Criminal Law

October 1, 2018

Second OUI Offense in MA? What Now?

In MA, a second offense for operating under the influence (OUI), also known as drunk driving, has serious consequences that can impact you and your family. As explained below, these penalties include substantial fines, loss of license, and even time behind bars.

If you have been charged with a second offense OUI, you may be feeling scared and alone. But you are not alone. OUI is the most common charge in Massachusetts courts, and we are here to help. The good news? As long as no one was injured as a result of the OUI, a second offense will be charged as a misdemeanor. If, however, your offense involved an injury accident, you may be facing felony charges. The information below may help you make the best decision for you and your family.

What Counts as a First OUI?

September 5, 2018

New Sealing and Expungement Laws in Massachusetts – Starting October 1st 2018

by Altman & Altman

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.

August 30, 2018

Is There a Restraining Order Against You in MA?

by Altman & Altman

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

August 24, 2018

Charged With Malicious Destruction of Property in MA? What to Expect.

by Altman & Altman

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

August 23, 2018

Potential Consequences of Texting While Driving in Massachusetts

by Altman & Altman

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.

August 14, 2018

How to Make an OUI Even Worse

by Altman & Altman

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

July 17, 2018

Florida Teens Who Videotaped a Disabled Man Drowning Will Not be Criminally Charged

by Altman & Altman

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

June 21, 2018

Ottawa Senators Player Traded After Fiancé is Accused of Cyberbullying Another Player’s Wife

by Altman & Altman

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

April 24, 2018

Can a Disorderly Conduct Charge be Dropped?

by Altman & Altman

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

April 24, 2018

Was Prince’s 2016 Death an Accident or a Crime?

by Altman & Altman

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