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Articles Posted in Criminal Law

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

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

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

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).

Continue reading

If you base your knowledge of crime on what is presented by the media, and the Trump administration, it would be easy to assume that U.S. crime is at an all-time high. However, quite the opposite is true. Here are some surprising facts about current crime rates, nationwide.

Drop in Violent Crimes

The rate of violent crime has dropped dramatically over the past 25 years, following its peak in the early 1990s. According to the FBI’s annual crime report and a Bureau of Justice Statistics (BJS) survey of more than 90,000 U.S. households, violent crime has fallen between 48 and 74 percent since 1993. That being said, the FBI did report a 20 percent rise in the murder rate between 2014 and 2016. Even so, overall violent crime is the lowest its been in decades, across the nation.

Drop in Property Crimes

Property crimes—which include burglary and motor vehicle theft—have also seen a significant decrease in recent years. Similar to the drop in violent crime, property crime in the U.S. has fallen between 48 and 66 percent between 1993 and 2016, and property crimes are much more common than those of a violent nature. A Boston criminal defense attorney can help you protect your rights if you’ve been charged with any type of criminal offense.

Pessimism

Public opinions about U.S. crime rarely lines up with actual statistics. For example, according to several polls, Americans commonly report that crime is up when data shows the exact opposite. In fact, according to 17 Gallup surveys taken since 1993, at least six-in-ten Americans said they believed there was more crime in that year compared to the previous year. Pew Research Center has experienced a similar outcome with their surveys. In a 2016 survey, more than half of registered voters said U.S. crime had worsened since 2008, even though it saw a rapid decline during that period.

Location, Location, Location

Crime varies widely based on geography. For example, while there were more than 600 violent crimes per 100,000 residents in Alaska and Nevada, violent crime rates in Vermont and New Hampshire were below 200 for every 100,000 people. And Boston is no exception. According to statistics and police reports, serious crimes in Boston have dropped by up to 22 percent since 2014. But for many residents who live in areas with a higher concentration of violent crime—such as Dorchester, Mattapan, and Roxbury—the drop isn’t as noticeable. “We still have a lot of work to do,” said Police Commissioner William B. Evans, who went on to say that even the most violent neighborhoods are more peaceful than in the past. A MA criminal defense lawyer can help you determine how to proceed if you’ve been charged with a crime. Continue reading

In the wake of multiple mass shootings, many involving schools, the debate about increased gun control is going strong. Vermont may have had one of the most shocking responses, as it moved from one of the most lenient states on gun control to one of the strictest. Last week, VT Governor Phil Scott signed into law three bills that tighten gun restrictions across the state.

Vermont’s new laws raise the legal age to purchase firearms to 21, increase the state’s authority to remove guns from individuals who pose a threat, and ban high-capacity magazines. According to the Associated Press, Vermont’s new laws represent “the first significant gun ownership restrictions in state history.” In fact, a suspected school shooter may have already been prevented from purchasing a gun due to the new laws.

Expanded Background Checks

In addition to the restrictions above, Vermont’s new gun control laws also ensure that state background checks are more thorough, and prohibit gun ownership for individuals arrested, or even cited for, domestic assault. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with a crime.

According to a report in the New York Times, immediately following the Parkland shooting, Governor Scott said that increased gun laws weren’t necessary. But a day after making this statement, a Vermont teen was arrested on suspicion that he was planning a school shooting. Jack Sawyer allegedly had a diary entitled “Journal of an Active Shooter” and had planned to orchestrate a mass shooting at Fair Haven Union High School. In fact, according to reports, Sawyer’s goal was to be responsible for the deadliest school shooting to date.

“This is not the time to do what’s easy,” said Governor Scott, “it’s time to do what’s right.”

Gun Control Laws in Massachusetts

How does Massachusetts compare to Vermont when it comes to gun control laws? For the past four years, MA has been considered one of the strictest gun control states in the nation. In 2014, the bay state gave more discretion to law enforcement to deny gun permits to “unsuitable” individuals. MA also places tight restrictions on assault weapons, and has participated in a nationwide campaign to prevent mentally ill individuals from obtaining firearms.

Have MA’s gun control laws helped? According to statistics, the answer is yes. MA’s gun death rate is about 70 percent less than the national average. And many of the guns used in fatal crimes actually come from other states. In 2014, the majority of guns used in MA crimes came from states with more lax gun control laws, including Georgia and Florida. Continue reading

Just as defendants in a criminal case have certain rights, so do witnesses. The information you are obligated to provide when asked is dependent on the nature of the case, and who is doing the asking. For example, if an attorney or detective calls you hoping that you’ll speak about the case, you are not legally obligated to do so, unless you have been subpoenaed.

If you do receive a subpoena, you are required to show up for the meeting or trial, and to provide the requested information. You can, however, employ your fifth amendment right by refusing to answer anything that could incriminate you. Additionally, you can refuse to testify about any communications that you may have had with your spouse.

Perjury

If you testify, you are under oath. As a result, you are obligated to tell the truth. This is as true of a deposition as a trial in front of a grand jury. Any lies or misleading comments given during your testimony may be considered perjury. Perjury is the crime of lying under oath (“I swear to tell the truth, the whole truth, and nothing but the truth”), and it is a felony offense. A conviction of perjury under federal law may carry up to five years in prison. In order to be considered perjury the act must:

  • Occur under oath
  • Include an actual statement (silence is not perjury)
  • Intentionally mislead the court
  • Be material to the case (a lie or exaggeration that has no bearing on the case is not likely to be considered perjury).

A MA criminal defense attorney can help you determine how to proceed if you’ve been called as a witness to a criminal case.

Victim Witnesses

If, in addition to being a witness to a crime you are also a victim of that crime, you have additional rights. Whereas a non-victim witness is not allowed to attend court proceedings related to the crime in question (other than one at which he/she is required to testify), victim witnesses have a right to be present at any public court proceedings. Victim witnesses also have the right to be informed of the defendant’s release or detention status, as well as the status of the ongoing investigation.

Legal Counsel

If you have been called as a witness to a criminal case, it is in your best interest to hire your own attorney. In addition to ensuring that you know your rights, an attorney can help you to avoid making incriminating testimony. When called as a witness, you do have rights, but you also have obligations. Determining what you have to do and what you can refuse, and how to not incriminate yourself, is much easier with legal counsel. Further, an experienced Boston criminal defense attorney can ensure that other attorneys follow the rules when questioning you. For example, attorneys are not permitted to “badger the witness” during testimony. Continue reading

Due to the recent surge in mass shootings and the resulting gun debate, the term “stand your ground” has frequently been in the news. In stand your ground states, such as Florida and Texas, an individual can use force, without retreating, to protect himself against a threat. In these states, shooting an attacker would generally be considered within your rights if you feared for your safety. Massachusetts, however, is not a stand your ground state.

MA is a “duty to retreat” state, which means that you cannot use deadly force—even in self-defense—if you can reasonably avoid harm by retreating (such as running away). If, however, you are cornered, or otherwise unable to retreat, you are legally allowed to use deadly force if your life is threatened. A MA defense attorney can help you protect your rights if you’ve been charged with a crime.

Castle Doctrine

Although MA is a duty to retreat state, that duty does not apply to home intruders. Due to a MA statute called Castle Doctrine, there is no duty to retreat when the intruder is in your home. Some states apply the Castle Doctrine to areas outside of the home, such as the driveway. In MA, when the killing takes place in the defendant’s driveway, or on a porch or outside staircase, the doctrine does not apply. Nor does it apply to invited guests, even if the guest threatens the defendant’s life. There are, however, some exceptions to this rule. For example, if an invited guest is asked to leave, pretends to leave, gets a gun from his car and comes back, his status as an invited “guest” will change to trespasser.

People are allowed—by law—to defend themselves against the threat of physical harm. In fact, many people charged with murder or another violent crime often cite self-defense as the reason for their action. However, in order for this defense to work, the defendant must be able to show that a real threat existed. A Boston defense attorney can help you determine how to proceed if you’ve been charged with any type of crime.

Was Your Action Proportionate to the Threat?

In both stand your ground and duty to retreat states, the type of self defense used against an intruder must not exceed the threat. For example, if you come downstairs for a midnight snack and find an unarmed burglar in your kitchen, shooting him ten times will likely be perceived as excessive. However, if you wake up to find an intruder standing over your bed, gun in hand, you will probably be justified if you grab a gun from your nightstand and shoot him. This would also be true if it was later discovered that the intruder was wielding a fake pistol. It’s the perceived threat, not the actual threat, that matters.

If your self defense is not proportionate to the threat, this is known as imperfect self defense. No state gives you the right to attack without cause, and within each stand your ground state, a person’s right to use lethal force varies. Continue reading

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