Criminal Law

July 24, 2017

MA Man is Found Not Guilty on Stalking Charges After Serving Nearly Two Years of His Sentence

Dominick Cristino is a free man. Nearly two years since he was sentenced to up to two-and-a-half years in prison for stalking Milford’s police chief, the MA man’s convictions have been vacated. In addition to physically following the police chief he was convicted of stalking, Cristino also posted various “threatening comments” on Facebook. He was released in April, pending his appeal, and three Appeals Court judges made that release permanent last Friday.

Prosecutors alleged that Cristino’s comments were “true threats” and thus, not constitutionally-protected remarks. Initially, Cristino’s motion for a required finding of not guilty was denied by Superior Court Judge Daniel M. Wrenn. He ruled that “there was clear evidence to establish that these were true threats rather than protected speech under the First Amendment.” But the appeals court disagreed.

“We conclude that the statements made by the defendant that were the basis for his convictions were constitutionally protected speech, and therefore could not be the basis for conviction,” ruled the court. They went on to say that the First Amendment protects political remarks made about public officials. In fact, these types of comments are at the First Amendment’s core. A MA defense lawyer can help you determine how to proceed if you are facing stalking charges.

Cristino’s Facebook posts were highly critical of both heads of the Milford police department, accusing them of everything from alcohol abuse and inappropriate relationships with criminals, to outright corruption. Cristino also painted critical messages on his truck, posted signs on his property, and followed the police chief throughout town, often driving past establishments frequented by the police chiefs.

While the Appeals Court did say that Cristino’s comments could be considered threats on their own, together they do not constitute stalking. “True threats” are direct threats of physical harm, actions, or words, that reasonably cause the victim to fear for his or her safety.

In an unpublished decision, the Appeals Court panel wrote the following:

“Having reviewed the Facebook postings that were the grounds for the defendant’s convictions and having considered the context of the videos, we conclude that they did not constitute threats of the kinds of unlawful acts of violence that render speech unprotected.”

“Rather, the defendant’s posts ‘primarily discuss issues of public concern,’ as they are clearly directed at exposing what the defendant considered to be shortcomings in the chief’s and deputy chief’s ability to properly perform their public positions,” ruled the court. “In accusing the chief and deputy chief of drinking on the job, spending time with known local criminals, and generally being corrupt, the defendant’s videos were obviously attacking their capacity to effectively serve as police officers.”

What are the Penalties for Stalking in MA?

Stalking crimes are punished harshly in MA. If you have been convicted of stalking, you may be facing the following penalties:

First offense: Up to five years in prison, and a fine of up to $1,000
Second offense: Up to 10 years in prison

As with all criminal offenses, experienced legal counsel is essential to a positive outcome. A Boston defense attorney can help you determine how to protect your rights if you’ve been charged with stalking. We often think of a stalker as a man who follows his female victim home at night and lurks outside her window. Although this is one example of stalking, this criminal act can take many forms and affects both men and women. Stalking can include physical following, emails, phone calls, and social media posts. And it’s quite common; about 6.6 million people are stalked in the U.S. annually. Continue reading

July 21, 2017

Can I Possess a Gun in Massachusetts After an OUI Conviction?

by Altman & Altman

The answer to this question is that of the answer to most legal questions, it depends. An OUI can be a misdemeanor or a felony, depending on multiple factors. Was this your first OUI or your fourth? Was anyone injured? Were there any aggravating circumstances, such as drug possession, at the time of your arrest? Third or subsequent OUIs are considered felony offenses. In MA, convicted felons are prohibited from obtaining a gun permit or Firearm Identification Card. Read on for more information about OUIs and their impact on your ability to purchase and carry a gun.

A felony is any crime punishable by at least one year in a state prison. Even if a person’s sentence is reduced to less than one year, he or she may still be classified as a felon. Although third and subsequent OUI offenses are automatic felonies, first and second offenses can be felonies under certain circumstances. For example, if someone is seriously injured or killed in an accident because you were driving under the influence, your first OUI may be elevated to a felony conviction. A Boston criminal defense attorney can help you determine your rights to purchase or carry a gun if you were previously convicted of an OUI offense.

What About My Second Amendment Rights?

A felony conviction results in the loss of many rights, including your second amendment rights. Although the Second Amendment of the U.S. Constitution guarantees U.S. citizens the right to bear arms, it excludes those convicted of felonies. Although a felony is a surefire way to remove your right to possess a gun, there are other situations in which U.S. citizens are prohibited from purchasing or carrying firearms. These may include:

Anyone convicted of domestic violence, even a misdemeanor offense
Individuals convicted of juvenile crimes
Anyone with an outstanding warrant
Individuals residing in mental health hospitals or addiction treatment centers
Individuals under the age of 18 who are in the U.S. illegally

What About My Spouse?

Unless your spouse is also a convicted felon, he or she can possess a gun after your felony OUI conviction. Unfortunately, this can present a sticky situation. Let’s say your wife owns a gun and you’re a convicted felon; if she puts the gun anywhere accessible to you – including the family home – she would be in violation of the law. Further, if you were unaware that the gun was in the home and it was discovered by law enforcement, you could be charged with unlawful possession.

What are the Penalties for Gun Possession Following a Felony OUI Conviction?

In MA, unlawful possession of a firearm is punishable by a minimum of two-and-a-half years in prison, with a maximum of five years in prison. To prove unlawful possession, the following circumstances must be proven:

The individual was in physical possession of the firearm, and was aware that he had possession of the firearm.
The firearm was a revolver, pistol, or other weapon from which a bullet can be discharged.

If you were convicted of a misdemeanor OUI offense, your right to purchase or carry a gun is unlikely to be impacted. However, an application and background check will provide confirmation. A MA criminal defense attorney can help you determine how to proceed if you’ve been charged with unlawful possession of a firearm following an OUI. Continue reading

July 20, 2017

How Long Does it Take to Get a Criminal Record Expunged in MA?

by Altman & Altman

Sealing is the process of sealing a criminal record. For example, let’s say you got an OUI five years ago. That offense may come back to bite you when you apply for a job, school or housing. If, however, you have the OUI conviction or CWOF sealed, the offense won’t show up in an employment or housing background check. But not all crimes can be sealed, and there are different timelines for different crimes. Read on for more information about how to seal a past criminal conviction, and how long the process will take.

Misdemeanor offenses: If you were convicted of a misdemeanor offense, such as a first OUI, petty theft, or simple assault, you will be eligible to have the record sealed as soon as five years have passed. This waiting period doesn’t begin until your case has ended, including any time behind bars. In order to qualify, your record must have remained clean since the offense in question. A Boston defense attorney can help you get your record sealed if you have been convicted of a misdemeanor offense.

Felony offenses: If you were convicted of a felony offense, 10 years must have passed before you are eligible for sealing. Again, this includes any period of incarceration, and you cannot have been convicted of another crime during that time period.

July 18, 2017

What is the Difference Between a Bench Warrant and an Arrest Warrant?

by Altman & Altman

Before we get into the differences between a bench warrant and an arrest warrant, it’s important to state a crucial similarity between the two – they should never be ignored. Knowing that the police are searching for you can be scary, but warrants don’t just go away on their own. And turning yourself in will result in a better outcome than if you force police to track you down. Further, turning yourself in will prevent the embarrassing scenario of being arrested at home or – even worse – at work. So, now that we’ve covered the importance of not ignoring any type of warrant, let’s discuss the differences between a bench warrant and an arrest warrant.

Bench Warrant

Bench warrants can be issued in civil and criminal cases. In criminal cases, they are typically issued if a defendant fails to appear for a scheduled court date. In civil cases, they are often issued for witnesses who are being subpoenaed, as well as for individuals who fail to show up for their jury duty. Bench warrants may also be used in child support cases for parents who aren’t making their required monthly support payments. Generally, however, this only occurs when other efforts, such as wage garnishment, have been unsuccessful. A MA criminal defense lawyer can help you protect your rights if a warrant has been issued against you.

When it comes to bench warrants, police rarely conduct an active search for the individual. However, if you are stopped for another reason, such as a minor traffic violation, the warrant will appear and you will be taken into custody. At this point, you will not only be defending yourself against the underlying offense or issue, you’ll have the added disadvantage of being viewed as someone who attempted to dodge the justice system. Being proactive and taking care of warrants immediately, whether criminal or civil, is always advisable.

Arrest Warrant

An arrest warrant, on the other hand, is issued when there is probable cause that the individual has committed a crime. If law enforcement convinces the judge that you are responsible for a crime, the judge may issue an arrest warrant against you. A Boston defense attorney can help you determine how to proceed if you have been charged with any type of crime.

The main difference between arrest and bench warrants is that, police will actively search you if an arrest warrant has been issued against you. This is especially true if you are wanted for a violent or serious crime. Law enforcement can show up at your home, place of employment, and anywhere else that you frequent. They will look for you and can arrest you anywhere. Even if you end up being found innocent, getting arrested at work or at home can be an emotionally traumatic and highly-embarrassing situation. Don’t let this type of scenario ruin your reputation; take care of arrest warrants before police come looking for you. Continue reading

July 17, 2017

What is the Difference Between a Bench Warrant and an Arrest Warrant?

by Altman & Altman

Before we get into the differences between a bench warrant and an arrest warrant, it’s important to state a crucial similarity between the two – they should never be ignored. Knowing that the police are searching for you can be scary, but warrants don’t just go away on their own. And turning yourself in will result in a better outcome than if you force police to track you down. Further, turning yourself in will prevent the embarrassing scenario of being arrested at home or – even worse – at work. So, now that we’ve covered the importance of not ignoring any type of warrant, let’s discuss the differences between a bench warrant and an arrest warrant.

Bench Warrant

Bench warrants can be issued in civil and criminal cases. In criminal cases, they are typically issued if a defendant fails to appear for a scheduled court date. In civil cases, they are often issued for witnesses who are being subpoenaed, as well as for individuals who fail to show up for their jury duty. Bench warrants may also be used in child support cases for parents who aren’t making their required monthly support payments. Generally, however, this only occurs when other efforts, such as wage garnishment, have been unsuccessful. A MA criminal defense lawyer can help you protect your rights if a warrant has been issued against you.

When it comes to bench warrants, police rarely conduct an active search for the individual. However, if you are stopped for another reason, such as a minor traffic violation, the warrant will appear and you will be taken into custody. At this point, you will not only be defending yourself against the underlying offense or issue, you’ll have the added disadvantage of being viewed as someone who attempted to dodge the justice system. Being proactive and taking care of warrants immediately, whether criminal or civil, is always advisable.

Arrest Warrant

An arrest warrant, on the other hand, is issued when there is probable cause that the individual has committed a crime. If law enforcement convinces the judge that you are responsible for a crime, the judge may issue an arrest warrant against you. A Boston defense attorney can help you determine how to proceed if you have been charged with any type of crime.

The main difference between arrest and bench warrants is that, police will actively search you if an arrest warrant has been issued against you. This is especially true if you are wanted for a violent or serious crime. Law enforcement can show up at your home, place of employment, and anywhere else that you frequent. They will look for you and can arrest you anywhere. Even if you end up being found innocent, getting arrested at work or at home can be an emotionally traumatic and highly-embarrassing situation. Don’t let this type of scenario ruin your reputation; take care of arrest warrants before police come looking for you. Continue reading

July 10, 2017

What Not to Do if You Get Stopped for OUI in Massachusetts

by Altman & Altman

When a police officer stops your vehicle on suspicion of OUI, he or she will likely initiate a series of tests to determine if the suspicion is accurate. The officer will observe your eyes, your speech, and your overall demeanor. He or she will ask questions, such as have you had anything to drink.” If the officer believes there is probable cause, you will likely be asked to step out of the vehicle to perform a field sobriety test. You may also be asked to submit to a breath or blood test. These tests are performed to gather evidence, and any information obtained will be used against you in an OUI case. As such, it’s important to know your rights if you are ever stopped after having a few drinks.

Ask for a lawyer. There is very little information that you are required to give to police during an OUI stop. You must provide basic identifying information, such as your name and address, driver’s license and registration. But even a question such as have you had anything to drink tonight doesn’t require a response. Your best bet is to remain calm and courteous, and to politely ask to speak to your lawyer before answering any questions. A skilled Boston OUI defense attorney can help you determine how to proceed if you’ve been pulled over on suspicion of OUI.

Do not submit to the field sobriety test. Ok, before we move forward it’s important to note the following – you do have to get out of the vehicle if the officer asks you to do so. You do not, however, have to answer the officer’s questions or perform a field sobriety test. If asked to get out of your vehicle, do so politely, and then inform the officer that you do not wish to perform the field sobriety test, and that you would like to speak to your lawyer immediately. Field sobriety tests are designed to produce failures. People who are completely sober frequently fail these tests. Without the evidence of a failed field sobriety test, proving that you’re guilty becomes quite the hurdle.

Are there Consequences of Refusing a Field Sobriety test?

Well, refusal of a field sobriety test doesn’t carry the official consequences of refusing a breath test (we’ll talk about those shortly), but refusing a field sobriety test is a relatively surefire way of getting arrested. The same could be said for submitting to the test, however. In many ways, you’re damned if you do, damned if you don’t…but for one major exception; a failed field sobriety test may lead you to jail and – most likely – a conviction. A refused test may lead you to jail, but you’ll have a significantly better chance of having your OUI charge dismissed without that evidence to substantiate the charge.

Can I Refuse the Breathalyzer?

Breath and blood tests are an entirely different story. In MA, refusing a breath test carries an automatic 180-day license suspension. That being said, it may still be in your best interest to refuse the breath test. There is no one-size-fits-all answer to this problem. Your best course of action is to contact an experienced MA OUI defense attorney immediately if you find yourself in this situation. Continue reading

June 27, 2017

Can I Refuse a Breathalyzer Test in MA?

by Altman & Altman

Yes. But that doesn’t mean you want to refuse. On the other hand, it also doesn’t mean you should submit to the test. This conflicting advice may leave you feeling a bit confused, but with good reason; there’s no one-size-fits-all approach to the decision to refuse (or submit to) a breathalyzer test in MA. If you decide to take the test and it reads .08 or higher, you will lose your license for 30 days if it’s your first offense. If you refuse to take the test, however, you will receive an automatic 180-day suspension.

At first glance, it may seem that taking the test is in your best interest. But a failed breathalyzer test is hard evidence to overcome at trial. You have a much better chance of beating an OUI charge if a failed breathalyzer test is not on the table. A Boston OUI defense attorney can help you defend yourself in court, whether you took and failed a breath test or refused the test altogether.

Assess Your Situation

If you refuse the test and a skilled attorney is successful in defending you against the OUI charge, your license will generally be reinstated in less than 180 days. Remember, this favorable outcome is only likely if the circumstances of your case are equally favorable. If, for example, this is your second or subsequent OUI charge, and / or several witnesses claim to have seen you driving recklessly before you were stopped, your chances of success will be seriously limited. However, if this was a first offense and there were no other aggravating circumstances present during your stop or arrest, penalties for refusing the breathalyzer are much more likely to be waived.

In MA, a blood alcohol concentration (BAC) of .08 or higher is above the legal limit. If your breathalyzer results indicate .08 or above, that evidence will be hard to fight in court. If, however, you refuse the test, there will be no evidence of your BAC at trial, and – even better – the jury will not be made aware of your refusal. If you are found not guilty, your MA OUI defense attorney will file a motion arguing for reinstatement of your license prior to the 180-day period. Unless the prosecution can prove that your license should not be reinstated, you are likely to get it back in relatively short order.

What if I’m Under 21?

If you are 21 or older and you fail a breath test, your license will be suspended for 30 days. That is just the initial suspension; you will likely receive a later suspension if you are found guilty. However, there are some circumstances in which a failed breath test carries an automatic 180-day suspension.

If you are between the ages of 18 and 21 and your BAC is .02 or higher, you will lose your license for 30 days plus 180 days. In some cases you can waive this suspension by enrolling in a Youth Alcohol Program (YAP).
If you are under the age of 18, you will face a one-year suspension if you fail a breathalyzer. If you enroll in an approved alcohol treatment program, this suspension may be reduced to 180 days.

This may seem like an easy choice – I’ll lose my license for 180 days no matter what, so I might as well refuse the test, right? But the reality is, it’s not that simple. Although a failed breath test has an extended suspension if you are under 21, so does a refusal. If you are under 21 and you refuse a breathalyzer, your license will automatically be suspended for three years.

What if this isn’t My First OUI?

Things get a bit more complicated with second and subsequent OUIs. If you’ve previously been convicted of one OUI, a breathalyzer refusal carriers an automatic three-year suspension. And if you have two previous convictions, that increases to five years. If this is your third or subsequent conviction, a refusal will result in a lifetime suspension. Continue reading

June 20, 2017

Police Want to Question Me – What Do I Do?

by Altman & Altman

During a criminal investigation, police may ask you questions whether you’re under arrest or not. But you don’t have to answer. Well, at least not most questions, and not initially. You must provide basic identifying information, such as your name and date of birth. If law enforcement asks you additional questions, you have the right to simply say “no” or remain silent, but the questions will likely continue until you specifically request to speak with a lawyer. This is true at any stage of the process.

The Fifth Amendment

The fifth amendment to the United States Constitution upholds a person’s right to remain silent. As such, invoking this right is often referred to as “pleading the fifth.” This amendment, which was proposed to congress in 1789, holds that no person “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.”

But the fifth amendment is not without limits. For starters, commands and orders are not questions and should not be treated as such. For example, if an officer asks where you were the night a crime was committed, you have a right to plead the fifth. You do not, however, have the right to remain in your vehicle if an officer is ordering you to get out.

Can I Refuse a Request to Go to the Station for Questioning?

In short, yes. If you are a suspect, however, investigators will likely come to your work or home, and you may be arrested on the spot. A better idea is to schedule an appointment for later in the day or the next day, after you’ve had a chance to consult with a skilled Boston criminal defense lawyer. An attorney can even accompany you to the station, and can provide you with additional details about what to expect. Attempting to “go it alone” can be a big mistake when it comes to criminal investigations.

Should I Ask Police if I’m a Suspect?

Coming right out and asking police if you’re a suspect can be a very bad idea. For starters, they have absolutely no obligation to be completely honest during an interrogation. They might even lie to trick you. Further, the question itself can be incriminating. Avoid asking this question; ask for an attorney instead. Remember, anything that you say can be used against you.

Talking to police can be scary. They can be intimidating enough on their own, but you might also fear retaliation from those involved in the crime for “ratting them out,” talking too much, or even just providing a witness statement. Having an experienced MH defense attorney by your side can provide you with legal protection and the peace of mind to move forward. Continue reading

June 14, 2017

Motorcycle Theft is on the Rise

by Altman & Altman

Although the reason has yet to be determined, motorcycle thefts rose two percent in 2016. Maybe it’s because they look cool, or maybe they’re just easier to steal than other motor vehicles. The National Insurance Crime Bureau (NICB) has released statistics that provide more information about where these thefts are most prevalent, and what may be behind the increase. A MA defense attorney can help you determine how to proceed if you’ve been charged with motorcycle theft.

Top 10 Cities for Motorcycle Theft

Of the top 10 cities mentioned in the NICB report, nine are located in warm climates. This isn’t a big surprise, given that more bikes are purchased in warmer-climate areas, and they are generally on the road for more months each year in these places. However, the only city on the list with a cold climate in winter months also happens to be the city with the highest number of motorcycle thefts – New York City. The top 10 cities were:

New York City (1,209)
San Diego (849)
Las Vegas (818)
Los Angeles (760)
San Francisco (616)
Miami (610)
Houston (607)
San Antonio (411)
Phoenix (347)
Austin (343)

Not surprisingly, motorcycle thefts in NYC were highest in August and lowest in February, further proof that Mother Nature plays a significant role in motorcycle thefts.

When the NICB looked at motorcycle theft by state, the leaders were California, Florida and Texas. Looking at the city stats above, this doesn’t come as a surprise. However, numbers four and five on that list were South Carolina and North Carolina, respectively. Considering that population isn’t as robust in these states, some researchers are left scratching their heads. Yes, both North and South Carolina have warmer climates, but so do many other states with worse records of overall crime.

When Temperatures Drop, So Does Crime

Maybe New England’s brutal winters do have some very real benefits. But motorcycle thefts do still occur here; in 2015, 34 bikes were stolen in MA. A Boston defense attorney can help you protect your rights if you’ve been charged with any type of theft.

What’s Behind the Increase?

Theft of motorcycles had been declining for nine years when it increased in 2015, and then again in 2016. According to the NICB’s Frank Scafidi, it is easier to steal a motorcycle. “Stealing a bike is much easier than stealing a car simply because of its size,” said Scafidi. “If you have your bike all chained up and covered with all kinds of immobilizing technology, it can still be picked up with a fork lift, loaded into a pickup truck and taken away.” And with car anti-theft systems becoming more sophisticated every day, motorcycles are increasingly an easier option.

Unfortunately for bike owners, the recovery rate tends to be lower than the recovery rate for cars. This is largely due to the fact that bikes are frequently “chopped” for individual parts. Of the 46,467 motorcycles stolen in 2016, only about 18,000 were recovered.

Penalties for Motorcycle Theft in MA

Considering that most motorcycles are valued at more than $250, motorcycle theft is classified as grand larceny in MA. A felony charge, grand larceny carries a penalty of up to five years in state prison and a fine of up to $25,000. Continue reading

June 14, 2017

Can My Journal Be Used Against Me if I’m Facing Criminal Charges?

by Altman & Altman

Writing in a journal can be extremely therapeutic; jotting down thoughts, hopes and fears can help you solve problems, stick to a plan, and reach goals. Although journals have long been hailed as a private space in which you can divulge your deepest, darkest secrets, you may want to think about withholding criminal confessions from its pages.

If your journal is found during a legal search, it will likely be admissible as evidence in court. The search doesn’t even have to be conducted by law enforcement; if one of your family members or roommates finds something incriminating in your journal and reports it to law enforcement, your Fourth Amendment protections may fly out the window.

Invasion of privacy is a no-no, but legally obtaining a journal or diary during a search does not constitute invasion of privacy. If the contents of the journal are deemed relevant to the charges you are facing, the prosecution will likely use it against you. A MA criminal defense lawyer can help you determine how to proceed if you’ve been charged with a crime.

The Search Has to Fit the Crime

Keep in mind, however, that simply being arrested doesn’t give law enforcement a green light to read your journal. If you get arrested for shoplifting, for example, it doesn’t give police the right to demand your private journal. If, however, you are arrested for a more serious crime such as arson, police will likely search your home. If that search turns up a journal, investigators are almost certain to use it against you. A Boston defense attorney can help you protect your rights if evidence was obtained during an unlawful search.

In some situations, a journal might actually help your case. If journal entries corroborate your defense that you were in New York the night of a murder, for example, it may be used as proof that you were out of state when the crime was committed. And memories fade; you may have trouble proving your innocence when relying solely on memory, but a journal can help you remember where you were, what you were doing, and when you were doing it.

Were Your Rights Violated?

If you’re facing criminal charges, it’s important to know your constitutional rights. In today’s world, it’s not just journal entries that can come back to haunt us. Blogs, emails, message boards, chat rooms, texts, Snap chats, and a whole slew of other electronic communications can be used against you in certain circumstances. If you believe that evidence against you was obtained in an unlawful manner, or that lawfully-obtained evidence is being used in an unlawful manner, it’s essential to know how to ask for that evidence to be removed. This is where the help of a skilled defense lawyer can make all the difference in the world. A criminal conviction can be devastating to your financial and emotional well-being for years into the future. Don’t make the mistake of hiring an inexperienced attorney. Continue reading