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It’s been a hard week and, admit it, you have not really been at your best. Or, perhaps your significant other has not been at his or her best. Either way, somebody may have done something stupid.

All you know for sure now is that you have received word that the Department of Children and Families (“DCF”) wants to meet with you. Someone said something about receiving a “51a” or something and now DCF is saying they need to see if you have been neglectful.

“Neglectful???!”, you say to yourself. “Are they kidding? Look at all the things my kids have. My every thought is about my kids! Believe me, my kids are anything but neglected!”

“I don’t need to get a lawyer for this, do I?”

Attorney Sam’s Take on DCF Investigations And Whether You Need A Lawyer

Unfortunately, the answer tends to be “it depends”. However, I can tell you that in the vast majority of cases, my advice is generally “Yes”.

“But I did not do anything?”

Actually, you don’t know that for sure. You see, DCF, like many government agencies, has its own definitions for all kinds of things…including what is called “neglect”.

“My kids have a roof over their heads. The place is clean.”

Great!

“They have plenty of food. They want for nothing!”

Fantastic!

“We do not believe in corporal punishment. I mean, sure we get angry sometimes, and sometimes may yell…”

Uh-oh.

Here is the problem. Someone has made a report to DCF that your kids may be being neglected or even abused. DCF has screened the report in and begun a “51a Investigation”. Now, they have a fairly short amount of time to size the entire situation up and decide whether they can ignore your home.

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There are many reasons why your Massachusetts driver’s license may be suspended or revoked. These include specific driving violations, such as excessive speeding tickets or driving without insurance. You could also lose your license due to criminal offenses, such as operating under the influence or violation of other state laws. Whatever the reason, driving on a suspended or revoked license is never a good idea. Choosing to do so may result in additional consequences, and even jail time.

Suspended vs. Revoked

Massachusetts driver’s licenses can be temporarily suspended or permanently revoked:

  • With a suspension, you are not allowed to drive for a certain period of time, but you may have the opportunity to get your license back at a later date.
  • With a revocation, your driver’s license is canceled, and you only have the opportunity to get it reinstated if you submit to an investigation.

In either case, license suspension and revocation are both red flags to insurance companies. Your premiums will likely skyrocket. In some cases, your insurance company may even cancel your policy. A MA defense lawyer can help you protect your rights if you’ve been stopped for driving on a suspended or revoked license.

Reasons for Driver’s License Suspension/Revocation

Operating under the influence and driving without insurance are among the most common reasons for license suspension and revocation, but you can also lose your Massachusetts driver’s license for the following reasons:

  • The state determines that you are a threat to public safety due to serious violations of traffic law.
  • You drove with a suspended license or used a false driver’s license. Driving with a suspended license leads to an increase in the length of the suspension, and could also result in imprisonment of up to five years.
  • You have physical or psychological impairments. Your driving privileges may be suspended if a health care provider or law enforcement officer determines that you are unable to drive safely.

Next to specific driving violations, there are also non-driving reasons for license suspension. These include:

  • being delinquent on your child support payments,
  • not registering as a sex offender,
  • not appearing when there is an arrest warrant,
  • failing to pay traffic tickets, fines or surcharges, and
  • certain criminal offenses.

With regard to criminal offenses, you may lose your license if you:

  • are caught stealing a motor vehicle – three year suspension,
  • leave the scene of an injury accident without giving aid – one to two years,
  • are found guilty of homicide involving a motor vehicle – 15 years to a lifetime suspension, or
  • are convicted of driving to endanger – two months to one year.

Penalties for Driving on a Suspended License

If you are stopped for operating a motor vehicle with a suspended or revoked license, you may face the following penalties:

  • Up to 10 days in jail
  • Fine between $500 and $1,000
  • 60 day license suspension (mandatory)

The sentence will also be based on the reason you lost your driving privilege in the first place, and whether or not you have already been convicted. In some cases, the sentence may result in a fine of up to $10,000, and up to one year in jail. A Boston defense attorney can help you determine how to proceed if you’ve been stopped for driving on a suspended or revoked license. Continue reading

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Massachusetts white collar crimes, such as fraud,  come in many alleged colors.

And they can be prosecuted in both the civil and criminal arenas.

Let’s take the example of 75-year-old John Donovan, Sr. of Hamilton, Massachusetts (hereinafter, the “Defendant”. He was recently in Salem Superior Court…criminal department…pleading “not guilty” to fraud – type charges.

The Defendant, a former business professor at the Massachusetts Institute of Technology, is accused of trying to swindle his late son’s family out of millions of dollars according to Boston.com.

The criminal charges he presently faces include larceny, forgery and witness intimidation.

Prosecutors say that the Defendant forged his youngest son’s signature to gain title to at least four properties that his son left to his family after dying of cancer in 2015.

The Defendant has had earlier problems with the courts. In 2007, he was convicted of staging his own shooting in Cambridge, in an attempt to frame another of his sons to gain advantage in a family dispute. He has denied any role in the shooting.

The present case will next be heard at a pretrial conference on March 7th.

    Attorney Sam’s Take On Fraud, Associated Charges And Family Non-Values

While, once, a story like this might be found under the column of civil litigation (The Family vs. The Defendant), todays’ prosecutors have decided that it is worth punishing them as crimes as well.  This is why one hears about so many white collar crimes in the news these days.

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Yesterday, We began discussing some realities of Massachusetts sexual assault prosecution about which you may not be aware.

In this case, what you don’t know can ruin your life. I have seen it happen time and again.

Once the allegation is made, getting an experienced criminal defense attorney is your one best option to fix your life…but there will be damage nonetheless. So, it is worth taking the time to realize this reality now.

Better to not need my help.

    Attorney Sam’s Take The New Realities of Sexual Assault Prosecutions

We discussed the new understanding of what constitutes a “no”…particularly if you want to be safe in avoiding criminal prosecution. There are some instances in which even a “yes” is not good enough to overcome an assumption of “no”.

For example, lets say that Peter Partier is at a party where he meets Adorable Annie. Both of them have had a few drinks and they hit it off. Annie is clearly pretty loaded, but Peter is pretty buzzed too. He walks her to her apartment (or dorm room) and begins to make “the moves” on her. She responds affirmatively and they have sex.

In the morning, Annie seems a bit embarrassed, but still friendly and they agree they will get together again later in the week. Peter leaves, perhaps figuring he has a new “girlfriend”. He is wrong. He may have a new “victim”.

I have seen this scenario play out many times where Annie’s friends explain to her that, because she was drunk, she was raped. I have seen other rationales as well, such has having to explain to a boyfriend, or a simple remorseful feeling of “That’s not me!”

“Well, that’s ridiculous, Sam! She cannot simply claim that after the fact! “

No? Why not? Few rapes are reported before the fact.

“You know what I mean. She never indicated, or even thought, that she did not want to consent to sex”.

True. However, she may have been drunk. Under the law, if she were drunk, she could not, as a matter of law, have consented. Its like saying an infant can consent to sex.

“But Peter was buzzed too!”

Yes, but Peter is not claiming he was raped. Annie is. Remember something we have spoken about in the past many times. Often, the difference between who will be the “victim” and who will be the defendant is in who makes the complaint first.

Besides, there is an obvious presumption that the male is the aggressor.

Again, maybe Peter will win at trial. But what I am trying to do here is to avoid that harrowing adventure for him.

I mentioned that this could have taken place in a dormitory room. This brings us to the fact that many of these cases take place in schools. For a student to be facing such allegations, the prosecution, or even the allegation is never prosecuted by law enforcing, it is twice as devastating.

“Why is that?”

 

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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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As exemplified by the “Me Too” movement, stories of sexual harassment and sexual assault are rampant. The prevalence of the reports are staggering to most people.

One of the most recent spotlights on the subject was none other than Oprah Winfrey who commented on the movement, as CNN tells us, at the Golden Globe awards.

Oprah announced that she had been “inspired” by “all the women who have felt strong enough and empowered enough to speak up and share their personal stories.”

She further stated, “For too long, women have not been heard or believed if they dared to speak their truth to the power of those men, but their time is up…. I want all the girls watching here, now, to know that a new day is on the horizon! And when that new day finally dawns, it will be because of a lot of magnificent women, many of whom are right here in this room tonight, and some pretty phenomenal men, fighting hard to make sure that they become the leaders who take us to the time when nobody ever has to say ‘Me too’ again”.

It would seem that the type of stories Oprah is talking about are pretty obvious tales of sexual harassment and abuse.

In my experience, however, on both sides of these types of cases, the “rules” regarding sexual interaction are often not so clear.

That is primarily because they have been changing.

    Attorney Sam’s Take On Being Clear on Sexual Assault

When I was a prosecutor in the Sex Crimes and Special Victims Bureau in the Brooklyn DA’s Office, things seemed to be pretty clear and simple.

Most of the cases reported were women who were forced, by threat or violence, to perform sexual acts on someone. They would range from the on-the-street assault by a stranger, to a relationship gone sour. There would also be cases involving professionals like doctors and dentists abusing their standing to abuse a patient or even drug deals gone sour resulting in rape.

Now, having been a criminal defense attorney for more years than the mortal mind can remember, either the reality or my perspective has changed. Probably both.

The point is that we all know that “no” is supposed to mean know. When an aggressor disregards the “no”, there is no consent and so whatever happens is a sexual assault.

Many cases today, however, are not quite that simple. Further, the rules have been changed which confuses the situation even more.

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Domestic abuse is a serious crime in MA, and nationwide. And for good reason. Nobody should suffer physical or emotional abuse at the hands of a loved one. When men and women are being harmed by a spouse or intimate partner, they should be able to end the abuse and seek justice. All too often, however, allegations of domestic violence are motivated by something other than actual abuse. Jealousy, revenge, and child custody disputes are often at the core of false accusations of domestic abuse. If you have been falsely accused, what do you do?

What to Do if Falsely Accused

Your actions following a false accusation of domestic abuse are of extreme importance. For starters, don’t lash out at your accuser; it’s important to remain calm and level headed. The tips below will help you avoid making a wrong move in these crucial moments:

  • Do not contact your accuser.
  • Consult with a Boston defense attorney experienced in domestic abuse cases.
  • Identify what may have caused the false accusation – jealousy, child custody, other legal proceedings?
  • Secure your valuable possessions. It is common for false accusers to take valuable items, knowing you won’t be able to retrieve them for an extended period of time, if ever.
  • Change passwords, bank accounts, pin numbers, and any login information. If your ex has access to any of the above, it can be stolen and / or used against you.

If your partner or ex is displaying erratic behavior but hasn’t yet accused you of domestic abuse, it may be in your best interest to share your concerns with family members and friends. They are less likely to turn against you if you shared the warning signs before any accusations were made.

False allegations of domestic abuse can ruin a person’s life. In addition to harming personal relationships with friends and family, a domestic abuse charge can have a negative impact on your career, child custody arrangements, adoption proceedings, and countless other aspects of your life. If convicted, you may find yourself behind bars for years. Even those who are eventually proven innocent may have a difficult time recovering from the stigma associated with domestic abuse. This is why it is so important to remain calm, be as prepared as possible, and hire a highly-skilled MA domestic abuse defense attorney to help you navigate this complex and emotional process.

Penalties for a Domestic Abuse Conviction in MA

If you are convicted, the penalties for domestic abuse are severe. As with any crime, the punishment is largely dependent on prior criminal history and the circumstances surrounding your case. Further, there are many types of domestic abuse-related crimes, from assault to stalking. If you have been charged with domestic abuse, you may be facing the following penalties:

  • Violating a protective order: Fine of up to $5,000 and up to two-and-a-half years in jail.
  • Assault and battery: Fine of up to $1,000 and up to two-and-a-half years in jail.
  • Assault and battery, when a protective order exists: Fine of up to $5,000 and up to five years in prison.
  • Stalking: Fine of up to $1,000 and up to two-and-a-half years in jail. Second and subsequent stalking convictions are punishable by up to 10 years in prison.

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Drunk drivers beware! Those who feel they can “get by” driving after drinking alcohol should take a tip from some of the new advertisements put out by the Commonwealth.

As the holiday season fades into our rearview mirrors, we return to streets of ice, roads of varying  repair and some questionable drivers.  Most of the parties are over. This by no means means that no one is partying anymore.

And driving.

Recently, new advertisements from the Commonwealth have taken and interesting tact. Law enforcement realized that people know that to drive “drunk “ is a huge risk.  However, it seems to be human nature for someone who is perhaps “slightly intoxicated“ to misunderstand.  Such a person might assume that, because they are neither stumbling around incoherently or vomiting out the nights imbibement, that they are safe to drive.

Think about it. How many times have you heard people say something like, “I’m not drunk. I’m just a little buzzed.”

How many times have you heard yourself say it?

The new ads to which I refer tackle the misconception that driving while “just a little buzzed, is “ok”

It’s not ok.

    Attorney Sam’s Take On ”Buzzed Driving” And Other Distorted Thinking

Between my days as a prosecutor and my over over 20 years as a defense attorney, I have handled a great number of drunk driving cases. As common as this crime is, there are still misconceptions about it. This new ad campaign takes one of those misconceptions on.

Some folks think that they have to be falling down drunk in order to be intoxicated under the meaning of the OUI laws. They would be wrong. It really does not take all that much to hit the magic number to show intoxication on a breathalyzer. In fact, the breathalyzer itself is often misunderstood.

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Hello. This is “Attorney Sam”. You may remember me as I regularly wrote this blog.

Now that we are finally thawing out, welcome to 2018. Although it has admittedly been awhile, I am still around, handling criminal cases and, of course, representing parents and teachers against the Department of Children and Families (DCF).

Since we are starting off a new year, I thought that I would do something new. In all my blogs about DCF, I don’t think I have ever written one that is favorable to the department.

The previously stated views remain, unfortunately, but there is one aspect where DCF has surprised me in a positive way.

For those of you unacquainted, when DCF gets a report about abuse or neglect of a child, or what passes for such in some people’s minds, they do an investigation. At the end of that rather short investigation, they make a determination as to whether the allegations are “supported”.

There are various ways in which such a finding can, and will, negatively effect your life. Not just in the short term…years later as well.

There is only one way to challenge such a finding. It is an appeal procedure within DCF culminating in what is known as a “Fair Hearing”.

At a Fair Hearing, the investigator explains why the decision was made to support the allegations. The aggrieved parent (or teacher) has a chance to question the investigator and present his or her own witnesses. What passes for a judge in such hearings are men and women known as “Hearing Officers”. They have their own unit at the Boston headquarters of DCF.

“Who do the Hearing Officers work for, Sam?”

They work for DCF.

“Wait a minute. You’re telling me that it comes down to asking DCF to find that DCF had made a mistake in its finding?”

I know that, particularly if you know DCF, this seems like lunacy. Particularly if they continue to call it a “Fair” Hearing. Frankly, that is how it seemed when I started handling these matters years ago.

The good news is that, contrary to what one might expect, these Hearing Officers actually seem to take their job seriously. I have won many of these hearings and found many of the Officers quite fair.

 

“Is it just one Hearing Officer whom you have somehow won over or are dating?”

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If you are at least 21, a blood alcohol concentration (BAC) of .08 percent or higher can result in an OUI arrest in MA. The limit for under-age individuals is .02 percent (basically, zero tolerance).  Licensed commercial drivers (CDL holders) have a limit of .04 percent. If police suspect that you are under the influence of drugs or alcohol during a traffic stop, you will likely be asked to submit to a breath test.

Different Strokes for Different Folks

Alcohol is metabolized at different rates for different people, and based on a variety of factors. These include your gender, weight, the type of alcohol you consumed, how quickly you consumed it, and whether or not you drank on an empty or full stomach. With so many variables, it is impossible to determine your BAC without a tool designed specifically for that purpose. Even one alcoholic beverage, consumed quickly by a person with a small build – on an empty stomach – can result in an unsafe level of impairment. The best way to avoid an OUI is to always have a designated driver if you plan to drink.

If a breath test indicates that you are above the legal limit, you may be placed under arrest. Although breath tests  – commonly referred to as breathalyzers – sometimes provide inaccurate readings, an over-the-limit result is compelling evidence that you were driving under the influence. This is especially true when a reading is particularly high.

Can I Refuse the Breath Test?

You can decline to take the test, but there are serious repercussions for refusing, including a minimum six-month license suspension. Even so, it may be in your best interest to refuse a breath test. Unfortunately, there is no one-size-fits-all solution to this problem. You will have a better chance of having your OUI charges dismissed if there are no incriminating breath test results and you have solid legal counsel. If the charges are thrown out, your attorney will likely be able to remove the penalties for refusing as well.

If you do submit to the breath test and your reading is over the limit, an experienced Boston OUI defense attorney may still be able to get your charges dismissed. Breath test results are frequently off by up to .02 percent in either direction. If you were barely above the legal limit, a skilled lawyer should be able to present multiple defenses against your charge. That being said, attempting to defend an OUI charge without legal counsel can have severely negative consequences. Don’t make the mistake of trying to go it alone. The right attorney can be the difference between a conviction and a clean record.

Per Se State

Under Melanie’s law, if a breath test registers higher than the legal limit, you are legally presumed to be impaired. MA is a “Per Se” state, which means that over-limit breath test results provide per se evidence of legal intoxication. Therefore, if you agree to the test and the results are over the legal limit, you are presumed to be operating under the influence. In such a case, it is essential to have an experienced Massachusetts OUI defense attorney by your side. Continue reading

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