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Many clients have asked me whether they can or should seal a criminal record that they have.  While people who have a criminal record might think that sealing that record (if possible) is a no-brainer, it’s not so cut-and-dried.  This question is becoming especially popular now that legislation is being weighed at the State House, about reducing the periods of time that persons who have a criminal record have to wait before they can request that those record(s) be sealed.

Almost anyone who has been arrested or arraigned on criminal charges in Massachusetts, even when a case is dismissed or results in  a “Not Guilty” verdict, generates a CORI report (criminal offender record information.)  Having such a record can often make it difficult for such people to find housing or employment. Continue reading

Here’s a very interesting hypothetical legal question:  Let’s assume that “Dave Defendant” is convicted of a certain crime – whether a misdemeanor or felony –and is sentenced to probation.  Part of his probation terms require that he remain drug-free, and submit to random drug tests administered by the Department of Probation.

One day, Dave Defendant’s drug tests come back positive for a controlled substance.  His probation officer brings Defendant back before a judge, for what’s known as a “probation violation” hearing. The judge finds that Defendant had indeed tested positive for prohibited drugs, which means that Defendant violated the terms of his probation – which authorizes the judge to sentence Defendant to jail.  Should this be done – should such a person be sentenced to jail for relapsing during drug recovery? Continue reading

Like an unusually large wave that occasionally hits the shore, every few years there is a swell on Beacon Hill to “reform” something. Back in the 1990’s, get-tough-on-crime advocates successfully passed legislative “crack-down” amendments to many criminal law statutes, several of them requiring mandatory minimum sentences for a variety of crimes – mostly Massachusetts drug offenses.  As a Massachusetts drug offenses lawyer, I can assure you that this approach produced some pretty awful legal results in courtrooms across the state – tying judges’ hands any time that a guilty verdict was returned by a jury on often victim-less, relatively minor drug charges.

Now, a backlash of sorts has hit Beacon Hill – in the current wave to reform many elements of the criminal justice system in Massachusetts.  The overall thrust of this effort, its sponsors say, is to reduce the numbers of people that are caught up in the criminal courts here.  In the process, the bill has sparked a lot of debate, and criticism as well. I’ll list out the major suggested changes below, with some brief commentary:

  • Current mandatory minimum sentences for several drug offenses — including cocaine distribution and selling drugs inside 300 feet of a school — would be repealed. Mandatory minimum sentences require judges to sentence anyone found guilty of certain crimes, many of which are various drug offenses, to a minimum jail or prison time, with no chance of parole. This would give back to judges the wider discretion they once had in these cases, and as anyone who knows me is aware, that’s a good thing.  As I’ve spoken of and written previously, mandatory minimum sentences do little if anything to prevent crime, and just fill our prisons up with low-level drug offenders, instead of reserving space for violent criminals. Notwithstanding, the senate’s bill would retain mandatory minimum sentences for defendants convicted of dealing the largest amounts of illegal drugs – usually, over 100 grams of cocaine or heroin. Any drug trafficking charges involving opioids would also trigger mandatory minimums.

Whether and what kind of sobriety tests would be allowed in court to prosecute drivers suspected of operating while under the influence of marijuana, was a question just waiting to be answered from the moment pot was legalized in Massachusetts – whether for medical or recreational use.  Well, the legal community now has the first such indication of those legal boundaries.

In a decision released just two days ago, the Massachusetts Supreme Judicial Court (SJC) unanimously restricted the ability of police officers to testify as to their own, subjective opinions of whether or not a given suspect was driving under the influence of pot.  Before going further, some quick contrast is needed here to explain what evidence is allowed in Massachusetts OUI/DUI alcohol cases:  In traditional DUI arrests, officers typically require the driver to perform what are called Field Sobriety Tests (“FST’s”), which consist of various tests such as walking heel-to-toe, reciting the alphabet, standing on one leg, and an additional test known as a Horizontal gaze nystagmus test, which measures the responsiveness of the eyes to a moving object such as a pen.  All of these are scientifically accepted indicators of alcohol intoxication.  If a suspect fails those tests, an officer may testify in court that the defendant failed the tests.  However, in this important decision, the court ruled that, due to the fact that there is as of present date no scientific consensus that these Roadside Sobriety Tests can definitively prove that a person is intoxicated by marijuana, the court limited what an officer can testify to on the stand. Continue reading

As I’ve said many times, people often ask me how I can defend certain types of clients accused of crimes such as, for example, drunk driving or sex offenses.  And I give them the same answer, every time:  “Because my client might be innocent.”

Just yesterday, (August 23 2017,) the Massachusetts District Attorneys Association, the statewide association representing the 14 county-based District Attorneys Offices across Massachusetts, announced that until further notice, their prosecutors would no longer use alcohol breathalyzer tests (“breath tests”) in current or future Massachusetts OUI/DUI cases.  Why?  That’s where, as a Boston and Wrentham Massachusetts OUI defense attorney, my constant answer above, becomes “Exhibit ‘A’”. Continue reading

By now most people are aware that Gov. Charlie Baker recently signed the House-Senate Conference Committee bill on the new pot law, which hammered out differences the two chambers wanted to make in the ballot law that voters passed last November, legalizing recreational use of cannabis in Massachusetts for persons age 21 and older.  Here are the details on the provisions of the new law:

Limits on homegrown and personal possession of marijuana :  Anyone over 21 years of age can possess 10 ounces of cannabis inside their primary residence, and a maximum of up to 12 marijuana plants in the home.  Outside the home, the possession limit is 1 ounce, or not more than 5 grams of marijuana concentrate.  A person can also gift up to 1 ounce to another person. For persons under 21, it is also now no longer a crime for them to grow cannabis in their home.  If they are found to do so by police (a situation rather hard to envision,) they will face a civil offense if found to possess less than two ounces of pot, whether found inside or outside their residence.  Possession of more than 2 ounces does remain a crime for persons under 21.  However, if anyone under the age of 18 is found to possess less than two 2 ounces of pot, in addition to a civil fine the minor will be required to complete a drug education program. Continue reading

Here in Massachusetts and indeed across the country, most of the public who have watched the sick and twisted saga of the murder of young Bella Bond, are understandably outraged at the extremely lenient sentence that the dead girl’s mother, Rachelle Bond, was given today by a Massachusetts Superior Court judge.  That sentence?  Time already served while incarcerated in this matter – approximately 2 years – plus 2 years of probation & drug monitoring.  She will walk free by this Friday, into a rehab program at a halfway house. Continue reading

Predictably, the Michelle Carter verdict, my legal analysis of which I posted previously, has dominated both public discourse as well as legal debate over the last couple of days.  And with equal predictability, this debate has broken down along lines of civil liberties groups (such as the ACLU,) as well as so called “cyber rights” and “social media/internet free speech” groups, loudly criticizing it.  Critical re-emphasis of the contextual facts of this case, validating the judge’s verdict, is much needed here.

Those who disagree with this judge’s decision, base their positions on largely these two bases:

  • That because Massachusetts does not currently have a specific statute on the books criminalizing the act of “encouraging” a person to commit suicide, the judge’s finding is without legal foundation. This claim is entirely false as a matter of law, as I will discuss below.

The long and painful saga of the trial of Michelle Carter, charged with Involuntary Manslaughter in the 2014 suicide death of her 18 year-old “boyfriend” Carter Roy III, is not completely finished.  Not on a legal level, because Carter has yet to be sentenced – that will come later.  And on a personal level, the case will in reality never be “finished” – not for the two families involved in this story of pathos and “progress” (i.e., technological.)  Certainly not for several others affected by it, either.

For it is a fact that a collision of forces took place in this young man’s death:  A combination of mental illness in the form of depression, of homicidal animus, and, yes, of moral decay within a society where the most intimate of relationships – including marriage – and now, yes, life itself- are ended by something called a smartphone.  Yes, this case is an indictment and a conviction of one person – Michelle Carter – for the suicidal death of Conrad Roy III.  But our society as a whole can be indicted here, as well:  For reducing the value of human life and human interaction to something so shallow and cowardly as an electronic text. Continue reading

Just a couple of days ago, a man was arrested and charged with serious felony counts on Massachusetts drug charges, in Lawrence District Court.  Except this case is rather unique.  You see, this defendant didn’t end up in handcuffs or court in the usual way:  Being arrested by the police.  He ended up in jail because his 11 year-old son called the police on his father – effectively, turning him in.

The boy the called Lawrence Massachusetts Police Department on his father, Yamil Mercado, after allegedly seeing his father deal drugs out of their home there.  Mercado reportedly surrendered to police last Thursday, one day after the boy called police to say that he and his 13-year-old cousin had found what they believed were drugs in the father’s luggage, according to a police report. The boy reportedly also told police that he’d witnesses his father in a drug deal just a day few days earlier. Continue reading