Boston Criminal Lawyer Blog

March 21, 2017

Can Police Search Your Cellphone Without a Warrant in Massachusetts?

Since 2014, following a Supreme Court ruling, police have needed a warrant to search cell phones of criminal suspects. According to the justices, cell phones and other electronic devices belong to a different category than other “closed containers,” such as wallets and vehicles. When law enforcement officers have probable cause, they are able to conduct limited searches of these items. However, due to the extent and type of information that portable electronic devices may contain, the court agreed that they must be treated differently.

Unreasonable Search and Seizure?

Under the Fourth Amendment of the Constitution, “unreasonable searches and seizures” are prohibited. Despite this, warrantless searches are sometimes permitted, when the safety of officers is in jeopardy and, in some cases, when the destruction of evidence is a concern. This is why initial, limited searches of vehicles, wallets, and purses or briefcases are allowed in certain situations. But smart phones are different. This ruling came after criminal suspects in California and Massachusetts were convicted, in separate cases, following a warrantless search of their electronic devices. Using text messages, phone numbers, addresses, and photos found in their devices, officials were able to link them to gang activity. A MA defense attorney can help if you believe your constitutional rights were violated during your arrest.

The 2014 Supreme Court ruling stated that:

”The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.”

Almost Everyone Has a Cellphone

According to a Pew Research Center survey, more than 90 percent of Americans currently have access to a cellphone, and about 58 percent have a “smart phone.” And it’s not just the United States. According to the United Nations, most of the seven billion people on earth have access to mobile devices.”Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” remarked Chief Justice John Roberts. “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.”

Just as law enforcement cannot search someone’s home without a warrant – except under very specific circumstances – they cannot search a cellphone. As cellphone and smart phone technology is new (relatively speaking), legislation around their searches is complex, and constantly evolving. A Boston defense lawyer can help you determine how to proceed if you’ve been charged with a crime following a search of your portable electronic device. Continue reading

March 21, 2017

Going to Courthouse in Massachusetts for the First Time – What You Need to Know

by Altman & Altman

Nobody wants to find themselves in court, but it can happen to the best of us. You may be required to appear in court to contest a simple traffic ticket, or for something more serious. In any case, it is in your best interest to convey to the judge that you are taking the matter seriously. Showing respect for the court is crucial to the outcome of your case. Read on for more information about what to do, and what not to do, if you have to appear in court.

Dos and Don’ts in Court

With the help of a skilled MA defense attorney, and by following the tips below, you can significantly improve your chances of success.

Dress professionally. As children, we are taught to not judge a book by it’s cover. But court is one place where that advice temporarily goes out the window. First impressions can have an immensely positive or negative impact in court. Dressing professionally and showing up well groomed conveys respect for the judge, and for the matter at hand. You should wear a suit or similar professional attire, and facial hair should be trimmed and neat. Women should avoid excessive make-up and jewelry. Dress as if you are going to a job interview.

Avoid speaking without first consulting with your attorney. You have the right to remain silent. Use it to your advantage. In some instances, it may be a good idea to speak, but check with your Boston defense attorney before making that decision. This is true even when the judge is asking you a question.

Always be respectful to the judge and courtroom staff. This sounds simple, but it can be difficult to remain silent and respectful when people are accusing you of horrible things, especially when you are innocent. Despite the things being said about you, it is extremely important to avoid responding when you haven’t been asked to do so. Interrupting anyone, especially the judge, is a very bad move. If you’re especially out of line, the judge could hold you in contempt. Always address the judge as “Your Honor,” and address the courtroom staff as “ma’am” or “sir.”

Avoid unnecessary distractions, such as phones, food, drinks…and children. Most judges don’t appreciate it when cellphones ring – or even vibrate – during court hearings. And distractions, in general, are unwelcome. Ice rattling in a cup, a wrapper crinkling as you unwrap a candy bar, and the sound of gum chewing or popping can negatively impact your case. This is especially true with regard to bringing children. Yes, children can be a distraction…but that’s not the main reason bringing children to a courtroom is frowned upon. Court hearings are rarely a good place for kids. Subject matter can be highly inappropriate, and even scary, for young ones. Your best bet is to make prior arrangements for someone to care for your children if you have to appear in court.
Lastly, show up on time. There is no faster way to start off on the wrong foot with,Judges, Magistrates, Court Officers than showing up late.

March 17, 2017

Caught Driving on a Suspended License in MA?

by Altman & Altman

Driving on a suspended license is a crime in MA, but we understand that the decision to do so is often for very practical reasons. Maybe you had to pick up one of your kids, or drive to an interview. The decision to drive on a suspended license isn’t a good one, but it doesn’t make you a bad person either. A MA defense lawyer can help you manage the damage if you’ve been charged with driving on a suspended license.

Driver’s licenses can be suspended or revoked for a variety of reasons, including driving under the influence, littering, or having an outstanding warrant. If your license is suspended, don’t drive. But if you already failed to heed that advice, there are several defenses that may be available to you. The underlying offense that resulted in your suspension, and prior criminal history will factor heavily in the outcome of your case. If, for example, you have no other criminal history and your license was suspended because you were delinquent on child support payments, you have a better chance of having your charges dropped than if you are a habitual offender whose license was suspended for reckless driving while under the influence of drugs.

Penalties for Driving on a Suspended License

If you are convicted of operating on a suspended or revoked license, the factors mentioned above will come into play. However, the penalties below provide a good idea of the fines and possible jail time you may be facing.

First offense: A maximum of 10 days in jail and a fine of up to $1,000.
Second offense: Up to one year in jail.
Habitual offender: Up to two years in a state prison, and up to $5,000 in fines.

In addition to the above penalties, your driver’s license may be suspended for additional time, or it may be revoked altogether.

“I Didn’t Know My License Was Suspended”

It is absolutely possible for people to have a suspended license without knowing it. In fact, it happens all the time. Maybe you have an out of state license, or you recently moved. You may have missed a notification that your license was to be suspended for too many speeding tickets or unpaid tolls, for example. Not knowing that your license is suspended is not a defense by itself. However, if it can be shown that you truly were unaware of the suspension, and the other factors surrounding your offense are not severe, a Boston defense lawyer can use this as a way to mitigate the damage. In many cases, a skilled lawyer can get the charges dropped completely.

What if Your License Was Revoked?

If you get caught driving on a revoked license, the penalties are generally more serious. In the majority of cases, you will face mandatory jail time for this offense. This is especially true if the revocation was for a 5th OUI offense. Don’t make the mistake of hiring just any lawyer if you’ve been charged with driving on a suspended or revoked license. Your decision could be the difference between time behind bars and a complete dismissal of charges. Continue reading

March 16, 2017

Can I Become a Teacher in MA if I Have a Criminal Record?

by Altman & Altman

People make mistakes. If a past mistake resulted in a criminal record, you may be worried about how it might affect your chances of getting a certain job. Some fields, especially those that involve working with children, are especially thorough when it comes to background checks. If you are considering becoming a teacher, it would be wise to do some research on how a past criminal conviction may impact your chances. The information below may provide answers to some of your questions. If you still have questions after reading this post, a Boston defense lawyer can help you determine how to move forward.

Which Crimes are Showstoppers?

Here’s the thing – it’s not usually the criminal record itself that prevents you from getting a job, but the nature of the underlying offense. A misdemeanor offense from years ago can likely be explained away, but a sexual abuse conviction, for example, is another story. Local school districts hire teachers, and those districts must adhere to state regulations when it comes to teacher certification and hiring guidelines. With regard to Massachusetts, the offenses below will either seriously impact your ability to become a teacher in this state, or they will disqualify you altogether:

First and second-degree felonies: These are generally serious crimes, and school districts will consider them seriously. If the felony occurred a long time ago, and it wasn’t of a sexual or violent nature, it is possible that a solid explanation can pave the way to a teaching job. But you may have an uphill climb, to say the least.

Sexual Offenses: These are likely to be showstoppers. Teachers deal with children on a daily basis, and a person who has a history of sexual offenses may not be the best candidate for this type of position. Even if your crime wasn’t against a child, a sexual offense will almost certainly disqualify you from becoming a teacher in MA.

Offenses that endangered others: If you have been convicted of an endangerment offense (anything that put the safety or lives of others in jeopardy), you will probably not being writing your name on a blackboard in MA anytime soon.

Drug offenses: Here, again, the underlying offense is the determining factor. If you were busted smoking pot 10 years ago, you’ll probably be off the hook if your record has remained clear since. But if you were convicted of heroin possession with the intent to sell three years ago, chances are you’re not going to be called back for a second interview.

There are ways to get a teaching position with a criminal record. And there are ways to get certain past convictions expunged (cleared from your record entirely). A MA criminal defense attorney can help you determine if expungement is an option for you.

The following statement was taken from the website of the Massachusetts Department of Elementary and Secondary Education:

“A criminal record will not automatically disqualify an individual from licensure

by the Department. Rather, the Department will make determinations of an

individual’s suitability based on CORI checks conducted consistent with this

policy, with licensure standards adopted by the Board of Education, and with any

other applicable law or regulations.” Continue reading

March 13, 2017

What is a Pre-Trial Diversion Program in Massachusetts?

by Altman & Altman

In MA, if you are charged with certain criminal offenses, you may be eligible for something called a pre-trial diversion program. But what exactly does that mean? Well, in short, it’s a program that allows defendants with little to no criminal past to avoid the traditional criminal justice system. In exchange they are enrolled in a program that, upon successful completion, results in dropped charges and no record. Usually reserved for minor offenses committed by young people, such as non-violent alcohol and drug related crimes, a MA defense attorney can help you determine if pre-trial diversion is an option for you.

Criminal convictions come with a whole slew of problems, from jail time and hefty fines to long-term probation and a criminal record. With pre-trial diversion, you may be able to avoid all of the above. In MA, if your offense was relatively minor and you have little to no criminal record, or you are a veteran, you may be eligible for this program. Run by the local District Attorney’s Office, pre-trial diversion requires the successful completion of several requirements. A Boston defense attorney can evaluate the details of your case to determine if the District Attorney’s Office is likely to agree to diversion. If you are eligible, you may never have to face a judge.

What are the Requirements of Pre-Trial Diversion?

The requirements you must complete are largely dependent on the underlying crime. For example, if you were charged as a minor in possession of alcohol, you may be required to enroll in an alcohol abuse treatment program. If you successfully complete the program, your charges will be dismissed. In order to be considered for the program, however, you must fit into certain categories. These include:

You must be between 17 and 22 years of age.
Your charge must be a misdemeanor and a first offense (most commonly-approved charges include theft, shoplifting, drunk driving, and assault).
You must have no warrants for your arrest.
You must have no pending federal or state criminal cases.
The court must have jurisdiction over the crime you are being charged with.

Pre-Trial Diversion for Military Veterans

There is one exception for the age requirement – being a military veteran. In fact, certain diversion programs are uniquely tailored to veterans. If you do not complete your requirements or you violate any of its terms, you will be re-entered into the criminal justice system. This exception for veterans is pursuant to the Valor Act. Under this law, a veteran may be permitted to enroll in a diversion program as an alternative to prosecution. In order to qualify, the individual must:

Be a veteran, be a member of active service, or have past military history.
Be charged with a state crime.
Have no previous federal or state convictions.
Have no warrants for arrest.
Have no pending criminal cases.

Veterans who qualify for the program are usually enrolled in Mission Direct Vet (MDV) treatment programs. MDV offers treatment programs for veterans suffering from substance abuse and mental health problems. Continue reading

March 9, 2017

Is Pointing a Gun at Someone a Crime?

by Altman & Altman

In short, yes. But it’s not only the gun that matters, it’s the threat. If you threaten a person with physical harm, and the person reasonably believes that you may inflict that harm, that crime is known as “assault.” Whether you point a gun, a knife, or even a closed fist at someone, if he or she fears for their safety, you may be charged with assault. That being said, pointing a gun at someone is more likely to be perceived as a real threat than shaking a closed fist would be. For this reason, an assault charge involving a gun will probably require a more complex defense than would an assault without a deadly weapon. An experienced Boston criminal defense attorney can help you determine how to proceed if you are charged with assault.

The sheer presence of a firearm is compelling evidence for the prosecution. Consider the following example: About one year ago, a Maryland police officer was convicted of first and second degree assault after he was caught on film ordering a man into his vehicle while pointing a gun at his head. Officer Jenchesky Santiago was observed shouting at William Cunningham in a way that seemed to convince both Cunningham and those who watched the video that he intended to use the gun. And the whole incident began because Cunningham was illegally parked. Not only was the officer’s response disproportionate to the very minor infraction, it was deemed an assault crime in court.

Assault vs. Assault and Battery

Assault can be a confusing charge because it is often used interchangeably with assault and battery. But battery is really a separate activity. While assault occurs when you make a threat of physical harm, battery occurs when you make good on that threat. The individual doesn’t have to be injured by the battery to constitute a charge of assault and battery. For example, if you attempt to punch someone in the face but he ducks and you only graze his cheek, you can still be charged with assault and battery. In that example, you may even be charged with assault and battery if you miss him entirely. The simple fact that you attempted to make good on your threat of physical harm is often enough.

Penalties for Assault or Assault and Battery

Not every threat is assault, however. A skilled MA defense attorney can help you protect your rights and reputation if you are facing an assault charge. If you are convicted of assault, or assault and battery, you may face the following penalties:

Both assault and assault and battery are punishable by a fine of up to $1,000 and up to two-and-a-half years in jail.
Assault that causes serious bodily injury is punishable by a fine of up to $5,000 and up to five years in prison.
If you cause harm to a child, you can face up to five years in prison. If that harm is substantial, you may spend up to 15 years in prison.

March 8, 2017

Dangerousness Hearing & Pre-Trial Order of Detention in Massachusetts

by Altman & Altman

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 an Interlock Ignition Device – Does is Work to Reduce OUI’s?

by Altman & Altman

Many states are now requiring the installation of interlock ignition devices (IIDs) for those convicted of OUI offenses (even first-time offenders). Massachusetts is one of them. But it was a Pennsylvania mom, Angela Daywalt, who recently made national headlines after using her young daughter to bypass the device while she risked both of their lives. In MA, if you are charged with OUI, don’t make the mistake of hiring an inexperienced attorney. A skilled MA criminal defense attorney can position you for the most favorable outcome possible.

What is an Interlock Ignition Device?

An IID is a device that requires a driver to submit an alcohol-free breath sample prior to starting a vehicle. If your car is equipped with an IID, you must blow into the device to start the engine, as well as periodically throughout the drive. In the case of Ms. Daywalt, she was attempting to flee the scene of a drunk driving accident in which she had just been involved, but the intoxicated mom needed a fresh breath sample to re-start her vehicle. To solve her problem, Daywalt asked her eight year old daughter to blow into the device on her behalf.

In addition to drunk driving charges, Daywalt is also facing child endangerment charges and multiple traffic and summary violations. According to witnesses, the mom of the year was seen urging her child to blow into the IID. Although she made it home, police caught up with her shortly thereafter. A subsequent blood alcohol test revealed that she was, indeed, intoxicated. A Boston OUI offense attorney can be the difference between jail time and a full dismissal of your case. If you’ve been charged with OUI, it’s in your best interest to consult with skilled legal counsel immediately.

More Bad Moms

It may seem as though Ms. Daywalt took drunk driving to a new level, but she is not alone. The following mothers have also made some terrible choices that put themselves, and their children at risk.

A mom in New York is alleged to have beaten up her nanny when the nanny attempted to stop her from drunk driving with her toddler in the vehicle.
Shockingly, former Mothers Against Drunk Driving (MADD) president Debra Oberlin was convicted of drunk driving in Florida.
Another PA mom was charged with vehicular homicide after she was involved in a drunk driving accident that resulted in the death of her 14 year old son.
An Arizona mom is alleged to have driven away with her infant son in his child safety seat…on the roof of the car. She was allegedly stoned at the time of the incident.

OUI Penalties in MA

If you find yourself in this situation, you may be wondering what potential penalties you are facing. Although other factors, including aggravating circumstances and past criminal history come into play, here are the possible penalties:

First offense: License suspension of up to 90 days, $500 to $5,000 fine, jail time of up to 2-and-a-half years.
Second offense: License suspension of up to two years, up to $10,000 fine, and jail time of up to 2-and-a-half years.
Third offense: License suspension of up to eight years, up to $15,000 fine, and prison time of up to five years.

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).