September 18, 2020
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.
In the case of a felony, that time period is seven years.
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
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
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.
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
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
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.
September 10, 2020
People often ask about whether they should try to seal their criminal record. Here we discuss 3 benefits of sealing your criminal record. But before I get into that, I want to talk a little bit about the difference between expunging a record and sealing a record.
Difference Between Sealing and Expunging a Criminal Record
When you expunge a record, all trace of that record, including all police reports, court records, probation department records and any information in all state databases is erased and wiped out forever. While it is better to expunge a criminal record than sealing one, it is also much more difficult to do. It’s only done under very specific and limited circumstances. The vast majority of people will not qualify to have their criminal records expunged.
When you seal a criminal record, the records remain in all those places, but when people like employers or landlords and most others make inquiries, concerning whether or not you have a criminal record and what’s on it, they’re simply told that you have “No Record.”
An exception to this is that the police and the Court’s still have access to your criminal record and documents associated with it, like police report, probation records, etc. If you are charged a a new offense or are being investigated for a new crime, these records will be available to the police and the Courts. Also, if you are applying for a license to carry a firearm, the police will continue to have access to the record when considering your application.
Now, For The Three Benefits To Sealing Your Criminal Record
#1 – If your criminal record is sealed, you’re record will not disqualify you from State or local public jobs, housing, or obtaining a particular state granted professional license (i.e. medical, legal, etc.). For example, you’re sealed record will not preclude you from sitting for Civil Service Examination, etc. In the applications for these things, there should be an advisory that if your crimimal record is sealed, you can answer the particular question as if you have no record.
#2 – A criminal record that’s been sealed can’t be used against you in most court proceedings or board or commission hearings. . For instance if you are involved in a civil lawsuit or something like that or something before a board or commission, it’s not going to be used against you there. The very limited exceptions to this are if you have a new criminal case or if you are involved in any proceeding that concerns the care and custody of a child. These are discussed in more detail below.
Relative to a new criminal case, the prosecutor and courts will be able to use your criminal record (even if sealed) to make decisions concerning, bail, conditions of release, sentencing, etc.
Relative to a proceeding involving a care and custody of a child, your record may be used, but it is not automatic the way it is in a new criminal case. This type of proceeding could include a divorce where child custody is at issue; or where there is a claim of child neglect or abuse for example. In that type of case, If one party wants to use it, they have to bring to the court’s attention they think such a record exists. Then the judge looks at it in private to decide whether or not what’s on the record has any relevance to the care or custody of children. For instance, a minor charge, like minor in possession of alcohol when you are 17 is unlikely to be relevant to the divorce proceeding of a 40 year old. Only if the judge decides it’s relevant, there will be a hearing to determine whether it can be used in that case.
#3 – One of the most important benefits to sealing you’re criminal record is that it’s much easier to do than expunging a record and does give you many of the same protections. So long as your offense is one that qualifies for sealing (most do) qualify and you’ve waited the required amount of time or have other good cause, most likely your record is going to be sealed. But it’s up to you to make the request.
So those are 3 benefits to sealing your criminal record. If you have any other questions please feel free to give me a call or shoot me an email. Thanks and have a great day!
August 20, 2020
“Can the police locate me by pinging my cellphone, like you see on TV shows like NCIS and FBI and all that?”
Well, IT DOESN’T work the way it’s portrayed in TV shows where law enforcement can simply “ping” a phone (even underground, per a recent Hawaii Five-0 episode!) and see on a screen who it is and where it is just like that!
BUT, in some and right circumstances, they may be able and allowed to do that with help from cellphone providers and of course, if granted by court.
WARRANT is one important word you should remember if you feel you’re being tracked by law enforcers. Aside from “exigent circumstances” or emergency situations, warrants would always be required!
Under a federal law which allows police to track data, like cellphone information, with a court order based on:
- Facts granting “reasonable grounds to believe”
- The records are “relevant and material to an ongoing investigation”
REMEMBER: You have the rights to privacy of your sensitive data, and police can’t just try to search the data stored on your computer or portable electronic device, or seize it for further examination somewhere else. If this happened, know that any evidence they find as a result of that, could get SUPPRESSED in court.
For questions about this pinging of your cellphone, or anything related to criminal law, criminal defense, you can trust us! Gain deeper understanding of this matter and protect your rights, email or call us today!
August 20, 2020
“Once my son turned 18, he would surely be granted a fresh start, and those teenage blemishes on his record are just part of the past!” – Are you one of those people who believes that a juvenile record would vanish when a youth becomes an adult?
We’re here to correct that popular belief!
Even though juvenile record is kept separate from the adult records, it still happened, it is still in existence and it stays in existence FOREVER.
Obstacles in Adulthood You Might Face With a Juvenile Record include:
- Job Seeking
- Arrested For A New Crime
- Applying for Gun License
- Getting to Military
- Getting Into College
- Receiving Financial Aid
- And Many More . . .
REMEMBER: It is essential to fight those cases when they come in as a juvenile to ensure your child’s protection and his/her future.
If you have any questions about the juvenile delinquency process or the criminal process, please feel free to give us call or shoot us an email. Make sure everything is done correctly. We’re here to help!
August 20, 2020
A question asked all the time is, “Can the police detain you without arresting you? And the short answer is, under the right set of circumstances, they can.” Those circumstances are where they have what they call reasonable suspicion to believe you’re involved in some sort of criminal activity. However, they have to be able to point to specific and articulable facts that show why they believe you’re involved in this. Maybe someone said they saw someone matching your description doing something unlawful. The police themselves may have observed something that they believe might be criminal activity. It has to rise to a certain level in order to make even a slight detention of you for a short period of time.
During this brief detention they’re supposed to be investigating the reason they stopped you o determine whether or not you actually did anything. They’re allowed under those circumstances to stop you for a brief period of time, perhaps interact with you, ask you some questions about it and to make the determination whether or not they believe there’s probable cause to actually arrest you for some type of crime.
If the police also have reason to believe you might be armed and presently dangerous to them or someone else, they could also pat down the outside of your clothing. You see that on TV, up against the wall, assume the position. The police do this pat down of the clothing to try and find a weapon of some kind. Now that is permissible under the right set of circumstances. However, if the police hold you too long, if they do something that’s unusually aggressive, that may no longer be considered a brief stop. For instance if the police don’t have a lot of information, but they pull their guns on you, order you to the ground and throw handcuffs on you, that is no longer this type of brief detention. The police action can transform the stop into arrest for which they would need probable cause (a higher standard). The courts look at it based upon proportionality of what the police do in relation to the circumstances. How long was the detention in relation to the type of crime being investigated? Was the crime serious or otherwise violent? What was the nature of this particular detention? Did it pass the smell test in relation to the crime that’s actually being investigated? Or was it excessive?
These are the types of things we look at to decide whether or not this detention is one of those brief stops or whether it amounts to arrest of which the police have to have a much higher standard called probable cause. Probable cause basically where the police have substantial to believe that you in fact were involved in some kind of criminal activity.
If you have any questions, if you’ve been stopped by the police and you have any questions about that or what the police can do in those circumstances, please feel free to give me a call or shoot me an email, and I’d be happy to speak with you about it. Thanks and have a great day.
August 20, 2020
If you find yourself facing criminal charges, you want a clerk magistrate’s hearing if the offense allows for it.
In Massachusetts, whenever the police are trying to charge you with any misdemeanor, you have the right to have a hearing before a clerk magistrate to decide whether or not these charges will ever be issued. These hearings are also called “show cause” hearings. It’s really important to take this seriously, because this is your best opportunity to keep these charges from ever issuing, to keep this off of your record so you never have to see the judge, have to deal with the DA or worry about any kind of punishment.
What Happens at The Hearing?
At this hearing, the clerk magistrate is the one making the decisions. The clerk not a judge, but they work for the court system and have a lot of power. Their job at this hearing is to decide whether or not these charges ever get to go before the judge.
Typically speaking, what they’re supposed to be deciding is whether or not the police have probable cause to have these charges. At the hearing someone from the police department, not necessarily the officer that you dealt with on that particular day or evening, will come in and read from the police report. That’s usually how they set up their facts to say, “Hey, listen, we have probable cause and we want this person charged.”
You have the right to be there. You can bring a lawyer, but you don’t have to have a lawyer. You can testify on your own behalf. You can ask the officer questions. You can bring other witnesses, photos, videos or other documents that might be able to shed some light on your side of the story.
This hearing usually it doesn’t take very long — usually about 20 minutes to a half an hour is typical. The clerk will listen to everything and then make a decision. Generally speaking, they will do one of three things.
Three Possible Outcomes
The clerk magistrate can say there’s enough evidence to establish probable cause and I’m going to issue these charges and you’re going to have to go see the judge and go through the normal court process.
Option two — after listening to everything, they can decide that either based upon the facts or the law, that there’s not probable cause and the charges shouldn’t issue in which case you’re all set and the charges never issue. You go on your way, don’t have to worry about anything.
The third option is somewhere in between One and Two. This happens pretty often, especially with people who are first time offenders, charged with minor crimes. The clerk might say, “Well, you know what? There could be probable cause here, but I’m considering the person.” And this is where we come in. We are able to argue on your behalf, “Listen, this is a good person. They don’t have a prior record. It was a simple mistake. It wasn’t malicious or anything like that.”
In the interest of justice, we’re asking the clerk to use their discretion to say, “Hey, listen, we don’t have to issue the charges here.” Now the clerk can use that discretion and do a kind of hybrid outcome. The clerk. might say, “I’m not going to issue the charges.” Or they could ask you to do something. They might ask you to do something like community service or take a class in some cases. This happens a lot with minor driving offenses. Maybe they’ll have you do what they call a national driver safety program, something like that. But they have a wide range of discretion.
Many times they just say, “Hey, listen, we’re going to keep this open for the next six months. If you stay out of trouble, then we’re going to close it out and these charges will never issue. But if you do screw up during those six months, we’re going to bring the charges back in and you’re going to be charged with these as well.”
The clerks have a lot of discretion as to what they can do at these hearings. It’s in your best interest to keep these charges from ever issuing. It’s very important to take this seriously and to make sure you put your best foot forward at a clerk magistrate’s hearing. This is your best opportunity to stop the criminal charges that the police are trying to bring against you.
If you have any questions about the criminal process, about a clerk magistrate’s hearing; whether you think you should have one for your case and whether you can request one, please feel free to give me a call or shoot me an email and I’ll be happy to speak with you about it.