Violating probation could lead to more jail

Most people would rather be on probation than be in jail.  Therefore, most are willing to accept any terms on probation to avoid jail time.  The problem arises when the person violates probation.  If probation is violated, it is possible to serve more jail time than a straight committed sentence.

A straight committed sentence is when a person is committed to jail for a certain period of time.  It is understandable that people want to get out of jail so they want probation.  The problem occurs when people violate the terms of their probation and end up back in court.

If a person is found in violation of their probation, the judge can sentence the violator to the maximum sentence for each charge they are on probation for.  Technically if a person has 4 different charges they are on probation for, and if each charge carries a sentence of up to 2 ½, then a person could be in jail for up to ten years.  Now it is uncommon to see a judge, especially in district court to sentence a violator to serve a sentence consecutively, or one after another.  It is more common to see a judge allow a person to serve their sentences together or concurrently. 

 However, the issue still remains that under certain circumstances a short committed sentence may be better in the long run than probation.  If a person knows that they are not a good probation candidate and they are just going to end up violating then a straight committed sentence may be the way to go.  In the end, doesn’t it make sense to be in jail for a shorter amount of time right away verses a much longer period of time down the road?  This is something that you should consider prior to agreeing to probation. 

Interested twitter followers please visit- twitter: http://twitter.com/AttorneyChan

Interested in becoming a Facebook fan please visit http://www.facebook.com/home.php#/pages/Boston-MA/Law-offices-of-Attorney-Jason-Chan/101494423854?ref=sgm

For more information:

 http://www.jud.ct.gov/faq/adultprob.html

http://www.mass.gov/courts/courtsandjudges/courts/juvenilecourt/violation-probation-order.pdf

http://www.leg.state.fl.us/statuTes/index.cfm?App_mode=Display_Statute&URL=Ch0948/titl0948.htm

http://www.criminal-law-lawyer-source.com/terms/probation-violation.html

http://www.delsignoredefense.com/lawyer-attorney-1426070.html

http://www.mckennapc.com/PracticeAreas/ProbationViolation.asp

http://www.topaziolaw.com/PracticeAreas/Clerk-Hearings-Probation-Hearings.asp

http://www.expertlaw.com/library/criminal/sentences.html

License effects for breathalyzer refusal

 In a previous post I talked about the breathalyzer process, but how does your license actually get suspended. Remember the more you understand the process, the better you will be able to protect yourself.

During the booking process the police will ask if you want to take a breathalyzer. Then the police will show you a form. On the form you can sign that you want to accept the breathalyzer or you choose to refuse the breathalyzer. Not signing the form is considered a refusal. Asking for a lawyer prior to signing the form is considered a refusal. Failing to properly administering breath samples could be considered a refusal. Agreeing to give breath samples and later refusing is also considering a refusal.

First offense. Okay, so say if this is the first time you were ever arrested for suspicion of OUI. You decide not to the breathalyzer, what happens to your license? Well if you decide to refuse the breathalyzer and this if your first time you license will be suspended for 180 days. If you are under the age of 21 and you refuse a breathalyzer, your license will be suspended for 3 years.

Second offense. The analysis for a second offense gets trickier for the purpose of license suspension for breathalyzer refusal. If it is your second offense and you refuse the breathalyzer, your license will be suspended for 3 years for the most part. However, there are different situations that can change the amount of time your license is suspended. If a person was charged with OUI with serious bodily injury for their first offense and then charged with an OUI second offense, then their license will be suspended for 10 years. If a person was charged with OUI manslaughter by motor vehicle, or vehicle homicide, then their license will be suspended for life.

Third offense. If you have two OUIs on your record already and refuse a breathalyzer then your license will be suspended for five years.

Fourth offense. If you have three prior OUIs on your record and refuse a breathalyzer, then your license will suspended for life.

That is a basic summary of license suspension, but the actual analysis is more complicated. It is not uncommon that the DMV or the police incorrectly categorize the refusal. There may also be different ways for you to get license relief. OUIs are serious and you should talk to an attorney right away if you have refused a breathalyzer.

Interested twitter followers please visit- twitter: http://twitter.com/AttorneyChan

Interested in becoming a Facebook fan please visit http://www.facebook.com/home.php#/pages/Boston-MA/Law-offices-of-Attorney-Jason-Chan/101494423854?ref=sgm

Check out the following sites for more information: Registry of Motor Vehicles http://www.mass.gov/rmv/suspend/index.htm http://www.madrunkdrivingdefense.com/drunk-driving.htm

http://www.delsignoredefense.com/lawyer-attorney-1394684.html

http://www.massdui.com/breathtestmachine.htm

http://www.dwilawoffice.com/massachusettsbreathtestrefusal.html

http://www.lawworcester.com/PracticeAreas/OUI-Statutes.asp http://www.dui.com/massachusetts

Do you really know what a jury trial is about?

Unless you were chosen to serve as a juror, most people don’t know what jury trials are really about.  Sure, court room dramas are nice, but movies seldom explain the process.  Here are a few points about one of your most important consitutional rights. 

 The number of jurors: Depending on what court you are being tried, the number of jurors will vary.  The district court requires a unanimous decision by 6 jurors.  The superior court requires a unanimous decision by 12 jurors.  In short, the superior court requires twice as many jurors to return a verdict.  One reason for this difference is that the penalties are much more severe in superior court.  The stakes being higher, the amount of jurors are also higher. 

 Alternates: Most judges will sit more jurors than is required.  In both the district court and the superior court it is very common for the judge to impanel more jurors than required.  Judges will sit alternate jurors in case people have emergencies that arise.  If a judge empanels the minimum amount of jurors and a juror is unable to perform his or her duties, then the judge will most likley have to declare a mistrial.  To avoid this problem, judges will sit additional jurors. 

 Impaneling a jury:  The amount of time it takes to impanel a jury can very significantly.  Essentially, the court wants to impanel an impartial jury and for certain cases this can be difficult.  If you have jury duty, I am sure this isn’t something that you want to hear.  Cases that particularly take a long time to impanel a jury are cases involving sex offenses.  It can take days if not weeks to impanel a jury for a child molestation or rape case.  So if you are serving jury duty and find yourself as a potential jury in a sex offense case prepare for a long process. 

 Decision: As I have mentioned before, a jury decision in Massachusetts needs to be unanimous.  This means that the entire jury needs to agree with the decision of guilty or not guilty.  As you can imagine, this can make for long jury deliberations. 

 This post gives you a little background on jury trials.  Jury trials are complicated and it is never a good idea to represent yourself in a trial.  In the end, it is important to remember that it is not a perfect system.  However, it is bar far the best one ever created.

 Interested twitter followers please visit- twitter: http://twitter.com/AttorneyChan

 Interested in becoming a Facebook fan please visit http://www.facebook.com/home.php#/pages/Boston-MA/Law-offices-of-Attorney-Jason-Chan/101494423854?ref=sgm

 For more information:

 About the Massachusetts Jury System

http://www.mass.gov/courts/jury/introduc.htm

 Preparing for a jury trial

http://articles.directorym.com/Preparing_for_a_Jury_Trial_Agawam_MA-r935226-Agawam_MA.html

Glossary of trial terms

http://guides.gottrouble.com/Glossary_of_Jury_Trial_Terms_Massachusetts-r1204930-Massachusetts.html

Defense of Massachusetts Jury Service System

http://www.associatedcontent.com/article/1289579/defense_of_massachusetts_jury_service.html?cat=17

Anatomy of a jury trial

http://www.america.gov/media/pdf/ejs/0709.pdf#popup

Vanishing Civil Jury Trials

http://legaltalknetwork.com/podcasts/boston-bar/2009/04/the-vanishing-civil-jury-trial/

Global Positioning System (GPS) and the criminal justice system

Ten to fifteen years ago, GPS was pretty much an unknown to the public.  Now GPS technology is used in cars for directions, cell phones to find the closest café and in the criminal justice system. 

It is more common today to see GPS monitoring as part of a person’s criminal disposition.  Many times attorneys will use it as a last bargaining chip to keep their clients out of committed time.  This post is not to consider the pros and cons of the GPS monitoring, but to dissect what the GPS is really all about. 

If you are pleading out to a charge that requires you to be monitored by GPS what does that really mean?  Well first, the purpose of the GPS is to track and monitor the movements of the probationer.  The GPS itself operates on inclusion and exclusion zones. 

The person being monitored has to wear a transmitter that will allow the person to be seen wherever he or she goes.  The person who is wearing the transmitter must also carry a phone with them all the time.  If the person walks into or near an exclusionary zone, he or she will receive a phone call to leave right away.  If the person doesn’t leave after the phone call warning or doesn’t pick up the phone, the police will be called. 

The length of time that a person is to be monitored is to be decided by the judge.  The cost of this device is $9.45 a day or around $300 a month.  This fee can be waived by the judge.  The inclusion and exclusion zones are also usually decided by the judge.  For example, the usual exclusionary zones for sex offenders are playgrounds, schools and daycare centers.  The exclusionary zones can also be more tailored to the particular case, such as the victim’s home, work or school. 

Some things to keep in mind are that the GPS monitoring is mandatory for most sex offenses.  In order to get on a GPS there needs to be a unit available and a time to hook the person up.  The hook-ups are scheduled through the Commissioner of Probation (OCP).  If a person is custody and the judge won’t release them until they have a GPS, it may take a little while to find an available unit and to schedule a day for OCP to come hook up the unit. 

 GPS monitoring is becoming more common in Massachusetts and in different states.  The process that I have discussed in this post is not a universal procedure.  It is important for you to find out the protocol in the county that will be doing the monitoring. 

 Interested twitter followers please visit- twitter: http://twitter.com/AttorneyChan

 Interested in becoming a Facebook fan please visit http://www.facebook.com/home.php#/pages/Boston-MA/Law-offices-of-Attorney-Jason-Chan/101494423854?ref=sgm

For more information about GPS, visit:

More States Move to use GPS Tracking of Sex Offenders

http://www.foxnews.com/story/0,2933,196455,00.html

 Attorney Dan Schulman’s blog about GPS

http://gpsevidence.blogspot.com/2009/09/voluntary-gps-tracking-for-impulsive.html

 William Saletan-Why GPS tracking is good news for inmates

http://www.slate.com/id/2118117/

Is GPS monitoring the better way?

http://sentencing.typepad.com/sentencing_law_and_policy/2006/11/is_gps_tracking.html

Passing a bad check could land you in cuffs

We write checks all the time. Most people will at least write one check a month. Thankfully for debit cards you are less likely to see someone pull out a check book at a store. However, writing checks is still a big part of paying bills for most people. Passing a bad check, could land you in jail.

If you write a check and there are insufficient funds in your checking account, you could be charged with larceny by check. Essentially, the prosecution needs to prove that:

• you wrote the check

• got something in return for writing that check

• knew that you didn’t have enough funds in your account

• wrote the check with the intent to defraud someone

With the economy as bad as it is, a lot of people are struggling to pay their bills. As a result, people’s bank accounts are dwindling and this could lead to more checks being bounced. When you bounce a check, it is pretty easy for the prosecution to prove that you wrote a check and got something in return. After all, most of us write checks to pay bills or in exchange for something.

It is much more difficult for the prosecution to prove that you knew that you didn’t have enough funds in your account, or had the intent to defraud. The prosecutor can’t look into your brain and see what your intent was, so they will have to rely on other evidence. One of the most common ways for the prosecution to try to prove that you knew there was insufficient funds and had the intent to defraud, is to look at the account. For example, if you wrote a check for $5,000 and your account usually has $5,000 or more, then it won’t help the prosecutor’s case much. On the other hand, if you write a check for $5,000 and your account never had more than $10 in the account, then that will be a problem for you.

Most people who bounce a check will never be charged with anything. Times are difficult making bad checks more common. In the end, to avoid any possible problems check you account status and make sure checks clear.

Interested twitter followers please visit- twitter: http://twitter.com/AttorneyChan

Interested in becoming a Facebook fan please visit http://www.facebook.com/home.php#/pages/Boston-MA/Law-offices-of-Attorney-Jason-Chan/101494423854?ref=sgm

For more information about this post:

MA General Laws Chapter 266: Section 37. Fraudulent checks, etc.; drawing or uttering http://www.mass.gov/legis/laws/mgl/266-37.htm

Jury Instructions on Larceny by check http://www.mass.gov/courts/courtsandjudges/courts/districtcourt/jury-instructions/criminal/pdf/8460-larceny-by-check.pdf

News day report on larceny by check scam http://www.newsday.com/long-island/nassau/cops-elmont-man-charged-with-attempted-larceny-1.1429338

Berkley man faces larceny by check charge http://www.wickedlocal.com/berkley/news/x1564860184/Berkley-man-faces-list-of-charges-in-alleged-check-scheme

Threats on Facebook, Myspace, Twitter and other social media outlets

Social medial has taken over. Now almost everyone is on these sites. Even professionals are getting involved. Doctors, lawyers, movie stars, sport athletes, the list goes on and on. For the first time, people are connected at all times. And it should be no surprise to anyone that when people are so connected, issues are bound to arise.

The issue with Facebook and Myspace is that you can post messages on each other’s pages. Depending on the user, these messages can be viewed by only certain people, or by the public. One of the major problems is when people start posting horrible messages to one another.

So the real question is when can these messages be qualified as a threat? When can a person be charged for posting a message on Facebook or Myspace? When can a person try to file charges on someone who they think is threatening them on Facebook and Myspace?

The question is one that I get frequently, but the answer is harder to come by. In order to convict someone of threat to commit a crime, the prosecutor needs to prove three things beyond a reasonable doubt.

• First, the person communicated to the alleged victim an intent to injure his/her person or property, now or in the future.

• Second, the injury that was threatened, if carried about, would constitute a crime.

• Third, the person made the threat under circumstances which could reasonably have caused the alleged victim to fear that the person had both the intention and the ability to carry out the threat.

In terms of the messages, the DA may consider the type of messages that are posted and the amount of messages that are posted. Also, the prosecutor needs to prove that the person being charged is the person who actually posted the message. This may be more difficult than you think because the fact that a message comes from a particular Myspace or Facebook account doesn’t necessarily prove that he or she posted the message. People have their accounts hacked or may let other people use their accounts and this situation can be argued by the defense.

To substantiate that the person being charged is indeed the person who sent the message; the DA may look to other evidence. If the DA can find a motive for the person to be sending threatening messages, then their case may become a lot stronger.

There is no real answer to the question of when you can be charged with a crime of threatening for posting a message on a social media site. It really depends on the circumstances. What evidence can be used to support the threat? This largely is determined on a case by case basis. However, a good rule is to not threatened anyone, and definitely don’t post those threats online.

Interested twitter followers please visit- twitter: http://twitter.com/AttorneyChan

Interested in becoming a Facebook fan please visit http://www.facebook.com/home.php#/pages/Boston-MA/Law-offices-of-Attorney-Jason-Chan/101494423854?ref=sgm

For more information about this post: Teen charged with posting threat on Facebook http://www.chicagobreakingnews.com/2009/03/student-charged-in-facebook-threats.html

Man on $1 million dollar bail for Facebook threats http://www.myfoxphilly.com/dpp/news/local_news/091409_Man_Facebook_Threats

Man pleads guilty to racial threat using fake Facebook account http://www.cnn.com/2009/CRIME/08/13/facebook.racial.threat/index.html

Woman sued over Myspace threats http://www.chicagobreakingnews.com/2009/04/ricobene-myspace-lawsuit-jpmorgan.html

Man Arrested for Myspace threats http://howtosplitanatom.com/news/miami-man-arrested-for-myspace-threat/

Bench warrants-Effects, removing one and taking care of it before you get arrested

 There are many reasons why you may have a bench warrant out for your arrest. The most common reason is that you failed to show up in court for a scheduled hearing. The court can also issue a warrant for other reasons, for example, failing to pay a court fine. If a bench warrant is issued, it poses several issues for you.

First, if you are ever stopped by police, you can be arrested. After you are arrested, you will usually be brought into court the next day. Unfortunately, if you are arrested on a Friday night, the earliest you will be brought into court is the following Monday.

There are also other potential issues about having a warrant on your record. The registry may suspend your license, or not allow you to renew your license until the warrant is cleared. The registry can do this right away or years later. Either way, the warrant is going to catch up sooner or later.

For the most part, in order to remove a warrant, you must show up to court. When you fail to appear in court, the court enters a default on the case and issues a warrant for your arrest. Essentially, the case needs to be taken out of default and then the judge needs to lift the warrant.

When removing a default the judge could detain you. One of the factors the judge considers is if you are a flight risk. Depending on what the excuse for failing to appear in court is, the court may decide to hold you in custody. Therefore, it is always smart to have an attorney with you when removing a warrant.

Interested twitter followers please visit- twitter: http://twitter.com/AttorneyChan

Interested in becoming a Facebook fan please visit http://www.facebook.com/home.php#/pages/Boston-MA/Law-offices-of-Attorney-Jason-Chan/101494423854?ref=sgm

For More information about this post, here are some interesting websites: Outstanding warrant?

Protect yourself against being jailed for traffic stop… http://www.masscriminaldefense.com/warrant.htm

Attorney that removes warrants in Miami FL http://www.defendyourcase.com/Areas_Of_Practice/Bench_Warrants.aspx

How to get rid of bench warrant http://ezinearticles.com/?How-To-Get-Rid-Of-A-Bench-Warrant&id=1070221

CA attorneys that deal with warrants http://www.shouselaw.com/bench-warrants.html

San Diego and LA California warrant attorney http://www.hoffmanlawoffice.com/PracticeAreas/RemovingWarrants.asp

How to deal with that restraining order

Restraining orders or 209A orders are very common.   One moment you think it can never happen, the next you are being served with a restraining order.  Let’s face it, most of you will be shocked when you are served and upset and angry later on.  The important thing is to understand what is going on so you can best protect yourself.  Let’s take a look at the issues.

 The most important issue perhaps is service.  Were you properly served with the restraining order?  To violate a restraining order you must know that one exist and you were properly served with said order.  Now, most orders that you receive before a hearing are temporary in nature.  The order usually only lasts for a short period of time; usually seven days.  At the end of the temporary restraining order, there is usually a date to appear in court for a restraining order hearing. 

 What is the restraining order hearing?  The restraining order hearing is held to allow the judge to determine whether to extend the restraining order or to terminate the order.  At this hearing, the judge will first read the affidavit from the complainant.  Then the judge will ask you if you are contesting the order.  If you are contesting the order, the judge will usually allow for testimony.  The complainant is usually allowed to tell their side of the story first.  Then the judge will usually give you an opportunity to voice your story. 

 The ruling.  The judge will make a determination of whether the restraining order should be extended.  The time period the restraining order should be extended.  And the conditions of the restraining order.

 Protect yourself.  You need to be careful of what you say in court.  The hearing is recorded and anything you say can be used against you further down the road.  If you have criminal charges pending against you, then you need to talk to an attorney.  If you have pending charges it isn’t wise to testify, especially without an attorney being there. 

 Abide by the order. It is important that you abide by all the terms of the restraining order.  Many people get themselves into trouble because they believe it is okay to contact the complainant.  If one of the terms of the restraining order is no contact, you cannot contact the complainant.  If you have a restraining order against you and the complainant contacts you, you are still violating the restraining order if you contact them. 

 The order itself is civil in nature, but violation of that order is a criminal offense.  If convicted of violation of a restraining order you can be sentenced to a jail term.  So be smart, protect yourself, abide by the order and hire an attorney to help. 

 http://www.marlborough-ma.gov/Gen/MarlboroughMA_PoliceDept/restrainingorderfaqs

 http://www.malawforum.com/content/ma-chapter-209a-restraining-order-and-ten-day-hearing

 http://www.womenslaw.org/laws_state_type.php?statelaw_name=Restraining%20Orders&state_code=MA

 http://www.massoutrage.com/ma/restraining-order-resources/fighting-false-restraining-orders/

 http://www.crimevictimlaw.com/restrain/restrain.html

 http://www.bostoncriminallaw.net/blog/

 http://criminal.altmanllp.com/lawyer-attorney-1445344.html

 http://www.davidyannetti.com/PracticeAreas/Restraining-Order-Violations.asp

 http://articles.directorym.com/How_To_Get_Restraining_Order_Massachusetts-r993167-Massachusetts.html

How to deal with that horrible speeding ticket

Alright, everyone hates speeding tickets.  Not only do you have to deal with the large fine, your insurance gets increased for five years.  Worse, if you have three moving violations in a year, your license can be suspended.  So here are a few things to keep in mind for a speeding ticket. 

 Be polite.  When you get pulled over do not yell at the police officer.  You need to follow instructions and be polite.  This sounds simple enough, but a lot of people want to argue with the officer.  Arguing will get you no where.  It only gives the officer more incentive to write you the ticket, to show up in court and to say that you had a bad attitude while he is testifying.  So be polite, even though you are not happy about the situation. 

 Look at the ticket.  You need to examine the ticket itself carefully.  First, look at the time and date to see if they are accurate.  Next, look at the information about your car.  See if the officer wrote the right information down correctly.  Finally, look to see if the officer estimated your speed or used radar. 

 File the appeal.  It doesn’t hurt to try to appeal your ticket.  The first hearing will be in front of a clerk.  The clerk’s hearing will cost you $25.  If you lose at the clerk’s hearing you can then appeal the clerk’s ruling in front of a judge.  The officer that wrote you the ticket doesn’t need to show up at the clerk’s hearing, but needs to show up in front of the judge’s hearing. 

 Make a decision.  You need to make a decision and figure out how important winning the ticket is for you.  You may want to just pay the ticket and get it over with.  You may also want to fight the ticket to the end because you already have two moving violations in one year.  If you do want to fight the ticket and put forth your best case, you may want to consider hiring a defense attorney for help. 

 http://articles.moneycentral.msn.com/Insurance/InsureYourCar/ItPaysToAvoidaSpeedingTicket.aspx

 Attorney Jessica Foley’s Blog on License issues

http://massdrivinglaw.typepad.com/massachusetts_driving_law/speeding_tickets/

 Turnpike looking to increase revenue by issuing more tickets

http://www.encyclopedia.com/doc/1P2-13456882.html

 Police ordered to issue more speeding tickets

http://www.bostoncriminallawyerblog.com/2007/12/massachusetts_state_police_ord.html