Boston Criminal Attorney Blog

In case you haven’t heard, the National Transportation Safety Board (NTSB,) recently issued a recommendation that all 50 states, including Massachusetts, adopt a uniform, lowered blood alcohol content (BAC) standard to determine when someone is legally impaired (drunk/intoxicated) while driving.

Currently, the Massachusetts BAC standard that is used to determine whether or not a driver is legally drunk, is .08. This is also the standard used in most other states. This is called a “per se” standard, or per se law, because it means that anyone registering this amount of alcohol in their blood is legally presumed to be intoxicated. In other words, police and District Attorneys’ offices don’t have to legally argue, or prove, that key issue. If you take either a breathalyzer test or blood test and register a BAC of .o8 or higher, Massachusetts law considers you drunk. Period.

The NTSB wants states to lower the legal intoxication limit from .08 to .05. Drunk driving laws in the U.S. are a matter of state law, not federal, so the NTSB has no power to force any state to enact its recommendations. Reducing the current.08 standard to .05 is almost cutting the current standard in half, so it’s aggressive, but its advocates say it is needed.

In looking at this recommendation, several key questions need to be asked. One key question in this debate is obvious: How many drinks does it take for the average person to reach a BAC of .08? While there is a considerable amount of variability in this answer, generally speaking, a 180-pound person can reach 0.08 threshold after consuming just two “standard” drinks in one hour. “Variability” is an important word to remember here, as it can be affected by a variety of specific factors, including:

* Age
* Gender
* Body type and weight – specifically the breakdown between muscle and fat
* Medications
* Metabolism
* Hydration

Second necessary question: What constitutes a “drink”? In Massachusetts (as well as most other states,) an alcoholic drink is defined as a 12 ounce beer, four ounces of wine, or one ounce of 80-proof alcohol. Hence, under a reduced .05 standard, a 175 lb. man could not drink more than one drink in one hour ,and a 120 lb. woman would likely have to drink even less than one “standard” drink in one hour.

Obviously, my practice defends people who have been accused of criminal offenses, including drunk driving. Along with everyone else, I too want to reduce drunk driving. I don’t want anyone I care about hurt by a drunk driver, myself included. But as someone who often sees innocent people charged with crimes that they did not legally commit, it’s important to ask: How far are we as a society willing to go in criminalizing conduct that should not necessarily be criminal? How far should we go in automatically concluding (remember what “per se” means) that someone – perhaps yourself – is automatically guilty of committing a crime by virtue of having two drinks in maybe 75 minutes, and later driving? Any difference of opinion on this subject is not over reducing drunk driving: Everyone, myself included, wants to do that. The question is, how to do it without making criminals out of people that really shouldn’t be made so? Convicting someone of an offense like this is to saddle them (some would say “brand” them) with a criminal record and a resultantly very serious burden the rest of their lives.

In my view as a Wrentham and Dedham Massachusetts criminal OUI attorney, that approach can be pretty extreme. Even motor vehicle safety groups like Mothers Against Drunk Driving (MADD) and AAA reportedly declined to endorse the NTSB’s recommendation for a .05 threshold. That’s not surprising when you consider the following: Would you be able to guess what a great many states’ BAC standard were in the mid-80’s? About .15. That’s almost twice what it is now. Since then, Massachusetts and most all other states have cut that figure in half, and enacted very tough drunk driving penalties. Massachusetts OUI/DUI penalties are some of the toughest in the nation. Click on that underlined term to see these penalties on our website. Those are all pretty severe penalties. So, what to do in the face of the NTSB’s recommendation that Massachusetts lower the BAC standard even further, to .05?

The lowered .05 cutoff was only one of almost 20 separate recommendations made by the NTSB. One other recommendation was that states should adopt more aggressive use of alcohol ignition interlock devices (IID’s). Our Melanie’s Law page talks about IID’s, and explains that under current Massachusetts law, IID’s are required for anyone convicted of a second or higher OUI offense. Under the Ignition Interlock Device program, the Massachusetts Registry of Motor Vehicles requires drivers who have received two or more convictions for DUI/OUI to install a state-approved Ignition Interlock Device in their vehicle, when and if their regular license is fully reinstated, or if they are issued a Massachusetts hardship license.

An Ignition Interlock Device is mounted inside the vehicle, and requires the driver to blow into a tube before turning the ignition. If the device registers a BAC of higher than .02, it will prevent the engine from starting. To ensure that offenders don’t intentionally disable or damage the device, the operator is required to report to the vendor that originally installed the device, every 30 days. The installer then downloads and transfers the data from the device to the Registry of Motor Vehicles. Installation of these devices is entirely the operator’s expense, and it isn’t cheap. Currently, any offender who is issued a Massachusetts hardship license is required by law to use and maintain the device for the entire duration of the hardship license, plus two additional years following reinstatement of the operator’s regular license.

I don’t think it would be necessarily unreasonable to require a person convicted of a first offense OUI to install an Ignition Interlock Device for a period of one (1) year, at his or her own expense, following reinstatement of their license. I think it is a less drastic measure than lowering the BAC from .08 to .05, and in the process making criminals out of many people who are anything but that. If we need to send a yet stronger message that drunk driving will not be tolerated, I think that requiring Ignition Interlock Devices for first offenders, for a period of twelve months initially, is a reasonable measure.

Here’s a true story that might interest anyone who might consider committing the crime of shoplifting in Massachusetts. Perhaps the following story might make someone so inclined to think twice.

A few months ago, a man visited the Wrentham Village Premium Outlets, which houses a nice variety of high-end stores. He went into a jewelry store, and asked the sales clerk to show him a $13,000 diamond-studded watch. After the item was placed on the counter, the man grabbed the watch without paying for it and ran outside the store, to his car. As it happened, the Wrentham Outlets had just added new security cameras, and they were able to record the man’s motor vehicle license plate. It led to his arrest. Now, without a doubt, he needs a Wrentham, Mass. shoplifting lawyer.

Recently, according to a story in The Boston Globe, several malls in the Boston area have installed new security cameras in common areas, and in parking lots, in order to crack down on shoplifting and other crimes, including assault and battery. What does this mean? It means that if you attempt to shoplift at any of several Massachusetts malls or shopping centers, the odds are that you will be caught and face Massachusetts shoplifting charges.

Take a look at recent statistics, for the period of January 1, 2011 through March 31, 2013: In those two years, Braintree’s South Shore Plaza shopping center had 836 shoplifting calls made to police. The Wrentham Premium Village Outlets cited 360 shoplifting calls made to police. And Dedham’s bustling Legacy Place apparently had 101 calls made to police, due to shoplifting. In addition, at Dedham's Legacy Place, in the first four months of 2013, shoplifting accounted for seven of 143 calls at Legacy Place, while shoplifting accounted for 61 of 452 calls made to police at the South Shore Plaza.

At malls like the Wrentham Village Premium Outlets, many shoplifting crimes are also the result of what are called “retail booster gangs,” which are basically comprised of professional shoplifters who consider the crime of Wrentham shoplifting their fulltime job. But the town of Wrentham hopes to cut down on crime at its popular mall, by recently installing 10 new security cameras that will monitor parking lots and common areas, in response to urging of local officials. These security cameras will be used in addition to the typical private security details, and local police officers, who are on hand to deal with shoplifting and other crimes. The increased security measures will also be used to thwart other crimes including drug distribution, assault and battery, and larceny of a motor vehicle.

The bottom line is this: People need to think twice if thinking of commiting the crime of shoplifting at Legacy Place, the South Shore Mall, the Wrentham Premium Outlets or any other business in Massachusetts. Massachusetts shoplifting is a serious offense. Take it from me – a Dedham, Mass. shoplifting lawyer. The punishment for shoplifting? It all depends on the value of the property stolen, and whether the accused person has a prior criminal record. If the value of the stolen items are worth less than $100, the punishment for a first offense is typically a $250 criminal fine that is owed to the courts, plus a civil recovery fine of approximately $300. This "civil recovery fine" is not paid into the court system, but is owed to the retailer to compensate it for the cost of the added operational costs caused by shoplifting. As a Quincy, Massachusetts shoplifting lawyer, I don't think this "civil recovery fine" is entirely fair, but the retailer industry lobbied hard for it in the Massachusetts Legislature, and they got their way. Second offenses usually carry a $500 fine. People shouldn't think that fines aren't the worst of things - jail time can be a real possibility. If the value of the stolen items exceeds $100, a first offense of shoplifting can bring incarceration of up to two years in a county jail, or a $1,000 fine – or both.

Aside from any incarceration potential, the worst thing about a shoplifting charge - and worse, conviction - is the record it produces. This will follow a person everywhere, and it makes it all clear – shoplifting is never worth it.

Some people just don’t get it. What I mean, is that some people just don’t seem to understand that rape is a crime. And not just a word to use – and misuse – in a song.

In another display of complete insensitivity – and stupidity – a rapper, who I will not advertise here, recently wrote a song that condones the crimes of sexual assault and rape. Here are the lyrics to his rape -- er, I mean, rap – song. "Put molly all in her champagne, she ain’t even know it/ I took her home and I enjoyed that/ she ain’t even know it." The words in this song are about placing a drug into a woman’s drink without her knowing it, rendering her unconscious, and then raping her. What an offensive song to listen to.

As a Boston, Massachusetts rape lawyer, I can tell you that no woman in her right mind would ever pay the mere 99 cents it costs to download this "music" (and I use that term loosely.) And by the same token, no man worth his scruples would do the same either. Lyrics like this insult us all. When are these ignorant rappers going to realize that people do not want to hear crimes glorified in music lyrics? Furthermore, when are rappers going to understand that rape is a serious crime? Even worse, when are recording studios and record companies going to wake up and STOP the glorification of this and ANY kind of violence in "music"?

They just don’t seem to get it. Rape is a felony in Massachusetts (as in most every state.) A first conviction translates into up to 20 years in state prison in Massachusetts. Second or subsequent convictions can mean life in state prison. And if the rape happens to include a gun, the mandatory minimum sentence is 10 years in prison in this state.

Here’s where the story gets even more interesting. Ready? This moronic rapper had a (very lucrative) endorsement deal with Reebok. That’s correct. He wrote these words, while he had a signed contract to represent Reebok, the famous sneaker company based right here in Canton, Massachusetts, a couple of miles from my Westwood office. Recently, Reebok, to their credit, terminated their association with this rapper. A company spokesperson said that the rapper “did not live up to expectations they have from clients.”

But don't get the idea that a major corporation like this arrived at this decision through corporate moral introspection (so often a contradiction in terms.) The shoe company jettisoned this rapper very 'coincidentally,' in response to mass protests by Reebok fans as well as activist groups. One such group protested Reebok’s New York city store, where people asked that the rapper be dropped as a company spokesman. They reportedtly held signs saying “Take Rape Seriously.” Apparently, another activist group, called UltraViolet, secured more than 100,000 signatures from people requesting that Reebok dump this vulgarian. After Reebok made the move public, UltraViolet made a statement lauding the Canton shoe company for their quick, decisive actions. Among other things, the group said that they were “thrilled” with Reebok’s decision, adding that singing about raping and drugging a woman is not only wrong morally, but that it also has real consequences.

You had better believe that rape has real consequences. As a Boston, Massachusetts sex crimes lawyer, I see evidence of this all the time.

Furthermore, it's hard to believe that someone who had a lucrative endorsement deal with a prominent, prestigious American company would be so ignorant as to do anything to harm that relationship, but it happens all the time. This guy had a lucrative paying gig – for making rap music, of all things – and he should have thanked his lucky stars for that. He not only deserves to have been let go from Reebok – he deserves our scorn and our anger, for making a mockery of the serious crime of rape.

Surprised that a Boston sex crimes lawyer would take this attitude? Don't be. When I defend sex offense clients, I am doing on constitutional and legal principles, in a courtroom. I do so aggressively and zealously, but NO criminal defense lawyer "condones" rape - of a woman, of a man, of anyone.

There are any number of reasons why people shoplift. However, in my experience, as a Boston Massachusetts shoplifting lawyer, one of the most interesting reasons has to do with people who feel that life has simply let them down. They have experienced sorrow and loss – say, the loss of a job, or a relationship -- and want to "take something back" from a world that they feel has somehow done them wrong. In many cases, non-professional shoplifters are experiencing depression at the time that they commit the crime of Massachusetts shoplifting. The facts back this up. According to the National Association for Shoplifting Prevention, and I’m paraphrasing here, people who shoplift experience a “high” that typically alleviates their feelings of anger, boredom, depression, deprivation and frustration. When most people shoplift, it’s not because they are broke and don't have the money to pay for the item – it’s usually because the act of shoplifting, and the “high” it produces, is experienced as a lift, or a reward, that they feel they are entitled to, or need.

The NASP has also found the following statistics:

• Annually, there are in excess of $13 billion worth of goods stolen from retail establishments. That amounts to, per day, more than $35 million in shoplifted goods.
• In the USA, there exist about 27 million shoplifters (or 1 in 11 people). Since 2007, it is estimated that about 10 million people have been caught shoplifting.
• Who does shoplifting affect? The courts, law enforcement, retail stores and their security, consumers (who wind up paying more for goods), and lost revenues in sales tax in communities.

Before indulging in this form of theft, any person considering shoplifting should remember that shoplifting is taken seriously by the courts in Massachusetts, and state law provides serious penalties.

Massachusetts shoplifting laws are generally categorized as Petty Theft or Grand Theft, and viewed as a misdemeanor or a felony, depending on the circumstances. The punishment for shoplifting? It depends on the merchandise that is shoplifted, its value – and also if the defendant has “prior offenses” – a prior criminal record. For example, if the item(s) are worth less than $100, then what typically applies is a first-offense conviction that is punishable by paying a fine of $250. What if there is a second offense, and again, the stolen merchandise is valued at less than one hundred dollars? It merits a $500 fine. However – if the value of the stolen merchandise exceeds $100, then defendants facing a first offense may very well receive the following: a sentence of up to two years in a county jail, fines that may add up to $1,000 – or payment of both the fine as well as the jail sentence. It’s not pretty. These and other penalties represent just the criminal side of the consequences that can result: Civilly, retailers in Massachusetts have the right to demand and collect a "Civil Recovery Fine," which in theory compensates them for the added costs that responding to shoplifting brings to retailers and businesses.

Massachusetts laws dealing with shoplifting are becoming stricter. Recently, the City of Boston is weighing a new ordinance aimed at preventing shoplifters from selling stolen items to consignment shops in Boston. The proposed ordinance is designed to prevent any consignment stores from accepting stolen merchandise from shoplifters. Soon, Boston consignment store owners may be required to take photographs of their customers, along with every designer dress and luxury handbag they take into consignment. This new ordinance for stepped-up scrutiny was originally aimed at pawnbrokers, but it also appears to be ensnaring consignment shops. Secondhand stores, consignment shops and pawnbrokers, who each received a letter in April 2013 outlining the new rules, will, if the ordinance passes, have to take photos of every customer; take photos of their identification; take pictures of their merchandise; and also write a description of each item that they are selling, on an online database.

As a Dedham, Massachusetts shoplifting lawyer, it's clear to me that this is one more sign that the police and the courts, are taking shoplifting and crimes related to shoplifting much more seriously. Those who might be inclined to engage in this type of activity should consider themselves warned.

Most everyone in Massachusetts knows that voters here voted to decriminalize the possession of less than an ounce of marijuana effective January 2009, and also voted just last November 2012 to legalize the use of medical marijuana. As a Boston, Massachusetts drug offenses lawyer, I think these are rational, sound decisions. But how do they impact OUI/DUI arrests and prosecutions in Massachusetts?

The legal answer to that question can sometimes be murky. Incorporating existing OUI/DUI laws in Massachusetts into the new regulatory structure that is being created by state public health officials to accompany the arrival of medical marijuana facilities, is proving to be somewhat of a challenge. One particular legal question will be this: How will or how should existing Massachusetts drugged driving and OUI laws be applied, if at all, to a motor vehicle operator who is a legitimate medical marijuana patient?

Currently, Massachusetts law provides for substantial criminal penalties for someone operating a motor vehicle while under the influence of not only alcohol – but a variety of different drugs, including narcotics, stimulants, or depressants. The main difference between alcohol and other drugs, is that while alcohol is metabolized by the body fairly quickly, many different types of other drugs remain chemically detectable for much longer than alcohol. Thus, a person could hypothetically use medical marijuana one evening, and the next afternoon or evening, if he or she were stopped by police under suspicion of operating a motor vehicle while drugged and their blood was tested, it would likely test positive for the drug. This could be so even though the person was not actually under the influence at the time they were stopped by police.

Charges for operating under the influence of alcohol in Massachusetts hinge largely on the driver’s blood alcohol content (BAC.) Anyone operating a motor vehicle with a BAC of .08 or greater, is statutorily presumed to be legally impaired. These Massachusetts blood alcohol content (BAC) standards are well-known. However, for drugged driving charges, there is no “red line” threshold for determining whether or not a driver is, in a legal sense, “operating under the influence.” Because of this, prosecution of drugged driving cases often turn on the testimony of the police officers involved in the arrest. The legal, personal, and professional stakes can be high: Just a first-time Massachusetts DUI offense can bring severe penalties, including license suspension for up to a year, incarceration for as much as 30 months if convicted, alcohol education classes, probation fees and more. With a second offense or more, the penalties grow increasingly severe, leading up to a mandatory prison sentence of as much as five years.

As a Boston, Massachusetts drug charges lawyer, I hope that the state public health and public safety officials who are now constructing these new regulations, take great care not to expose legitimate medical marijuana patients, to needless and unjust criminal prosecutions.

Now that this entire, sad affair that has taken four lives and horribly injured several more is over – at least on the investigatory and law enforcement level – though the legal one just begins – I thought some thoughts from a Boston criminal lawyer are in order here.

No, you’re not going to hear “You don’t know this suspect, Dzhokhar Tsarnaev, is guilty until he’s been found guilty beyond any reasonable doubt in a court of law.” It seems quite obvious that this kid is eyeball deep in this horrible story, and his guilt seems all but a foregone conclusion. (Unless a legal technicality is available to prevent same.) No, what I want to address here, is everyone’s quite rational and normal desire for justice at the end of this story.

Everywhere around me, particularly on social media such as Facebook, Twitter and such, I keep seeing and hearing demands for the death penalty in this case. On a pedestrian level, it’s understandable why so many people want this: This was a premeditated, heinous, sadistic act of violence, which killed three people immediately, a fourth later, and maimed several more. It turned what has for decades been an enjoyable event that heralded spring for all, into a nightmare that heralded only more insecurity and grief for many. The individuals and the families affected by these sickening events, will never be the same. All wrought by two disaffected, maladjusted, twisted individuals, who probably wanted to feel “important.”

People want “justice.” People want this kid to “pay for it,” to “pay the ultimate price,” to “suffer.” They want the death penalty. They think that is the “ultimate punishment.” Others want it because they (very mistakenly) believe that it acts as a deterrent to similar crimes. As a Boston criminal defense lawyer, I can assure such people: They’re wrong on both counts.

First, the “Ultimate Punishment” argument: A big problem with capital punishment, is that it’s too easy a method of execution. Lethal injection is no more “unpleasant” than being given general anesthesia. In fact, it’s designed to be almost completely pain-free. The convict is spared a lifetime of being locked up in a cage with other animals, never to see or know freedom again. I don’t call that “punishment,” I call it mercy. Most anyone I know would beg for it, if sentenced to life in prison. Yet, the answer can’t be to go to the other extreme and make capital punishment an excruciatingly painful experience either, for two obvious reasons: 1) The Eighth Amendment’s ban against cruel and unusual punishment, and 2) Even if it weren't for the Eighth Amendment, torturing someone to death would debase us all as a culture. The second problem with capital punishment, is that credible study after credible study, has PROVEN that it does NOT deter criminals from committing the types of acts punishable by the death penalty: Murder, terrorism, etc.

Especially in its current form of painless, anesthetized lethal injection, capital punishment has zero current deterrent effect. If anyone doubts that, take it down to a personal level and ask yourself: If you were the type of person to commit a crime like this, (note: that “type” is usually the most violent and disturbed type of person you could imagine) and you knew that this was the worst punishment that could be inflicted on you after conviction of a capital offense, would that “deter” you from committing such a crime? No animal who would commit such a crime would be deterred by such an easy exit. Did the fact that Timothy McVeigh was given the death penalty, ever “deter” anyone who followed him afterward? It certainly didn’t “deter” Dzhokhar and Tamerlan Tsarnaev. It just doesn’t work that way. I know this, as a professional who works in this field.

So what to do with such convicts? Answer: Restore the (largely abandoned, in the U.S.) concept of misery in prison (for which the French are well-known): Hard (and I mean HARD) labor 8 hours a day; the rest of the 16 hours locked in a cell; restricted visitors; no gym; no television or radio; no library privileges; no internet; 10 minutes of Yard time a day; no special meals or special privileges of any kind. Make such convicts pariahs within their own prison, scorned by the worst of the worst and the lowest of the low. Suffering every day, for all their days. THAT'S lifetime punishment, not being painlessly put to sleep and not waking up.

As a Boston criminal defense attorney, I can almost guarantee that federal prosecutors will seek the death penalty in this case. And, assuming that Tsarnaev is convicted, he will receive the death penalty, as did Timothy McVeigh. But if anyone thinks that will bring him “suffering”, or that it will be the “ultimate punishment”, or that it will “deter” other, like-minded people from committing similar such crimes, they’d be quite wrong. Capital punishment these days is almost institutional clemency. Deterrent? Hardly. Punishment? More like mercy than anything else.

As a Boston, Massachusetts drug crimes lawyer, I believe quite strongly that the Massachusetts court system, and our Massachusetts law enforcement operations, waste their time and resources when it comes to making arrests over the possession of marijuana. In my professional opinion, marijuana is a harmless drug that’s non-addictive – and yet, the court system, and law enforcement, continue to pursue Massachusetts marijuana drug arrests, a “Class D” substance, as though it were a “Class A” substance such as heroin or morphine, or a “Class B” substance such as cocaine, LSD, PCP, or Ecstasy.

In the latest example of this, consider this following story from FOX25 in Boston.

This past Friday, April 12, in Everett, Mass., a 28-year-old Arizona man was arrested after police discovered more than 2,000 pounds of marijuana inside his rented truck. Police offers charged Mr. Luis Barrios, of Tuscon, Arizona, with Massachusetts marijuana trafficking, as well as the crime of operating a motor vehicle without authority. According to police reports, after being stopped, Mr. Barrios showed difficulty in locating his motor vehicle registration, as well as the signed rental agreement for the Ryder truck he was sitting in, and driving. A K-9 team was also used to determine the presence of drugs in the Ryder truck. Mr. Barrios will be arraigned next week, and will undoubtedly, require the services of a Boston marijuana arrest lawyer.

But is where I roll my eyes. I don't care how much pot was discovered in this truck: 2 pounds or 2,000 pounds. This is NOT an addictive, or "destructive" substance (bearing in mind that any substance can technically be "destructive" - even water.) Why do we waste the time and resources of police and the courts, on something that is dozens of times less harmful than alcohol, which anyone over the age of 21 can legally buy and consume, anywhere? This is a MASSIVE waste of public money and resources.

Massachusetts courts are overcrowded enough, without wasting more time and resources prosecuting people for possession of a harmless drug such as pot. I believe marijuana should be legalized, regulated and taxed, just like alcohol and cigarettes. In fact, the failure of our laws to do just that – legalize marijuana – only serves to spawn a thriving black market for marijuana. Black markets are what create drug rings - period. If the government outlawed milk today, crime rings would spring up tomorrow to control it, price it, smuggle it and profit from it. Marijuana itself isn't harmful - but its prohibition IS, because that's what creates crime. Our government - federal and too many of the states - learned nothing from 1930's prohibition of alcohol, and Al Capone.

Study after study, report after report, has concluded that marijuana is essentially a harmless drug that should be legalized, regulated, and taxed. The most recent? A highly authoritative report on why marijuana should be legalized in the USA, endorsed by 500 top economists such as Milton Friedman. This report, like so many others on this subject, is stunning. The statistics within it show that legalizing marijuana with resulting regulation and taxation could save an estimated $7.7 billion annually in federal and state spending on enforcement of marijuana prohibition. This authoritative economic report states that if marijuana were to be subject to taxes, like other consumer products, it could probably generate tax revenues of $2.4 billion per year. Furthermore, the economists endorsing the report believe that if marijuana were taxed in the same way as are tobacco and alcohol, the taxes could result in as much as $6.2 billion per year.

But don't tell that to government. They're too busy with their heads somewhere they can't be seen. Are you listening, President Obama? Because a lot of the states are talking, and very loudly.

Despite the fact that public possession or use of less than an ounce of marijuana in Massachusetts was decriminalized by voters in 2008, police departments and District Attorneys’ offices around the state have still seemed intent on prosecuting people any way they can for the private, recreational use of small amounts of pot. This has not only been a direct affront to the public’s clearly stated will on this subject, it has involved a colossal waste of public resources.

Why do they continue to do this? Credible scientific study after study has made it clear that recreational marijuana use is not only not harmful in any malignant or serious sense of the word, but that chemically speaking, cannabis is not an addictive drug. Can people grow to enjoy it, or like it? Yes. Can some people become emotionally dependent on it? Depending on their personality, yes. But before any doubters latch on to those two answers with “Aha! You see – We told you so!”, remember this: People can grow to enjoy or like a lot of behaviors and substances in life. That doesn't make those things addictive. As well, people can grow emotionally dependent on a lot of behaviors and substances – including music and comfort food. That doesn't make those things addictive. Care to know three of the most chemically addictive drugs known to mankind – of the tens of thousands out there? Nicotine, caffeine, and alcohol. Yet all three are legal across this country . Regulated (as they should be,) but legal.

Yet, we spend hundreds of millions of taxpayer dollars prosecuting the use of cannabis. And, when the addiction argument on pot is proven wrong, opponents advance the “gateway drug” argument. This approach claims that, while cannabis itself may not be addictive, it leads to the use of other drugs (such as cocaine and heroin,) which are without question addictive. This is like saying that if you begin eating hot dogs, you will one day wind up abusing food to the extent that you’re 400 pounds and morbidly obese. People who abuse cocaine, narcotics and drugs like crack and heroin, do so because of deeply seated personality, biochemical and neurochemical problems – not because they smoked pot at one point.

As a Boston, Massachusetts drug crimes lawyer, I find the police and prosecutorial attitude toward personal pot use to be a massive waste of taxpayer resources – resources which need to be directed onto far, far more serious and malignant crime problems. It’s not that I don’t respect police officers or prosecutors – to the contrary, I very much respect both professions, and appreciate them. (After all, they help keep us all safe from real criminals – and that is not lost on me, despite the fact that as a Dedham Massachusetts criminal defense lawyer, I work on the opposite side of the aisle.) I know many fine police officers and prosecutors. But this attitudinal approach to the private use of marijuana, and the resulting waste of millions of dollars of precious tax resources, has got to stop.

The Massachusetts Supreme Judicial Court (SJC) took one more step in that direction this past Friday, in issuing three key decisions surrounding the possession and use of small amounts of marijuana. In each of the three cases, the court made clear where the criminal and civil offense line is with possession and use of marijuana. In these three rulings, the SJC threw out cases that charged the defendants with the far more serious crime of Class D Possession with Intent to Distribute (a felony,) when those charges arose simply because the defendants possessed less than an ounce of pot in public. The worst consequence that such an act can legally bring in Massachusetts, is a civil fine of $300 – essentially a ticket. Let me explain what’s been going on with the police approach to these cases: The police see someone either smoking or carrying less than an ounce of marijuana. They know they can’t arrest the person, but they want to “get” him or her, anyway. So they engage in a warrantless search of the individual’s person or car, in the hopes that they can find more than one ounce. And if they do find more than one ounce? Voila, they can make an arrest, and “bag” the person on charges that usually allege “Intent To Distribute,” which is what drug dealers are usually charged with. Ridiculous, but that’s what too many police officers do.

These kinds of facts were at the heart of one of these key rulings by the SJC: Every year on Boston Common, marijuana legalization advocates, including members of the National Organization for Reform of Marijuana Laws (NORML,) hold Hempfest. At this gathering, many people publicly smoke marijuana – harming no one, (including themselves.) At the 2010 Hempfest, Boston police officers zeroed in on someone who was sharing a marijuana cigarette with some friends. Even though this is NOT a crime, this led police to think they had probable cause to search the person’s backpack on the spot (i.e., without a warrant,) where they found 10 small bags of pot weighing a total of 23.5 grams, far less than an ounce. Faster than you can say “We Gotcha,” the person was arrested, cuffed, and charged with Possession with Intent to Distribute – a felony offense in Massachusetts.

The eventual legal result? The SJC threw the charge out, because the person arrested was not engaging in a crime, because the search was not supported by probable cause, and because the evidence found did not support the charge of Intent to Distribute. Writing for a unanimous court, Justice Fernande R.V. Duffly wrote, “We now decide that the social sharing of marijuana is akin to simple possession, and does not constitute the facilitation of a drug transfer from seller to buyer that remains the hallmark of drug distribution."

The message to Massachusetts police and prosecutors: WAKE UP. Neither the public, nor the courts, view the possession or use of marijuana amounts of less than an ounce to be a legal offense, or worth taxpayer money to pursue. Leave it alone. Learn from the lessons of the massive failure of Prohibition, and use your resources to protect the public from real, actual criminals. That's where we need you.

This post isn't titled "Mr. Kickham's Best-Dressed list," but here goes anyway: I’m sure you have all seen the images, out on public streets, and in social media. What am I talking about? Young men, wearing their pants so low that their underwear is completely exposed, their belt is to their knees, and they wind up stepping on their pants legs, which are bunched down at their shoes. It drives me bonkers.

This style of dressing is anything but dignified, anything but admirable, anything but mature, and anything but flattering. It inspires descriptions of “moron", "loser," "idiot," "uneducated," and "unsophisticated." It's pathetic and laughable. So, as a Boston, Massachusetts sex offenses lawyer, I am constantly shocked when I see young men appearing in a court of law dressed the same way. I don't allow it with my younger clients. I require my clients to dress respectably and as adults when they are in court. Period. By no means do the clothes need to be expensive; by no means do they need to be "fashion-forward" - at all. But I will not allow my clients to appear by my side in front of a judge, looking like they are wearing pajamas. and most of them do. What I’m discussing here are the many clueless other young male defendants that I see in courthouses all over eastern Massachusetts.

“What are these kids thinking?,” I constantly ask myself. Do they really think that they are putting their best foot forward? Don’t they realize that they are essentially putting a “bad cover” on what judges and juries may interpret as a “bad book? Each of them looks like an idiot, like a complete malcontent. Worse, I ask myself what their lawyers are thinking, in allowing their clients to appear in court like this. Dressing that way is tantamount to wearing a sign that says, "I'm screwed up; I don't know how to conduct myself or present myself appropriately; I don't respect authority, and I don't respect this court." They may as well display an obscene gesture to the judge. Yet, stunningly to me, even though I see the frowns on some judge's facial expressions when these defendants come before them, too few say anything. The reason? They're just too busy trying to get the business of a crowded court docket, completed. On any given day, most District Courts in Massachusetts are packed full of criminal cases and criminal defendants, together with civil cases, and most judges just want to move things along as efficiently as possible.

It's unfortunate, because dignity and respectability are forced to take a back seat to efficiency. In my view as a Boston criminal defense lawyer, the the dignity of the courts suffer as a result.

Despite what some people might want to think, appearances count, especially in a formal courtroom, where every little thing is counted and judged. It’s a fact – it’s not always the actual testimony that assists judges and juries in their decision-making. I always tell my clients: Look your best. If you’re a man, wear a suit and tie. If you’re a woman, wear a dress with understated makeup. Dress conservatively – as though you are going to a business meeting. Polish your shoes. Look like an outstanding citizen. Groom yourself. First impressions count. When a criminal defendant walks into the theater of the courtroom, the judge and jury will not be impressed if his (or her) pants are down to their knees.

It boils down to this: The way you dress has a huge influence on everyone’s perception of you in a courtroom. And how you are perceived has a huge impact on your results – guilty or innocent. Furthermore, the court deserves the respect of those who appear before it. Remember, you are not going to a Red Sox game. You are making an appearance before a judge, and sometimes a jury, who will have an impact on your future. In fact, a few years ago the American Bar Association conducted a survey to determine the amount of time it took jury members, to make a decision on the guilt or innocence of a defendant accused of a crime. The astonishing result? Less than 10 minutes. Let me say that again. It just took them a mere 10 minutes to make a decision about the fate of an accused party’s life. Dressing the right way just might offer you an edge. Make sure to take it.

To paraphrase an old joke, don’t dress like the proverbial ax murderer. Instead, dress like a winner.

Something made the local (and some national) news earlier this week, that has to stand out as one of the most shocking, ridiculous overreactions from school officials I have ever seen.

This past Wednesday, March 22, a 5-year-old boy at the Central School kindergarten in Hopkinton, Massachusetts, was standing in line to get on a school bus with his friends. His parents had recently taken him on a February vacation trip to a Wild West-themed park in Arizona, where they bought him a plastic toy cowboy gun and a cowboy hat. Sounds perfectly normal, right? Well, hold on.

That boy, Jonah Stone, showed the plastic toy six-shooter to another kindergarten student standing in the bus line to go home this past Wednesday. The result? This 5-year-old boy - a kindergartner - was pulled off the bus, taken inside the school, and held inside the school principal's office. His mother, Christina Stone, was summoned to the school, where she was informed that: 1) This 5-year-old boy had violated the school's policy on "guns," and 2) That he was being suspended from the school for a day as "punishment." For the sake of importance, I repeat here: This boy was 5-years old, and this "gun" was - quite obviously to anyone seeing it - a PLASTIC cowboy six-shooter. The boy's mother, Christina Stone, found her 5-year-old son held in the principal's office WITH A POLICE OFFICER. The boy was trembling, so scared that according to his mother, he was swallowing his tongue. Mrs. Stone told reporters that the principal, Mildred Katzman, very sternly reproached her and her son, and told Mrs. Stone that when she got home, she should sit down the 5-year-old, and tell him all about the tragedy in Newtown, Connecticut, where 26 people were killed in a shooting tragedy.

As a Boston, Massachusetts gun offenses lawyer, I cannot believe that this was done to this child. To say that this was an "overreaction" is far too anemic a characterization. If this kid was 15, I could see this response. The school shootings that have occurred have involved teenagers at the high school level (15, 16 years old.) But SUSPENDING a 5-year old kindergartner from school? For having a plastic toy gun? The people in this school system need to get real, and get perspective: This wasn't a high school kid carrying a semi-automatic assault rifle. It wasn't even a grammar school kid. It was a KINDERGARTNER - and these idiots were fully aware that this was a TOY.

Following this story generating widespread media coverage, including the The Boston Globe and The New York Daily News, the town of Hopkinton School Committee denied that they had any advance knowledge of the principal's actions against the boy. His mother, Christina Stone, told reporters that "I think they're trying to make an example of (my son"), and threatened to go to the Boston chapter of the American Civil Liberties Union. Reporters contacted Hopkinton School superintendent Steven Hiersche's office, but he declined to be interviewed. Suddenly (and "miraculously") the school lifted the boy's suspension, however brief it was.

Can you say "Frustrated school principal who lacks any discretion and wants to seem important"? Let's not hear "You can never be too careful." No, the answer to Newtown and similar events isn't wild overreaction and histrionics. It's common sense. What's next? Charging a 4-year-old, who throws something from a baby carriage, with assault?

I can believe the Hopkinton School Committee's denial that they had any knowledge of this principal's actions, given the timing of this event. But now that they do know, here's a suggestion: Suspend this principal for a day, and require her to attend a class called "Discretion and Context In Decision-Making: How To Avoid Histrionics and Needless Drama."

The Massachusetts Supreme Judicial Court (SJC) issued a major ruling this week, clarifying the type of “romantic”, or dating, relationships that can qualify for the issuance of an Abuse Prevention Order, (“Restraining Order,”) otherwise known legally in Massachusetts as a “209A Order.” 209A refers to the originating statute, Massachusetts General Laws Chapter 209A.

The statute was enacted several years ago to provide protection from abuse for people who were, (among other definitions) related family members, married, or in a “substantive dating relationship.” As a Boston, Massachusetts domestic violence attorney, I can tell you that determining whether parties to such an Order are related or not, is usually fairly easy. But as to what “substantive dating relationship” means, the statute allows judges to consider a number of factors, including: 1) The length of the relationship; 2) The type of relationship; 3) the Frequency of interaction between the parties; and 4) Whether the relationship has been terminated by either person, and the length of time elapsed since the termination of the relationship.

All this worked for a while, but time and - in this case, technology - have a way of making the obvious obsolete. Hence, the need for the court’s ruling that I’m talking about today. With the rise of the internet, came internet dating: That vast expanse of cyber space where millions of lonely hearts surf the waves of the world wide web, looking for companionship, compatibility, and (not unexpectedly,) coitus (that’s sex, for the uninformed.) Let’s say that two people find each other on the internet and start an “online relationship”: They exchange intimate details about themselves, engage in amorous written exchanges, but then something goes wrong (as it often does in these situations.) If one person to that online “relationship” feels physically threatened by the other person, does that person qualify to be granted an Abuse Prevention Order (Restraining Order) under Chapter 209A? Or is that “pushing the legal envelope”?

The SJC ruled unanimously in this case that online communications such as text messaging, emails and Skype conversations can constitute a legitimate romantic relationship that would fall under the Massachusetts domestic violence statute, and thus, qualify for such a Restraining Order. Expanding the traditional definition of what type of relationship falls under this statute, the court ruled that the procedure for obtaining a Massachusetts Restraining Order “must be interpreted to protect all (persons) who are in a substantive dating relationship from abuse, regardless of whether the relationship was developed or conducted by the use of technology.” As a Massachusetts domestic violence lawyer, I have seen and defended a lot of these cases, very successfully, but I can assure my readers of one thing: With this expansion of the definition of “substantive dating relationship,” this ruling is going to make Massachusetts District Court judges even busier hearing these types of matters.

So, the bottom line from this Massachusetts Supreme Court ruling is this: If you ‘re in an online dating relationship, watch what you key in, or you may find yourself on the receiving end of an old-fashioned form of text messaging: The police at your door, handing you a very unpleasant message: A Restraining Order. While the issuance of these Orders is civil in nature, violating them is a criminal act, subjecting a defendant to serious criminal penalties. The Domestic Violence page on our web site can explain this in more detail.

This post is written to remind everyone that we are all vulnerable to someday getting into trouble with the law – even some of us that you would be least likely to suspect.

As a Dedham, Mass., DUI lawyer, let me share with you an interesting development. Right now there is a story making headlines in the Boston newspapers about the Commissioner of the Boston Police Department, Ed Davis, which illustrates my point in the above paragraph. Last week, Commissioner Davis’ 22-year-old son Phillip was arrested in Plymouth, New Hampshire, on charges of drunk driving.

At a recent event at Emmanuel College, Davis made a statement, in which he said that his son is doing well, and he thanked everyone for their concern. Among other things, he said the following: "Like many families that struggle with substance abuse, we are reaching out to experts to get Phillip the help he needs. Jane and I love our son very much and are relieved that he has decided to seek treatment."

I empathize with the Davis', because I have seen this happen to far too many people, of all ages. I hope that if young Mr. Davis needs help, that he gets it. I say this in view of the possibility may even be a previous DUI incident involving the young Davis. Reportedly, the Suffolk County District Attorney’s Office is looking into another incident earlier this month, in which a Boston police officer allegedly gave Phillip and his girlfriend a ride home from the TD Garden, because the officer suspected that Phillip may have been impaired and unable to drive himself home. It may be that the officer potentially wanted to spare Phillip the pain of being arrested on Boston OUI charges, requiring the services of a Boston Massachusetts drunk driving attorney. That incident is still being investigated, and the young Davis has not been charged with any crime. Even if he had been charged, I should emphasize here that like all criminal suspects, young Davis would, and should, be presumed innocent until proven otherwise.

That police officer's action prompts the obvious question: Was that ride home for Phillip, an act of favoritism on the part of the police officer? Was it special, preferential treatment? As a Boston, Massachusetts criminal defense lawyer, I believe that it’s important for all criminal suspects to be treated on a level playing field. After all, if you were arrested for Massachusetts drunk driving, would you want to know that a police officer’s son, arrested and charged with the same criminal offense, was given preferential treatment? The police need to be very careful here and the legal system needs to handle this case with utmost precision, so that the due process is applied to all citizens.

It is still not clear what Phillip’s Blood Alcohol Content was at the time of his arrest - and, as I said above, he should be presumed innocent at this time. But the limit in Massachusetts is a BAC of .08 or higher. For Massachusetts drivers under 21 years old, the BAC limit is .02 or higher.

If you are stopped by the police, perform a Breathalyzer test, and your breath registers a blood alcohol content that is higher than .08, you will be arrested and charged with drunk driving. Then you will be subject to Massachusetts OUI/DUI laws and penalties, which can be severe. Since this is anything but a pleasant experience, remember: If you plan on having more than one drink, do NOT drive. If you do, you run the risk of hurting an innocent person, and you yourself will need the services of a Massachusetts OUI attorney.