Articles Posted in Criminal Law

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In response to the historic 1966 case of Miranda v. Arizona, the Supreme Court declared that any person taken into police custody must be informed of the right not to make self-incriminating statements under the Fifth Amendment. In Miranda v. Arizona, Ernesto Arturo Miranda was convicted on charges of rape, kidnapping and armed robbery based on a confession he made while being interrogated by police. Had he known his Fifth Amendment rights, Miranda would likely not have confessed to the crimes in question. As such, our “right to remain silent,” and associated rights are commonly referred to as the Miranda Rights.

The Four ‘Miranda Rights’

If you are placed in police custody, you must be read your Miranda Rights prior to being questioned. These rights are as follows:

  • You have the right to remain silent.
  • Anything you say can and will be used against you in a court of law.
  • You have the right to an attorney.
  • If you cannot afford an attorney, one will be appointed for you.

Occasionally police will fail to read the Miranda Rights to a suspect in custody. Whether they just forgot, or chose to do so, is irrelevant. If you are questioned without receiving your Miranda rights, any confession you make will likely be considered involuntary, and thus inadmissible in your case. In addition, any evidence obtained by way of the involuntary statement may also be thrown out. A MA defense attorney can help you determine how to proceed if you’ve been charged with a crime.

An Unlawful Confession

Consider the following scenario. Stephanie is arrested on suspicion that she was involved in a hit and run accident. Before being read her Miranda rights, Stephanie is questioned. She breaks down in tears, saying she only fled the scene because her friend – who had a bag of illegal prescription pills – told her to keep driving. Stephanie also confesses that they threw the bag of pills out of the car window after the accident. The police, in turn, find the bag of drugs and submit as evidence in court.

If Stephanie has a good defense attorney, the attorney will challenge her confession, saying that Stephanie would never have confessed if she had known her right to remain silent. The judge is likely to find the confession unlawful, which means that both the confession and the drugs discovered as a result of the confession will probably be thrown out. A Boston criminal defense attorney can help you protect your rights if you are facing charges for any type of crime.

Fifth Amendment

Miranda rights are essentially an extension of our Fifth Amendment rights. They are intended to ensure that any suspect knows his or her rights and, if choosing to waive those rights, does so voluntarily. The following is the text of the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Continue reading

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If you robbed or stole from someone while in possession of a deadly weapon, you may be facing charges for armed robbery. This is a serious crime in MA, and the penalties can be extremely harsh, up to and including life in prison. There are, however, multiple defenses against this crime. In addition, alternative sentencing options may exist in certain situations. When it comes to armed robbery, the help of an experienced MA criminal defense attorney is crucial to a favorable outcome.

The Four Elements of Armed Robbery

In order to be convicted of armed robbery, however, four elements must be proven. These are:

  • The defendant was in possession of a deadly weapon, or threatened use of a deadly weapon. Obvious examples are guns and knives, but anything can be considered a deadly weapon if it could cause serious harm. The weapon doesn’t need to have been used during the robbery. In fact, the defendant doesn’t even need to have a weapon in his possession. The threat of a weapon is enough.
  • The victim must have been physically hurt, or the defendant’s threat of harm must have made the victim fear for his safety. In addition, the defendant must have used the threat of force during the robbery.
  • The defendant must have actually taken the victim’s property, or the prosecution must show that he intended to steal it.
  • The defendant must have taken the property against the victim’s will.

As stated above, you do not need to be in possession of a weapon to be convicted of armed robbery. If the victim felt reasonably threatened that you were in possession of a weapon, you can be charged with this crime.

Penalties for Armed Robbery

Armed robbery is considered a violent crime in MA, and it carries the potential for life imprisonment. As with any criminal offense, your prior criminal history and the circumstances surrounding the crime will factor heavily in determining punishment. In MA, there is a five-year mandatory minimum sentence for many forms of armed robbery. The mandatory minimum is 15 years if you have a previous conviction.

  • The victim’s identity is also considered when determining punishment. If, for example, the victim was at least 60 years old, you are more likely to face an increased sentence of up to 20 years.
  • If the armed robbery was committed inside of the victim’s home, you may be facing up to life in prison.
  • There is a mandatory minimum sentence of five years if you wore a disguise during the robbery.
  • There is a mandatory minimum of five years if you were in possession of a gun at the time of the robbery.

One of the most effective defenses in armed robbery cases is to raise an identification issue. If the victim or witnesses are unable to confidently identify the defendant as the individual who committed the robbery, a conviction will be unlikely. That being said, a successful defense is highly dependent on the help of an experienced Boston criminal defense attorney. Continue reading

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If you get arrested on suspicion of OUI in Massachusetts, the law requires that you submit to a breath or blood test. This “implied consent” law states that if an officer arrests you for OUI – with probable cause – you must consent to a blood or breath test to determine your blood alcohol content (BAC). As such, there are consequences if you refuse.

If you refuse the breath test (commonly referred to as a breathalyzer), the officer will warn you that a refusal will result in a minimum 180-day license suspension. If you still refuse the test, the officer will automatically take your license and have your car sent to impound (although this will likely happen even if you don’t refuse the test).

In MA, refusing to submit to a breathalyzer test comes with the following consequences:

  • First offense: 180-day license suspension
  • Second offense: Three-year license suspension
  • Third offense: Five-year license suspension

There are some exceptions to the rules above, however. For example, if you are under 21 at the time of your arrest, you will receive an automatic three-year suspension. And if you refuse the test after causing serious injury to another, you will lose your license for 10 years if convicted of OUI. It’s a lifetime suspension if you refuse the breathalyzer after an OUI-related accident in which someone died. You will also lose your license permanently if you previously refused a breathalyzer in three separate OUI arrests.

Is Refusing a Breathalyzer Ever a Good Idea?

At first glance, refusing a breathalyzer may seem like a terrible idea. In some cases, this is likely the case. However, refusing a breathalyzer may also work in your favor. Unfortunately, there is no one-size-fits-all answer to this question. The help of an experienced Boston OUI defense attorney is crucial to a favorable outcome.

If, for example, this is your first offense, and your BAC is likely over the limit but not excessively high, you may improve your chances of avoiding an OUI conviction if you refuse the breathalyzer. However, a refusal should only be considered if no aggravating circumstances were present, such as having a child in the car, causing property damage, injury or death, or the presence of drugs, drug paraphernalia, or weapons. And even then, there are no guarantees.

An over-the-limit BAC is compelling evidence, even if it’s only just over. It’s easier to argue that you were not intoxicated if there is no BAC on record.

If your charges are dismissed, a skilled MA OUI defense attorney can likely help you get your license reinstated. But, as stated above, there are no guarantees. If you can show that a) the officer did not have probable cause to stop you, b) you were never officially arrested, or c) you consented to the test but it was never performed, you will likely get your license back. Continue reading

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When it comes to most types of criminal misconduct, such as drunk driving, selling heroin, or spousal abuse, the act itself is a crime. Drunk driving is a criminal offense in MA, with specific penalties based on the circumstances surrounding the case. But what about behavior that only becomes criminal under certain circumstances? Take shouting, for example. On its own, shouting isn’t a criminal offense. But shouting on a residential street at three a.m. may be.

To keep communities calm and running smoothly, MA limits what people can do by imposing certain laws meant to “keep the peace.” When a person’s conduct jeopardizes that peace, his or her behavior may be prosecuted as disorderly conduct, a criminal offense. It’s no surprise that disorderly conduct charges are especially common when groups of rowdy, intoxicated people gather. Music concerts, outdoor festivals, and sporting events are infamous for resulting in at least a few charges of disorderly conduct. A MA defense lawyer can help you protect your rights if you’ve been charged with any type of crime.

Examples of Disorderly Conduct

Continue reading

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Beginning in 1996, federal law made it illegal for any person convicted of domestic abuse to purchase a firearm. But in the more than 20 years since that law passed, countless mass shootings have been perpetrated by individuals with a history of spousal abuse. Recently, a man convicted by the Air Force of beating his wife and stepson opened fire at a church in rural Texas, killing 26 people. How did Devin P. Kelley obtain an AR-15 military-style rifle after a domestic abuse conviction? According to the Air Force, his conviction was never entered into the National Criminal Information Center database.

“I am deeply disturbed — in fact, outraged — that this domestic violence conviction was apparently never reported, and what concerns me equally is the possibility that it’s only one example of non-reporting by the Department of Defense,” said Senator Richard Blumenthal, in a recent interview.

Massachusetts Laws on Guns and Domestic Violence

As of 2014, anyone convicted of a crime of domestic violence is prohibited from owning a firearm in Massachusetts. This is even true of misdemeanor convictions. In MA, domestic abuse includes any act of violence or abuse committed by one member of the household against another. Abuse includes:

  • causing or attempting to cause physical harm,
  • putting someone in fear of serious bodily harm, and
  • threatening or forcing another to have sexual relations.

And domestic abuse isn’t always physical. It can be emotional or sexual, and can even involve neglect or financial abuse. Domestic abuse crimes include:

  • assault,
  • violation of a 209A abuse prevention order (restraining order), and
  • intimidation of a witness.

What About Restraining Orders?

In MA, the issuance of a 209A abuse prevention order will automatically disqualify you from having or obtaining a License to Carry Firearms (LTC), or a Firearms Identification Card (FID). Regardless of whether the order is temporary, permanent, or an emergency order, you will have to surrender all firearms to the police. Once the order is lifted, you may be able to get your FID reinstated, and your firearms may be returned to you. A Boston criminal defense attorney can help you determine your rights if a protective order has been issued against you.

Can I Seal a Domestic Abuse Conviction?

In addition to the prohibition on buying or possessing firearms, any type of domestic violence conviction can negatively impact your ability to get a job or find housing for years into the future. In some cases, you may be able to get your conviction sealed, effectively hiding it from background checks conducted by employers and landlords. Once your record is sealed, only law enforcement agencies will have access to your criminal record. In rare cases, your sealed record may be accessed if you apply for a firearms license.

If your conviction was for a misdemeanor, you must wait five years to have your record sealed. The waiting period for a felony is 10 years. A MA defense lawyer can help you determine if you are eligible to have your criminal record for domestic violence sealed from public view. Continue reading

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We’ve all been stuck behind a slow driver in the left lane. It can be frustrating, aggravating, even infuriating. But should it be illegal? Most states have addressed the issue of left lane “slowpokes” through legislation, signs, or fines. Proponents of these laws argue that driving slow in the left lane is as dangerous as speeding because it frustrates people to the point of road rage. Some states – including  Georgia, Nevada, Oklahoma, Tennessee, and Virginia – have recently adopted tougher laws and enforcement to keep people out of the left lane, unless they are passing.

Some states, such as Missouri and Michigan are using a subtler approach to educate and inform. Missouri uses funny signs, such as “Camp in the Ozarks, not the left lane,” and Michigan troopers turn traffic stops into teaching opportunities with the state’s newly-launched “Southpaw Initiative.” Violators are stopped and educated about left lane driving and how it can disrupt the flow of traffic. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with a crime during a routine traffic stop.

A Violation of Rights?

Although most of the violators in Michigan’s Southpaw Initiative were let off with just a warning (key word, most), critics are concerned about the possible implications. Charles E. Sydnor III, a Democrat representing Maryland’s Baltimore County, said he was recently pulled over in Virginia for a left-lane violation. He claims to have been preparing to make a left turn.

“Once you incentivize law enforcement to go after people in the left lane, it could be a pretext to pulling people over for no reason,” said Sydnor.

But despite the potential for such laws to encroach on our constitutional rights, states are increasingly likely to adopt left lane-related laws in order to reduce traffic congestion. Oklahoma’s new law, which went into effect last week, imposes a fine of more than $200 for drivers who hang out in the left lane too long. A MA criminal defense lawyer can help you protect your rights if you’ve been charged with a crime during a routine traffic stop.

“I believe it has caused some road rage incidents,” said Oklahoma State Trooper Dwight Durant, and spokesman for the state’s Highway Patrol. “It’s caused some collisions with property damage, personal injury and even death. We’re hopeful this new law will cut down on that.” OK has also installed 234 signs across the state warning drivers to avoid clogging the left lane. And effective July 1, Nevada and Virginia are carrying fines of up to $250 for the same.

How to Gently Nudge Left Lane Hogs Out of the Passing Lane

Due to the dangers of slow driving in the left lane, minimum speed limits are typically posted on highways. Anyone driving below the minimum speed can be ticketed and fined. These folks usually fall into one of four categories: distracted, “leaf peepers” or tourists, new drivers, and the elderly. If you encounter a slow driver, or someone who just won’t leave the left lane, avoid aggressive tactics to get them to move. Instead, safely pass the slow driver. If passing isn’t possible, gently urge the driver to speed up or move by following the advice below:

  • Keep your cool and have patience
  • Flick your headlights a few times
  • Calmly tap your horn

If they still won’t budge, take a few deep breaths and count your blessings. It could be worse. Continue reading

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Tim Piazza, a 19-year-old sophomore at Penn State University, died last year due to injuries sustained in a hazing incident. The Beta Theta Pi fraternity, which was supposed to be alcohol-free due to a previous suspension, led Piazza and several other pledges through a hazing ritual dubbed “the gauntlet.” Surveillance videos show a heavily-intoxicated Piazza falling several times throughout the night, including once down a flight of stairs. In total, 18 Beta Theta Pi members were criminally charged for their involvement in Piazza’s death.

In September, Judge Allen Sinclair threw out several charges against fraternity members, including some of the most serious. But last week, Pennsylvania District Attorney Stacy Parks Miller refiled some of those charges, including those for involuntary manslaughter and aggravated assault. “Today we refiled the previously dismissed charges for Tim Piazza’s unnecessary death,” said Parks Miller. A Boston criminal defense lawyer can help you determine how to proceed if you’ve been charged with a crime.

Piazza’s family believes that the reckless behavior of the defendants was directly responsible for the death of their son. According to their official statement, the fraternity brothers abandoned Piazza when they realized he was in “dire trouble.” In addition to seeking justice for their son, the family also wants to ensure that this type of behavior is stopped.

“Had it not been for the crimes committed that night, Tim would be with us today,” said Piazza’s family in the statement. “This is about bringing justice to a group of individuals who felt they were above the law and entitled to abuse and torture others because it was ‘tradition.’ This is also about justice for Tim and making a statement that this behavior is not acceptable and cannot be allowed to continue to harm others.”

Are Universities Responsible?

In one of recent history’s largest criminal cases against a fraternity, 18 members of Beta Theta Pi were charged in more than 1,000 counts. Piazza’s death has prompted a nationwide discussion about university oversight of fraternities. Penn State claims it was not responsible for enforcing the fraternity’s prohibition on alcohol, and has since banned the chapter from the campus.

“This is a huge challenge because we don’t own the houses, we don’t own the property, we aren’t the national organization governing fraternities,” said Penn State’s president, Eric Barron.

In addition to the aforementioned felony charges, other charges against fraternity members include reckless endangerment, tampering with evidence, furnishing alcohol, and hazing. A MA defense lawyer can help you protect your rights if you’ve been charged with any type of crime.

University Crack Down

The Piazza case is just one of several deadly hazing rituals at U.S. colleges and universities in recent years. Deaths at Baruch College, Fresno State University and Northern Illinois University, among others, may have been chalked up to “boys being boys” in years past. But each of these hazing-related deaths has resulted in criminal charges. Institutions of higher learning are also cracking down on binge drinking and sexual assault, banning hundreds of fraternity chapters from operating on campus, and prohibiting freshman from pledging at all. Continue reading

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If you are stopped on suspicion of drunk driving, you are guaranteed certain constitutional rights. For starters, you have the right to remain silent if you are placed under arrest. Police will generally inform you of this right by reading the “Miranda warning” at the time of your arrest. But your rights don’t stop there.

Fourth Amendment Rights

The fourth amendment to the U.S. constitution protects against unreasonable search and seizure. When the search and seizure pertains to a motor vehicle, police are generally required to have probable cause in order to make a traffic stop. If the officer cannot show that there existed a reasonable suspicion that a law was being broken, any evidence obtained during the traffic stop may be thrown out. This includes breath and blood test readings. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with OUI.

Fifth Amendment Rights

The fifth amendment includes the right to remain silent, which also happens to be the first right of the aforementioned Miranda warning. But the fifth amendment also provides several other rights and protections, including a prohibition on double jeopardy, and the right to not self-incriminate. Police are not required by law to read you the Miranda warning, but anything you say may be inadmissible in court if they fail to do so. That being said, anything you say before you are arrested is fair game.
Sixth Amendment Rights

The sixth amendment guarantees the assistance of legal counsel to anyone who is placed under arrest. Basically, this means that if you can’t afford an attorney, one will be provided for you. That being said, it is generally a good idea to hire private counsel, even if you qualify for a public defender. The cost of a good OUI attorney can save you lots of money, and heartache, in the long run.

OUI Penalties in MA

If you get convicted of OUI, the penalties will depend heavily on the particulars of your case, whether it’s a first offense, and prior criminal history. Penalties may include:

  • First offense: Fines between $500 and $5,000, one-year license suspension, and up to 2.5 years in jail.
  • Second offense: Fines between $600 and $10,000, two-year license suspension, up to 2.5 years in jail w/ mandatory minimum of 30 days.
  • Third offense: Fines between $1,000 and $15,000, eight-year license suspension, up to five years in prison w/ mandatory minimum of 150 days. This is a felony charge.
  • Fourth offense: Fines between $1,500 and $25,000, 10 year license suspension, up to five years in prison w/ mandatory minimum of one year. This is a felony charge.

If you’ve been charged with OUI or any type of crime, a MA criminal defense attorney can help you protect your rights. Continue reading

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Unfortunately, domestic violence is not uncommon in this country. Although the term domestic violence usually brings to mind the image of an abusive husband or boyfriend, this offense actually covers a broad range of criminal behavior. When a person subjects a parent or grandparent, child, cohabitant, or current or ex-partner to unlawful physical or emotional injuries, that person may be charged with domestic violence.

Domestic violence can involve physical abuse, such as when a parent strikes a child, and emotional abuse, such as when a husband forbids his wife to leave the house. Domestic violence – which may also be called domestic abuse, dating violence, and spousal abuse – occurs when one person in one of the aforementioned domestic relationships puts down, attempts to control, or physically harms the other.

Types of Domestic Violence

Domestic violence comes in many forms, and many victims experience multiple forms of abuse. Some of the most common types of domestic violence include:

  • Child endangerment is one lesser-known type of domestic violence. This form of abuse occurs when a caretaker places a child in a high-risk situation.
  • Elder abuse refers to the abuse or neglect of a person age 65 or older. In addition to physical and emotional abuse, this offense encompasses financial exploitation and abandonment.
  • Domestic sexual abuse can take many forms, from forcing a spouse to engage in unsafe sex practices to incest and rape of a child.
  • When an intimate partner, or a child caring for an elderly parent or grandparent controls the victim by withholding or stealing money, this type of financial abuse can be a form of domestic violence.
  • Stalking involves repeatedly harassing and threatening a victim, showing up at his or her home or place of employment, leaving harassing voicemails, and repeatedly sending unwanted emails or texts. A MA stalking defense attorney can help you determine how to proceed if you’ve been charged with stalking or cyber-stalking.
  • Teen intimate partner abuse occurs with shocking frequency; up to 12 percent of all teens in grades 7 through 12 have been victims of physical abuse by their teen partner, and about 20 percent have been victims of psychological abuse. Teen intimate partner abuse dramatically increases the victim’s risk of developing risky behaviors, such as practicing unsafe sex, using drugs, eating disorders, and suicide. Further, teen victims of domestic violence are more likely to become victims again as adults.

Studies show that domestic violence affects up to five percent of adult relationships in this country alone. About two million of those victims are women. In 2003, domestic violence was involved in approximately 1,300 deaths. And about 50 percent of all women who are murdered are domestic violence victims.

Depending on the severity of the charge and whether the defendant has a criminal record, domestic violence can be a misdemeanor or a felony offense. If the victim is a child, a felony charge is more likely. If you are charged with domestic violence you may have to pay hefty fines, perform community service, attend anger management programs, and submit to a restraining order. You may also see time behind bars. A Boston domestic violence defense attorney can help you determine how to protect your rights if you’ve been charged with domestic violence or any other crime. Continue reading

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If you’ve been charged with shoplifting in MA you might be wondering what penalties you face, and if you even need a lawyer. After all, shoplifting charges are relatively minor, right? Well, not exactly. For starters, the penalties you face are largely dependent on the severity of your charges and prior criminal history; you could be looking at up to two-and-a-half years behind bars. Secondly, any criminal conviction on your record – even shoplifting – can have serious consequences for years into the future.

What is Shoplifting?

Walking into a store, putting an item in your purse, and walking out without paying for it is an obvious example of shoplifting. But shoplifting can take other forms as well. Simply concealing merchandise while in the store can be considered shoplifting. Altering or swapping price tags, or placing merchandise in different containers is also a form of shoplifting. A Boston criminal defense attorney can help you determine how to proceed if you’ve been charged with shoplifting or any other crime.

If a merchant suspects you of shoplifting, you can be detained at the store for a reasonable amount of time. When law enforcement arrives, you can be arrested without a warrant if the officer(s) have probable cause to do so.

Shoplifting Penalties

If convicted of shoplifting in MA, you may be facing fines, jail time, and a possible civil suit. Merchants can sue shoplifters to recover damages for stolen goods. Penalties vary based on the value of goods stolen and other factors. If you have been charged with shoplifting, the following penalties may apply to you:

  • Goods valued at less than $100: If you have no prior offenses, you will likely face a fine of up to $250.
  • Goods valued at up to $100: If you have one prior offense, you will likely face a fine of up to $500.
  • Goods valued at up to $100: If you have two prior offenses, you will likely face a fine of up to $500, and up to two years in jail.
  • Goods valued at $100 or more: A fine of up to $1,000, and up to two-and-a-half years in jail.

In addition to the above criminal penalties, you may face civil damages of up to $500, plus actual damages.

Do I Qualify for a Pretrial Diversion Program?

Maybe you’re innocent. Maybe you did shoplift the item(s) you are charged with shoplifting, but you now realize you made a mistake. In either case, an experienced MA defense attorney can help you protect your rights. Fortunately, MA offers something called a pretrial diversion program for some people who are accused of low-level crimes. If you qualify for a pretrial diversion program, you might have to do things like complete community service and make restitution, but you will not end up with a criminal record. Once you have fulfilled the requirements of the program, the charges will be dropped. A plea bargain may be an option if a diversion program is not. This occurs when a defendant pleads guilty in exchange for a lighter sentence. Continue reading

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