Criminal Law

March 8, 2017

Dangerousness Hearing & Pre-Trial Order of Detention in Massachusetts

The United States Constitution holds that a citizen is presumed innocent until proven guilty. However, there are some exceptions. In Massachusetts, an individual accused of a crime can be detained in the county jail, before his trial, for up to 90 days if he is deemed a “dangerous person.” This is known as pre-trial detention.

In addition to creating extra stress and hardship, pre-trial detention can impede the defendant’s ability to work with his lawyer on a defense. In most cases, a defense lawyer works with the defendant, immediately following a charge, to craft an effective defense while details are still fresh in his mind. During these crucial hours and days following a criminal charge, the defendant may:

Provide contact information for witnesses.
Visit the scene of the alleged crime with his lawyer.
Provide details of the events leading to his arrest.
Work with his attorney to gather important evidence.

If the defendant is locked in pre-trial detention during this important phase of the defense process, his chances of success are dramatically reduced. For this reason, among others, it is essential to find a Boston defense attorney who understands how to avoid pre-trial detention. And if, for any reason, your attorney is unable to remove such an order, he or she should understand how to use it to your advantage. When a defendant is subjected to pre-trial detention, his attorney is generally permitted greater access to the prosecution’s witnesses. During cross-examination, a skilled MA defense attorney can look for weaknesses in the prosecution’s case and use them to the defendant’s advantage.

What Types of Crimes Can Place a Defendant in Pre-Trial Detention in MA?

This type of order is most commonly issued in domestic abuse cases, but the following scenarios may also result in the pre-trial detention of a defendant:

Felonies involving “the use, attempted use or threatened use of physical force against the person of another.”
Felonies that involved a “substantial risk” of physical force or injury even if no injury occurred.
Violations of restraining orders.
Misdemeanors or felonies involving abuse.
Drug offenses with mandatory minimum sentences of three years or more.
Third or subsequent motor vehicle offenses (generally involving drunk driving).

Prior to the issuance of a pre-trial detention order, a hearing must be held. The hearing is like a mini-version of the upcoming trial; the judge makes rulings and examines the facts. However, the hearing is also an opportunity for the defense attorney to learn a great deal about the prosecution’s evidence, or lack thereof.

What Factors Does a Judge Consider When Deciding if a Pre-Trial Detention is Necessary?

The level of danger posed to the community by the defendant.
The allegations of violence against the defendant.
The potential penalties if the defendant is convicted.
History of mental illness.
The defendant’s reputation.
The risk that the defendant will attempt to intimidate witnesses or obstruct justice.
Past criminal record.
Whether the alleged crime included abuse.
History of restraining order violations, if any.

March 8, 2017

What is Malicious Damage?

by Altman & Altman

In Massachusetts, if you damage, destroy, or vandalize another’s property, you may receive a criminal citation or charge for malicious damage. This type of property damage can include keying a car, graffiti, or even breaking things while involved in a domestic argument. The charge you may be facing following this type of offense is largely dependent on your intentions when you caused the damage. Although a criminal citation may not seem like a serious consequence, keep in mind that it will still result in a criminal record. And a criminal record can negatively impact you for years, potentially affecting your ability to find a job or housing.

If you hire a skilled MA defense attorney to defend you against a malicious damage charge, your attorney may be able to get the charge dropped in exchange for paying for damages. This will help you to avoid a criminal record and will keep you out of jail. If, however, the charge is not dropped, you may still be eligible for pretrial probation or a pretrial hearing. Both of these options will also keep your record clean.

Penalties for Malicious Damage

Penalties vary based on several factors, including the unique circumstances of the charge and any prior criminal history. However, the guidelines below will give you a good idea of what penalties you may be facing if you are charged with malicious damage.

If you “willfully and maliciously” committed the act for which you are being charged, you could face:

Up to 10 years in prison.
Fines of up to $3,000 or up to three times the cost of the damage (whichever is greater).

If you “wantonly” committed the act for which you are being charged, you may face:

Up to two-and-a-half years in jail.
Fines of up to $1,500 or up to three times the cost of the damage (whichever is greater).

“Willful and malicious” means that you intended to cause damage, whereas “wanton” means the damage was caused because you acted carelessly. In either case, if you caused less than $250 in damage, you may still face up to two-and-a-half months in jail and up to three times the cost of the damage.

Protected Property Types

The guidelines above are fairly straightforward unless the property in question is of a certain, protected class. For example, damaging a church generally carriers stiffer penalties than damaging an abandoned building. The types of property below carry a more serious charge, due to their sacred or special nature. You may face a felony charge if you are convicted of destroying or vandalizing any of the following property types:

School or educational facility
Community center
Church
Mosque
Synagogue
House of worship
Cemetery
Memorial

If you are charged with defacing or destroying any of the above property types, it is essential that you contact a Boston defense attorney immediately. If the damage is valued at more than $5,000, you may find yourself in prison for up to five years. If it’s less than $5,000, you could still face jail time of up to two-and-a-half years and pay fines of up to three times the cost of the damage you caused. Furthermore, a felony charge on your record could haunt you for decades. Don’t make the mistake of hiring the wrong attorney if you are facing charges for malicious damage. Continue reading

February 28, 2017

Domestic Assault, and Domestic Assault and Battery in MA

by Altman & Altman

Former Massachusetts Governor Deval Patrick signed new legislation in 2014 dramatically changing the way domestic violence is penalized in MA. The new law, An Act Relative to Domestic Violence, created two new crimes: domestic assault and domestic assault and battery. A MA criminal defense attorney can help you determine how to proceed if you are facing any type of domestic abuse charges.

Before we discuss domestic assault and battery laws, let’s first discuss what is meant by assault and assault and battery. Battery is a physical act of harmful or offensive contact. Assault basically means “attempted battery”, therefore, you don’t even have to make physical contact with the victim to be charged with assault. For an assault and battery conviction to be likely, the following circumstances must have been present:

You touched the victim with no right or good excuse for doing so.
You intended to touch the victim.
The touching was harmful or offensive, and without the person’s consent.

With regard to the domestic assault and domestic assault and battery laws, the above mentioned elements must still be present. The difference from other assault cases, however, is that the victim must have been a family or household member. If the victim was your spouse, or a boyfriend or girlfriend, or if you have a child together, you will likely be charged with domestic assault or domestic assault and battery. If you are facing these charges, it’s in your best interest to consult with a Boston defense lawyer immediately.

Penalties for Domestic Assault and Domestic Assault and Battery

Here’s where the biggest differences come into play. The penalties for domestic assault and domestic assault and battery are more severe than for their non-domestic counterparts. Although the punishment is generally the same – up to two-and-a-half years in jail – the fines are much higher. Assault and battery carries fines of up to $1,000, whereas domestic assault and battery fines can be as high as $5,000.

Additional Consequences

If you are convicted of assault and battery (even if it’s a first-time offense), you must complete a batterer’s intervention program. Further, if you are charged with domestic assault or domestic assault and battery, the legislation passed in 2014 now requires you to wait at least six hours before posting bail. This is for the added protection of your spouse or family member. And if this isn’t your first conviction, things can get even worse. Second convictions carry an aggravated penalty, which can land you in a state prison for up to five years. Aggravated assault and battery is a felony offense. You can also be convicted of an aggravated offense under the following circumstances:

If the victim is seriously injured, over age 65, or pregnant.
If the victim had filed a no contact order against the defendant.
If a dangerous weapon is involved (carries a penalty of up to 15 years in prison).

February 28, 2017

Will Federal Enforcement of Marijuana Use Impact Recreational Pot Smokers in MA?

by Altman & Altman

In December, 2016, Massachusetts joined the growing list of states who have passed the legalization of recreational marijuana. As in the other states, recreational use is still illegal at the federal level, but the Department of Justice has been fairly hands-off, up until now. The Trump administration may increase federal enforcement of these laws, creating an uncertain future for recreational marijuana use in MA. If after reading this post you are still unsure about how these potential changes may impact you, consult with a Boston criminal defense attorney.

In a recent White House press conference, spokesperson Sean Spicer said the new administration is likely to play a bigger role in the enforcement of federal marijuana regulations. “I do believe you’ll see greater enforcement of it,” said Spicer. “Because again there’s a big difference between the medical use … that’s very different than the recreational use, which is something the Department of Justice will be further looking into.” He then went on to link marijuana use to opioid addiction:

“I think that when you see something like the opioid addiction crisis blossoming in so many states around this country the last thing that we should be doing is encouraging people, there’s still a federal law that we need to abide by in terms of … when it comes to recreational marijuana and other drugs of that nature.”

Federal Law Trumps State Law

These statements from the White House, along with the appointment of the new Attorney General, Jeff Sessions (an outspoken opponent of legalization) may indicate less leniency for recreational pot smokers in the coming months. When federal and state laws are in conflict, federal law takes the cake. As a Schedule 1 drug under federal law, marijuana possession and sales are still illegal at the federal level. A MA drug defense lawyer can help you determine if you’re at risk of criminal penalties.

Of course, cracking down on recreational pot use in states that have legalized it would be highly unpopular. Quinnipiac University recently conducted a survey and found that more than 70 percent of Americans do not agree with federal enforcement in states that have legalized recreational and medical marijuana. This may bode well for the future of federal enforcement, but only time will tell. Spicer failed to provide details about what an enforcement would actually look like. More optimistic folks hope that it will focus on illegal exportation to other states. “The biggest crackdown we may see is on the increase of cannabis being illegally exported out of recreational states,” said Nate Bradley, of the California Cannabis Industry Association. Let’s hope he’s right. Continue reading

February 23, 2017

What Are the Most Commonly Committed Crimes in Massachusetts?

by Altman & Altman

If you commit a crime in Massachusetts, you may find yourself in court, paying hefty fines, and possibly even doing time in jail or a state prison. Maybe you’re a first-time offender and your crime was an honest mistake. Maybe you have an extensive criminal record. Whatever the circumstances of your individual case, the help of a Boston criminal defense lawyer can help you determine your rights and options.

The statistics on MA crimes change from year to year, but the following criminal offenses tend to remain at the top of the list each year:

Assault and battery
Drug possession
OUI (multiple offenses)
Vehicular homicide
Firearms and weapons charges

Penalties for the Most Common MA Crimes

If you are charged with any of these crimes, you may face the following penalties:

Assault and battery: If you are convicted of assault and battery against another person, you could pay up to $1,000 in fines and serve a jail sentence of up to two-and-a-half years. If, however, the crime was committed against a child, you could face up to fifteen years in a state prison if the child was seriously harmed. Fines in cases involving children, government officials, and pregnant women may also be substantially higher.

Drug possession: Penalties for drug possession, as with other offenses, are largely dependent on criminal history. They are also based on the type of drug in your possession. A class A drug such as heroin, for example, carries penalties of up to $2,000 in fines and up to two years in jail. A second offense, however, may put you in a state prison for up to five years. Charges for Class B possession, including cocaine and LSD, are a bit less severe, with up to $1,000 in fines and up to one year in jail.

OUI: First time OUI offenders may face a license suspension of up to 90 days, fines, and jail time. Penalties for second and subsequent offenses increase dramatically. A third offense becomes a felony and comes with up to $15,000 in fines and an eight year license suspension. You may also do up to five years in a state prison for a third OUI conviction. A Massachusetts OUI defense lawyer can help you determine the best legal strategy if you are facing OUI charges.

Vehicular homicide: A person may be convicted of misdemeanor vehicular homicide if he or she caused a fatal motor vehicle accident while committing a misdemeanor offense (such as speeding). The penalty for misdemeanor motor vehicle homicide is up to two-and-a-half years in jail and fines of up to $3,000. If the defendant was engaged in reckless behavior (such as speeding while under the influence of drugs or alcohol), the resulting death may lead to a felony conviction. This could land you in a state prison for up to 15 years.

Firearms and weapons charges: Possession of an unlicensed firearm could result in a prison sentence of up to five years. Although a sentence for a first-time offender isn’t likely to be that severe, gun crimes carry a mandatory minimum sentence of eighteen months. As with other crimes, prior convictions play a significant role in the penalties you face if convicted of this crime.

February 22, 2017

Commonwealth of MA Moves to Reform the State’s Criminal Justice System

by Altman & Altman

On February 21, Governor Charlie Baker filed a bill as part of an effort to reform the criminal justice system in Massachusetts. “Over half of the people leaving our Houses of Correction and state prisons wind up back in the court system at some point after their release,” Baker said. If passed, the bill will allow some inmates convicted of nonviolent drug crimes to reduce their time behind bars upon successful completion of various programs.

Gov. Baker’s bill is part of a larger initiative to reform the state’s criminal justice system. Other changes being discussed include eliminating mandatory minimum sentences for nonviolent drug crimes and expunging criminal records for juveniles. Lawmakers are also considering increasing the age of “juveniles” from 18 to 21. The proposed bill would raise the age one year at a time over a three year period.

Will Mandatory Minimum Sentences Be Eliminated?

Should individuals convicted of nonviolent drug crimes face the same mandatory minimums as violent offenders? Some MA lawmakers have been saying no for years. “Judges ought to have the ability to look at all the facts when they do sentencing,” said Senator Cynthia Creem, D-Newton. Consulting a MA criminal defense attorney can help you determine how this new bill may impact your case.

Improved Diversion Program Opportunities for Adult Offenders

In MA, a juvenile charged with a drug crime will likely be fast-tracked into substance abuse or mental health programs, instead of to jail. However, this isn’t the case for adults. A proposed bill would permit certain young adults between the ages of 18 and 22 to have the same opportunity. The goal here is to allow young people who may have just made a mistake to move on with their lives without a criminal record. Repeat offenders wouldn’t be eligible for such a program. If you’ve been charged with a drug crime, a Boston defense attorney can help you determine if you qualify for a diversion program.

Should a Juvenile’s Criminal Record Be Expunged?

As it stands, a juvenile’s criminal record is sealed after a three year period. However, certain individuals and entities (including college admissions officers and landlords) may still be able to access this information. A bill proposed by Senator Karen Spilka, D-Ashland would allow an individual with a felony offense committed prior to age 21 to have their record expunged upon successful completion of their sentence. “Over the years, we’ve heard story after story of young adults being prevented from getting jobs or housing or scholarships from college because of a prior criminal record that happened when they were a juvenile,” said Spilka. “Kids deserve a second chance.”

Bail

Too many people spend time behind bars for minor offenses because they don’t have the funds to cover bail. A bill proposed by Senator Ken Donnelly, D-Arlington, would change the bail system from cash-based to risk-based. Essentially, bail would be set based on the the defendant’s risk of committing another crime or not showing up in court. If those risks are low, the bail may be as well. “We need to make sure people who deserve to be in (jail) are in, people who don’t deserve to be in are not in,” said Donnelly. “It shouldn’t be how much money you have.” Continue reading

February 20, 2017

What is Vehicular Homicide and What Are the Penalties if I’m Charged With this Crime in MA?

by Altman & Altman

In Massachusetts, if you fatally injure another person while recklessly or negligently operating a motor vehicle, you may be charged with vehicular homicide. The severity of the charges you’re facing will be largely dependent on the unique circumstances of your case. For example, if you were committing a minor, misdemeanor offense when the accident occurred – such as speeding – you will likely be charged with a misdemeanor offense. If you were intoxicated at the time, however, the charge may be elevated to a felony offense. A skilled MA criminal defense attorney can help you determine the next steps if you are facing these serious charges.

Misdemeanor Vehicular Homicide

Although serious, penalties for this charge are dramatically different from that of a felony offense. If you are charged with a misdemeanor offense, you may face the following penalties and fines:

Mandatory 30 days in jail
Up to two-and-a-half years in jail
Up to $3,000 in fines
Up to a 15 year license loss

Vehicular Homicide Involving Drugs or Alcohol

If you kill someone while driving drunk, you don’t need to have been driving recklessly to get convicted of vehicular homicide. However, fatal accidents caused by a drunk or drugged driver typically involve some level of reckless driving. If you were intoxicated and driving recklessly when the fatal accident occurred, you will likely be charged with a felony offense. The penalties for this type of crime include:

Mandatory one year in jail
Up to 15 years in a state prison
Up to $5,000 in fines
Minimum license suspension of 15 years

To secure a conviction, the prosecution must prove that you were above the legal limit at the time of the accident. If they cannot do that, beyond a reasonable doubt, a felony charge is not likely. This is where having a skilled MA OUI attorney can make all the difference in the world.

Vehicular Manslaughter

If you kill someone while driving drunk or drugged, you may also be charged with vehicular manslaughter, which is essentially the same as vehicular homicide involving drugs or alcohol, but the prison penalties are more severe. If convicted of vehicular manslaughter, you will face a mandatory five year prison sentence, and you could be behind bars for up to 20 years. Fines are also increased, at a max of up to $25,000.

As you can see, vehicular homicide and manslaughter charges are quite serious. Whether you’re in jail for 30 days or in prison for 20 years may rest largely in the skill and experience of your legal counsel. Don’t make the mistake of hiring the wrong attorney when it comes to vehicular homicide. Remember, an intent to kill is not necessary for a successful conviction. The prosecution only has to prove that your reckless or negligent driving resulted in the death of another. Continue reading

February 10, 2017

The Differences Between Vehicle Theft, Carjacking, and Joyriding in Massachusetts

by Altman & Altman

In MA, the act of stealing a vehicle may be classified as motor vehicle theft, carjacking, or joyriding. Vehicle theft is costlier than all other property crimes combined. According to the Federal Bureau of Investigation, a total of 721,053 vehicles were stolen in 2012, accounting for a nationwide loss of $4.3 billion.

Motor vehicle Theft:

You may be charged with motor vehicle theft if you steal a vehicle or any part of a vehicle, if you intentionally damage a vehicle, or if you take control of a vehicle that you know is stolen. If you are facing charges for vehicle theft, it is in your best interest to consult with a Boston vehicle theft lawyer as soon as possible.

February 8, 2017

What is the Difference Between Assault, Assault & Battery, and Aggravated Assault in Massachusetts?

by Altman & Altman

Assault, by itself, is a crime. But the penalties for that crime are largely dependent on the nature of the assault. You may have heard of the terms simple assault, aggravated assault, and assault & battery. What do these terms mean and what are the implications for someone facing these charges?

Simple Assault

The act of assault is committed if a person attempts to use force against another person, or even if he or she simply demonstrates an intention to use force against another. Basically, you can assault someone without ever physically touching that person, if he or she feared immediate physical harm. You can even be charged with assault if the person did not know about the intended assault. What does that mean? Well, consider the following example. If you attempt to punch someone in the back but the person bends down and you miss, you can be charged with assault even if he or she wasn’t aware of the incoming punch. If there was a threat of harm, or the intention to harm, you may find yourself on the receiving end of an assault charge.

Assault & Battery

Although this act sounds significantly worse than “simple assault”, you can still be charged with assault & battery even if no injuries were suffered. As long as there is physical contact, without the victim’s consent, you may have committed assault & battery. In order for “battery” to be present the touching must have been intentional, harmful or offensive, and without the victim’s consent. Interestingly, intent to harm is not a prerequisite of battery charges, however, an intent to make bodily contact is. A skilled Boston assault & battery lawyer is your best defense against these very serious charges.

Aggravated Assault

When “aggravating” factors are present during an assault on a victim, the charge may be raised to aggravated assault. What is an aggravating circumstance? Basically, if a weapon is used, if the victim is a law enforcement officer, or if the victim suffered serious injuries, you will likely be charged with aggravated assault. You can also face aggravated assault charges if the injuries suffered were not serious, but the intent to cause serious injury can be shown. If you are facing aggravated assault charges, it is imperative that you seek the counsel of an experienced MA aggravated assault lawyer immediately.

Penalties for Different Types of Assault

Simple assault and assault & battery are generally considered to be misdemeanor offenses. If, however, you are facing the more serious charge of aggravated assault, you may be looking at felony charges.

Assault and assault & battery are both punishable by fines of up to $1,000 and up to two-and-a-half years in jail.
Assault that causes bodily injury to a child is punishable by up to five years in prison. If the bodily injury is substantial, the punishment can be up to 15 years in prison.
Committing assault & battery against a firefighter or a police officer is punishable by up to 10 years in prison.
An act of assault with the intent to murder, disfigure, or commit a felony is punishable by up to 10 years in prison.

February 7, 2017

How Do I Get My Record Expunged in Massachusetts?

by Altman & Altman

Court records are public domain. Essentially that means that anyone with a few bucks to spend can access your criminal record, arrests, and even your mug shot. An expungement is a process in Massachusetts whereby these records are sealed. Although criminal records are not erased, they become inaccessible to the public, which includes potential employers and landlords. Read on for more information about expungements, if you are eligible to have a prior conviction or arrest expunged, and how to accomplish this liberating task.

If you were arrested but found not guilty, an expungement is a relatively easy process. You can file for an expungement, which will prevent the record of your arrest from being viewed by the public. It will also prevent the record from showing up in an employment or housing background check. If you were convicted, however, things get a bit more complicated. If you have been charged with a crime, contact a MA defense attorney today.

Misdemeanor vs. Felony

If the conviction was for a misdemeanor offense, you can file for an expungement once five years have passed without another conviction. Basically, your record has to remain spotless. If you were convicted of a felony, however, the “spotless record” period increases to 10 years. And much is dependent on the underlying offense. If you were convicted of an OUI, the likelihood of an expungement is good. If it was a sexual offense, you must wait at least 15 years and the process becomes extremely complex. If you are considering getting a felony offense expunged from your record, contact a Boston criminal defense lawyer today.

The Process

Clearing your record of prior arrests and convictions can have an immensely positive impact on your life. No longer will you be filled with anxiety every time you apply for a job, housing, or even a loan. A positive outcome calls for experienced legal counsel. In theory, you can apply for an expungement on your own, but it is highly inadvisable. A minor error can be the difference between a clean record and a mistake that continues to haunt you for years.

Step one is to file a “Petition to Seal” with the District Court from which the case originated. This can include documents that support your petition, including disadvantages arising from public access to your record, evidence of rehabilitation, and other relevant evidence and circumstances. The next steps include:

Preliminary review of your petition: Once filed, the District Court judge will begin to review your petition. If you meet the preliminary requirements for expungement, you will be notified of a court hearing date. If you do not meet the preliminary requirements, you will be notified in writing.

Hearing: The purpose of the hearing is to give you an opportunity to tell the court why your record should be expunged. If you hire an attorney, in addition to filing all paperwork above, he or she can speak on your behalf at the hearing.

Decision: At the conclusion of your hearing, you will either be given an immediate decision or the judge will take the case under advisement. If the latter, you will be notified by mail of the final decision.

Appeals: If the initial decision is not favorable, you can appeal with the MA Appeals Court.