October 9, 2020
The Problem With Letting Your Kids Talk to the Police
Police Need to Involve You Before They Can Question Your Kid
Just Say “No” (Politely)
October 8, 2020
Before Considering a Plea
What Does the Process of Tendering a Plea Look Like?
What If You Can’t Agree?
What If I Don’t Get the Sentence I Want?
Understanding the Rights You Give Up With a Plea
A Plea Must Be Knowing, Intelligent and Voluntary
“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
Right to a Trial
Presumption of Innocence
Giving Up the Right to Tell Your Side of the Story
Right Against Self-Incrimination
Beware If You’re Not a U.S. Citizen
October 7, 2020
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
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
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
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.