New marijuana law leads to administrative nightmares

The people of Massachusetts voted to decriminalize the possession of an ounce or less of marijuana. Now the greater issue is the enforcement of the new policy. The new law essentially converts a criminal offense of possession of marijuana into a civil violation.

To qualify a person must not have pled to possession of marijuana in the past. If a person does qualify, the law requires the state to convert the criminal offense into a civil violation. A person then would be required to pay $100 fine, and attend a drug treatment class. The parameters of the new law seem simple enough, but the law is silent to its administration. As a result, the new law has lead to serious problems for the court system.

The law does not state who should be issuing the fines. When a police officer finds marijuana on a person, should he or she be issuing a citation similar to a trafficking ticket? Or should the police officer still file for a criminal complaint, and allow the judge to convert it later on?

There is no way of keeping track of people that are being fined. The purpose of the law is to give a break to a first time offender. The law does not state what entity should be keeping count on how many times a person has been caught. Essentially when a police officer has caught someone with an ounce of marijuana, he has no idea if the person is a first time offender, or has been caught with marijuana many times before.

The law does not state who should be collecting the fines, or what the penalties for non-payment are. Should a police officer collect the fine on the spot, or should he tell an offender to send the money somewhere?

Finally, this drug treatment class that people are required to take also poses a serious administrative problem. Unlike AA for alcohol treatment, drug treatment programs are not as readily available around the state. Once again the law is unclear on who should be signing up offenders, keeping track of the people who go and enforcing the penalties for non-compliance. Whether you agree with the policy or not the law leads to serious administrative issues.

Telegram reports on the new law

Boston Globe reporting on recommendations to clear up the confusion

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DUI-What to do when you been drinking and then get pulled over

When most people get pulled over for the first time on suspicion of operating while under the influence of alcohol, or DUI they have no idea what to do. As a result, their actions can really put them in a bad situation when they go to court. Law enforcement is now more aggressive than ever patrolling the streets, and looking for drivers suspicious of DUI. Obviously the best thing to be pulled over for a DUI or to have a designated driver. However, if you do find yourself in a vulnerable position, here are a few suggestions to best protect yourself in a DUI situation.

When you get pulled over for a DUI be kind, courteous and don’t say stupid things. It seems obvious, but I have seen so many people in DUI cases are rude or say stupid things. The officer will put all of your statements in his or her DUI report, so be careful. During a DUI investigation, follow the officer’s instructions, and hand over your license and registration upon request. This isn’t a time to start telling the officer about the people you know, or to yell at the officer. DUI laws are much tougher now. Telling the police officer that you know someone that is a policeman, elected official, or any other person you may think is influential or famous will do you no good for DUI cases. If you start yelling at the police officer, it will just lead to you being arrested quicker for DUI.

In DUI cases, refuse to take the field sobriety tests. I get the question of should I take the field sobriety tests quite often. Unless you absolutely sure that you can pass all the field sobriety tests, don’t take any field sobriety tests. It is your right not to take field sobriety tests, even though police officers don’t have to tell you that. Once again be courteous and tell the police officer “no thank you, I am all set, I don’t want to take any field sobriety tests”. If you refuse the field sobriety tests, there is a good chance that you will be arrested. However, if you don’t meet the officer’s expectations in the test you will be arrested  for DUI anyway. The prosecutor cannot mention that you refused to take the field sobriety tests at the DUI trial.

In a DUI case, don’t take a breathalyzer. It is becoming increasingly difficult to suppress the breathalyzer at a DUI trial. The breathalyzer is a strong piece of evidence at the DUI trial, and it is important that you don’t take the breathzlyer. If you refuse the breathalyzer your license will be suspended. The length of the suspension depends on your record for DUIs. If it is your first DUI, then your license will be suspended for 180 days. It is a long time to have your license suspended, but it is worth keeping out the breathalzyer. The prosecutor cannot mention that you refused to take a breathalyzer at a DUI trial.

Call a lawyer. Make sure the lawyer that you hire is a good DUI trial attorney. You want a DUI attorney who knows how to try cases, and is willing to try them. You don’t want an attorney to push you into pleading guilty to the charges just because the attorney is afraid of a DUI trial.

The law on OUI-

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End to sex talk?

Craigslist a very popular internet website has decided to end its “erotic service” section. This is in response to intense pressure from the media and the government, after the Phillip Markoff incidents. While most people are following the Markoff story, a more subtle change in internet sex talk has been rightly overshadowed.

When a person is charged with prostitution they are charged with sexual conduct for a fee. In order for the government to prove that a person is guilty of sexual conduct for a fee it must prove two elements. First, that the defendant either engaged, or agreed to engaged, or offered to engage, in sexual conduct with another person. And second, that the sexual conduct was or was to be done in return for a fee. Both a customer and the prostitute can be charged.

Police has tried to find ways to monitor internet postings offering sexual services for a while now. The difficulty for police came up when people got creative with their wording making it hard to arrest and prosecute people based on their postings. People would use words such as massage services to slip by the law. Some of these postings would go even further and say “topless”, “naked” or even “special” massages. Law enforcement knew exactly what most of these posts were trying to sell and when police set up stings their theories were confirmed.

Craigslist taking down its “erotic services” section marks a significant change to the way that sex is marketed online. Police has been trying hard to shut down these types of interactions and now because of the serious allegations Markoff is accused of it has happened. There are still a lot of other internet sites that people use to market and find sexual services, so it is not the end. However, Craigslist was one of the most popular websites, and for now the sex talk has gone silent.

Read more about the story from the New York Post

Report by ABC news

Report by the Worcester Telegram

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Trial attorneys on the brink of extinction?

When most people think of attorneys they immediately think of a person standing in a court room addressing a judge or a jury. That is what television and the media lead people to believe. The truth is that the majority of lawyers you will meet have never, and will never set foot inside a court room. Even with attorneys that go to court a lot, very few of them ever try a case.

There are many reasons why there are very few attorneys that try cases. First, most cases whether criminal or civil are resolved short of trial. The percentage of a civil cases going to trial is very small. Civil cases can take years and there is a lot of pressure to settle cases. A higher percentage of criminal cases are tried, but even in criminal cases clients often elect to take lesser sentences through plea bargains.

Second, there are fewer attorneys learning how to try cases. Seeing that there are fewer cases going to trial, there are fewer opportunities for attorneys to learn. Even if an attorney is lucky enough to find a job in a firm that has a litigation department, many do not try their own cases. Attorneys who get jobs at big firms usually assist in getting the case ready for trial, and then hand off the case. Many clients do not want a young attorney who they believe is not as good handling their cases at trial. Instead they want the older, more experienced attorney who they believe is better.

Finally, it takes a certain personality to be a trial attorney. People may disagree on what combination of skills and personality make up the best trial attorneys; however, most people will agree that a good trial attorney is not afraid of trying a case. The factors of fewer cases going to trial combined with fewer attorneys learning how to try cases creates fear.

The amount of criminal and civil cases in the court system has not decreased over the years, but the amount of these cases going to trial has. There are many times where settlements and plea bargains are the right resolutions. However, for all the other times where a trial is appropriate, you may be hard pressed to find a good trial attorney.

For more information check out:

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Published in: on May 12, 2009 at 5:55 pm  Leave a Comment  

Make sure your criminal lawyer knows about your immigration problems

It is very important that you tell your criminal lawyer about your immigration issues. Most criminal attorneys don’t ask their clients about their immigration status. There are serious immigration consequences that you can face if you plead out. To make matters worse it is becoming increasingly difficult to reopen your case. Most district court judges will make sure that they give immigration warnings and mark that on the docket sheet. So be aware and ask your attorney before it’s too late.

New York State Defenders Association has posted this wonderful check list online at

Read more about Criminal Charges and Immigration Consequence by Vincent Martin

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Published in: on May 12, 2009 at 5:07 pm  Comments (2)