What Happens If You Get Arrested in Massachusetts

Posted January 17, 2013 by Richard Sweeney
Categories: College Student Crimes, False ID, Mass Criminal Law, Mass Driving Law, Mass Law, Student Drinking

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I was just arrested now what?

First, invoke your right to remain silent.  Shut up.  Do not give any confessions.  Do not give any statements.  Do not sign anything that even remotely smells like a statement or admission.  You have a constitutional right not to make a statement to the police.

Second, demand to speak to your lawyer, immediately.  You have a constitutional right to speak to your lawyer before questioning by the police, but only if you request one.  Once you have demanded to speak to your attorney do not speak to the police until your lawyer speaks to you.  The police DO NOT have to get a lawyer for you but they do have to stop questioning you.

Third, do not talk to your cell mates regarding your case.  They may inform on you to get leniency in their cases.  You may have to talk to them but you do not have to discuss the specifics of your case.

Fourth, if you are arrested for Driving While Intoxicated you should refuse to give a breath sample if you have had anything at all to drink.  You should refuse to participate in any field sobriety test.  If you have been drinking you should refuse to admit anything at all.  If you have “an odor of alcohol on your breath” you will most likely be arrested anyway as almost every police officer will not gamble his future on letting you go with the possibility that you may end up in an accident or cause an accident.  Any admission is likely to result in your arrest anyway.  Giving a breath test that shows a blood alcohol over .08 is going to be admissible as evidence and may be the basis for a conviction alone. Failing a field sobriety test is admissible and may result in conviction.  You have the right to remain silent and to refuse to give evidence about yourself so USE THAT RIGHT!

Fifth, even if you cannot afford to hire an attorney you can have one appointed for you.  When you do this you will be getting the next lawyer in line that day.  Most of these attorneys are excellent but you need an expert in drunk driving so you should plead “not guilty,” tell the judge you will hire your own attorney, and ask for copies of all of your reports from the court so that you may give them to the attorney of your choice.  If you cannot afford an attorney, the court has documents for you to fill out to see if you are eligible for a court appointed attorney.  Ask for these when you report to probation the very first day in court.

If you have been arrested and would like more information or assistance, feel free to contact us at (617) 328 -6900 or visit our website at www.rsweeneylaw.com.

MASSACHUSETTS HARDSHIP LICENSE

Posted January 14, 2013 by Richard Sweeney
Categories: Drunk Driving, Mass Criminal Law, Mass Driving Law, Mass Law, Student Drinking, Uncategorized

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FIRST OFFENSE OUI HARDSHIP LICENSE APPLICATIONS TO THE REGISTRY OF MOTOR VEHICLES

The following is information regarding the availability of hardship licenses for people whose OUI cases have been disposed of in court pursuant to MGLc.90,s.24D.  Please be advised that this information is being provided solely for the purpose of allowing a defendant to better prepare for their hardship hearing before appearing at a Registry, and that the Registry may require other documents or information before rendering a decision.  At a minimum, please be aware of the following:

 Hardship licenses are available on any case where a defendant has been properly granted a disposition under MGL c.90, s24D.  The Registrar will not entertain requests in cases where the records of the agency reflect that such a disposition was not available to the defendant.

  1. In order to allow for the courts and the Registry to exchange information regarding these dispositions,
  2. hardship applicants must wait 3 business days after their court date before appearing at the Registry, and MUST first have appeared for in-take at their assigned first offender program.

Example:  On a court disposition on Monday, you may not appear at the Registry until Thursday.

Hardship applications may only be made at Registry locations that conduct hearings.  Presently, those branches are: Boston (630 Washington Street), Brockton, North Attleboro, Lowell, Worcester, Springfield and Lawrence. Theses locations are subject to change without notice.

You may not operate a motor vehicle until such time a hardship license may be granted.  Any evidence that you have been drinking since you have been suspended in this matter will be grounds for denial of your application.

You must provide the following documentation at the hearing:

:  Proof of hardship (i.e. employment, education, medical, etc.)

:  Proof of enrollment in a Massachusetts First Offender Program approved by the Department of Public Health.  No out of state programs authorized by MGL c.90, s24D.  You must first appear at the first offenders program that you have been assigned to for your initial interview, and have that documented on letterhead from the program.

IMPORTANT NOTE:  Hardship licenses are not available under this law if you are suspended or revoked for any reason apart from this case, if charges other than OUI in this case cause you to be suspended or revoked, or if these charges combined with other incidents on your driving record result in other suspension or revocation action.

For assistance with this or any other legal problem contact Attorney Richard Sweeney at 617-328-6900 or at RSweeney@Rsweeneylaw.com

Massachusetts Drunk Driving Law

Posted January 14, 2013 by Richard Sweeney
Categories: Drunk Driving, Mass Driving Law, Mass Law, Student Drinking

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OFFENSE ELEMENTS

  • Operation of MV
  • On Public Way
  • With a Blood Alcohol of .08 or greater, or
  • Operating while under influence of alcohol. i.e., the ability to operate safely is diminished by the consumption of alcohol
  • All operators are deemed to have consented to a breath test administered by a police officer by virtue of driving
  • Applies if you are arrested for OUI
  • Refusals to take the breath test will result in license loss of anywhere from 180 days to life
  • The duration of license loss for BT refusal depends on prior convictions and age of offender

Breath Test Refusal Penalties

  • First Offender                                             180 days
  • Second Offender or Under 21              3 yrs + 180 days (waived if in 24P program)
  • Third Offender                                            5 years
  • Fourth Offender                                         10 Years
  • Fifth Offender                                              Life
  • Prior offense includes prior OUI, OUI and serious injury and MV homicide
  • No hardship license from suspensions imposed for Breath Test refusals, except in the case of a first offender who is enrolled in the OUI program.
  • License may be restored after an acquittal

Breath Test Failure Consequences

  • Immediate loss of license to police officer for 30 days or until case is disposed of by plea or trial, whichever comes first
  • Automobile is impounded for 12 hours
  • Breath Test result of .08 or above is admissible in prosecution provided test is administered in accordance with law.
  • Represents a “per se” violation of statute

 Penalties for Conviction

First Offense Over Age 21

  • Statutory penalty:
    • Fine of not less than $500 nor more than $5,000, or
    • Imprisonment in jail for not more than 2 ½ years in House of Correction, or
    • Both a fine and imprisonment
    • License loss 1 year
  • Alternate Disposition for First Offenders under G.L. c. 90, §24D
    • Two years probation, entry into approved OUI program, pay program costs and assessments, probation supervision fees
    • License loss of 45-90 days
    • Hardship license available after enrollment in program on limited basis
    • Fines and community service may be assessed.

Penalties for First Conviction

Under Age 21

  • A person under age 21 loses their license for 210 days for first offense conviction for OUI even if they enter G.L. c. 90, § 24D program, but is eligible for 12 hour hardship license upon enrollment in program.
  • An additional license loss of 180 days is imposed under G.L. c. 90, § 24P – this may be avoided by attendance at special underage drinking program
  • If the Breath Test result for a person between the age of 17 and 21 inclusive, is not less than .20, the first offender program is not available and the individual must attend a rehabilitation program known as the “14 day second offender in-home program.”

Second Offense

  • Fine of not less than $600 nor more than $10,000, AND
  • Imprisonment for not less than 60 days nor more than 2 ½ years
  • Minimum Mandatory Sentence of 30 days
  • License loss of two years
  • Assessments and fees applicable
  • Alternate Second Offender Disposition Available
    • Mandatory in-patient treatment at a residential alcohol treatment facility for 14 days, with aftercare
    • Two years probation
    • Two year license loss
    • Hardship license available after six months with ignition lock
    • Program costs and assessments applicable
  • Prior Convictions more than 10 years old may render a person eligible for first offender program once in a lifetime.
  • Persons eligible for any of the programs are presumed to be an appropriate candidate for the program.
  • A judge may deny admission of an otherwise eligible defendant to a program, but must make specific written findings that a defendant is not a suitable candidate.
  • Defendant not eligible for first offender program if serious bodily injury or death was caused in the events that gave rise to the conviction for OUI.
  • Persons who are domiciled out of state may be allowed to attend out of state programs
  • Defendants pay the costs associated with the programs
  • Probation fee of $250 in addition to program fees
  • Court may impose a minimum of 30 hours of community service
  • G.L. c. 90, § 24Q
  • Mandatory Alcohol Assessment by Department of Public Health or court approved program
  • All repeat offenders
  • Any offender with BAC of .20 or above
  • Must include assessment of the level of addiction to alcohol or drugs and recommended course of treatment.
  • Additional fee will be charged for the assessment

Penalties for Conviction

Third Offense

  • Fine of not less than $1,000 nor more than $15,000, AND
  • Imprisonment for not less than 180 days, nor more than 2 ½ years in House of Correction or,
  • Imprisonment of 2 ½ – 5 years in State Prison
  • Minimum Mandatory Sentence of 150 days
  • License loss of 8 years
  • Hardship Available after 2 years with ignition lock

Fourth Offense

  • Fine of not less than $1,500 nor more than $25,000, AND
  • Imprisonment for not less than 2 – 2 ½ years in the House of Correction or not less than 2 ½ – 5 years in State Prison
  • Minimum Mandatory Sentence of 12 months
  • License Loss of 10 years
  • Hardship available after 5 years with ignition lock

Fifth Offense or More

  • Fine of not less than $2,000 nor more than $50,000, AND
  • Imprisonment of 2 ½ years to the House of Correction, or
  • Imprisonment of not less than 2 ½ nor more than 5 years in State Prison
  • Mandatory Minimum Sentence of 24 months
  • License Loss – Lifetime
  • No hardship available

Special Penalty Provisions

  • Any person under the age of 21, who takes a breath test with a result of .02 or greater, and who is not charged with OUI, shall have his license suspended for 180 days immediately under G.L. c. 90, § 24 P.
  • Lifetime revocation for persons who are convicted of OUI, MV Homicide and who have a prior OUI, OUI Homicide or OUI serious injury. G.L. c. 90, § 24R

Hardship Licenses

  • No hardship license from suspensions imposed for Breath Test refusals, except in the case of a first offender who is enrolled in the OUI program.
  • Hardship licenses are issued in the discretion of the registrar on such terms and conditions as are deemed appropriate and upon a showing the causes of the past and present violations have been dealt with or brought under control.
  • First offenders:  12 hour hardship license is available upon entry into program.
  • Second offenders:  12 hour hardship license for education or employment reasons after 12 months, provided person has completed in-patient program.  After 18 months may request for a new license. Vehicle must have ignition lock to obtain hardship license
  • Third Offense:  12 hour hardship license for education and employment purposes after two years and a new license on a limited basis after 4 years.  Vehicle must have ignition lock to obtain hardship license.
  • Fourth Offense:  12 hour hardship license for education and employment purposes after five years and a new license in a limited basis after 8 years. Vehicle must have ignition lock to obtain hardship license.
  • Fifth offense or more – No hardship license
  • Certified or attested copies of original court papers ACCOMPANIED BY 90:24(4)
  • Certified or attested copies of defendant’s biographical and informational data from records of the department of probation
  • Certified copies of any jail or house of corrections, the department of correction, or the registry shall be prima facie evidence that a defendant before the court had been previously convicted.
  • The documents are self-authenticating and admissible, after conviction of primary offense.  No live witnesses or other corroborating testimony is necessary.
  • New Crime:  G.L. c. 265, § 13 ½
  • Imprisonment for not less than 5 nor more than 20 years, and
  • A fine of not more than $25,000
  • Minimum Mandatory Sentence of 5 years
  • Manslaughter not defined in this statute
  • License loss of 15 years minimum, but may be up to a lifetime suspension
  • G.L. c. 90, § 24 ½
  • The device prevents the vehicle from operating if the BAC is above .02.
  • Device must be installed on each vehicle owned, leased or operated by a person previously convicted of OUI or similar offenses as a condition of the issuance of a new license
  • The device is to be installed for a period of two years (presumably from the date the new license is issued).
  • Device must be maintained and inspected in accordance with regulations yet to be enacted
  • The device will not permit operation of vehicle if BAC is .02 or above
  • Registrar may revoke license for up to life for two or more occasions of a failure to maintain or two or more instances of attempted use with .02 or above.
  • New Crimes
    • Operation MV in violation of interlock device restriction
      • Fine of $1000 to $15,000
      • Imprisonment for not less than 180 days nor more than 2 ½ years, or
      • Not less than 2 ½ nor more than 5 years in State prison
      • Mandatory Minimum of 150 days.
    • Tampering with Ignition lock
      • Not less than 6 months nor more than 2 ½ years H/C or
      • Not less than 3 years nor more than 5 years in state prison
    • Starting a MV equipped with Ignition lock
      • Fine of not less than $1000 nor more than $5000 or
      • Imprisonment for not less than 6 months nor more than 2 ½ years,
      •    Second Offense:  State Prison 3-5 years

For assistance with this or any other legal problem contact Attorney Richard Sweeney at 617-328-6900 or at RSweeney@Rsweeneylaw.com

Search and Seizure

Posted October 17, 2012 by Richard Sweeney
Categories: Uncategorized

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Do the police have to advise you of your rights?

Police need not advise you of your rights and they are not responsible for advising you of your rights to refuse an illegal search. They are not required to tell you if and when they can make a permissible search. Police need not tell you that you can withhold permission for them to enter your home, nor that police have a right to seize anything in plain view.

JUST SAY NO!

That should be the words we all use when the police ask if they can search you, your car or your home.  Consent from you, in most cases, makes the search legal and everything they discover admissible against you in court.

Once you are placed under arrest and handcuffed, police may search your vehicle without a search warrant only if you are within reach of the vehicle, or if the police reasonably believe that evidence can be found in the vehicle that will prove the offense for which you were placed under arrest. The purpose of a search is to uncover and expose evidence that can then be seized by the police.   Every citizen of the United States has a right under the Constitution to a reasonable expectation to privacy. However, those rights are limited. Police however often take liberties in stopping people without probable cause, and arresting people based on illegal foundations.

A search in and of itself, violates a person’s reasonable expectation of privacy. Permissible searches are often called legal searches, while impermissible searches are often called illegal searches or prohibited searches. If the violation of a person’s expectation to privacy is reasonable, then the search is permissible. A reasonable search can occur with explicit consent or implicit consent. If a person is asked if they may be searched and that person then responds affirmatively, consent has been given to the search. By giving consent, the searched person no longer has a reasonable expectation to any privacy. If contraband, paraphernalia, a weapon, or some other piece of evidence or if criminal activity is “in plain view”, an exception to consent arises under the law. That type of voluntary exposure allows the police to view the article without a search. Since a search is not needed to view something “in plain view”, then there is no violation of a person’s reasonable expectation to privacy. To put it another way, the law assumes that if the person intended that which was “in plain view” to be kept private, then he or she would not have placed it in a position where it could be easily viewed by anyone.

A police stop is a seizure under the law. If the seizure is reasonable, then it is permissible, otherwise it is a violation of a person’s Fourteenth Amendment rights (also commonly termed an illegal search and seizure). If a police officer observes criminal activity, or activity which would lead a reasonable person to conclude that it was of a criminal nature, or if an informant provides sound and verified information to the police officer about a criminal activity, then a subsequent seizure is reasonable and permissible. If at the time of a stop, a police officer sees or has a reasonable belief that the suspect is armed, the officer may “pat down” the suspect and seize any weapons that could cause harm to the officer or another person during an arrest.

Can they search my home?

In almost all instances, a search warrant is required for the police to enter a private dwelling. In most other instances when a search warrant is not required, the officer must have probable cause. However, there are exceptions to the rule. If an officer has an arrest warrant and in the process of executing the warrant in the suspect’s yard the suspect gets away and runs into his home, the police have a right to enter the home in “hot pursuit” to make the arrest. If an officer has probable cause (more than a reasonable belief that a crime has been committed), and he cannot take the time to obtain a warrant without losing evidence or the suspect, then he may enter and search and seize without a warrant. An officer may also search a home if he has consent to do so, however, whether that consent allows permissible search of another dwelling member’s belongs is quite another story. If the person who gives consent to the search has authority to give the consent, then the search may be permissible so long as it does not violate the rights of another person. The mere sharing of a home (roommates) does not give one roommate authority to consent to a search of the other roommate if there existed a reasonable expectation to privacy. The right to a reasonable expectation to privacy is a personal right to privacy of the person’s physical body and his immediate surroundings. A search includes a person’s clothing, body, and immediate surroundings or those surroundings within his reach. For example, a legal search of a person sitting in a recliner would include the immediate area surrounding the recliner as well as the person’s body.

What if the search was not legal?

If a search or a search and seizure was impermissible, under the exclusionary rule, the evidence gathered from that seizure is inadmissible in the defendant’s criminal trial. As you might expect, there are exceptions to that rule, too. If the search was to protect the public, if one or more legal searches and one or more illegal searches are conducted, or if the search revealed evidence that would have been otherwise known or produced by some other means regardless of the search, then the search – even though illegal – and the evidence gathered can be admitted into evidence at trial. The exclusionary rule prohibits evidence obtained in an illegal manner from being used against a person during a criminal trial.  I cannot cover all of the exceptions to the rules of evidence for criminal prosecution. The exclusionary rule has many exceptions to determine which is legal and illegal evidence. As well, it is only one legal doctrine used to analyze evidence in a criminal trial, and each procedure (search and seizure) must be analyzed separately.

As you can see this is an area that is full of issues that can benefit you if you are arrested and the police seize evidence to be used against you as a result of a search and seizure.  The better lawyers study these issues and the cases that come out on a weekly basis to ensure that your rights are protected.

If the evidence is thrown out your case often is thrown out with it.

Experienced attorneys look at the evidence and file motions to suppress (throw out) the evidence if it was a result of an unlawful search and seizure.  In short your entire case can depend on a good lawyer looking at the facts and applying the law.

If you are arrested…

Make sure that you hire an experienced defense attorney that specializes in this area.  The law firm of Sullivan and Sweeney has extensive experience in this area and we can assist you in evaluating your case and providing the best defense for you.  Research any attorney you are entrusting your future to and be sure to look at the experience and background of Attorneys Richard Sweeney and Sabrina Bonanno at wwwRsweeneylaw.com.  Call us at 617-328-6900 for immediate help or send an email to RSweeney@RSweeneylaw.com.

New England Patriots, UMass Football and Gillette Stadium Concert fans are being arrested in record numbers.

Posted September 29, 2012 by Richard Sweeney
Categories: College Student Crimes, Drunk Driving, False ID, Gillette Stadium, Mass Criminal Law, Mass Driving Law, Mass Law, Student Drinking

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Every week UMass Football fans, New England Patriots fans, and concert goers are arrested at Gillette Stadium and in Foxborough Massachusetts by officers patrolling the stadium, roadways and the surrounding parking lots.  There is a large police presence at these events and they are looking for Fake IDs, drunken behavior and DUI’s. You can be issued a trespass order and if you don’t comply you find yourself under arrest. If you find yourself arrested and charged with a crime a good attorney can assist you in getting a diversion program or help you win your case in Wrentham Court.  We are experienced Massachusetts criminal defense attorneys familiar with Wrentham Court and Gillette Stadium arrests.  Our attorneys have a combined experience of more than forty years of successfully defending people arrested for crimes all over Massachusetts.  Make us your law firm.   Call the law office of Sweeney and Associates in Massachusetts at 617-328-6900, or feel free to email any questions you may have on this or any Massachusetts Criminal Law to me at RSweeney@RSweeneylaw.com.   Please visit our web page for more information on a variety of topics at www.Rsweeneylaw.com.

Massachusetts Habitual Traffic Offender

Posted September 8, 2012 by Richard Sweeney
Categories: Mass Driving Law, Mass Law

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In Massachusetts your license can be suspended for multiple traffic violations as an habitual traffic offender.

A simple guide is as follows:

If you receive 3 civil infractions within 12 months you will get a 30 day suspension;

If you have 5 surcharge-able events within 3 years (this includes accidents and civil infractions) you will get a 90 day suspension.  The Registry of Motor Vehicles will also make you complete a driver retraining course and your license is suspended UNTIL you complete driver retraining;

If you have 7 surcharge-able events in within 3 years you will get a 60 day suspension;

If you are deemed an Habitual Traffic Offender your license will be suspended for 4 years.

An experienced attorney can assist you and help save your license or get you a “Cinderella” or 12 hour license that enable you to get back and forth to work, school or other important places.  The EASIEST way to stop this from happening is to APPEAL THE CITATION WHEN YOU RECEIVE IT!  We can assist you in the appeal, even if you are wrong, and prevent the license suspension.  It is cheaper to have an attorney assist you in fighting the ticket than it is to have one help you at the Registry Board Of Appeals.

Call us at 617-328-6900 or see our website at:  WWW.RSWEENEYLAW.COM .  You can also email me at RSweeney@Rsweeneylaw.com.  We can help and the phone call is free.

Child Pornography Investigations by Homeland Security

Posted August 11, 2012 by Richard Sweeney
Categories: Child pornography, Federal law, Mass Criminal Law, Mass Law, Sex Offender

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Federal and State officials are cracking down on Possession of Child Pornography and the Distribution of Child Porn by tracking the IP  addresses of the users.  For over a year a skilled set of investigators have targeted internet Child pornography with great success.  Jennifer McKim of  The Boston Globe and Boston,com wrote an excellent article on the arrest of Robert Diduca in Massachusetts and the investigation of child pornography that received front page coverage of their July 29, 2012 Sunday edition.   These investigators from the Department of Homeland Security are making arrests and using the computers they seize as a result of the arrest to determine who has been sending or receiving child porn to these computers.  The ip addresses are the digital equivalent of a phone number and they lead the detectives to any computer that has been corresponding illegally with the person arrested.  Child pornographers have long used peer-to-peer networks, chat rooms and Skype to trade these photos and videos but investigators have made great inroads into these areas and have made hundreds of arrests around the world.  Charges of Possession and Distribution of Child Pornography carry federal criminal sentences of 5-20 years and higher depending on the level of involvement.  If you or anyone you know may have a problem or need information contact Attorney Richard Sweeney at 617-328-6900 or go to our website at RSweeneylaw.com for attorneys experienced in the defense of child pornography and sexual offenses.