January 3, 2020
Children need to be protected, and if they get into trouble with the law, they need help, guidance and support. In our practice one of the areas where we specialize is juvenile criminal law. We view this as a very critical area of our practice. By helping the youngest and most vulnerable when they find themselves in trouble with the law, we can spare them from a record that follows them for their entire life. In addition, our youngest clients often learn an important lesson from the experience and make better choices going forward; which of course helps them become responsible, law-abiding members of society. Listen to our podcast on defending juveniles to learn more about how the process works.
Many cases involving juveniles start with a bad choice or impulsive decision, very natural behaviors for adolescents. We recently had a case where a young man and two friends decided to trespass on school property and break into a locker. It was nothing more than a prank to the boys. But when the school pressed charges our client came to us for help. Read more about the case here.
Occasionally, we have clients whose parents do not put their child’s best interest first. When we are faced with such situations, we work very hard to be sure the parents understand what their child needs from them. If they do not follow our advice, we devote our energy to seeking the best resolution we can get for the child. A recent case involved a ten-year-old girl accused of injuring her cousin. We were able to help her despite obstacles her family put in the way. Read more about the case here.
If your child or another juvenile family member finds themselves in trouble with the law, get them legal help right away. Having an advocate in your court can make a huge difference to the outcome of the case. A successful outcome can save a child from a record that follows them throughout their entire life. If you or someone you know finds themselves in legal trouble, contact us. Call or text us at Contant Law 617-227-8383.
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December 17, 2019
We all hope for, plan for, and anticipate the fun of the holiday season spent with family and friends; but we also know that sometimes our holidays don’t go the way we want them to. If you run into a legal problem, it can take the joy out of your holiday.
Many things can put you in a legal jam during the holidays. OUI, of course, is a very common problem during the holidays, but there are other issues that can come up, as well. An impulsive kid who gets accused of shoplifting, a disagreement that goes too far and when punches are thrown the cops are called and even weather-related car accidents all can leave you wondering where the joy went.
If you find yourself struggling during the holidays because of an unexpected legal matter contact us. Contant Law is available to guide you through the legal process and ease your mind, so you can still find the joy in the holiday season.
We wish you the Happiest of Holidays, but just in case –
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December 13, 2019
In this episode, Mike explains additional safeguards in place in the Commonwealth of Massachusetts to ensure there is a valid waiver of a juvenile’s Miranda rights. Despite good intentions, parents and guardians can adversely affect a juvenile’s situation.
JR: Welcome to In Your Court. Today’s episode is entitled Juveniles and Miranda Rights Knowing the Safeguards in Place to Protect a Juvenile. Today Mike will discuss Juveniles and their Miranda rights and the laws and the Commonwealth of Massachusetts related to waiving those rights. I’m your host Jordan Rich and I’m very pleased to be back with Mike Contant an attorney whose firm, Contant Law, specializes in criminal defense including defending juveniles. Mike, today we’re focusing on Miranda rights and how they affect juveniles in the court system. Can you start with an overview?
MC: In general, in any criminal case one of the most powerful pieces of evidence a police officer can obtain is a confession from a suspect. You see it on TV all the time. They don’t believe they have a great case until they get the person to confess. And Miranda as a safeguard that got put into place in order to keep people at least knowing their rights as to whether or not they should talk to the police and whether or not they are going to confess There are a couple of things that have to be occurring in order to require the rights at first. The first is the person it has to be what they call a state actor generally speaking a police officer doing the questioning This is important for the juvenile context because oftentimes the juveniles are talking to say the school principal or a teacher or somebody else in authority, but the Miranda rights are required when talking to that person about oftentimes a criminal matter
The second is they have to be in what they call custody which doesn’t necessarily mean handcuffs on, in the back of the squad car or being brought to the police station and thrown in a cell. Custody is basically where the person doesn’t feel free to leave. That’s the reasonable person of this particular age. So does
JR: is that considered being under arrest point?
MC: Not always.
JR: Not always, okay. That’s a very fine line.
MC: So it’s a legal distinction but essentially it’s with a reasonable person of that in those circumstances would not feel free to leave without answering the police officers questions. And back in 2011 a very important case came down called JDB versus North Carolina which said when assessing weather not someone in custody you have to take into account their age and this was a juvenile case. And essentially a juvenile is less likely to tell the police, “No I’m not talking to you” and just walk away than an adult in the same situation may be so there has to be a consideration there as well.
JR: So we’re focusing today on juveniles and waving of the rights and what that implies and what that could mean.
JR: So let’s talk about that. What’s your advice?
MC: My advice is, as I’ve said many times before is: Just say no. A police officer wants to talk to you politely decline, “No I don’t wanna talk to you.” Certainly, “I’d like a lawyer,” is my advice. Oftentimes that doesn’t happen so, what we have to do is make sure that everyone understands their rights and they understand their rights in order to make the decision whether or not to talk to police in situations where they don’t take my first set of advice which is to say, “No.”
JR: Right so, so in the event that someone does waive their right to all of this stuff, does that put them behind the eight ball in many cases because they’re not taking advantage of that protection.
MC: It can. The very first right is you have the right to remain silent. My first piece of advice is like you said to exercise that but, and again many adults don’t know to do that. So and in the juvenile context, there are additional protections and safeguards put into place to help the juvenile and assists the juvenile in understanding that they truly do have that particular right.
JR: So the law as you point out distinguishes adults as being able to understand the significance of waiving rights but juveniles have more safeguards.
MC: They do. They do, particularly the younger the child is the better the safeguard there is. So, what is required in the law first and foremost the police can’t just go in to a school pull a thirteen-year-old out of class and start questioning him about a particular crime. In those circumstances they have to have a parent or they are referred to as an interested adult present. Interested adult could be a close family member or close family friend. It could be an attorney. Doesn’t necessarily have to be a parent but someone with that child’s best interests at heart has to be there; it has to be an adult in order to assist the juvenile understanding #1 what the rights are that are being read to them, how they may affect them and whether or not they should actually waive those rights and give a statement to the police.
JR: These are under fourteen year old, correct?
JR: Okay if you’re fourteen or above. There’s a little more flexibility with the rule, correct?
MC: It’s slightly more flexibility. In that circumstance they say that the juvenile 14 to 18 should ordinarily have an opportunity to consult with a parent or interested adult. That means and in in in a practical sense, what happens is, say you’re at the police station a parent you know a parent is brought, in the juvenile is sitting there and the police officer typically reads the rights of the people: you know, the right to remain silent, right to have an attorney, right to have the attorney with you, all the rights we’ve heard about before, um…usually make them sign a form saying that they’ve been read. And the police officer says, “I’m going to step out for a minute so that you guys can talk.” And that’s a normal everyday scenario that we see and they step out for a few minutes and the idea is that the parents and juvenile are talking about what they just heard and the form they are about to sign, and deciding whether or not — deciding together whether or not they should actually waive the rights and actually give a statement to the police officers. That happens all the time.
JR: How does the court decide whether or not this was appropriate? Are there are certain guidelines that the courts look at in terms of procedure
MC: So if there is ever any challenge as to whether or not this occurred there’s a hearing the takes place.
MC: People testify the police officer would be required
testified to lay out exactly what he did – what he or she did – in giving the rights and making sure that the
person understood the rights and making sure they had this opportunity to
consult. I keep saying opportunity can solve because it’s important. It doesn’t
mean they actually consulted. It just means that he gave them some time alone
in order to do so. Whether they took him up on it or not as is a whole other question.
Many times, the parents don’t understand any more than the kids do because they
have been put in that position in the past and they don’t know what to do. And
oftentimes they say,
Well, you know I just want to be honest, I just want to say what happened, and that’s not always the best legal advice.
JR: Getting back to the TV version that everyone thinks they know, I have noticed that certain TV characters will actually take a card out of their pocket and read it from the card which is probably more like real life, I’m guessing I’m not sure. Does the Miranda have to be delivered fully word-for-word?
MC: It has to be delivered fully so in other words, you can’t leave out any of the rights at least the basic idea of any of the rights. It does not have to be word-for-word. Many police officers carry that card you’re referring to. The better practice particularly with a juvenile case is to have a form that they can go over the rights and have that actually signed off by both the parent and the juvenile. It’s a better practice for the police to do it shows the court a little bit more evidence that something actually occurred and it was done the right way.
JR: Let’s reiterate and so to refresh our audience again and we’ll focus on Miranda but in general the juvenile court system. What parents and guardians should know? And what the juvenile’s themselves should know starting again this is a summary with the Miranda rights but then also with what they’re going to be facing in a court system.
MC: Sure, as I mentioned before the juvenile court is not to be taken lightly. The penalties can be stiff for juvenile; not – they’re different than adult penalties but they can still be stiff and more importantly the juvenile record can follow the person around and have long lasting implications we talked about before. But as far as you know how to treat the case you do wanna take it seriously and like I said, the best way to help win the case is to politely exercise your rights to say when they say you have the right to remain silent say, “Yeah. I’m gonna exercise that. I don’t wanna say anything.” The second best way is when they say you know you have the right to a lawyer, “Yeah, I want that one too. I need my lawyer here.” And that will cause is a police to stop questioning immediately if you exercise either one of those rights police aren’t allowed to continue and they are not allowed to continue question you and again, they’re not going to get that powerful piece of evidence which is your own words saying that you did this.
JR: Having an attorney such as you, someone who’s very skilled in these areas is so critical as you say because you can make early mistakes that can hurt you later on.
JR: And greatly.
MC: The biggest mistake in many cases again is that parent, who’s doing a different job than I am. They are just trying to raise their children in the right way so they encourage them to tell the truth encourage them to cooperate with the police oftentimes to their own child’s detriment. Even though they it’s well thought out by the parent but it’s not a good legal strategy in the case and often times ends up, quite frankly, hurting the child in the case that we’re dealing with.
JR: We’re talking about long-standing constitutional rights here aren’t we?
MC: the Fifth Amendment and in Massachusetts we also have our own constitution called Article 12 which is essentially the same thing
JR: Well, fascinating fascinating discussion. For those out there who have to deal with this, you now are armed with more information. Thank you Mike.
MC: Thank you
JR: For more information about Contant Law and juvenile Miranda rights visit. www dot Contant dash law dot com. You can follow Contant Law on Facebook, Twitter and connect with them via LinkedIn. For specific questions email info at Contant dash law dot com. We hope you found this episode informative. Please rate and review this episode and subscribe for additional ones to stay informed and protect your juvenile’s rights. All episodes are available on all platforms. Thank you for listening.
December 13, 2019
In this episode, Mike discusses juvenile court including significant differences that parents and guardians should know to best support and protect the child.
Welcome to In Your Court and today we’ll focus on the important differences between juveniles and adults when being tried in court. In this episode, Mike will talk about Juvenile Court and share three things that parents and/or guardians need to know to best support their child in the process. I’m Jordan Rich and I’m pleased to be back with Mike Contant an attorney whose firm, Contant Law, specializes in criminal defense including defending juveniles.
JR: So Mike, let’s begin with an overview of what a juvenile will face, what a juvenile’s experience will be like in a criminal court how it either differs or is the same as an adult.
MC: Sure. So, the juvenile criminal process, it’s called the delinquency process is actually very similar to that of an adult process. They have all the same rights, most of the same procedures as the adult court. They both follow the same rules of procedure. Juveniles are entitled to all those same protective rights: the right against self-incrimination – I like to refer to it as the right not to tell on yourself — the right against illegal searches and seizures the ability to challenge those things. The right to have a trial before a judge or a jury if they if they choose. They also have rights to be considered innocent until proven guilty beyond a reasonable doubt very similar in many cases to the adult court. Those rights are all the same rights the juvenile has and the processes is are almost identical.
JR: Okay there are a lot of implications though. People might have the wrong impression that when one turns adult that all of those charges whatever they might be my go away. That’s a misconception that people have?
MC: Absolutely. So that’s a big mistake that parents make as well as juveniles make, when they are thinking about what to do with these charges. Many any people think that the juvenile record becomes either sealed or expunged when the person turns eighteen it just somehow magically disappears. That’s not the case. In Massachusetts, the record is around essentially forever and it can follow a juvenile even into adulthood. It can affect their ability to obtain jobs in the future depending on the level of access that the employer has. It can affect their ability to get into college, affect their ability to receive financial aid, and it can definitely affect their ability to get into the military; I’ve seen many military recruiters trying to come into court to undo charges in order to get the kid into a particular branch. It can follow them into adulthood should they pick up additional criminal charges later and that juvenile record can be used against them in determining what sentence they might receive as an adult for another criminal matter. So it’s extremely serious to get out in front of these things and make sure that you’re treating it seriously in not just blowing it off because, “well, it’s just a juvenile case nothing bad can happen”.
JR: Lots of, as I say implications, so let’s talk about the role of the parents or legal guardians in the case of juvenile who’s facing charges. What do you see as their role?
MC: Their role is to help guide and support their child. I always tell parents quite simply they have a very different job than I do. Their job is to guide and protecting and to help their child become a successful person, to become a good person to become a contributing member of society. My job is simply to help them to get the least amount of punishment or quite frankly no punishment to these particular charges. In many cases the child may have actually committed the crime however, that’s not my job. My job is to make sure the prosecution proves that they did that or keep them from proving they did that in order to make sure they have the least amount of punishment possible.
JR: Well there’s a lot at stake here I think that’s the key element limit this is that could affect a young person’s life for forever
MC: Right. So the other thing is and I always have to stress this with the parents is the juvenile – the child – is my client. This the one circumstance in which a twelve- or thirteen- year-old kid has the right to order me around as the attorney so to speak. If they are smart they will listen to the advice that we’re giving them and guide them through this process. But they’re the client. Many times parents will want to overreach, again in the best interest of trying to help their own child however, they oftentimes will overstep but ultimately any major decisions that get made have to be made by the child with of course the support and guidance of the parents.
JR: Would you have a scenario an example in general terms of how doesn’t work well when a parent oversteps
MC: Sure, it confuses the situation oftentimes, we’re dealing with again, adolescents, children between the ages of twelve and eighteen. They don’t know where to turn. They want to listen to mom and dad, because they don’t want to go home and get yelled at a get in trouble for it. But they also want to listen to me because I actually have experience in the field. They get very confused very quickly. And sometimes they don’t make the best decisions under that enormous pressure that is between the two forces there and so ultimately a parent who may have no legal training and may have no experience in this either could get their child in certain circumstances to make a quite frankly a poor legal decision.
JR: Mike, we know that the ages twelve to eighteen in Massachusetts that legal definition of juvenile doesn’t necessarily correspond in other states that way though.
MC: It does not
JR: Okay. And the question that people probably have as I do is, what if under the age of twelve an individual commits some kind of crime or is accused of something what happens then?
MC: There is no punishment in the juvenile court a criminal charge cannot be brought against that person. Oftentimes there’s other mechanisms through the juvenile court that can be used. There is what they call a child requiring assistance petition that can be filed. The child can be provided services by the courts, such as counseling. If it’s bad enough they can be removed from the home and put into a group home setting. However, as far as a criminal record or criminal punishment there’s nothing that can be done.
JR: As an attorney who specializes in this area, I mean working with adults working with young people is different. Tell me in your own experience.
MC: It is different. But I will say I will stress one thing,
I stepped in the juvenile court after being an attorney for about five years. I
had never dealt with a juvenile case before. First time in I realized the similarities
in the system and I also realized,
“You know what? The kids have the same rights and I want to treat them the same I want to give them the same respect as I give any adult client.” So we have to, you know understand that they are children but at the same time not talk down to them you have to be straight forward with them.
JR: So, your job is, along with defending someone, is educating both that individual and their parents or guardian because the whole mess of stuff that people get themselves into and it’s very confusing and a lot of fear involved
MC: Of course. Fear and stress goes hand in hand with everything we do so we have to educate both the parents and the juvenile’s as to exactly what’s happening in the case that we have to make sure they understand everything that’s going on to make sure that they’re comfortable with it.
JR: Can you just speak to something we’re going to be focusing on in another podcast, that’s Miranda Rights. Very quick definition would be great to start and then I guess the Commonwealth of Massachusetts, as you point out to me, has put in safeguards in the case of a juvenile waving such rights. And we’re gonna do a whole podcast on this because it’s so important but what are the Miranda Rights in general and how are juveniles being affected.
MC: Most people understand the Miranda Rights from TV. You know everyone’s heard someone get … seen someone get arrested and hear that you have the right to remain silent, that you have the right to have an attorney, you have the right to have the attorney present during any questioning. You have the right to stop questioning at any time. Those are the basic Miranda rights and they’re meant and to make sure that someone doesn’t confess to the police without being properly advised of their rights in the situation. It goes hand in hand with the Fifth Amendment and the right against self-incrimination or as again I like to refer to it the right not to tell on yourself.
JR: And in the case of Massachusetts any changes in the law that people should know about that have affected juveniles.
MC: It’s less of a recent change, however, in addition to just being read those rights, juveniles have additional safeguards put into place. In if a child is under the age of fourteen it’s required that they consult the parent prior to waiving those rights. Police can’t just go pull a kid out of school and start questioning them if they’re say thirteen years old. Between the ages of fourteen and eighteen the better practice they say is that a parent should be present and the juvenile should have the opportunity to consult about what the rights are and whether or not they should waive those rights. And the only time it’s going to be allowed in court if that didn’t occur, is if the police can demonstrate that the person has a very high level of sophistication or experience in the court system.
JR: Okay. In summary then we’re talking about a very serious time in a young person’s life family involved maybe school, I mean there are a lot of moving parts. If people are concerned, confused and have questions obviously they can reach out to you but why is it so critical for anyone in this position to have the kind of expert help that they are going to need?
MC: Again, I look at it like this: most children and many adults are short-sighted, okay. They don’t, they can’t see beyond their own face sometimes, particularly children. Most kids don’t think about anything more than what’s going on that weekend and playing with their friends. So they don’t think about protecting themselves. They don’t think about how this case is going to affect them five, ten, fifteen or twenty years down the line. It’s very important because it can have long-reaching effects and I like to come in to be that guide and say, “Hey listen, you may not, you may want to do what the easiest thing is now and that could mean getting on probation or taking some sort of a plea and that’s gonna end things quickly, but it could come back to hurt you later on and you have a good case here. We want to see what we can do to make sure you have a better sentence or no sentence at all.
JR: Well, Mike as we’ve discussed, this could be a critical moment in someone’s life and it’s important to get professional, sound legal advice from someone who really knows what he or she is doing.
MC: That’d be the best advice.
JR: All right. Mike, thank you as always.
For more information about Contant Law and juvenile court visit: WWW DOT content dash law dot com. You can follow Contant Law on Facebook, Twitter and connect with them via Linkedin. For specific questions email Info at contant dash law dot com. We hope you found this episode informative. Please rate and review this episode and subscribe for additional ones to stay informed and protect your juvenile’s rights. All episodes are available on all platforms. Thank you for listening.
December 3, 2019
‘Tis the season to be jolly… or so the song goes, but often jolly includes drinking. The holiday parties and potlucks, the impromptu holiday drinks, the family gatherings these all usually include drinking. And the police know it. This is their busiest time of year. We’ve all heard about tragic, avoidable accidents during past holiday seasons. Perhaps you’ve wondered aloud why no one took the keys away from the person or how they could drink and drive. The reality is that any of us can make a poor choice.
Your kids are watching. Whether your kids are 7, 21 or 35, they are watching your example. You’ve taught them about making good choices. You’ve taught the older ones to have a designated driver, use an uber, call a friend or even to call you. So, set a good example by modeling the behavior you’ve been teaching.
If you don’t choose a designated driver ahead of time, ride sharing apps make it easier than ever to get a sober driver to take you home. There’s no shame in being safe and asking for help. Sleeping on a friend’s couch for a night is a far better option than sleeping in a jail cell because you got stopped for an OUI.
Have a plan before you go out if you know you will be drinking. Have an emergency plan if you find yourself at an impromptu celebration. Read more here about what to do if you get stopped by the police. And, if you decide to drive and get stopped, have our number in your contacts. We want your holidays to be happy and uneventful but if you need help contact us.
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November 20, 2019
Thanksgiving is almost here and with it come celebrations and gatherings as we kick off the holiday season. For adult children coming home for the holiday it can be a hectic time trying to fit in time all the friends they want to see, catch the Thanksgiving alma mater football game, and still make time for family events. If your young adults are away at college and don’t have a car, they may not have driven in a while and if they are out celebrating with friends, they may have a couple of beers while they are out. All this sounds like the making of a holiday nightmare; but you can prevent it.
The first step, of course, is to remind your young adults about the important need for a designated driver. These 21st century kids know that drinking and driving is wrong and typically behave responsibly. but a strong reminder is never a bad idea. The second step is to teach them what to do and what not to do if they are stopped and have been drinking. Read about the Top Three Common Mistakes People Make in OUI Cases and share it with your young adults. You love your kids and keeping them safe is still in your job description. Make sure they know what to do before they find themselves in trouble.
If you or a family member or friend do get stopped for an OUI over the holidays – or anytime – call or text us. Contant Law – (617) 227-8383.
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November 13, 2019
Protection Orders can offer peace of mind when you are struggling with a harassing or abusive situation. In Massachusetts, there are two different types of Protection Orders depending on the situation. Listen to our recent podcast on the topic to learn more.
In a situation involving harassment and domestic violence Domestic Restraining Orders are the most common type of protection order. There are restrictions on these orders. They are limited to people who are:
- who are or were married to each other,
- who are or were living together,
- who are or were related by blood or marriage,
- who have a child together, or
- who are in a “substantive dating relationship.”
If the situation does not involve any of these relationships, then a Harassment Prevention Order is the other type of protection order. This type of order is typical in situations involving neighbor disputes. It can also be used in some domestic situations as an alternative to a Domestic Restraining Order. In one of our recent cases we did just this. Read about that case here.
Many people have questioned the usefulness of protection orders, but various studies of outcomes following a protection order being issued indicate that in 50-85% of cases the protection order is effective in keeping the harasser or abuser away from the victim. A protection order can give peace of mind to a victim; in addition, in some cases the order creates a cooling down period and diffuses the difficult situation.
If you are in a situation that requires a Domestic Restraining Order or a Harassment Prevention Order help is available. Call or text us for advice or to help you obtain an order from a judge. Contant Law 617-227-8383.
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October 8, 2019
October is Domestic Violence Awareness Month, an opportunity to learn about the legal steps available in Massachusetts to protect victims from their abuser. There are two different type of protective orders. They are designed for different situations.
- A Domestic Restraining Order is designed for people are or have been married, in a close relationship, are related to one another or live together.
- Harassment Prevention Orders protect people who are not eligible to seek a Domestic Restraining Order such as neighbors or an ex-wife and a new wife.
These orders are issued by a judge in court but, in emergency circumstances, a temporary order can be issued outside of court hours.
Domestic violence is a topic people don’t like to talk about. Victims of domestic violence feel shame at what they have experienced as well as fear of reprisal from their abuser if they talk about it. Harassment and threatening behavior by a neighbor, coworker or acquaintance can be unnerving and stressful. It can begin suddenly and should be taken seriously
The latest episode of our podcast, In Your Court, discusses more about the protections the law provides. Listen here.
No one should live in fear or feel unsafe going about their daily life. If you, or someone you care about, is being harassed or in an abusive situation, we can help you. Contact Conant Law, if you need legal help to guide you through the process of obtaining a Domestic Restraining Order or Harassment Prevention Order. Call or text us. Contant Law 617-227-8383.
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October 8, 2019
In this episode, Mike speaks about the recent ruling on the admissibility of the breathalyzer in Massachusetts’ courts. With the new ruling, should you take the breathalyzer or refuse? As a criminal defense attorney with significant experience in DUI/OUI cases, Mike talks straight about what you should do if you are pulled over.
Welcome to In Your Court. Today’s episode is entitled “DUI/OUI. What Do You Do?”
In this podcast Mike discusses the recent ruling in Massachusetts courts that the breathalyzer is now, once again, admissible evidence. So, with that recent ruling, what does a criminal defense attorney recommend you do when pulled over suspected of operating under the influence. This is Jordan Rich and I’m pleased to be back with Mike Contant an attorney whose firm, Contant Law, specializes in criminal defense and Title IX defense protecting the rights of the accused in Massachusetts.
JR: Very simply where do we stand now?
MC: Currently, as of June of this year, the breathalyzer tests being used in Massachusetts are admissible so long as they were calibrated under the new standards as of April 18, 2019. So, in other words, if the machine at issue has gone through the new calibration standards after April 18th of this year then the test results will be admissible. Absent some other reason that you can find to keep it out of court.
JR: OK. All right. Let’s talk about the role that you have as a defense attorney when you’re representing people. The recent changes in the law and they’re very recent as you just told us how is that changing the way you defend your clients?
MC: It hasn’t changed the way we’re defending our clients at all. It’s always been my position that people should refuse the breathalyzer test, so that that particular test cannot be used in evidence against them. The reasons behind all the challenges to the test had to do with whether or not the test was scientifically reliable. And so, it’s gone back and forth over a couple of years through a very intense and hard-fought litigation and for basically a little over two years they haven’t been admissible in Massachusetts at all until more recently.
JR: Now listeners to this podcast many of them will ask the question well what happens if I refuse? Aren’t there consequences to not taking the test?
MC: There are. So, whenever you sign your license you’ve signed what you’ve signed and agreed to what they call the implied consent law which basically says that you consent to take a breathalyzer test under certain circumstances if you’re arrested for drunk driving and if you don’t do so you’re gonna lose your license for a period of time. A refusal to take the breathalyzer test or a first-time offender results in license loss of six months and this is regardless of whether or not you’re ultimately found guilty or innocent of the charge it’s not part of the criminal prosecution. It’s a separate issue dealing primarily with the registry.
JR: So it’s your advice. Just want to be clear about this. If you’re pulled over and the police officer says take this test, you refuse?
MC: Yes. And the reason we do that is because that piece that test is a very valuable piece of evidence for the prosecution against you. The way the law is written currently if you blow above a .08 on the breathalyzer test that’s .08 percent blood alcohol level in your system it’s automatically they can be found guilty if that evidence is properly presented at trial. So, absent any other evidence you could be found guilty just for failing that test.
JR: And the reasons people might fail the test assuming that there’s something wrong with the equipment and it’s not calibrated correctly is what?
MC: Yes. So, there’s this many scientific reasons that were being challenged had to do with everything from the actual sensors that detected the alcohol in your system to interference from other things such as chemicals. People thought that one of the arguments was well if I use mouthwash could throw it off, other items could throw off the machine, it when there were challenges to that. It’s still basically computer. So, the machine source code there are challenges to whether or not that was proper. There’s a lot of scientific challenges to the machine which he found has not then all that reliable over time. As well as the calibration procedures that are used to make sure these machines are being accurate. And that was what the primary challenge was to litigate.
JR: So have we reached the gold standard as of April of this year in terms of calibration in your opinion?
MC: We’re going to find out the it’s gotten a lot better. Basically, under the old system they were doing these very quick tests. Many times, these machines would fail during the calibration process and as opposed to taking that machine and sending it back to Drager who was the manufacturer saying, “Can you fix the machine?” What the lab techs at the office of alcohol testing we’re doing was sticking the machine on a shelf for three days and then trying to calibrate it again hoping it would pass. In a recent case the machine at issue had failed every other calibration. And each time it was never fixed. No one ever looked into why it was failing. We asked a technician on the witness stand. “So, this machine failed this particular date. So why did it fail?”
His answer was, “Well because it didn’t register these numbers during the calibration.”
“Right. But why? What was the scientific reason behind its failure?”
And his answer was, “I don’t know.”
And I said, “Well what did you do to investigate that? Did you call the manufacturer?”
“Did you look into the inner workings of the machine?”
“Did you get a screwdriver and open it up and try to find this out?
That was under the old system. The new Newton new system is supposed to be better and only time will tell, quite frankly.
JR: All right. We have other issues though to contend with and that is advice for drivers who are finding themselves in this situation they’re pulled over for whatever reason. If it is a suspected drunk driving you have some very practical and sound advice for folks.
MC: Sure, I think Nancy Reagan said it best, “Just say ‘no”.” So, whenever you’re pulled over you’ll be asked to do a number of things. You’ll be asked to get out of your vehicle you really can’t say no to that. If the cop asked you to get out, you have to get the car. You’ll be asked for license and registration produce them promptly. Say as little as possible. If they ask you if you’ve been drinking, you can politely decline to answer those questions. They may ask you to step out and do what they call field sobriety testing which is a series of tests including saying the alphabet in a certain order, counting numbers backwards ,and tests that involve balancing components like what they call the one legged stand or the nine step walk and turn, these tests will all be used as in evidence against you should this case go to trial
JR: So you would politely decline to take those tests?
MC: Yes, and there’s no downside to decline those particular tests either says no license loss or anything like that. And essentially no one will ever know you decline them at trial and they’ll they won’t have that evidence against you. It’s a much cleaner and better case for you if they don’t have that evidence.
JR: Needless to say, do not be belligerent to any police officer.
JR: That’s only going to make things worse.
MC: when the police start this investigation they’re looking at everything you do. When they walk up to the car are you belligerent? Are you a jerk to them? That can be evidence of intoxication. Are you able to get your license out of your wallet without dropping it or fumbling it? Are you able to find your registration in your glove box? Are you able to interact with them in a normal manner? These are all initial signs that the police officers are looking for. They’re trained to look for these things as they’re approaching the car and as they’re interacting with you and they’re writing it all down.
JR: And if and when you go to the police station or have an opportunity to make that important phone call, the first phone call should be I would assume to an attorney who knows something about OUI?
MC:Yes. I prefer to call our office in each instance. But, yes, definitely if you know an attorney or if you have an attorney call them get their advice as to what to do. But the underlined advice that I give to everybody is just say no to any testing whether it be the breathalyzer test or field sobriety testing or anything else.
JR: And of course don’t drink and drive. First and foremost
MC: First and foremost. You probably won’t find yourself in this particular situation if you’re not drinking and driving but that that would be the best advice.
JR: Take an Uber or have a designated driver.
For more information about content law and oh UI or DUI charges Visit w w w dot Contant dash law dot com. Follow Contant Law on Facebook, Twitter and connect with them via LinkedIn. Then for specific questions email info at Contant dash Law dot com. We hope you found this episode informative. Please read and review this podcast and subscribe for additional episodes to stay informed and protect your legal rights including other drivers in your household. Thanks for listening. All episodes are available on all platforms. We look forward to your listening to future podcasts.
October 8, 2019
In this episode, attorney Mike Contant explains the laws in Massachusetts designed to protect people who are suffering from abuse or harassment. He will explain the legal process to protect yourself if you are a victim of domestic abuse or harassment.
Welcome to In Your Court. Today’s episode is: Taking Action in Court to Protect Yourself. In our podcast today Mike Contant shares statistics and explains how you can take action to protect yourself if you’re a victim of domestic abuse or harassment. This is Jordan Rich and I’m pleased to be back with Mike Contant, an attorney whose firm content law specializes in criminal defense and Title IX defense.
JR: Well Mike, let’s start with this question why are we focusing on this on “Taking Action in Court to Protect Oneself” today?
MC: October is Domestic Violence Awareness Month and that’s why I thought it would be a good time to talk about this particular topic. It does happen all year round but this is a month focused on making people more aware of the importance of defending yourself in domestic violence situations.
JR: And just to set the table here you are involved as an attorney representing people obviously defending those who are accused falsely or whatever and you’re also helping the victims in this case.
MC: Yes. So this is where our roles get a little bit blurred because I have represented people who have both been accused of abuse as well as people who are seeking orders to protect themselves from domestic abuse typically referred to as restraining orders by most people.
JR: We should start with some numbers some basic statistics as to the incidents of domestic violence. Do you have some of those numbers us?
MC: So, approximately one in four women will be the victim of domestic violence in their lives. Nearly 20 people per minute are physically abused the United States.
JR: That’s an incredible figure. We have to pay attention to this not just one month but throughout the year. So, let’s talk a little bit with you about legal issues and one of course that comes to mind is the restraining order. What is the restraining order all about here in the Bay State?
MC: Sure, there’s essentially two laws that deal with these types of orders. One is what they call a 209A restraining order. And that’s typically for domestic partners or people who are related either by blood or through family through marriage I should say or are roommates they’re the limited group of people that can be protected by this type of order.
And then there’s a second type of order known as harassment prevention order and they brought that into place back in 2005 I believe and that was to sort of fill the gap as to who could get protection orders because there’s a wide segment of the population particularly neighbors who might have been feuding or people being bullied either in school or in social media who are unable to seek any sort of protection from the courts from this type of abuse. What often actually happens I’ve seen happen a lot is exes. So, the ex-wife and the new wife may get into it and have some sort of an issue and neither one could seek a domestic restraining order against the other because I don’t fit that very narrow group of people that could seek one.
JR: You referenced the need to show evidence of suffering from abuse and physical abuse is very evident but how is that defined in the law because this is where it’s very critical
MC: In order to be suffering from abuse there’s a few different situations that can arise. One is you can be physically abused physically assaulted by the person. Another is that they could be forcing you into sexual relationships. A third in the most common where people are seeking these restraining orders is they are in fear of imminent serious harm being done to them. Those are the three ways that are considered abuse under the statute in order to be able to get a 209A restraining order.
JR: And then to secure the harassment prevention order which as we defined as is for those non-domestic partners and so forth. But what does someone have to bring to a judge’s attention?
MC: So that’s a little bit different there. There harassment is defined very differently. So, it does involve if someone’s forcing a sexual relationship on you or is or committing certain crimes that are specifically stated in the statute which are mostly sex crimes such as rape or indecent assault and battery things like that. But the most common way that we see are people who are in fear of being harassed are they have to show the judge essentially three separate occasions during which that person had acted in a harassing manner. And a harassing manner isn’t what you normally think it’s not annoying. It’s not someone who’s just being rude or yelling or screaming. It has to rise to a certain level. And the laws define that as what they call a true threat. The action or speech is literally a threat to cause you or cause a reasonable person to believe they’re in fear of serious in bodily harm or harm to their property. So an example might be the person the neighbor who takes a sledgehammer and says I’m going to hit you with this or I can hit your car with this or your home or try and destroy something that way.
That might be one instance of harassment, but you have to show three of those on separate occasions in order to obtain that type of order or one of the others I mentioned such as again forced sexual contact of some kind. Or they violate a certain type of law such as in rape or stalking. That would also qualify.
JR: That all makes a lot of sense. But what if it’s one person’s word against another. That fellow with the sledgehammer if I accused him of doing it and I can’t prove it except that I heard it. Where do we go from there?
MC: Well that’s what the courts are for. If it’s only one instance you wouldn’t be entitled to get that harassment prevention order anyway. You need at least three separate ones. But that’s what the judge is there for. So, this the courts are there for, Someone has to go and seek the order in the first place. And then there’s a hearing before a judge and the judge makes a determination whether or not the person has satisfied the actual requirements in order to issue the order in the first place so the judge will hear testimony will look at exhibits if there’s photographs or videos or anything else that might be out there.
Oftentimes it is just one person’s word and it’s up to the judge to decide who he is believing in that situation.
JR: Here in the In Your Court podcast it’s all about helping people with information so let’s do this. What’s the first step someone needs to do in order to secure the other a domestic restraining order or the harassment prevention order? Give us a quick walk through.
MC: The process is very similar for both. Essentially if you feel you’re either suffering from abuse at the hands of a domestic partner or blood or family member under a domestic restraining order or harassment or if you’re being feel you’re being imminently harassed by somebody your first step is to go to the court or to your local police station of the courts are closed. Let them know what’s going on. They’ll give you some paperwork to fill out in order to get the process rolling. And that’s typically referred to as a complaint and they’ll give you an affidavit so you can sort of tell your story in written form saying why I believe I’m entitled to this particular type of order.
JR: That’s one type of situation what if you’re in the heat of an emergency you’re in a crisis and you’re literally being threatened or being attacked what are your options?
MC: Get out of there if you can. Get to a phone call 911 get the police involved. If you are in serious harm of being physically assaulted or something of that nature that’s number one. Call the cops. Get them involved get some help. Get out of there. These orders are civil in nature. They’re meant to prevent it from occurring again in the future. So, what you’re doing after that after you call the cops and get them involved is to say, “Hey I need some help to keep this person away from me in the future.” It doesn’t do any good in that in the heat of that particular moment. The idea is to keep that person from abusing you harassing you in the future.
JR: Thanks for answering that question Mike. Let’s back up a little again to a non-emergency situation. What happens after that paperwork is filed initially?
MC: Once you file the paperwork either again, you should just go to your local court usually the district court in your area to file the particular paperwork, the court will review that if it’s during court hours and the judge will make a determination whether or not you need something immediately. The judge will say again with a domestic order he’s looking to see is there substantial threat of serious immediate bodily harm; with harassment prevention order is there a serious threat of immediate harassment. And if that standard is met the judge may issue a temporary order just on the person’s word who brought it to the court’s attention and if it’s after hours so it’s not during court hours or on the weekends, you go to your local police station and there’s judges on call who can deal with just those questions and potentially issue temporary orders in the situation where the judge either decides that it doesn’t rise the level of a true emergency it’s not necessarily needed at this immediate moment what they’ll do is they’ll set it down for a hearing at which time both parties, being the person who’s being accused of doing the abuse of the harassment as well as yourself as the plaintiff, can go in there and have a full hearing before the judge.
JR: And if the defendant does not show for that hearing what happens?
MC: In most cases the if the plaintiff the person asking for the order appears there will be still a hearing but a brief hearing before the judge and in most cases the judge will extend that order and they can extend the orders for up to a year.
JR: OK. And let’s talk about the role of an attorney here. Either party has the right of course to bring an attorney to that hearing. You’re not assigned one if you don’t have an attorney, correct?
MC: Correct. It’s unlike a criminal proceeding in a criminal proceeding if you can’t afford to bring your own lawyer they will give you a court appointed lawyer to help you through that proceeding. This is civil in nature. So, while you’re entitled to bring one you don’t have to and nor is the court required to give you one.
JR: You’ve been involved in these situations as a professional. Tell me what it feels like to the client and what your role really is along the way?
MC: I mean our role is to act as their advocate to guide them through the process. So, depending on when we get involved, we may be with them in the initial appearance when we go fill help them fill the paperwork out and go to court to hopefully get a temporary order. Even with a temporary order being issued the defendant still gets an opportunity to have their day in court so to speak within about ten business days after the initial order. So, there is a full hearing at which that person and any of their witnesses get to show up and we have a full hearing. My role as an attorney is to help my client by making sure number one, do we have the right information to bring to court whether it be photos or video or just their testimony making sure they’re prepared to tell their story in court.
My role on the flip side of that, is when the other person the defendant in this case is again putting up putting their witnesses on the witness stand telling their story providing their evidence to act as the attorney and to show inconsistencies in the story to show to basically try and discredit them as best I can through cross-examination and to basically make sure that my client’s side is much more convincing and more believable to the judges making the decision.
JR: Now you did a great job telling us about the process getting involved. Can we talk a little bit about what happens when one of these orders is put into place the terms of both the 209A and the 258E. If you don’t mind.
MC: They’re similar in nature essentially, for 209A in particular, there will be no abuse. Almost every case says you know you cannot abuse the other person, You cannot contact the other person in some cases or you have to stay a certain distance away from the other person. And that includes their home and their work and their school. Sometimes it includes a child’s daycare or child’s school as well. If the person has firearms or a firearms license they need to surrender those while the order is pending that’s another common provision. You can’t contact that person in any way shape or form.
That means in-person, on the telephone, by email, social media. You can’t even do nice things so if you were to send your you say your ex-wife who got this order against you flowers on her birthday that’s a violation of the order and you could be arrested for violating the order.
JR: I guess the question always comes up when we hear a terrible tragedies that that orders have been ignored or neglected. How effective are they overall. I mean we don’t hear about the good ones we hear about the bad ones.
MC: I’d say overall the vast majority of people do follow the orders because the penalties if they don’t can be severe. You know the order is civil in nature it doesn’t appear on a criminal record although there is a domestic violence record that is akin to a criminal record that it does appear on. But if you violate this order in any way you will have separate criminal charges which can have very severe penalties. So, the vast majority of people they follow that they understand that. Many violations of these orders are minor though. So we have we had a recent example of someone who clicked like on their wife’s Facebook page and that turned into a violation and a criminal charge because they could be just that simple to be violation, not a very serious violation. But, truth be told if the person is really a violent person or a psychotic person the order can only have so much effect at the end of the day is still just a threat a piece of paper as some people say.
But I’d say I still believe the vast majority of people – in my experience – do follow the orders.
JR: Well there’s something known as the exclusion zone which makes a lot of sense. That’s the victim’s residence, work, where the kids go to school, etc. and they even use GPS I’m told GPS bracelets to monitor location of people.
MC: They’ll do that in the criminal matters. So, if a person is charged with violating an order they one of the conditions of their release while their case is pending might be that they wear a GPS monitoring bracelet and they stay away from certain areas. If they’re on probation, if say they’ve violated the order and then been subsequently found guilty of that that can be a term of their probation is to wear a monitoring bracelet and stay away from certain areas if they walk into that particular area, an alarm goes off and the police are alerted and a warrant is issued and that person can be arrested for a separate violation
JR: Let’s just say someone is served one of these orders and follows the rules and does what he or she has to do to get through this process. What’s the long term ramification on someone’s record?
MC: So, it’s not a criminal offense but there’s a domestic violence record out there. So, there’s a criminal record that most people understand generally just from watching TV and whatnot you know you talk about your record all the time. And it doesn’t appear there it’s because it’s not a criminal offense but there’s a separate domestic violence record that gets run pretty much every time if you were to go into court for something it gets run and it shows up on there. So that it could with certain you may be denied certain jobs if the job has access to that particular database and that record showing that you had that order against you in sometime in the past and that records there forever.
JR: The bottom line, domestic violence and harassment is a problem and one that we have to address. What advice do you have for people who are victimized by this?
MC: If you’re the victim of domestic abuse or any abuse quite frankly, you need to report it immediately. Report it often, even if you know you feel like you weren’t taken seriously the first time. If it happens again you need to report it and keep reporting. Develop that record in order so you can protect yourself and hopefully keep it from happening again in the future.
JR: Thank you, Mike. The stats are staggering but the hope for taking action by getting the right order in place is encouraging. If you’d like more information about Contant Law, restraining orders and harassment prevention orders visit w w w dot Contant dash law dot com you can follow Contant Law on Facebook, Twitter, and connect with them via LinkedIn. For specific questions email info at Contant dash law dot com. We hope you found this episode informative Please rate and review this episode and subscribe for additional want to stay informed and protect your rights and your record.
Share the podcast with your friends to help take steps to protect themselves. Thanks for listening. This episode is available on all platforms. We look forward to listening to future podcasts.