October 9, 2020

Juveniles Have Rights! Don’t Let Your Kid Talk To The Police

Everyone should understand that juveniles, kids, anyone under the age of 18, have the same rights as an adult in criminal matters. Sometimes more.

The Problem With Letting Your Kids Talk to the Police

I recently got a call from a client whose son was suspected of vandalism. My clients are very nice people from a good family. They’re friendly with the local police. The police have helped them in the past with their other children. The Officer said, “Hey, can you bring your son down to the station so we can talk to him about this case?” They’re trusting the police. They’re trusting that nothing’s happened. They don’t believe their kid has actually done anything. They go down to the station. They’re trying to be good parents and have their kids talk to the police. Unfortunately, during the interview, the kid admits to doing the vandalism. He was charged and has to go to court.
 
Unfortunately, this is an occurrence that I see far too often. Parents who want to be good parents. They teach their kids to do the right thing. To tell the truth and be respectful to the police. Unfortunately, many times they’re allowing their kids’ rights to either be violated. When the police are asking to speak with you, you can politely decline and ask to speak with an attorney. The same applies to your children. Juveniles have the same rights as adults when it comes to criminal matters. Even more rights in many circumstances. Neither you nor your child will be penalized for exercising those rights.
 

Police Need to Involve You Before They Can Question Your Kid

Before the police get to question your kid, they actually need to involve you. You need to consult with your child about whether they should or should not talk to the police. Whether they should waive their Miranda rights. Unfortunately, parents are trying to be good parents. They’re not thinking like a criminal defense lawyer. I get it, we have two different roles. But I want people to understand that we want to protect your children’s rights for the future. We don’t want criminal charges to keep them from getting into college or getting the jobs they want in the future. We want to make sure their record stays clean.
 

Just Say “No” (Politely)

If the police are calling and saying, “Hey, I want to talk to little Joey about an incident that happened down here,” you really need to say, “Sorry, I’m not bringing him down. We don’t want Joey to speak with you. We’re going to call our lawyer.” Then hang up that phone and call your lawyer to get some advice. You don’t want your child making a statement that’s going to hurt them with regard to that charge or their future.
 
If you have any questions, please feel free to give me a call or shoot me an email.
October 8, 2020

Pleading Out? What You Need to Know!

I want to talk about one of the ways in which you can end your criminal case. While many cases go to trial, the vast majority get dismissed or disposed of through a tender plea. Some people refer to it as a plea deal. We are going to discuss a tender of plea in the Massachusetts District Courts and Juvenile Courts. These courts use the same forms and follow the same process. The Superior Court has a different process which we are not discussing here. If you watch the video which accompanies this blog you can see the form and how we fill it out.
 

Before Considering a Plea

 
There are many reasons people decide that a tender of plea is the best way to resolve their case. Including time, expense and fear of a worse outcome if they fight the case. Before you ever get there, you and your lawyer should have look at the evidence and think about how you can fight the case. Only then should you consider taking a plea. You must always keep in mind that when taking a plea, you are admitting to doing something wrong. You should not make this decision lightly.
 

What Does the Process of Tendering a Plea Look Like?

 
As with most legal matters, there is paperwork. Before you get to that, your lawyer should speak with the prosecutor to negotiate for an appropriate agreed sentence. The judge is much more likely to accept an agreed sentence. That way you have a much better idea of what sentence you will get. Many times, you can agree on a sentence or at least important aspects of it.
 

What If You Can’t Agree?

 
If you cannot agree, you can still present a tender of plea, but that is known as a disparate plea. It means that you do not agree with the prosecutor on certain aspects of the sentence. Sometimes, these are minor disagreements (i.e., the time for a loss of a driver’s license). But sometimes they are major (i.e., the prosecutor wants jail time and you want probation).
 
This is why main part of the form has 3 parts. The box to the left is where your lawyer writes in the particular sentence that you want to get. The middle box is for the prosecutor to write what they want. The box to the right is where the Judge writes what he or she is willing to give you. The Judge can give you exactly what you want or what the prosecutor wants. Sometimes, the Judge comes up with their own sentence. The Judge may or may not pull a little from your box and a little from the prosecutor’s box. I have even seen Judge come up with a sentence that neither the prosecutor nor I ever considered.
 

What If I Don’t Get the Sentence I Want?

 
If the Judge does not give you exactly what you want (i.e., what you wrote in the box), then you have the right to take back the plea. Even if the judge exceeds what you are asking by only a little bit, you have the right to say, “I don’t want to do this anymore.” For instance, if you asked for one a year probation and the judge says, “I want to give you one year and one day,” you do not have to accept that sentence. While that is an extreme example, it is correct. Most people in that situation would likely accept that sentence from the Judge. But know that you don’t have to. If you decide to withdraw the plea, your case will go back on the regular list and be scheduled for trial at some point.
 

Understanding the Rights You Give Up With a Plea

 
The rights you give up in a plea are on the back of the form. There is a section you must read. Your lawyer should also review it with you to ensure you understand. The Judge will also go over these rights with you during what we call a “colloquy.” A colloquy is the legal term for the Judge speaking with you to make sure you understand. That you are making a knowing, intelligent and voluntary decision to waive your rights and take the plea.
 

A Plea Must Be Knowing, Intelligent and Voluntary

 
In the first part of the colloquy, the judge is going to ask you a series of questions. These include:
 
  • “How old are you?
  • How far have you gone in school?
  • Have you taken any drugs or alcohol or medication in the last 24 hours? And if so, is it affecting your ability to understand what’s happening here today?
  • Have you had enough time to speak with your lawyer and do you think they’re giving you good advice?
  • Is anyone threatening you or promising you something to enter into this plea? (i.e., is someone is holding a gun to your head or paying you off)
 

Waiving Your Constitutional Rights

 
The judge will go on to talk about the rights you’re waiving by entering into the plea. The rights are on the form and you should read them. What it boils down to is five very important rights that you’re giving up by entering into this plea.
 

Right to a Trial

 
Everybody has the right to a trial. I don’t care how much evidence the prosecutor has against you. They could have everything you’re doing on videotape. They could have 500 witnesses who all saw you do it. It doesn’t matter. You always have the right to have a trial in any case. You’re giving up that right by entering into this plea. The trial could be before a judge. They refer to that as a bench trial. At a bench trial, the judge alone listens to the evidence and decides if you’re guilty or not guilty.
 
The other type of trial that you could have is a jury trial. A jury consists of six people who are chosen at random. You and your attorney take part in the jury selection process. You want an impartial jury. Six people who don’t know you, they don’t know the prosecutor, or anybody involved in the case. They listen the evidence and decided whether you’re guilty or not guilty. All six people have to agree on the verdict. It’s not a majority rules or anything like that. They all have to agree. Thumbs up or thumbs down, either guilty or not guilty.
 

Presumption of Innocence

 
Another right you’re giving up is the presumption of innocence. By taking a plea you’re admitting to doing something wrong. If you don’t enter into tender of plea, you’re presumed to be innocent until you’re proven guilty at a trial. By tendering a plea, you’re taking the burden away from prosecutor to bring enough evidence to prove you guilty beyond a reasonable doubt. You’re saying, “I did something wrong.” The prosecutor is now relieved of that burden of proving the particular thing that you did wrong.
 

Confrontation

 
You’re also waiving your right to confront the evidence and witnesses against you. At a trial, you have the ability to cross examine witnesses. That means to ask the witnesses questions. You have the right, to ask questions to try to show that the witness is mistaken or lying. To poke holes in their story. This also applies to any other evidence. Your lawyer might be able to present a legal challenge to the admissibility of any evidence. They could also show that the evidence isn’t all that important in the first place. By by taking the plea, you’re waiving that right to confront the witnesses and other evidence against you.
 

Giving Up the Right to Tell Your Side of the Story

 
The next right you’re waiving is the right to testify or produce evidence in support of your own case. Although you’re not required to, you have every right to tell your side of the story. To get up on the witness stand and answer questions about what happened. You can also have other people who have information about the case come to court to testify. If you have documents like photographs, videos or papers that support your case, you can bring those too. But, by taking a plea you’re admitting to doing something wrong. You’re waiving your right to testify or produce any evidence that helps your case.
 

Right Against Self-Incrimination

 
The last major right you’re giving up is the right against self-incrimination. I like to think of this right as the right not to tell on yourself. You’re giving up the right to make the prosecutor prove their case without you. Although the prosecutor must have witnesses testify, they can never call you as witness. While you have every right to go up there and tell your side of the story, no one can force you to do so. But by taking the plea you are also waiving this right and admitting to doing something wrong.
 

Beware If You’re Not a U.S. Citizen

 
Another warning on the form can be troubling only if you’re not a United States citizen. If you’re not a United States citizen, a plea could cause some bad things to happen. The Judge will tell you that you could be deported. Or denied naturalization to become a citizen in the future. Or if you leave the U.S. after the plea, they might not let you back in. Not every case will trigger these problems. Yet, it’s very important to consider whether the charges or the proposed sentence will cause an immigration problem. Make sure you discuss this with your lawyer before tendering a plea.
 
It is important to understand that by entering a plea you are also giving up your right to appeal your case. Many times, if you go to trial and you lose a case, you may be able to appeal to a higher court. That court can review the case to decide whether there were any legal mistakes made at the trial. In essence, by entering into a plea, you are giving up the right to continue to fight the case in any way. In some cases, it may be the right thing to do, but you always need to understand what you are giving up.
 
If you have any questions, please feel free to give me a call or shoot me an email.
October 7, 2020

What Do Drunk Driving & Cinderella Have In Common?

At Contant Law we handle a lot of drunk driving cases.  One of the most common questions I’m asked is, “How soon can I get my license back?” So, I wanted to talk about something called a hardship license. Some people know it as a “Cinderella” license.

Hardship License Under 24D Program For First Time Offenders

The most common way to get a hardship license is if your OUI case is disposed by what they call a 24D disposition. With a limited exception, this disposition is reserved for first time OUI offenders.  This means that the case is all over and the judge enters a particular sentence under Massachusetts General Laws, Chapter 90, Section 24D. If you get this disposition, you will have the ability to apply at the Massachusetts Registry of Motor Vehicles to get a hardship license.  There are other types of hardship licenses, but for the purposes of this article we are only discussing the hardship license and requirements under the 24D program.

Understanding the Limits of a Cinderella License

What is a hardship or Cinderella license? It’s a license that’s good for 12 hours per day. You would choose the particular 12-hour period based upon your needs.  But it has to be the same 12 hours every day. Usually, it will be based upon time needed to get you to and from the destination for which the license needed. Most commonly, the hardship relates to someone’s need to work.  Their job may require them to drive for the job, maybe driving a company truck, or a company car, or just to get to and from work and public transportation just isn’t going to cut it.

But also understand that the hardship license doesn’t just have to be for work. It can be for other reasons as well. It can be for medical reasons. Say you have to get to certain medical appointments that you absolutely need your car to get to because public transportation is not going to cut it. Or maybe  you’re caring for an elderly family member or something like that.  The hardship can even be for educational purposes.

How To Get The Hardship License

In order to get a hardship license, there’s a process like anything else.  The first and most important part is to have disposed your OUI case and the judge gave you this 24D disposition.

Second, you have to start the main component of the program which is a 16-week alcohol education program.  You don’t need to have finished all 16 weeks of the program, it is enough to have signed up and have been accepted into the program.  Once you do the intake interview and are accepted, the alcohol education program will give you paperwork verifying this.

Third, you’re going to need a letter concerning the hardship / need to drive.  As I mentioned above, it could be from your employer or doctor or school, etc.  So, if it’s for work your employer would need to write a letter which establishes that you need your license to work, including your work hours.

Fourth,  you’re also going to have to show that you can’t reasonably accomplish the purpose of the hardship through public transportation. It could be that there are no buses or trains which go near where you need to go.  You can get this information with a simple Google search to identify the public transit schedules.  Or it could be that you actually need to drive for work to get yourself and/or tools and equipment to certain locations.  For instance, a few years ago we had a client who was a home improvement contractor.  He needed to bring tools and materials to various job sites.  This is not something he could do by taking the bus.

You take all of this paperwork to the Massachusetts Registry of Motor Vehicles and ask for a hearing for a hardship license.  No appointment is needed, it can be done on a walk-in first-come, first-served basis. It’s best to get to the Registry as early as possible (even before it opens to get your place in line).  However, the RMV only does these hearings at certain locations, so be sure to check the RMV website prior to going.  A Registry Hearing Officer will review everything to determine whether you should be granted this license.  A couple of other things that you need to know are:

  • You can’t be serving a suspension for anything else not related to your drunk driving case
  • There can’t be any indication that you have driven at all since your suspension (i.e., if you got arrested for driving on that suspended license, you won’t get a hardship)
  • There is a fee to reinstate your license after an OUI, which is usually $500

If you meet all of the requirements, in most circumstances they’re going to grant the hardship license which will be good through the entire suspension period related to the OUI case.  This includes any suspension for refusing the breathalyzer or other chemical test.   After your suspension time is over you can return the Registry of Motor Vehicles and have your license reinstated to an unrestricted license.

If you have any questions about this, please feel free to give me a call or shoot me an email.

 

October 1, 2020

Too Young For Sex? Find Out Here

Recently, we’ve gotten several questions about what’s the legal age by which someone can have sex. Most recently, the person wrote, “I’m 18. My girlfriend is 17. I’m in Massachusetts where the age of consent is 16. Is it legal for us to have sex?” He went on to write, “I’m just unsure if this would be statutory rape, because she’s technically a minor, but the age of consent is 16. I’m so confused.” Just like this person many people, including both parents and teenagers, are confused about the legal age to have sex.

3 Different Ages You Want to Keep in Mind

There are three different ages to which you should pay attention. They are ages 14, ages 16 and ages 18. They all have their own legal significance.

Age 14 – Legal Age of Consent for Certain Types of Sexual Touching

Age 14 is really the first age in which anybody can actually consent to any type of sexual activity, including things like groping in the breast area or the butt area or the groin area. If you’re under the age of 14, you don’t have the legal ability to say yes to that type of activity. Now, an example would be, a 14-year old boy and a 13-year old girl, and the girl is saying to the boy, “I want you to touch me here. It’s okay. Don’t worry about it. I really do want that.”  However, the problem is that, in the eyes of the law a 13-year old cannot legally consent to that type of sexual activity.  Even though they may be saying “yes” and they are of sound mind and not under the influence of drugs or alcohol, the law just doesn’t give them the right to allow that type of sexual activity on their own bodies.  That 13-year-old does not have the legal ability to say yes in that circumstance.  The other person who’s doing the touching could be charged with indecent assault and battery on a person under the age of 14.  It does not matter whether it’s a boy or a girl.  This type of sexual activity would be illegal until the age of 14.

Age 16 – Legal Age of Consent for Sexual Intercourse

The next age you want to think about is 16.  In Massachusetts, the legal age of consent for actual sexual intercourse is 16.  Sexual intercourse doesn’t just mean sex as everyone understands it to be, a man putting his penis in the vagina of a woman. It also includes any type of penetration into the vaginal area, anal area and different types oral sex. Those are all considered sexual intercourse under the Statutory Rape law in Massachusetts.

If you’re under the age of 16, you do not have the ability to say yes to sex. It doesn’t matter if you’re a boy or a girl.  For example, the girl is 15 years old and has a 16-year-old boyfriend. The girl does not have the legal ability to say yes to her boyfriend, “Yes, I want to have sex with you.” Quite frankly, the girl could be older, and the boy could be under the age of 16 and the same rules would apply. They could both be under the age of 16 and theoretically they would have just committed statutory rape upon each other.

It may not make a lot of sense, but that’s unfortunately how the law currently. A person under the age of 16, legally does not have the right to say yes, even if in every other way, it seems consensual.

Age 18 – When Nude Photos and Videos Are Not Child Pornography

Another thing I want to discuss that doesn’t directly relate to actual touching and sexual and sexual intercourse, is taking photos. These days, everybody’s got a cell phone and they all have cameras and there’s a lot of pictures going back and forth. Everyone’s heard of sexting, sending nude pictures of genitalia  and other private parts to each other. It happens a lot with kids these days on platforms like Snapchat and just regular text messaging.  People should be really careful about this type of activity.

The reason is that nude pictures of someone under the age of 18 is considered child pornography. In the question asked above, the guy is 18, his girlfriend is 17. There’s no problem if they have sex. That’s not an issue. That’s legal.  However, if she sends him any nude photos of herself or he takes any nude photos of her, that is a violation of the child pornography statutes. Also, if he were to send those photos out to anybody else, it’s a different violation of those laws. The way the law is written, any nude photos or videos of a person under the age of 18 is considered child pornography. It doesn’t make a lot of sense in this scenario, where they can have sex, but he can’t have photos of her.  It’s because she is under the age of 18.

There are of course exceptions, for a parent or family member having a photo of their child, say in the bathtub for example.  There is nothing sexual about these types of photos, so they would not be considered child pornography.

Remember the 3 Ages:

Age 14  The first age, which any sexual contact / touching short of intercourse is allowed

Age 16 The legal age of consent to have any type of sexual intercourse

Age 18 The age at which a nude photo or video could be taken of the person and possessed by another, without it being child pornography.

If you have any questions, please feel free to give me a call or shoot me an email. I’d be happy to speak with you about it.

September 29, 2020

If I Refuse The Breathalyzer Will I Lose My License?

Why We Think You Should Never Take a Breathalyzer Test

We’ve done a number of videos about drunk driving. What you should do and what you shouldn’t do if you’ve been arrested for drunk driving. In particular, we’ve talked a lot about the breathalyzer test. It’s always been our opinion that you should refuse to take a breathalyzer test.  The reason for this is twofold. First, it provides the prosecution with very powerful piece of scientific evidence that they can use against you at trial. Second, it’s our belief that the science behind the machine, as well as the manner in which they’ve been maintained and calibrated by the state’s Office of Alcohol Testing is flawed. So what you’re doing is giving the prosecution this powerful piece of scientific evidence, that’s flawed. For those reasons, it is still our opinion that you should always refuse to take the breathalyzer test.  This will be better for the defense of your drunk driving case.  That said, we want you to understand what will also occur if and when you do refuse to take the breathalyzer test.

What Happens When I Refuse The Breathalyzer Test?

I recently had a client ask the question, “Hey, Mike isn’t it true if I do as you’re saying and refuse to take a breathalyzer test, I’m going to lose my license for a certain period of time?”  Unfortunately, the answer to that question is “yes.”  That’s because of something called the “Implied Consent” law. Under that law, just by driving on the roads of Massachusetts, you’ve consented to take a breath test like a breathalyzer or a blood test, if you’re arrested for drunk driving.   The purpose of this law was to convince people to take that breathalyzer test and provide evidence against themselves at a trial for a drunk driving case.

Stiff Penalties for Refusing

In order to do so they made the penalties pretty stiff for refusing a breathalyzer. For instance, for a first-time offender, who’s over the age of 21, if you’ve been arrested for drunk driving and you refuse to take the breathalyzer test, you’re going to lose your license for 180 days (almost six months). If you’ve had more than one offense or if you’re a juvenile, the penalties are just that much stiffer just for refusing the breathalyzer test. See below for list of offenses with particular loss of license period:

Offense (Includes Similar Out of State Offenses) Loss of License
First Offense (Over Age 21) 180 Days
First Offense (Under Age 21) 3 Years
Second Offense 3 Years
Third Offense 5 Years
More Than Three Offenses Lifetime
Previous Conviction for OUI Causing Serious Bodily Injury 10 years
Previous Conviction for OUI Motor Vehicle Homicide Lifetime

 

Like many people, you probably need your license to get to and from work, to get your kids places, etc. The penalties for refusing the test provide a pretty big encouragement / convincer to get you to take the breathalyzer test.

Punished Before You’ve Been Found Guilty

You should also understand that the Implied Consent law has nothing to do with guilt or innocence for drunk driving. This isn’t the judge making the decision. No one’s decided that you actually were driving drunk. The license suspension is just because you were arrested and said, “I’m not going to take this test.” It’s hard for most people to understand as it’s a significant punishment before you’ve been found guilty of committing any crime.

What Happens If I Decide to Take the Test?

If you do take the test and fail (blow above a 0.08 or above for a person over 21 or a 0.02 for a person under 21), they’re still going to take your license, but it’s for a much shorter period of time. Using that same example as above, a person over the age of 21, who takes a breathalyzer test and blows at least a 0.08, they’re only going to lose their license for 30 days or until the case is over. A person who is between the ages of 18 -21 who blows over a 0.02 will lose their license for 180 days, unless they enter a particular first-time offenders program.  A person who is under age 18 will lose their license for 1 year.

Simply put, the Implied Consent law makes give you a pretty big incentive to take that test and provide that evidence against yourself. That is exactly what was intended when they enacted this law. Now, we still think is a bad idea, to take the breathalyzer test.  It can cause significant damage to your criminal drunk driving case.  However, we also wanted to make sure that people have all the information available to them when making that decision.

If you have any questions, please feel free to give me a call or shoot me an email. I’ll be happy to speak to you about it.

September 18, 2020

How To Seal Your Criminal Record

In Massachusetts, there are essentially two ways to seal your criminal record. The first is through an application to the Commissioner of Probation. The second is by filing a petition with the Court.  Each has its own set of rules which are discussed below.  

Application to Commissioner of Probation (First Method)

In order to file this application, you have to understand what type of offense you’re trying to have sealed. Is it a felony? Is it a misdemeanor? Is it a juvenile offense? Is it a sex offense? The type of offense we’re trying to have sealed, that will determine how long you have to wait before you can submit this application.

Misdemeanor or Juvenile Offense

In the case of a misdemeanor or a juvenile offense, you have to wait three years from the time the case is all over. The time period doesn’t just mean the time you spent before the judge. If you got put on probation or incarcerated in some way, it’s three years from the date of your last day on probation or being incarcerated. So, you would have to wait 3 years from the last day of those events. 

Felony Offense

In the case of a felony, that time period is seven years. 

Sexual Offense

In the case of a qualifying sex offense, you have to wait 15 years from the time the case is all over before you can submit an application to the Comissioner of Probation to have that record sealed. 

Need to Have Stayed Out of Trouble During Those Time Periods

It’s also important that you weren’t convicted of any other crime in Massachusetts or elsewhere during any of those periods of time. If you were, that can extend that period of time in which you’ll have to wait to have that record sealed.

You Get the Benefit of Changes in the Law

There are certain exceptions to these waiting periods that could work in your favor concerning your sealing application.  For instance, if the legislature has changed the crime designation from a felony to a misdemeanor since the time that you were in court.  For instance, maybe the crime was a felony when you went to court, but since that time the legislature has said, “We’re going to redesignate that crime,” and now it’s a misdemeanor, you only have to wait the period of time required for the misdemeanor (i.e. 3 years instead of 7 years). You’re going to get the benefit of that change in the law. 

Likewise, if the legislature has decriminalized a particular law, you also get the benefit of that change.  Where the  particular crime has been decriminalized, you don’t have to wait at all and can seek to have that record sealed immediately upon the change in the law.  The most common example of this would be a charge for simple possession of marijuana. Marijuana was decriminalized and  ultimately legalized. So in those circumstances, if you had a conviction for possession of marijuana on your record, you could seek to have that sealed right away.  

When You Can’t Get Your Record Sealed

This type of application to the Commissioner of Probation will never work for certain types of offenses.  Some of these include charges involving  gun law violations, such as, possession of a firearm without a license;  perjury, or for certain crimes involving public corruption.  This method will not work for these types of crimes.  There’s a whole list of crimes that will not be allowed to be sealed in this manner. You need to look at the law carefully to know whether your charge may not qualify to be sealed.  

Filing a Petition With the Court (Second Method)

A different method you can use to get your criminal record sealed to Massachusetts is a petition to the court.  A judge decides whether to seal the particular criminal record.  In the event where you went through a case and it worked out in your favor, such as where the case got dismissed  or the prosecutor withdrew the charges (called a Nolle Prosequi or “Nolle Prossed”), you can file this petition right away.  

You need to submit a petition to the court, stating the particular reasons why you want the judge to  seal the criminal record.  You have to demonstrate to the judge that  the substantial interests of justice require the record be sealed.  What this really means is that you need to convince the judge that the record of this case is going to substantially impact your life in a negative way.  It might affect your ability to get a  job  or housing, for example.  

You also have to show that this negative affect outweighs the public’s need for the information about your criminal record.   The judge has the discretion to consider the facts and circumstances when making this  decision of whether or not  to seal your criminal record.  

The Court is Supposed to Seal Some Cases Automatically

In a case where you went to trial on something and were found not guilty by a jury; or where a grand jury refused to indict you (called a “no bill”); or where there is a finding by the court that charges were not supported by probable cause, the Court is supposed to automatically seal the criminal record relating to that offense. 

If you have any questions,  please feel free to give me a call or shoot me an email. 

 

September 18, 2020

Be Careful About What You Put In The TRASH & Where You Put It!

It’s a common tactic for the police to search your trash when they’re investigating a crime and the law allows them to do it.  You have to be careful about what you put in your trash and where you put your trash barrels.  

Throwing Something in the Trash Means It’s Abandoned

The law allows the police to go through anything that’s considered abandoned. So when you put your trash in a hefty bag or in a trash barrel and stick it out by the curbside, you’re basically telling the world that you don’t want it anymore. The law says that in those circumstances, anybody, including the police, can go through it and take what they want. They don’t need a search warrant. They don’t need any justification. It’s one of the first things that many police officers will do when they’re investigating a crime and they don’t have a lead to start with. They go to your trash. They go to your curbside. They go to a dumpster at your business.

Happens All the Time

We had this happen to a client not that long ago.  The client was suspected of dealing drugs. The police went to their business and located a dumpster on the side of the building. There they found a number of things such as packaging materials which had drug residue on them and other things that were all addressed to the business.  The police used this and some other information to get  a search warrant and raid the business.  Hidden inside the business in multiple locations was a large quantity  of drugs.  

How to Protect Yourself

If  you take steps to be careful about what you’re throwing away and where you put your trash you can protect yourself.  Make sure that the trash is in an area that’s not open to the public.  So for instance, when your trash is in your backyard, behind a fence, just basically away from the curbside  this is called the curtilage of your home.  It encompasses the  immediate surrounding area of your home where you conduct family activities.  In the case of a business, if you have the dumpster or other trash receptacle in a fenced-in area with a locked gate it would similarly be protected from police intrusion. 

In either of these circumstances the police would need some legal justification to search this area.  In most circumstances that means them seeking a search warrant.  If they don’t have enough information to establish probable cause, the court should not give them one.  

This is why it’s really important that you be careful about what you put in your trash and of course, where you put it.

If you have any questions about any of this, please feel free to give me a call or shoot me an email. 

 

September 18, 2020

Big Problem With Many Drug Sniffing Dogs Being Used Today!

Previously, we did a video about circumstances where the police get to use drug-sniffing dogs.  Now, I want to tell you about a case that involved a drug-sniffing dog with one of our clients. During that case we discovered a problem that likely exists in many of the drugs-sniffing dogs that are still in use today. Drug sniffing dogs go through this intense training program.  That’s why the courts find them reliable when the dog detects  drugs in a particular object, like a bag or car. In this intense training program, they are taught to sniff and detect many different types of drugs, such as cocaine, heroin, LSD, methamphetamine. But what we discovered in this case is that many of these dogs are still also being trained to detect marijuana.

The Problem

In Massachusetts, marijuana was decriminalized in 2008. It was formally legalized by a ballot initiative in 2016. It’s no longer an illegal drug.  Ordinary people can possess up to two ounces on them without it being a crime.

So let’s consider a dog who’s gone through all this training to detect all these different drugs, including marijuana.  The problem arises when the dog alerts. The dogs don’t have a different alert for the different types of drugs that they’re trained to detect. For instance, they don’t raise their left paw when it’s marijuana and their right paw when it’s cocaine. They have one alert. In most cases, the dog will go to the area, sniff and if they smell a drug they’re trained to detect they sit down. The alert also does not tell the police the amount / weight of the drugs present. Only that some amount has been detected.  The problem is that we don’t know what they’re smelling. We don’t know if they’re smelling an illegal drug like cocaine or if it’s a legal substance like marijuana.

What A Lawyer Should Do

That becomes a problem for the police when they try to use the dog’s alert on the bag, car or other item to justify their further investigation, such as trying to get a search warrant. Because marijuana is not illegal, the dog’s who are trained to detect it would give the police no legal basis to believe an illegal drug was present.  This goes back to the fact that the dog doesn’t have a way to differentiate between the drugs he or she is trained to detect.  So we won’t know whether the dog just smelled an illegal drug like cocaine or a legal one like marijuana.  That provides a great defense to these types of cases, even if the drug you actually had was not marijuana.  That provides an opening for you to argue to the judge, “We don’t know what the dog was alerting to,” was it  something illegal or legal? 

So it’s really important, if you’ve been arrested for a drug charge and it involved a drug-sniffing dog to find those drugs, your lawyer must ask for what they call the CV (curriculum vitae) or resume for the dog. The dogs actually have them and it talks about their training. It talks about what drugs they’ve been trained to detect. If the dog was trained to detect marijuana, that may provide a great defense to be used in court to show that the search was illegal.  

If you have any questions, please feel free to give me a call or shoot me an email. I’d be happy to speak with you about it.

 

September 18, 2020

When Can The Police Use A Drug Sniffing Dog?

A question often asked is “When can the police use a drug-sniffing dog on you?” As you might expect, the answer is going to differ depending on the circumstances. 

Stopped for a Traffic Violation

When you’re driving your car, if the police stop you for any valid reason — It could be because they have a suspicion that you’re committing a crime or it could be just because of speeding or some other civil traffic violation. As long as you’re legally stopped, the police are allowed walk a dog around the exterior of that car.  The law doesn’t even consider this to be a search.   The police  don’t need a warrant or any suspicion of criminal activity whatsoever.   The law says that you don’t have a reasonable expectation of privacy in the dog sniffing around the exterior of your car for illegal drugs. However, the detention cannot be prolonged for an unreasonable period of time.  If that occurred the police would need greater justification, than just a traffic stop. 

Very Different If Done at Your Home

However, conversely, the same type of search for your home would not be permitted.  The police aren’t allowed to walk around your house, in your yard and your front porch with a drug sniffing dog without any proper basis,  even if they don’t go inside.  In this scenario, the police would need a search warrant or probable cause and some really good reason for not getting a search warrant. They call these exceptions to the requirement to get a warrant.  The exceptions are very narrow, so in most circumstances, the police would need a warrant to use a drug sniffing dog at your home. .

Walking Down the Street

Another situation might be where you are walking down the street and the police stop you and want to use a drug dog to sniff your purse or your backpack or luggage you might be carrying. That’s a whole different animal (no pun intended).

Under those circumstances, the police would need what they call reasonable suspicion to stop you in the first place.  This means some particular credible information that you are committing a crime involving drugs. 

However, even if the dog alerts on the bag, meaning that they smell some drugs and alert the police officer through some trained gesture (like barking or sitting down), the police still can’t open that bag. The police officer would have to then use that information as well as any other information they had gathered lawfully to apply for a search warrant from the Court before they could open your bag.

What About the Dog Sniffing Your Body?

There are different circumstances where the police may or may not be able to use a drug-sniffing dog to sniff you, as opposed to a bag, your car, or your house. Unfortunately, in Massachusetts there’s no clear case on this just yet. My belief is that if brought before the court what the court would likely do is say the police would need to have at least a reasonable suspicion to stop that person in the first place.   Then also have at least reasonable suspicion, if not, then a  probable cause to believe you possessed drugs, before they let the dogs sniff all over you, and your chest, and your pants, and everywhere else. That’s my belief. However, I have to say that it does not appear that the courts have come out with a clear decision on this in Massachusetts. 

If you have any questions  please feel free to give me a call or shoot me an email, I’d be happy to speak with you about it. 

 

September 16, 2020

THINK TWICE Before You PAY That Out-Of-State Traffic Ticket!

You may not think much of an $85 speeding ticket in New Jersey.  Most people would not want to return to New Jersey to fight such a ticket in Court.  But beware that minor ticket could cause you a major headache should you choose to just pay it.  A client of ours did just that and had their license suspended for 60 days due to the way the different Motor Vehicle Registries communicate with each other.   Read on to learn more.  

Minor Ticket – Why Not Just Just Pay it? 

Our client was coming home from New Jersey a couple of months ago, after visiting family.  On the way home, he got pulled over in New Jersey for going 10 miles over the posted speed limit. The officer gave him an $85 ticket. It wasn’t worth fighting, as he would need to return to New Jersey to do.  He just decided to pay it. A couple of months later, he got a notice in the mail from the Massachusetts Registry of Motor Vehicles, saying that his license in Massachusetts was  being suspended for 60 days because of the $85 ticket from New Jersey. The problem is that the Motor vehicle Registries in most of the country all talk to each other. They have reciprocity and they report violations that happen in other states back to the Massachusetts Registry of Motor Vehicles and vice versa.

They all use this coding system, which has limited descriptors for the offenses. In New Jersey, a very low-level traffic ticket is often referred to on their books, as “careless operation.”  It’s code M-81 in this book, and it was on the notice that my client received. But in Massachusetts There is no such thing as “careless driving.” There are other driving laws, such as operating to endanger and reckless operation, which are both criminal offenses which carry a 60-day loss of license for a conviction.  This is the closest thing Massachusetts has to this M-81 Code description. The Massachusetts Registry, doesn;t get to hear about what actually happened. They don’t get a police report or any description of what happened, except that code, which says “careless and improper driving or operation of a motor vehicle.” They take that and apply  the closest thing Massachusetts has which could be negligent operation or reckless operation of a motor vehicle both of which carry a 60 day loss of license. Because of this coding system between the RMVs our client’s license was suspended for 60 days.  

Getting Your License Back

Now it’s not that easy to get it back, even though it seems like it’d be a pretty simple mistake. What you have to do first  is go to the Registry of Motor Vehicles and request a hearing before a Registry of Motor Vehicles hearings officer.  This can be done on a walk-in, first come first served basis as many registry locations.  However, be prepared to wait around for the better part of a day before you get heard.  Even more upsetting will be that this hearings officer will most likely tell you that they can’t do anything to reverse it.  You will next have to appeal to the Insurance Board of Appeals / Registry Board of Appeals.   The problem is, it’s very hard to get in front of the Board of Appeals in Massachusetts in any short period of time, even if you ask for an expedited hearing. Chances are, even if you can get it rushed through, you’ll serve most or a lot of that suspension long before the hearing at  Board of Appeals, to try and get your license reinstated for this minor offense. Keep in mind, if you do drive on a suspended license, even though it seems like a mistake, you can be punished with a further criminal violation of operating a motor vehicle without a license.  

Keep This in Mind

It’s important that if you get pulled over in another state, that you pay careful attention to what you’re getting cited for, and whether or not it could have some ramifications on your Massachusetts license. There are at least 23 states out there that report to Massachusetts convictions for what they call “careless driving”, which is this M-81 code. Of those, the most common that report this  to Massachusetts are New Jersey, Florida, Arkansas, Kentucky, Minnesota, Montana, and Virginia. If you get pulled over for speeding or some other minor traffic violation in those states, you have to be careful to make sure you’re not just paying a ticket and getting hit with a license suspension 

If you have any questions, please feel free to give me a call or shoot me an email. Thanks a lot. Have a great day.