Don’t consent to search of your car or person

Police need to have a good reason to search your car or your person.  If the police have a valid search warrant then they are allowed to search the areas that are specified in the warrant.  However, in most searches of cars and people, police don’t have a warrant because they don’t have time to get a warrant. 

If the police search a person or car without a warrant, they need a legally recognized reason to search.  If the police don’t have a legitimate reason to search, then the court may end up suppressing the evidence that was found. 

The most important thing that a suspected person can do is not to consent to any search.  A lot of people will consent to a search of their person or car because they believe they have no other choice.  What is even more astounding is that many people will consent to the search knowing that there are illegal materials in the car or on their person.

Once a person gives consent, it helps the police greatly.  When a person consents to being searched, the police no longer need a legitimate reason to search.  The police are allowed to search because the person has consented.   The police do not need to warn the suspect that he has the right to refuse to be searched.  The lesson is never consent to a search.  If the police find evidence so be it.  Don’t take away your own rights by consenting to the search and taking away your opportunity to force the police to justify their warrantless search. 

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DUI Lifetime look back rule

The penalties for DUI offenses have become more serious over the years.  Essentially, in order for the Commonwealth to figure out what number DUI offense a DUI offender should be charged with, the state “looks back” at the DUI offender’s record.  Since 2002, the DUI rules of “looking back” at a person’s DUI record have changed making the punishments for DUI more severe. 

 The DUI rules prior to 2002 would only look at the DUI offender’s to see if the DUI offender had any DUI’s for the last ten years.  Now for the purposes of counting DUI offenses, the DUI laws counts CWOFs and convictions the same way. (To learn more about CWOFS Under the DUI ten year look back rule, the state would look at the DUI offender’s record and only count DUI offenses that occurred in the last ten years.  So for example, under the old DUI rules, a 50 year old DUI offender has one DUI on his record when he was 25.  Under the old DUI rules, the DUI offender would be charged with a DUI first offense. 

After 2002, the DUI rules no longer just “look back” ten years in the DUI offender’s record.  Now, no matter how much time has lapsed, all the DUIs on a person’s record are counted.  So back to our example of the 50 year old DUI offender with one DUI on his record when he was 25. Under the new DUI rules, the DUI offender would be charged with a DUI second offense. 

This change in the DUI rules is very significant because the penalties for DUI become more severe depending on the number of the DUI offense.  To find out more information regarding the different DUI offenses, you can visit the DUI index.

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Owing the court money or community service could land you in jail

People don’t like court.  Most people want to get their criminal cases done as soon as possible.  As a result, many people are not paying attention to the judge.  Unfortunately, the clerk will reduce into writing the judge’s orders onto the docket (court’s paperwork). 

 A lot of pleas end up in court fines or community service.  Usually, the judge will allow a certain amount of time for the court fines to be paid or community service to be completed.  If the money or community service is paid by a certain date, the defendant usually doesn’t need to show up to court.  However, if the money isn’t paid or community service isn’t completed, the person needs to show up to court to address the situation. 

 If a person fails to show up to court to address the failure to pay or completion of community service, a warrant will be issued for the person’s arrest.  To add to the person’s problems, the court adds extra fees for removing a warrant. 

 Usually, a person won’t be sent to jail for failure to pay court fees or completing community service.  Most judges will give the person another chance to make good on their promise.  However, if the fines or community service have lagged in the court system for some time, judges have locked up people.  If a person is locked up for failure to pay a court fine, the person will usually get credit for about $30 a day.  Meaning if a person owes a $300 fine, the person would be sitting in jail for 10 days.  So the next time you owe the court a fine or community service, make sure you get it done or else you could end up in jail one day. 

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My girlfriend is not looking to press charges

 A person is charged with domestic assault and battery. In a domestic assault and battery, the defendant has an existing relationship with the alleged victim. Domestic assault and batteries most commonly happen between people in married or dating relationships. A person can also be charged with domestic assault and battery on their family member. Whether the assault and battery is characterized as domestic or not the maximum penalty is the same.

When most people get charged with domestic assault and battery they believe that the alleged victim is pressing the charges. As a result, they also believe that if the alleged victim isn’t pursuing the charges, the charges will be dismissed. In actuality, the charges usually came about because the police file application for criminal complaint. The clerk issued the complaint. And now the district attorney’s office is prosecuting the charges. The district attorney office is the entity that is prosecuting the charges and not the alleged victim.

Though the district attorney’s office may take the alleged victim’s wishes into consideration, the prosecution have to do what an allege victim wants. District attorneys around the country are increasing their pursuit in these types of cases. It is becoming much more difficult to resolve these cases even if the alleged victims want them dismissed.

Assault and battery charges are serious and many defendants are being wrongfully accused of these crimes. If you are charged with an assault and battery case, expect it to take at least a few cases even if the alleged victim wants the case dismissed.

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For more information regarding domestic violence and help MA laws about domestic violence

Help for domestic violence victims Executive Office for Sexual and Domestic Violence

Resources for Domestic Violence and Abuse

Women’s Law

Counseling and Education to Stop Domestic Violence

Domestic Violence Unit

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Why do people take plea bargains?

 In a plea bargain, essentially the defendant agrees to admit the charges and to receive a certain type of punishment. The punishment itself can vary from a fine, to probation and finally incarceration.

There are certain advantages to pleas that can’t all be covered in this post. However, I will try to cover a few main reasons why defendants decide to plead. First, a defendant will usually get a better deal pleading to a case before trial than if the defendant was found guilty after trial. It is common for the prosecution to recommend probation before trial, but jail time if the person is found guilty at trial. Therefore, many defendants may want to take a plea deal before trial to avoid jail time.

Second, the prosecution may be dismissing some charges in exchange of the defendant agreeing to a plea bargain. There are certain charges that have mandatory jail sentences. That means if you are charged with one of these crimes and convicted at trial, the judge can only sentence you to jail for that specific period of time. In order to avoid serving a minimum mandatory jail sentence a defendant may agree to a plea bargain.

Third, the defendant may just want the case to be over. I hear this all the time and try hard to convince a person not to plead to a case just to get the case over with. Once you plead to a case, it is very difficult to change the result. There are certain situations the case can be reopened, but it is becoming increasingly difficult. Court cases take time and people get impatient. Therefore, some people plead to cases just because they want to get the done. This is an awful reason to plead to a case and one should be careful about pleading just to resolve a case.

Finally, pleading to a case is serious business. It isn’t like impulsively going out to buy something that you can’t afford from the store and deciding to return it the next day. The criminal process is much more difficult and you can’t return a plea based solely on buyer’s remorse.

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What in the world is a guilty file?

In Massachusetts a guilty finding is a pretty unique resolution to a case.  Essentially, a person is still found guilty, but there is no immediate sentence.  In order for the court to guilty file a charge, the judge needs the consent of both the defendant and the Commonwealth. 

 This type of sentence is most commonly seen when a defendant has several charges on the same docket.  If the defendant pleads out to the more severe charges, the Commonwealth will usually agree to guilty file the minor charges. 

 Technically, a defendant that has charges that have been guilty filed can be sentenced later on.  A defendant has the right to request sentencing on any filed charges at any time.  Obviously, unless there is some unique reason, most defendants will never request to be sentenced on a charge that has been guilty filed. 

The Commonwealth may request that a defendant be sentenced on a charge that has been filed for several reasons.  One way the prosecution may request sentencing is if a related conviction or sentence is reversed or vacated.  A second way is for the prosecution to prove that the defendant has committed a new offense.  Finally, the prosecution may request a sentence if the defendant has violated a condition that the filing was based upon. 

In Massachusetts, it is becoming more common to state when the charge will be guilty filed until.  On the new green sheets (sheets that are used by prosecutors and defense attorneys alike to write out plea deals) you will actually see an area in which you can write an end date for charges that are guilty filed.  Essentially, the Commonwealth has until that end date to request that a defendant be sentenced on a charge that has been guilty filed. 

Depending on the situation a guilty file could be a good way to resolve certain charges.  There are things that need to be kept in mind before trying to resolve your case in such a fashion.  Remember that a guilty file still counts as a conviction on your record.  Please don’t attempt to resolve your case without an experience professional. 

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For more information:

Massachusetts Criminal Procedure Rule 28: Judgment

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What is Pre-Trial Probation?

Pre-trial probation is usually a very good resolution to a criminal case. Essentially, Massachusetts General Laws Chapter 276, section 87 allows for the court to place someone on probation for a certain period of time. Usually, if the person is able to complete probation and abide by all the terms, the case is dismissed pre-arraignment. This means that the case should not even show up on a person’s board of probation record.

However, if a person is unable to abide by the terms of probation, the case is placed back on the trial list. Essentially, this means that the case is going to be prosecutor against the offender.

Pre-trial probation is a good way to resolve a case because the person does not need to admit to committing the offense. The person is never pleads guilty or admit to anything about the charges. Pre-trial probation is very different than a continuance without a finding. With a continuance with a finding the person still needs to admit to something on the record.

The court cannot place anyone on pre-trial probation without the Commonwealth, usually represented by an assistant district attorney’s consent. Commonwealth v. Cheney, a 2003 case essentially states that the judge cannot place someone on supervised probation over the Commonwealth’s objection.

For the most part, pre-trial probation is usually a good resolution to a criminal charge. However, depending on the charge it may be a difficult resolution to obtain.

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For more information:

Mass General Laws

District Attorney’s Association resources regarding pre-trial probation

Paxton woman charged with sex for a fee placed on pre-trial probation

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Could dogs be used in a MA court room soon?

Dogs make great pets and there are many Americans that have these great companions at home. For many years now, dogs have also been used for helping the visually impaired to get around to helping police officers solve crime.

There has been a movement across the country to use dogs in the courtroom. The belief is that a dog can ease the tension there is in a trial or even in a plea setting. Some believe that it can ease the tensions of the adversarial process for everyone. Perhaps  a dog can ease the stress for judges, lawyers, witnesses and jurors.

 There are some aspects that the MA courts will need to deal with prior to adopting the system. One possible issues dealing with allergies. We know that certain people are allergic to dogs and the court would need to ask anyone that would be in the court room if they are allergic to dogs. Another potential hold up is the funding. Someone would need to take care of the dogs and the funding would need to come from somewhere. As we already know, the current fiscal has deeply affected the judicial budget.

Finally, dogs are wonderful and having them in the court room is a wonderful idea. People are uneasy about the court process and tend to be very stressed out during trials. What would be better than to have a friendly pooch to pet and look at? Having dogs in the court room is a great idea, but I wouldn’t count on petting one in a Massachusetts court room any time soon.

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For More information:

Promoting justice through the use of well-trained dogs to provide emotional support for everyone in our criminal justice system

A comforting canine presence provides victims with a safe harbor By Rebecca Wallick

Assistance dogs’ use for kids in courtrooms urged Judge’s dog is friend of the court

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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 DUI 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 breathalyzer form is considered a refusal. Asking for a lawyer prior to signing the breathalyzer form is considered a refusal. Failing to properly administering breath samples during a breathalyzer test could be considered a refusal. Agreeing to give breathalyzer samples and later refusing  to give breathalyzer samples is also considered a refusal.

First DUI offense. Okay, so say if this is the first time you were ever arrested for suspicion of DUI. You decide not to the breathalyzer, what happens to your license? Well if you decide to refuse the breathalyzer and this if your first DUI, your 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 DUI. The analysis for a second offense DUI gets trickier for the purpose of license suspension for breathalyzer refusal. If it is your second DUI 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 DUI with serious bodily injury for their first DUI offense and then charged with an DUI second offense, then their license will be suspended for 10 years. If a person was charged with DUI manslaughter by motor vehicle, or vehicle homicide, then their license will be suspended for life.

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

Fourth DUI offense. If you have three prior DUIs 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. DUIs are serious and you should talk to an attorney right away if you have refused a breathalyzer.

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Check out the following sites for more information: Registry of Motor Vehicles

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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.

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For more information about this post:

MA General Laws Chapter 266: Section 37. Fraudulent checks, etc.; drawing or uttering

Jury Instructions on Larceny by check

News day report on larceny by check scam

Berkley man faces larceny by check charge

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