Posted tagged ‘Arrested in Massachusetts’

Celebrating St Patrick’s Day in South Boston or Downtown? Drinking??

March 12, 2015

Finally, spring looks like its arriving and with that we have the annual St Paddy’s day parade. If you are planning on being along Broadway or at a local bar or house party like our firm will be remember a few things. This may be one of the biggest partying or drinking days for you and your friends but it is certainly a day for police to enforce drinking laws. Remember OPEN CONTAINERS ARE NOT ALLOWED ON PUBLIC PROPERTY. Thinking of throwing a couple nips of Jameson or a Guinness or two in your pocket? Think again! With the parade route shortened from Broadway station to Farragut road due to the snow you can bet that uniformed and plain clothes officers will be blanketing the area. Underage drinkers beware and don’t think that the Police won’t be able to tell that your ID isn’t really YOUR ID! The parade is a huge party day in Boston but remember it’s also a family day and a day for the police to make a statement that certain offenses will never go unnoticed.

TAKE THE T! Planning on drinking and driving? Police statewide will surely be on overtime to observe, stop, and arrest those operating under the influence. If you end up on the wrong side of a traffic stop and you have been drinking remember a few things. First decline the field sobriety tests and the breathalyzer. Yes you will lose your license for 180 days (1st offense) however you will not be giving the police the proof they need to obtain a guilty OUI conviction in court. Be polite, say as little as possible, and ask to speak to a lawyer BEFORE answering any questions. See our website on Drunk driving.

If you are skipping the parade this year and instead throwing or attending a party at a private residence you also need to remember a few things. If you are hosting the party you are responsible for those that attend the party and those that are served alcohol at your apartment or home. You can and will be sued if somebody is hurt or gets alcohol poisoning at your party. The police can come and check the ID’s of all partygoers and if all persons present are not 21 years of age or older you could be looking at providing alcohol to a minor charges. Be safe be smart and have fun.

For more information please visit our firm website http://www.RSweeneyLaw.com.

Hopefully you want need a lawyer but in the event you do call Attorney Richard Sweeney at 617 328 6900.

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Child Pornography Laws

November 15, 2013

Child Pornography Laws

           Sweeney and Associates has handled high profile child pornography cases which have received not only national but international media coverage in the cases of Robert Diduca and Geoffrey Portway. We have also handled numerous cases in State and District Courts in this area.  When you are faced with charges involving child pornography the laws are harsh and it is extremely important that you hire an experienced attorney familiar with both Massachusetts Child Pornography Law and Federal Child Pornography Law. At Sweeney and Associates we have handled Child Pornography and Sexual Assault cases both in state courts and federal courts and are very knowledgeable in this area.

Depending on the charges, Possession of Child Pornography, Production of Child pornography or Distribution of Child Pornography, as well as the type and amount of material you possess, you may be charged in a District or Superior Court in Massachusetts or your case could be taken over and brought directly into Federal Court. Some cases may start out in District Court but then the Federal Government will take over the case and charges will be brought in Federal Court due to the type of images you possess, the amount, whether you have been distributing these images by trading online or engaging in Peer to Peer Networks. Do to the level of investigatory resources the Federal government has allocated to investigate these crimes your case may well begin and remain in Federal Court. Peer to peer networks and chat rooms are self monitoring and reporting potential violations to the police and the police and federal agencies have agents who also monitor these sites and track IP addresses right back to your computer.  They then come with a search warrant and seek to question you and most clients end up hurting their case fatally by giving a statement to the police during these searches instead of invoking their 5th Amendment privilege to remain silent and not answer any questions.  Because of this, it is important to hire an attorney experienced with handling these types of charges in any court.

With any case involving child pornography, our primary goal is always to fight the charges against you and force the government to prove not only that it was your computer but that it was actually you using the computer to download or distribute images or videos. Note that in one case that we were involved with the police raided the wrong home, arrested and charged the occupant with Child Pornography charges and it took months before he was cleared when it was proven that a neighbor was using his wireless router to access the internet.

At Sweeney and Associates we are very proactive in fighting these charges.  We begin by filing motions to obtain all the discovery information available including copies of the hard drive(s) of your computer because discovery is a key component in Child pornography cases.  Generally, the charges are based on the Commonwealth or Government tracking your chat room conversations, Peer to peer networking exchanges, IP address, and/or your email address where photographs or videos were sent or received. Being knowledgeable in the field of technology and having a computer expert on hand allows us, in some cases, to discredit the reliability of the tracking technology and provides the defense that it was another individual responsible for the possession or distribution of child pornography.

After we obtain and review all the discovery, cases generally follow one of two paths. In some cases, we can proceed with filing a motion to suppress certain evidence or the search warrant. We can also file motions to dismiss based on our review of the discovery including if the images do not meet the statutory definition of child pornography (see below) or if the person depicted appears to be of age. In other cases, due to the evidence in their possession, including any statements you may have made to the investigators, we must try to reach an agreement with the prosecutor known as a plea agreement.

While our main goal is always to keep you from being convicted, we are also very well aware of the stigma associated with these kinds of charges and the collateral consequences including having to register as a sex offender if you are convicted at trial. If negotiating a plea is in your best interest and you agree, then we will discuss your case with the prosecutor. We have been successful in reducing or amending certain charges so that a person receives only probation and/or does not have to register as a sex offender.  (NOTE this is not a promise that this will happen in your case as each case is different and attorneys cannot promise any outcome in any particular case.  Past achievements are not promises of future achievements.)

Below is a chart depicting the most common charges a person will face in both state or federal court and the punishment for each charge. Please note this is not an exhaustive list and for those offenses that increase incarceration time based on prior convictions, there are only certain convictions that qualify for the increase in incarceration time.

STATE STATUTES AND PUNISHMENTS

G.L. c. 272 29A Production of Child Pornography State prison not less than 10 years nor more than 20 yearsOR$10,000- $50,000 fineORBoth incarceration and fine
G.L. c. 272 29B Distribution of Child Pornography(depiction of a person under 18 in a state of nudity or engaged in a sexual act) State prison not less than 10 years nor more than 20 yearsOR$10,000- $50,000fineOR3x the economic gain from distributing the imagesOR

Both incarceration and fine

G.L. c. 272 29C Possession of Child Pornography State prison not more than 5 years ORHouse of Correction not more than 2.5 yearsOR
$1,000-$10,000 fineOR
Both incarceration and afineMust register as a sex offenderCase Cannot Be Continued Without A Finding

FEDERAL STATUTES AND PUNISHMENTS

 

18 U.S.C. § 2251(a) Sexual Exploitation of a Child Not less than 15 years nor more than 30 years for first convictionNot less than 25 nor more than 50 years if second convictionNot less than 35 years nor more than life if third or subsequent convictionANDFine imposed
18 U.S.C. § 2252(a)(2) Distribution of Child Pornography Not less than 5 years nor more than 20 years for first convictionNot less than 15 years nor more than 40 years if prior convictionANDFine imposed
18 U.S.C. § 2252(a)(4)(B) Possession of Child Pornography Not more than 10yearsORFine imposedORBoth incarceration and a fineNot more than 20 years if the child is under 12

AND

Fine imposed

Not less than 10 years nor more than 20 years if second or subsequent conviction

AND

Fine imposed

Most states mirror the Federal Laws on Child Pornography found in 18 USC § 2256:

For the purposes of this chapter, the term—

(1) “minor” means any person under the age of eighteen years;

(2)

(A) Except as provided in subparagraph (B), “sexually explicit conduct” means actual or simulated—

(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the genitals or pubic area of any person;

(B) For purposes of subsection 8(B)  [1] of this section, “sexually explicit conduct” means—

(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited;

(ii) graphic or lascivious simulated;

(I) bestiality;

(II) masturbation; or

(III) sadistic or masochistic abuse; or

(iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person;

(3) “producing” means producing, directing, manufacturing, issuing, publishing, or advertising;

(4) “organization” means a person other than an individual;

(5) “visual depiction” includes undeveloped film and videotape, data stored on computer disk or by electronic means which is capable of conversion into a visual image, and data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format;

(6) “computer” has the meaning given that term in section 1030 of this title;

(7) “custody or control” includes temporary supervision over or responsibility for a minor whether legally or illegally obtained;

(8) “child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or

(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

(9) “identifiable minor”—

(A) means a person—

(i)

(I) who was a minor at the time the visual depiction was created, adapted, or modified; or

(II) whose image as a minor was used in creating, adapting, or modifying the visual depiction; and

(ii) who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and

(B) shall not be construed to require proof of the actual identity of the identifiable minor.

(10) “graphic”, when used with respect to a depiction of sexually explicit conduct, means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted; and

(11) the term “indistinguishable” used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults.

Even though the federal statutes state the length of incarceration, it is important to note that an individual’s sentence in Federal Court is governed by the Federal Sentencing Guidelines which contain “enhancements” based on the nature and number of images, whether a computer was used, the age of the child and other such issues that arise in almost every case.  Federal Judges are not generally pleased with these enhancements and have deviated from them to reduce the defendant’s jail time.  You want an attorney that is aware of these and will negotiate on your behalf to reduce the penalty. While judge’s have discretion to deviate from the Guidelines by either increasing or decreasing an individual’s sentence, most often the judge will sentence an individual based on the Guidelines calculation. The Federal Sentencing Guidelines determine a person’s sentence by starting at a base level for the specific charge and then the sentence is either increased or decreased based on a variety of factors. A person’s criminal history is also taken into account in determining one’s sentence. A person’s sentence is also reduced if they take responsibility for their crime by pleading guilty. Attorneys at Sweeney and Associates are knowledgeable in how to calculate a sentence under the Guidelines which is invaluable in determining whether or not your best option is to proceed with a trial or accept a plea agreement.

Attorney Richard Sweeney is experienced and knowledgeable in every aspect of child pornography charges.  It is vital to your future and liberty that you hire reputable and experienced attorneys to handle your case. If you are facing these charges, contact Sweeney and Associates at 617-328-6900 or email us at RSweeney@RSweeneylaw.com  today and let us help you navigate the system and obtain the best result possible.  This type of charge affects you and your whole family and we are experienced and can provide you and your family with the resources and help necessary to deal with these charges.

What Happens If You Get Arrested in Massachusetts

January 17, 2013

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 Drunk Driving Law

January 14, 2013

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