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FAQs

FAQs

I Have Been Charged With A Crime. Should I Represent Myself Or Hire An Attorney?

It may seem like a good idea to save money and represent yourself in court after being charged with a crime. An experienced criminal defense attorney, however, can be very valuable in explaining to you what is happening and helping you work toward the best possible outcome. He or she will be able to explain why the prosecution may or may not have enough evidence to convict you of the charge(s), whether you have a defense that you have not considered, and if the prosecution does has enough evidence to convict you, whether there are alternatives to jail or prison available to you, such as term probation.

Another advantage to hiring a lawyer is obtaining advice concerning other consequences of your conviction (if you are convicted), and the possibility of expunging the conviction in the future.Finally, you will benefit from the confidence a lawyer can bring to the courtroom. Defending yourself can be intimidating.

What Is A Conviction? What Is Not A Conviction?

A conviction is when you have plead "guilty" or been found "guilty" by either a judge or a jury. A conviction would appear as a "G" on your CORI. Convictions include the following dispositions: guilty-filed, guilty-probation, guilty suspended sentence, guilty committed. A non-conviction is any disposition that is not a guilty. Non-convictions include dismissals, pretrial probations, and charges that were filed without a change of plea, continued without a finding or nolle prosequi.

"No one read me my rights. Does that matter?"

The only time that you must be advised of your Miranda Rights is if the arresting office intends to question or interrogate you about the offense once you are in custody.

Technically, you are in custody once you are handcuffed and are placed inside the police vehicle. Interrogation also commonly occurs at the police station. A voluntary meeting with the police does not require the advisement of rights. Only a custodial interrogation requires that your rights be read. Bear in mind that anything you say WILL be used against you so it is always best to remain silent and hire an attorney as soon as possible!!

What are some potential Drunk Driving (DUI) defenses?

 Potential defenses in a given drunk driving (DUI) case are almost limitless due to the complexities of the offense. Generally speaking, the majority can be broken down into the following areas:

Driving.
Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of accidents, there are no witnesses to his being the driver of the vehicle.
 

Probable cause.
Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.

Miranda.
Incriminating statements may be suppressed if warnings were not given at the appropriate time.

Implied consent warnings.
If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, this may affect admissibility of the test results -- as well as the license suspension imposed by the motor vehicle department.

"Under the influence."
The officer's observations and opinions as to intoxication can be questioned -- the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as "failing". Too, witnesses can testify that you appeared to be sober.

Blood-alcohol concentration.
There exists a wide range of potential problems with blood, breath or urine testing. "Non-specific" analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state's expert witness, and/or the defense can hire its own forensic chemist.

Testing during the absorptive phase.
The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 45 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking "one for the road" can cause inaccurate test results.

Retrograde extrapolation.
This refers to the requirement that the BAC be "related back" in time from the test to the driving (see question #5). Again, a number of complex physiological problems are involved here.

Regulation of blood-alcohol testing.
The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc.

What is a bench warrant?

Bench warrants are issued when you do not do something that the Court has ordered you to do. For example: the Judge sets a hearing date -and you do not show up, the Judge orders you to appear for an interview with probation prior to sentencing - and you do not attend or the Judge sentenced you to probation - and you do not fulfill the conditions of probation. Each of these examples constitutes a reason for the Court to issue a bench warrant. In addition, the Judge will also take a number of other steps, like forfeiting your bail. There may be a lot of good reasons why you did not appear, attend or complete the requirement set on you. The problem is, at the time the warrant is issued, the Judge is not informed about the reason you have not complied, just that you have not done what you were ordered to do.

The police officers did not obtain a search warrant, will the results of the search be thrown out?

Many people think that if they have been searched and there is no warrant -- the results of the search are going to get thrown out. Maybe, but there are a number of exceptions to the requirement that officers must have a search warrant before they search. Search warrant exceptions are:

Search Incident to Arrest

If the officers make a lawful arrest then they may search the suspect. The search extends to the full body (but no trip searches in the field generally) and the immediate area around it where an arrestee might have possession of a weapon. Persons in the vicinity may also be searched if the officers have a reason to believe they may present a danger or destroy evidence. The exception to the exception is protective sweeps which prevents a search of the house where the arrestee was located unless there is reason to believe that search is necessary to protect officers or others.

Consent Searches

A fairly obvious exception. If an officer stops you in the car and asks if he can look around, you have consented to the search and waived your 4th amendment rights.

Your consent must be free and voluntary, without threat of force. Note that a warrantless search may be justified by consent even if a 3rd party who has common authority over the property consents. Examples: a landlord to common areas of the building; a tenant against a landlord, an employer with regard to an employee's desk, a husband or wife against each other, a co-occupant against another, a person to whom you lend your car against you.

Inventory Searches

If you are arrested and booked, a second search may occur at your booking to protect your property, to protect the officer against unwarranted claims of lost or stolen property and to protect the police from potential dangers. This rule also applies to impounded motor vehicles. This may include closed containers that would ordinarily not be subject to search if their contents cannot be ascertained.

Automobile Exception

This large exception eliminates the need for some of the lessor exceptions already discussed. Because an automobile is mobile, and it is driven on a public thoroughfare with occupants and contents available to public view, an exception has been created for vehicles in transit known as "fleeting targets." There must be probable cause to believe to believe the car contains evidence or contraband. The limitations apply to a house under surveillance where the car is in the garage and there is time to get a warrant or a car mounted on blocks not capable of movement. A motorhome, however, even if used as a residence, may be searched without a warrant.

Exigent Circumstances

This exception allows officers to search based on probable cause and exigent circumstances which create a compelling need for immediate action due to danger to life or public safety. Exigent circumstances may also justify a search when officers are in hot pursuit of a suspect and there is reasonable cause to arrest.

Plain View

Seems obvious but officers may search objects in plain view only when they have probable cause to believe that the item in question is evidence of a crime, contraband, or otherwise subject to seizure. And the baseline requirement is that the officer must be in a place where he has a right to be when he observes the object to be seized. Subdivisions of this exception are plain touch and plain smell.

Administrative Searches

An administrative search differs in nature and purpose from criminal searches. These searches are justified by whether a public interest justifies the intrusion contemplated. These searches generally apply to questions of fire codes, health, safety and housing codes, licensing provisions. The object is not to arrest the person whose property is searched (although that could happen) but the protection of the public.

What is the difference between theft, burglary, and robbery?

Theft is simply the unlawful taking of another person's property without the intent to return it. This is the lowest in seriousness of the three crimes under discussion and carries the least sentence which usually depends on the amount taken.

Much more serious than theft burglary is the unlawful entry into a building structure with the intent to commit a felony. There are usually two degrees, the first being a felony. Burglary is much more serious than theft particularly where the structure is inhabited.

The most serious of the three is robbery. Robbery is the taking of property from a person with force. The force can be very slight to elevate the crime from theft to robbery

Can I be charged with a possession of marijuana if such possession is less than once ounce?

As of January 1, 2013, possession of less than one ounce of marijuana is no longer a criminal offense. It is a civil offense. However, police officers will use the excuse of smelling fresh or burned marijuana as an excuse to order you to exit from your car and search you and your vehicle.

I was caught shoplifting, why am I getting a civil demand letter?

If you are caught shoplifting in Massachusetts, it is likely that you will receive a "civil demand" for "damages" the store has suffered from your act.  This may sound odd to you, especially if the merchandise was recovered before you ever left the store, but our laws allow merchants to make this demand. In Massachusetts, the current law says that merchants who have been the victim of shoplifting are entitled to claim $50 to $500 above the actual damages (stolen or damaged merchandise) from the person who caused the damages.  That means that if you are caught shoplifting, you are likely to receive a demand from the store or its representative for some monetary amount, and it is up to the store to decide just how much to claim. 

What penalties am I facing for a second OUI ( operating under influence) in Massachusetts?

Second Offense OUI’s penalty is incarceration in the house of corrections for not less than 60 days, not more than 2 ½ years and a fine of $600-$10,000.  Further, the license suspension by the registry of motor vehicles (RMV) is for 2 years with the potential for a work/education hardship license considered in 1 year and a general hardship license in 18 months.  A condition of a granted hardship license is the installation of an ignition interlock device.  Additionally, to eventually get your license back from the RMV there will be a $700 reinstatement fee imposed. 

What happens if I refuse a Breathalyzer test when stopped for OUI ( Operating Under Influence)?

If you elect not to submit to a Breathalyzer Test, that refusal cannot be used at trial in the criminal prosecution against you. Although your license to operate will likely be suspensed.

As a result of the passing of 'Melanie's Law' in 2005, Massachusetts law mandates that, for a Breathalyzer refusal, your driver's license will be suspended for:

  • First Refusal:  180 days
  • Second Refusal: 3 years suspension
  • Third Refusal: 5 year suspension
  • Fourth Refusal: LIFETIME suspension

Contact info

(781) 436-0316

inna@mass-law.com

(781) 459-1075

220 Commercial Street #9
Boston, MA 02109


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