Lawyer Frequently Asked Questions
I Just Got Arrested in Massachusetts- What do I do?
If you were arrested in Massachusetts, you will receive paperwork upon your release telling you when and where to appear to be arraigned on the criminal charges against you. (For more serious charges, you may not be released the same day- see below). The arraignment usually takes place on the next business day after the arrest, and this is the beginning of the formal criminal proceedings against you. While having an attorney is helpful to ensure that everything runs smoothly, all available paperwork related to your defense is gathered, and the prosecutor does not offer you a premature and unfair plea, you are not required to have an attorney at the arraignment. The most important thing to remember is to plead “Not Guilty” and to never say anything relating to the facts of your case. In most cases, if you do not have a lawyer at the arraignment, don’t panic! When your name is called in court, just tell the judge that you would like time to find and hire your own lawyer. That way, you have plenty of time to find a skilled Massachusetts criminal defense lawyer to help analyze your case and explain your options, whether you decide to work out a deal or fight the case . In certain cases, however, having a lawyer at the arraignment may prove to be invaluable, such as when a deal can be struck in an OUI/DUI/DWI case that may allow you to get back on the road in just a few days.
If you are facing more serious criminal charges in Massachusetts, a subsequent offense for operating under the influence, or if you were arrested for any new offense while you already have an open criminal case, it is VERY important to contact a criminal defense attorney before the day of arraignment. The prosecution may be seeking to hold you on a high cash bail or remand (no bail) if they believe the facts and circumstances warrant such a request. Alternatively, they may try to have you held for up to 60 days if you were arrested while you already have an open criminal case, or for up to 90 days if they can convince the Court that you are a danger to yourself, another person, or the community. It is critical that you speak with a highly skilled criminal defense attorney before arraignment to avoid facing pre-trial incarceration.
I HAVE SUCCESSFULLY ARGUED BAIL IN HUNDREDS OF MASSACHUSETTS CRIMINAL CASES. I am available 24 hours a day, 7 days a week, for your free initial phone consultation on any MASSACHUSETTS criminal case please do not hesitate to call my office. 508.735.1392 Your freedom is too important not to.
What is a Continuance Without a Finding (CWOF)?- Massachusetts
A continuance without a finding, or CWOF, is exactly what the words mean. If you work out a deal to receive a CWOF, you are admitting that the prosecution does have enough evidence against you for a reasonable jury to find you guilty of the charged offense. Instead of fighting the case and you are agreeing to be placed on probation and the court will continue your case for a certain period of time (usually one year) WITHOUT A GUILTY FINDING, so long as you adhere to your conditions of probation. However, if you fail to adhere to your conditions of probation or are charged with any new offenses before the case is dismissed, your case may come back in front of a judge, your CWOF may be revoked, and a GUILTY finding may enter, along with additional penalties, including jail. If you are able to successfully complete your term of probation without any problems, your case will be dismissed.
While the specific conditions of Probation will depend on the nature and severity of the charges, some common Massachusetts Conditions of Probation may include, among others:
- No new criminal charges during the time you are on probation
- Reporting to probation as required (depending on the level of your probation supervision, this may be done by mail in some cases)
- Paying all court ordered fines, fees, and restitution to any victims
- Completing any and all mandatory classes (For example, alcohol education classes if on probation for OUI, or possibly anger management classes if on probation for a violent offense, or drug counseling/treatment if on probation for a drug crime)
- Maintaining employment or enrollment in school
- Adhering to travel & curfew restrictions
- Drug & alcohol testing
- Community service
I COMPLETED PROBATION AND MY CASE WAS DISMISSED. WHAT NOW?
The practical effect of a CWOF is that you will NOT HAVE A CRIMINAL CONVICTION. This may be important for purposes of school and/ or employment. Most employers or institutes of higher education do not perform a full background check, but instead will ask on the application, “Have you ever been convicted of a crime?” With a CWOF, the truthful answer will still be “No.”
Although a CWOF may appear as a dismissal on your record, it is never removed from your “Board of Probation” record that is readily accessible to law enforcement. Additionally, if a third party (potential employer, professional licensing board, etc.) performs a full background check, the CWOF may still appear, depending on the level of the check. A CWOF may also have collateral consequences outside of court, including the potential loss of your firearm license, or immigration issues if you are not a U.S. citizen. If you received a CWOF for Operating Under the Influence or any other motor vehicle offense, your car insurance rates will increase (usually five points for an OUI), and the CWOF will always count as your first OUI offense. This means that if you are ever arrested again for drunk driving, no matter how much time has passed, you will be charged with a 2nd Offense, facing harsher penalties, and you will be required to install the Interlock Ignition Device. Additionally, a CWOF for a drunk driving charge or other crime may prevent you from entering Canada.
The new Massachusetts record sealing law,your attorney can file a motion to seal your record for any CWOF, so long as the period of probation has ended, the case has been dismissed, and you have not had any subsequent criminal convictions.
Contact my office if you’ve been charged with a Massachusetts Criminal Offense, or would like to further discuss the consequences of a CWOF. I am available 24 hours a day, 7 days a week, for your free initial consultation.
Massachusetts Misdemeanor vs. Felony
Q: What is the difference between a misdemeanor and a felony in Massachusetts?
A: In Massachusetts, a misdemeanor is any criminal offense that does not carry the potential for state prison time. The maximum sentence for a misdemeanor is 2 1/2 years in the House of Corrections. A felony is any criminal offense that is punishable by state prison time. The most serious felonies carry up to life in prison. If a felony is prosecuted in District Court then the maximum sentence a judge can impose is 2 1/2 years in the House of Corrections.
Q: What is the difference between District and Superior Court in Massachusetts Criminal Cases?
A: In Massachusetts, District Courts have limited jurisdiction. A District Court judge only has the power to sentence a defendant up to 2 1/2 years in the House of Corrections, regardless of whether the charge is a misdemeanor or felony. A Superior Court, on the other hand, has the power to sentence defendants to state prison time, up to life in prison for the most serious felonies. While most felony charges can be initiated by the prosecution in either the District or Superior Court, requires that defendants charged with certain major felonies only be prosecuted and sentenced in Superior Court. The District Courts have initial jurisdiction for every criminal charge, meaning that a defendant arrested for murder can be arraigned in District Court, but the case will subsequently be transferred to Superior Court.
Q: What is a Suspended Sentence in Massachusetts?
A: If you are convicted of a Massachusetts criminal offense and receive a suspended sentence, then the judge is ordering that you serve a specific sentence if you violate any terms of your probation. A violation of probation will not automatically trigger jail time, but if jail time is warranted, then the sentencing judge HAS to sentence you to the amount of time that was suspended at the time of your original sentence.
Example: You plead guilty to an offense and are sentenced to 2 years in the house of corrections, suspended for 3 years. That means that you will be placed on probation for 3 years. If during that 3 year period you commit any violation that warrants jail time, you will serve 2 years in the house of corrections. The judge may decide to allow you another chance to continue with probation, but if he does sentence you on the violation, he cannot do so for any less than the 2 years in the house of correction that you have hanging over your head. Usually, only a minor violation such as a missed court payment or showing up late to an appointment with your probation officer will lead the judge to re-probate you. Any significant violation, such as a new criminal charge, will likely lead to your suspended sentence being imposed, sending you to the house of corrections for that duration of time.
Q: As the victim in a Massachusetts domestic assault and battery case, can I have the charges dropped?
A: If you were the alleged victim of an assault and battery, and criminal charges were brought against someone with whom you have (or had) a special relationship*, then it is no longer your decision whether or not to dismiss the charges. As the victim in a domestic assault and battery case, you are not filing the criminal charges; that is in the hands of the District Attorney’s Office. You can ask the District Attorney to drop the charges against the defendant, but ultimately it is the prosecutor’s decision. Due to the serious nature of domestic abuse, prosecutors usually will not drop the charges against a defendant solely at the request of the alleged victim. If on the day of trial the alleged victim is unavailable or unwilling to testify, and without that testimony the prosecutor lacks sufficient evidence to take the case to trial, the case will be dismissed at that time. The prosecution may still proceed to trial without the alleged victim’s testimony if there is other evidence that the abuse occurred, such as bruising or other manifestations of physical abuse, testimony of third party witnesses, or incriminating statements made by the defendant.
* Only the following specific relationships between defendant and victim render the case a domestic assault or domestic assault and battery in Massachusetts:
(a) are or were married to one another;
(b) are or were residing together in the same household;
(c) are or were related by blood or marriage;
(d) having a child in common regardless of whether they have ever married or lived together; or
(e) are or have been in a substantive dating or engagement relationship.
Q: If I am arrested while on probation, can I still be found in violation of my probation if the new charge is dismissed or I am found “Not Guilty”?
A: Yes. In order to be found in violation of the terms of your probation, your probation officer only needs to convince the Court that there is “probable cause” that a violation occurred. An arrest, in and of itself, is generally a violation of the terms of your probation, regardless of the outcome at trial. However, a skilled defense attorney can often maneuver your cases so that the Court in which you are on probation “tracks” the new offense. This way, if your attorney has reason to believe that your new case might eventually be dismissed, or a “Not Guilty” finding is likely, he has a much stronger position to argue that you should not be found in violation of your probation. I have been successful in working out this type of arrangement. Additional factors in determining whether the Court will find you in violation of your probation include the nature of the new charges, prior criminal record, and evidence that you are otherwise abiding by all other conditions of probation.
Probation Violation & Surrender Hearings
Probation Violation Lawyer Massachusetts
If you have received a surrender notice, this means your probation officer is bringing your case into court to argue that you violated the terms of your probation. The specific alleged violation depends on those terms.
Some common probation violations include:
- Failed drug/ alcohol tests
- A new criminal charge
- Failure to remain employed
- Failure to remain in school (usually with juveniles)
- Failure to obey a court order
- Missing payments to the court, restitution or child support
- Failure to report to probation as required
- Failure to complete community service hours
- Violating an order to stay away from a particular person or place
- Leaving the state/ country without prior approval
Even the slightest mistake or misunderstanding can trigger a probation surrender hearing, but the consequences of a probation surrender can be serious. If the court determines that you violated the terms of your probation, the judge may void the original plea or disposition and sentence you to the maximum penalty for the underlying offense allowed by law. This means that the prosecution could ask for jail time for a single missed payment or honest mistake. It is important to have a skilled defense lawyer at this hearing who will protect your rights and your freedom.
Q: What factors will the judge consider when determining whether or not to set bail?
A: If you’ve been arrested in Massachusetts, the presumption is to release you on your own personal recognizance (or your promise to attend your next court date). A clerk or bail bondsman will come to the police station (at a cost of $40 to you) to determine if more than just your “promise to appear” is needed to ensure that you will show up to court. If the clerk finds this to be the case, based on the factors outlined below, he/she will require you to post a certain amount of cash bail before you are to be released. If you are transported directly from the police station to the court for arraignment, the bail determination is usually made by a judge. If the clerk sets bail at the police station, and you post that amount, the judge at your arraignment may still increase the amount of your bail. If this happens, the court will handcuff and place you in custody, and you will not be released until the higher amount of bail is posted. The bail that you post is collateral for your promise to appear at all court appearances in that particular case, and once your case is disposed of in court, your posted amount minus any fees owed to the court will be returned.
Factors Considered in Determining Whether to Order Bail/ Amount of Bail:
- Nature and Circumstances of Charged Offense
- Potential Penalty of Charged Offese
- Family & ties in the community
- Employment history, length of residency and reputation in the community
- History of Mental Illness and Substance Abuse
- Criminal Record
- Previous defaults/ history failure to appear at court dates
- Evidence of flight to avoid prosecution
- Known aliases/ false identifications
- Whether currently on bail for another criminal charge
- Current restraining orders in effect
- Whether currently on probation or parole, or pending appeal of criminal conviction
When bail is ordered, or when the judge releases you on your personal recognizance, you will be informed that if you are charged with any new offense while out on bail, your bail can be revoked and you can be held for up to sixty days for the previous charge.
If the clerk or District Court judge denies your release on your personal recognizance (in other words, orders that you are held on bail), you have the right to file a petition for review in the Superior Court where a hearing will be held on the next business day.
Q: What is a Mandatory Minimum Sentence?
A: In Massachusetts, certain offenses carry statutory “minimum mandatory sentences.” That means that if convicted, the defendant cannot be sentenced to anything less that the mandatory minimum jail, state prison sentence, or fine required by the governing statute. The only exceptions are “alternative dispositions” for operating under the influence charges, and in very limited circumstances for drug offenses based on the nature and mitigating factors involved, in which case a judge may be permitted to sentence the defendant to 2/3 of the mandatory minimum sentence.
Boston Breathalyzer Attorney
Q: If I’m arrested for Operating Under the Influence, should I take the breathalyzer?
A: Unfortunately, there is no one-size-fits-all answer to this question. If you take and fail the breath test (a blood alcohol concentration of .08 or higher), your license will be suspended for 30 days. At the police station, you are informed that refusing to take the breath test will result in an automatic license suspension of 6 months if this is your first offense (or 3 years if under 21 years old), 3 years if this is your second offense, 5 years if this is your third offense, and a lifetime loss of license if this is your fourth offense. The longer license suspension may encourage you to submit to the breathalyzer, which is the intent behind the law. However, what the police do not tell you, is that without a failed breath test to use against you in court, the prosecution might have a very tough time proving that you were actually impaired by alcohol.
In Massachusetts, there are two ways that the prosecution can prove that you were “under the influence of alcohol” while operating a motor vehicle on a public way. This first is the “per se” violation, where the prosecution just needs to prove that your blood alcohol concentration was .08 or higher. A valid breath test makes for a very strong case against you, assuming that it was administered properly and there are no other legitimate factors that would have altered the results. The second way to prove that you were “under the influence” is by testimony of the arresting officer about your demeanor, appearance, and performance on the field sobriety tests, the testimony of and any other percipient witnesses, circumstantial evidence, and physical evidence tending to show that your ability to operate a motor vehicle safely was diminished due to alcohol consumption. However, there are MANY ways that a skilled OUI defense attorney can attack this theory of impairment. Without a breath test, and without any other aggravating factors (car accident, belligerent conduct, incriminating statements, etc.), you probably have a legitimate case worth fighting. If you are found NOT GUILTY, there is also a presumption that your license be reinstated if it is still suspended for refusing the breath test, unless the prosecution can demonstrate that reinstatement would pose a danger to the community.
In my opinion, it is usually not a good idea to take the breath test in Massachusetts. Even just a few drinks can lead to a reading of .08 or higher. It is in your best interest NOT to help the prosecution build their case against you. In fact, if you refuse to take the breath test or field sobriety tests, or if you refuse to do both, the fact that you were asked and subsequently chose to refuse these tests CAANOT BE USED AGAINST YOU IN COURT! As far as the jury is concerned, you were never even offered the chance to take these tests. By helping to set yourself up for an acquittal on an OUI charge, you are helping to avoid the significant consequences of a conviction or Continuation Without A Finding.
On the other hand, if the only thing that matters to you is your driver’s license, and you can live with all of the other consequences of a plea deal or conviction (fines, fees, probation supervision, alcohol education classes, a criminal record, future collateral consequences, etc), then taking the breath test is one way to avoid a minimum 6 month license suspension.