’t drink and drive. But if you made a mistake, it’s in your best interest to consult with a MA OUI defense attorney immediately. Continue reading

Beginning in 2014, a new crime was created in Massachusetts, separating assault and battery committed against a family member from other types of assault and battery. As a result, the penalties for domestic assault and battery are generally more serious than those for regular assault and battery. This applies to felony and misdemeanor charges, alike.

Unique Consequences of a Domestic Assault and Battery Conviction

Penalties for assault and battery differ based on multiple factors, including whether the alleged victim was a family member. Below are some additional consequences, unique to domestic cases.

  • An individual charged with domestic assault and battery is required to enroll in a batterer’s intervention program.
  • Second and subsequent offenses of domestic assault and battery will be charged as a felony and may carry penalties of up to five years in prison.
  • So-called “dangerousness hearings,” which often lead to the defendant being held without bail, have looser requirements in favor of the alleged victim.

One of the most common questions asked by individuals who are charged with domestic assault and battery is whether the offense is being charged as a misdemeanor or a felony. In MA, as in most other states, the answer to this question is based largely on the severity of the crime and whether or not the defendant has a prior criminal record.

What Constitutes Felony Domestic Assault and Battery?

In addition to second and subsequent charges, any type of assault and battery (domestic or otherwise) that involves the use of a dangerous weapon will be considered a felony offense. But what exactly is a dangerous weapon? Does the defendant have to be in possession of a gun or knife?

Surprisingly, not only is the presence of a gun or knife not a requirement, but a dangerous weapon charge can occur even when no weapon, other than the defendant’s own body, is used. For example, if a husband kicks in the bedroom door before assaulting his wife, his foot could be classified as a dangerous weapon. That being said, an experienced Boston defense attorney can help you get this classic example of an “overcharge” reduced from felony to misdemeanor.

Domestic assault and battery will also likely be charged as a felony if the offense resulted in serious bodily harm, or if it was committed alongside another felony offense, such as rape.

And if a protection order was in place during the commission of domestic assault and battery, you may be charged with a felony.

Even if you are not charged with a felony, misdemeanor domestic assault and battery is a serious offense. Any criminal record can come back to haunt you for decades, but one involving domestic violence carries particularly severe consequences. In addition to difficulty finding housing and employment in the future, you may also be at risk of losing custody of your children. And noncitizen immigrants could face deportation.

Penalties for Misdemeanor and Felony Domestic Assault and Battery

  • Misdemeanor: Up to two-and-a-half years in prison and a fine of up to $1,000.
  • Felony: Up to five years in prison and a fine of up to $5,000.

Any type of domestic violence charge carries jail or prison time, fines, and a life-altering stigma. An experienced MA defense lawyer can help you protect your rights and reputation if you are facing charges for domestic assault and battery. Continue reading

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

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

Was it Criminal?

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

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

What is Vehicular Manslaughter?

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

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

Wrongful Death

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

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

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

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

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

Isn’t Zero Tolerance a Little Excessive?

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

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

Zero Tolerance Laws Seem to be Helping

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

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

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

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

Not a Crime in Florida

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

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

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

Good Samaritan Law

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

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

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

Is it a Crime in MA?

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

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