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.

How long will I lose my license and what are some consequences if I am arrested for Operating Under the Influence (OUI)?

Many times, someone who is picked up for Operating Under the Influence (OUI) is heading to court for the first time in their lives. When they get arrested, there is not a clear explanation of what to do. Many attorneys will tell you not to take the breath test. I am in that camp however, when you do refuse to do a breath test, is is important to know what will happen. I am specifically referring to a first offense in Massachusetts. The number of offenses increases the consequences and I am only licensed to practice law in MA so I won't speak to other jurisdictions. I am a trial attorney at heat and prefer to fight for a win but it is important to know all consequences.

By refusing the breath test, the registry of motor vehicles will immediately suspend your license for 180 days. Your license may be re-instated if your case is dismissed or you are found not guilty after a trial but many times 180 days will go by during the time that it takes to go to trial. There is a program known as MGL ch. 90 s. 24D, which is a disposition that may be attractive to first-time offenders. Under this statute you are agreeing that there may be enough evidence to convict you at trial, but instead of pleading guilty, you are agreeing to a Continuance Without a Finding (CWOF). This means that after a probationary period, an out-patient class, and several fees, your case will be dismissed. The court will impose an additional loss of license of at least 45 days. The good thing about this program is that subsequent to your intake for the class, you may apply for a hardship license to get to work or pick up your kids and your driving record is relatively clean. This is done at the RMV.

If you do take the breath test and you are arrested, you will lose your license for 30 days but this may make your case harder to prove. If offered an initial breath test at the scene and you blow over.08%, DO NOT take the breath test back at the police station, The initial test is inadmissible at trial.

If you do go to trial and are found guilty, you can face up to 2 1/2 years in a house of correction, $5000.00 in fines and a 210 day loss of license or some combination. It is important that you speak with a competent defense attorney right away if you or someone you know is arrested of OUI. Call the defense team at the Law Offices of Boyle and Carbone today! (978) 342-3422

Avvo Rating

<a href="http://www.avvo.com/attorneys/01420-ma-nicholas-carbone-4522606.html?cm_mmc=Avvo-_-Avvo_Badge-_-Micro-_-4522606" rel="me"><img alt="Avvo - Rate your Lawyer. Get Free Legal Advice." id="avvo_badge" src="http://www.avvo.com/assets/microbadge.png" /></a>

Arraignment

The arraignment is the first formal court proceeding that a defendant who has been charged with a crime must show up to. For many clients, this is their introduction to the criminal process. At Boyle & Carbone, P.C., we want to be with you and support you at every step from arraignment throughout trial.

Hopefully, the arraignment is not the first time we meet and we’ve had a chance to discuss what will happen at this hearing and how we will move forward. The arraignment is a hearing whereby the court announces the defendant’s formal charges and a plea of not guilty will be entered. The court will then hear bail arguments (if you are incarcerated) and it is our job as your attorneys to make a case for you to be released on personal recognizance or in the alternative, a low ash bail.

At this point, it is crucial that we receive your police report, record and the physical complaint. This way we can work your case and move forward to your next hearing; the pretrial conference. It is important that you speak with us today and have an experienced defense attorney on your side from the start!