Consenting to a search

It’s late at night and you are driving home from work. After a long shift there is nothing more that you want to do then put your feet up and relax. However before you can reach your driveway your rearview mirror lights up with blue flashing lights. You are being pulled over. The officer approaches your vehicle and in a cliché manner asks, “Do you know why I pulled you over?” This is one of the many tricks an officer has in their disposal to uncover any illegal activity you may or may not be a part of. In a calm, polite manner, always answer in the negative and state you do not know as to the reason for the traffic stop.  After a brief moment, the officer states that you have a faulty taillight and asks to see your license and registration. After returning from the cruiser, the officer proceeds to ask if he can search your vehicle. It is at this moment that many people forfeit their constitutionally given rights against unwarranted search and seizure as many mistake the officers request as a command. Again in a calm polite manner, one should always refuse an officer’s request to search your vehicle, even if you have nothing to hide. During a search, property may be damaged or evidence planted. In order to search your vehicle without a warrant and your consent an officer must posses Probable Cause. This entails that the officer have a level of reasonable belief based on facts or evidence that can be articulated that would lead a reasonably intelligent and prudent person to believe the person has committed a crime. Common examples of probable cause include the sight or smell of contraband in plain view such as a baggie containing drugs or plain smell or an admission to a crime. There are four categories into which evidence may fall in establishing probable cause: observational, circumstantial, expertise, and information. The first, observational, is as previously described when an officer through their senses observe anything that constitutes a potential crime.  Circumstantial and expertise evidence is based on the officer and known facts such as gang tattoos or other markings that culminated together gives a reasonable impression a crime has or will be committed. Finally an officer may have probable cause if he were made aware to information through an informant or witness of a crime committed. Overall, there are many tools an officer has to their disposal in order to either legally search your vehicle or trick you into giving consent. It is your right to refuse such violation of your privacy but never attempt to physically stop an officer from conducting a search, legal or not. Instead contact Boyle & Carbone, PC. We will fight to have any evidence suppressed, but it all starts with “no, I do not consent.”  

The Valor Act

The Valor Act of Massachusetts, also known as senate bill 2254, was passed on May 31, 2012. The act is an alternative to handling a case through the criminal-justice system. Whereas a typical criminal case functions primarily to determine the guilt or innocence of the accused, a pretrial diversion program, which the Valor Act is, focuses on treating, educating, or otherwise improving the accused’s life. There is no admission or finding of guilt and thus no criminal conviction. Before or on the day of arraignment is when one would seek protection under the Valor Act. To qualify, one must satisfy several requirements, which include: being an active member of the armed forces or a veteran as defined by Massachusetts statue, must be accused with a crime punishable by imprisonment and be charged in a district court, must have no prior criminal convictions, outstanding warrants, or pending criminal cases, and finally, there must be a program recommendation that the accused would benefit from. While a judge does have discretionary power in ruling whether to approve the pretrial diversion program, it is up to the defendant to rise claim and show that all the requirements are met. The judge may issue a 14-day continuance so for the defendant to prove they are either active armed force personnel or a veteran. For the exact wording of the Valor Act one should look to Massachusetts General Law 276(A), which spells out exactly who is qualified under the act and how one would go about seeking relief through the act. If you or a loved one has found yourself dealing with a first time offense and are or were a member of the armed forces and you think you qualify under the Valor Act, contact Boyle & Carbone, P.C.

Policing the Police

The National Anthem: a song chosen to represent the symbol that is our United States has since recently been the point of discussion for many Internet rants and memes. A song, chosen to pay tribute to the men and women who have fought and in many cases died to protect the very freedoms we as Americans get to enjoy, now being used as a platform for protest.  On August 26 of 2016, Colin Kaepernick, a quarterback for the San Francisco 49ners, was first given recognition for his refusal to stand for the anthem during a national football game as a form of protest. A protest against an issue that Kaepernick felt detracted from the symbol the song was meant to represent. Not alone in his opinion, Kaepernick was drawing attention to an issue of police brutality and a spreading notion that the rights of this country are not reserved for all. The primary focus of the protest stems from a wake of recent deaths of unarmed African American citizens, such as Eric Garner and Michael Brown, at the hands of police officers.  While the deaths of these unarmed men did raise tension between police officers and minority groups, it was the action, or rather inaction, of both city officials and police forces to curb abusive and excessive force of some officers that rooted the issue into mainstream culture. As many journalist and law professors, such as Craig Futterman and Lydia Lyle Gibson note, the lack of repercussion taken against these few officers results in lost trust and respect for the police force as a whole. As Gibson and Futterman mention in their article “Policing the Police”, the “code of silence” among police officers has resulted in many good officers being lumped in with those society deem as bad officers because they are viewed as protecting the lies and sins of those that harm everyday people.  A lack of transparency between police and the people have not helped to better the issue either. Tension is exasperated when video evidence is not available or not made available to the public until after facts and opinions have been widespread for sometimes months in advance and then it is revealed that officers did partake in questionable actions. As Futterman and Gibson mention, many times complaints against an officer are either found to have no standing or result in minor disciplinary actions. Futterman goes on to mention that in Chicago, the focus of their article and a focal point for the anti-police brutality movement, the rate of discipline is about 3 percent in a system of nearly 60,000 complaints. It becomes even more apparent of the lack of discipline being exerted on the issue of police brutality when coupled with the fact that more than half of the disciplined complaints were for personal violations such as being late for work or wearing their uniform wrong.  Furthermore, complaints made by white citizens which only make up about 20 percent of the total number of complaints made up about 60 percent of allegation found to have merit. Feeling both ignored and betrayed by those who are meant to protect and serve, minorities behind voices such as Colin Kaepernick have decided to sit in order to stand up against an issue that should cause alarm to all Americans. Police brutality is of real concern as it goes against the very ideals the United States represent and that is liberty and justice for all.

Right to an attorney? Not before a breath test.

In 1989, the Supreme Judicial Court of Massachusetts decided in Commonwealth v. Brazelton, 404 Mass. 783, 785 (1989) that the right to an attorney, a right we enjoy under the 6^th and 14^th Amendments to the United States Constitution as well as under article 12 of the Massachusetts Declaration of rights, is not afforded to a Defendant who is faced with the decision of whether to take a breathalyzer test.

Fast forward to 2003, Massachusetts law was amended to make driving with a BAC of .08 or greater a per se violation of the law rather than a permissible inference as the statute prescribed in years prior. This left the question: Is a decision to take the breath test a tactical one that you should be able to consult an attorney about. I would think yes. The SJC does not agree.

On August 15, 2016, the court revisited their decision in Brazelton in light of the 2003 Amendments in Commonwealth v. Neary-French, SJC-12057 (2016). The SJC found that the right to counsel attaches at all critical stages of prosecution and although this may be a tactical decision, the right will not be afforded at this stage.

Moral of this story? Attorneys cannot make this decision for you but I would recommend that you DO NOT submit to a breathalyzer test.

Bail Issues: Will I Be Held?

 When you are arrested, you will likely be held on bail at the police station. If you are able to post bail, you will be released to appear in court the following day for your arraignment in court. If you are unable to post bail, you will be held at the police station until you are brought to court for your arraignment. You are able to get posted money back once your case has been resolved and if you have been to every court appearance without a default.

The bail that I want to focus on in this blog is the bail assigned by the judge at your arraignment. At this hearing, the slate is wiped clean and you or your attorney must make an argument before the court to request a small cash bail or to release you on personal recognizance if the District Attorney requests bail. This argument is based on your likelihood of returning to court and not being charged with any new offenses while out. It is important to point out things like employment, people counting on you, community involvement and obligations, as well as, financial ability to post bail weighed against recognition for and gravity of crime(s) charged. If the judge sees you as a flight risk or as an individual who will end up with new charges, bail will likely be set and if it is set, you will be held in a county house of corrections while your case is pending. You can be held up to 90 days.

In my opinion, far too many people are held for non-serious matters. THIS COSTS A LOT OF MONEY. See:  https://www.bostonglobe.com/ideas/2016/07/13/crime/UhvBAO75iVWF1Xn88QNzbK/story.html.

If you were released on personal recognizance or posted bail and then committed a new offense you could be held by the judge and the District Attorney may seek to revoke your bail on the initial charge. Also, if the charge is one that the DA feels is particularly dangerous and by releasing you there is a likelihood that your release will put the lives of others in danger and if the charge is a felony,  the DA may seek to have you held pending a dangerousness hearing. Dangerousness hearings and motions to revoke will be discussed in future blogs.

Should I take the breath test?

There are many factors that play into this question. I have taken several Operating Under the Influence (OUI) cases to trial and have some insight on the issue. I would suggest that you don’t take the test. I’ll explain why and what some of the consequences that may weigh into this are. The Police are very good at highlighting the consequences but don’t always believe them. They didn’t go to law school.

Let’s say that you are pulled over for the first time. The officer approaches your driver side window and asks for your license and registration. As you fumble through paperwork to find it, the officer is already thinking that you’re drunk. The more likely reason is that, like most of us, your registration is under a ton of paperwork in your glove compartment and your license is stuck to the leather in your wallet. Maybe that night, you were out to dinner with family and had a couple of drinks. The odor of alcohol is not an indication of how much was consumed but at that point the officer might ask if you were drinking and how much you had. You don’t have to answer either question and you shouldn’t. He will then ask you to step from the vehicle, which you do not have to do either, but he or she will likely place you under arrest right then and there; which is fine because you’ll probably be arrested regardless. But let’s say you step from the vehicle when asked. The cop will be taking note of anything you do that might raise a flag in their mind. Using the car for support, losing balance, slow or awkward movements. The officer will then ask you to perform some mental and physical tests that help them to determine that you are under the influence. These tests are designed to make you fail but that is another argument for another blog.

Skipping forward to you being booked at the police station. The officer will “ask” you to take the breath test. There are a few things you should know. If your test result shows a content of 0.08 or greater, you are over the legal limit. If you take the test and pass meaning you are under that limit, your license is returned. If you fail, you lose your license for thirty days. If you refuse, Melanie’s law, which was signed in 2005, is invoked and the RMV suspends your license for 180 days.

So why would an attorney suggest not taking the test? By taking the test, you run the risk of failing. So unless you didn’t consume any alcohol, don’t take the test. If you are over a .08, it makes your case a heck of a lot harder to prove in court. If you refuse and lose your license for 180 days, assuming your attorney is successful, you are eligible to get it back and your record is clean so if this happens again, you are still treated as if it were your first offense. The penalties are a lot stiffer with each offense. If your case is disposed of with a favorable settlement or verdict prior to the 180 day loss, your attorney may file a motion to have it restored and/or you may be eligible for a hardship license.

I am not condoning drinking and driving but it is not illegal to consume alcohol prior to driving. It is illegal to operate while under the influence. This kind of offense can and does happen to anyone so speak with an experienced and competent attorney right away. Think quick, call Nick! (978) 987-6163.

A "green sheet" or a defendant-capped plea

When a defendant pleads guilty or admits that there are sufficient facts that could determine their guilt, their lawyers will often conference with the prosecutor to come up with a sentence that all parties agree to. Sometimes there are differences between what the defense and the prosecution thinks is an appropriate sentence.

A defendant may then take forward their terms and the prosecution’s terms for the judge to consider and hear arguments on. The judge may then agree with the defendant, the prosecutor or he may “split the baby” and find somewhere in between. A defendant-capped plea means that the decision does not bind the defendant if the judge agrees with the prosecutor or if the judge’s terms are not agreeable. The terms are capped at what the defendant wants. If the defendant does not wish to continue with his plea, he or she can take it back and move toward a trial. Defense counsel should request that in the event of trial, a different judge hear the matter.

In Charbonneau v. Holyoke Div. of Dist. Court Dep’t, the SJC vacated a standing order that disallowed a defendant from tendering a defendant-capped plea on the day of trial. Under M.G.L. ch. 278 s. 19 and Mass. R. Crim. P. 12, a defendant has an absolute right to tender a plea up to and until trial.

MA's "Good Samaritan Law" re: drug overdose

There is a complete and utter epidemic that the entire nation is facing. Opioid addiction is taking lives away daily. It does not discriminate at all. Today there was an article in Worcester's Telegram and Gazette about a kind of heroin known as "Hollywood". Apparently, this is a particularly potent blend with deadly consequences. In Western, MA, there have been eight reported overdoses and three deaths this past weekend. There are concerns that trafficking of "Hollywood" will move East toward Worcester and then toward Boston.

In Massachusetts, there is a "Good Samaritan Law"; M.G.L. ch. 94C s. 34A. This law prevents a person who may be in possession of a narcotic from prosecution if they are reporting the overdose of another. This is likely a good law. However, if you are skeptical or if you did act as a "Good Samaritan" and were arrested and charged regardless, call my office at (978) 342-3422.