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arrest process |
arrest | basic principles | assault and battery | drugs | drunk
driving | motor vehicle violations | theft
Arrest Process –
When someone is arrested by the police, a specific series of events follows.
While the suspect is in custody, police must follow specific legal
procedures.
An arrest occurs when police take you into
custody or is complete the moment you, as the suspect, are no longer free to
walk away from the arresting officer.
In 1966, the U.S. Supreme Court ruled in
Miranda v. Arizona, that individuals who are under arrest for suspicion of
having committed a crime have certain rights that must be explained to them
before any questioning may occur. The rights are designed to protect your right
to be free from self-incrimination under the Fifth Amendment to the U.S.
Constitution. There are five different rights, known as the "Miranda Rights":
- You have the right to remain silent and to
refuse to answer questions.
- Anything you do say may be used against you
in a court of law.
- You have the right to consult an attorney
before speaking to the police and to have an attorney present during
questioning now or in the future.
- If you cannot afford an attorney, one will be
appointed for you before any questioning if you wish.
If you decide to answer questions now without an
attorney present, you will still have the right to stop answering questions at
any time, and refuse to answer any additional questions until you talk to an
attorney.
Note: Miranda rights must only be read when an
individual is in police custody and is under interrogation. Therefore, if the
police stop you to give you a traffic ticket, and you start explaining to them
why you were speeding, you cannot later protest that you were not read your
Miranda rights. While the police may have been "interrogating" you in a certain
sense, you were not in police custody unless your freedom of action was
curtailed to a degree associated with formal arrest; see your state laws for a
definition of police conduct that would be associated with formal arrest.
If you are stopped by the police, they may
frisk you by performing a "pat-down" of your outer clothing in order to
determine if you are concealing a weapon. Later, after your arrest, they may
perform a full-body search of your person and immediate surroundings to ensure
that you do not have any weapons, stolen items, contraband, or evidence of a
crime. If the police take possession of your car, it may be searched as
well.
In Massachusetts, you have the right to make a
telephone call, or calls, once you are placed into custody. Generally, you are
not entitled to make a telephone call until after you have been booked.
The police may take any personal property or
money that you have with you and put it in a safe place after performing an
inventory. The police will ask you to sign the inventory and, after reviewing
it, you should do so, if you agree with the contents of the inventory.
Once
you are arrested, you will be booked. During the booking procedure the police
will ask you for basic information about yourself (such as your address and
birth date). You will also be fingerprinted and photographed. You may also be
asked to participate in a line-up or give a handwriting sample.
If you are detained but not booked within a
reasonable period of time (usually several hours, or overnight) your attorney
may go to a judge and obtain a writ of habeas corpus. A writ of habeas corpus
is an order issued by the court instructing the police to bring you before the
court so that a judge may decide if you are being lawfully held.
Once you are arrested by the police, the
information will be provided to the appropriate prosecutor's office. The
prosecutor will then review the information before making an independent
decision as to what charges should be filed. Note: If you have been arrested
for a felony, a prosecutor may enlist the services of a grand jury to review
the available information in order to determine with what crimes you should be
charged.
If you are placed in custody, you have the
right to appear in court, hear the charges filed against you, and enter a plea
within a reasonable amount of time.
If you are placed in jail, you may be able to
get out prior to your trial if you "post bail." Bail is a court-determined sum
of money that you pay to the court in order to ensure that you will appear in
court when told to do so. If you do appear as required, the bail will be
refunded to you once the case against you is concluded. If you do not show up
or flee the jurisdiction, the court keeps the money and can issue a warrant for
your arrest.
Bail may be paid in cash or in a cash
equivalent. You may also be allowed, depending upon the circumstances, to post
a bond. A bond is a guarantee of payment of the full bail amount should the
need arise. In other situations, you may be allowed to be "released on one's
own recognizance." This means that the payment of bail is waived on condition
that you appear in court when required. This is generally used in crimes that
are minor in nature or where the judge is of the opinion that you are a
trustworthy individual who is unlikely to flee the jurisdiction.
Not every arrested individual is entitled to
bail. In particularly heinous crimes, where the defendant is a flight risk, or
when the court is concerned that the defendant may harm members of the public,
bail may be denied and the defendant will be kept in jail as a "pre-trial
detainee." You may also be considered a "pre-trial detainee" if you are unable
to post bail for your release.
• The judge is responsible for setting
your bail. In Massachusetts, bail is determined on a case-by-case basis. The
Eighth Amendment to the U.S Constitution requires that bail not be excessive.
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Arrest
–
When do the police need a warrant to make
an arrest?
As long as the police have good reason (called
"probable cause") to believe that a crime has been committed and that the
person they want to arrest committed the crime, they can, with just one
exception, make an arrest without asking a judge for a warrant.
The exception?
There are few places where the adage "a man's
home is his castle" still applies, and an arrest at home is one of them. The
police must have a warrant to arrest a person at home if the arrest is for a
nonserious offense -- such as a simple assault -- and there is no fear that the
person they want to arrest will destroy evidence or cause harm to the
public.
If I'm arrested, do the police have to
"read me my rights"?
No. However, if they start questioning you but
haven't read you your rights, they can't use anything you say as direct
evidence against you at trial. What are these rights? Popularly known as the
Miranda warning (ordered by the U.S. Supreme Court in Miranda v. Arizona), your
rights consist of the familiar litany invoked by TV police immediately upon
arresting a suspect:
- You have the right to remain silent.
- If you do say anything, what you say can be
used against you in a court of law.
- You have the right to consult with a lawyer
and have that lawyer present during any questioning.
- If you cannot afford a lawyer, one will be
appointed for you if you so desire.
If you choose to talk to the police officer,
you have the right to stop the interview at any time. (This part of the warning
is usually omitted from the screenplay.) It doesn't matter whether an
interrogation occurs in a jail or at the scene of a crime, on a busy downtown
street, or in the middle of an open field: If you are in custody (deprived of
your freedom of action in any significant way), the police must give a Miranda
warning if they want to question you and use your answers as direct evidence at
trial. If you are not in police custody, however, no Miranda warning is
required. This exception most often comes up when the police stop someone on
the street for questioning about a recent crime and the person blurts out a
confession before the police have an opportunity to deliver the warning.
Will a judge dismiss my case if I was
questioned without a Miranda warning?
No. Many people mistakenly believe that a case
will be thrown out of court if the police fail to give Miranda warnings to the
arrested person. What Miranda actually says is that a warning is necessary if
the police interrogate a suspect and want to use any of her responses as
evidence. If the police fail to give you a Miranda warning, nothing you say in
response to the questioning can be used as evidence to convict you. In
addition, under the "fruit of the poisonous tree" rule, if the police find
evidence as a result of an interrogation that violates the Miranda rule, that
evidence is also inadmissible at trial. For example, if you tell the police
where a weapon is hidden and it turns out that you gave this information in
response to improper questioning, the police will not be able to use the weapon
as evidence unless the police can prove that they would have found the weapon
without your statements.
What's the best way to assert my right
to remain silent if I am being questioned by the police?
If you're taken into custody by the police, you
don't have to use any magic words to let police officers know that you want to
remain silent. You can simply say nothing in response to police questions. Or,
after an officer gives you a Miranda warning, you can stop the questioning by
saying something like:
- I want to talk to an attorney.
- I won't say anything until I talk to an
attorney.
- I don't have anything to say.
- I don't want to talk to you anymore.
- I claim my Miranda rights.
If the police continue to question you after
you have asserted your right to remain silent, they have violated Miranda. As a
result, anything you say after that point -- and any evidence gleaned from that
conversation -- will not be admissible at your trial.
How heavy-handed can the police get
when asking questions?
Information that you voluntarily disclose to a
police officer (after you have been properly warned) is generally admissible at
trial. The key word is "voluntary." Police officers are not allowed to use
physical force or psychological coercion to get you to talk to them. The days
of the rubber hose, protracted grilling under bright lights, and severe sleep
deprivation are pretty much over. If police officers obtain information through
any of these illegal means, the information cannot be used by the prosecutor at
trial. In addition, under the rule known as "the fruit of the poisonous tree,"
any evidence that the police obtain as the result of a coerced statement is
equally inadmissible. Defendants often claim that police officers coerced them
into talking. And it's just as common for police officers to say that the
defendants spoke voluntarily. If the police physically coerce a defendant into
talking, the defendant can support his coercion claims with photos of marks and
bruises. But actual police brutality is unusual, and a defendant cannot usually
offer independent evidence to support his claims of psychological coercion.
Judges, believing that defendants have a greater motivation to lie than do
police officers, usually side with the police and conclude that no coercion
took place.
Can a person who is charged with a
crime be forced to give bodily samples?
Yes. You might think that being forced to give
bodily samples -- such as blood, hair, or fingernail clippings -- is a
violation of the U.S. Constitution's protection against self-incrimination,
found in the Fifth Amendment. But the U.S. Supreme Court thinks otherwise. It
has ruled that the Fifth Amendment protects communications only, and that
bodily samples are physical evidence and therefore not covered by the
Constitution.
I was pulled over at a roadblock and
asked to wait and answer a police officer's questions. Is this
legal?
Yes, as long as the police use a neutral policy
when stopping cars (such as stopping all cars or stopping every third car) and
minimize any inconvenience to you and the other drivers. The police can't
single out your car at a roadblock unless they have good reason to believe that
you've broken the law.
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Basic Principles
-
What's the difference between a felony and a
misdemeanor?
Massachusetts breaks crimes into two major
groups: felonies and misdemeanors. Whether a crime falls into one category or
the other depends on the potential punishment. If a law provides for
imprisonment for longer than a year, it is usually considered a felony. If the
potential punishment is for a year or less, then the crime is considered a
misdemeanor. Behaviors punishable only by fine are usually not considered
crimes at all, but infractions -- for example, traffic tickets. But the
legislature may on occasion punish behavior only by a fine and still provide
that it is a misdemeanor.
What is the "presumption of
innocence"?
All people accused of a crime are legally
presumed to be innocent until they are convicted, either in a trial or as a
result of pleading guilty. This presumption means not only that the prosecutor
must convince the jury of the defendant's guilt, but also that the defendant
need not say or do anything in his own defense. If the prosecutor can't
convince the jury that the defendant is guilty, the defendant goes free. The
presumption of innocence, coupled with the fact that the prosecutor must prove
the defendant's guilt beyond a reasonable doubt, makes it difficult for the
government to put innocent people behind bars.
How can I tell from reading a criminal
statute whether I'm guilty of the crime it defines?
All criminal statutes define crimes in terms of
required acts and a required state of mind, usually described as the actor's
"intent." These requirements are known as the "elements" of the offense. A
prosecutor must convince a judge or jury that all of the elements of the crime
are there: that the defendant did the acts and had the intent described in the
statute. For example, commercial burglary is commonly defined as entering a
building belonging to another person, with the intent to commit petty or grand
theft (that is, to steal) or any felony. To convict a person of this offense,
the prosecutor would have to prove three elements:
- The defendant entered the structure.
- The structure belonged to another
person.
- At the time the defendant entered the
structure, he intended to commit petty or grand theft or any felony.
Break the crime down into its required elements
to see if each applies in your situation.
What standard is used in criminal
trials to prove a defendant is guilty?
The prosecutor must convince the judge or jury
hearing the case that the defendant is guilty "beyond a reasonable doubt." This
standard is very hard to meet. (By contrast, in noncriminal cases, such as an
accident or breach of contract, a plaintiff has to prove her case only by a
preponderance of the evidence -- just over 50%.) As a practical matter, the
high burden of proof in criminal cases means that judges and jurors are
supposed to resolve all doubts about the meaning of the evidence in favor of
the defendant. With such a high standard imposed on the prosecutor, a
defendant's most common defense is often to argue that there is reasonable
doubt -- that is, that the prosecutor hasn't done a sufficient job of proving
that the defendant is guilty.
If I'm accused of a crime, am I
guaranteed a trial by a jury?
The U.S. Constitution gives a person accused of
a crime the right to be tried by a jury. However, this right does not extend to
petty offenses -- defined as offenses that do not carry a sentence of more than
six months. This right to a trial by jury has commonly been interpreted to mean
a 12-person jury that must arrive at a unanimous decision to convict or acquit.
However, a jury can constitutionally consist of as few as six persons.
(Williams v. Florida, U.S. Sup. Ct, 1970.) The size of juries vary depending on
the seriousness of the charge. In Massachusetts, a lack of unanimity is called
a "hung jury" and the defendant will go free unless the prosecutor decides to
retry the case.
I am confused about why a defendant
would choose to not testify. If I were innocent, why wouldn't I want to take
the stand and tell my story?
The 5th Amendment to the U.S. Constitution
gives every criminal defendant the right not to testify, and jurors will be
told that they cannot assume anything negative if the defendant decides to keep
quiet. Of course, some jurors do make assumptions -- and they cast their votes
accordingly. But there are some excellent reasons why a defendant might remain
silent in court:
- If the defendant has previously been
convicted of a crime, the prosecutor may be able to bring this fact out -- but
only if the defendant testifies. Evidence of a previous crime may cause some
jurors to think that the defendant is guilty of the current crime, too.
- If the defendant testifies, the prosecutor
may be able to bring out other information that tarnishes the defendant's
reputation and discredits his testimony.
- Some defendants have a poor demeanor when
speaking in public. A judge or jury may not believe a defendant who, though
telling the truth, is a nervous witness and makes a bad impression.
- The defendant may have a perfectly good story
that would nevertheless sound fishy to the average jury in that particular
locale.
What happens if a defendant is judged
"incompetent to stand trial"?
The question may arise as to whether a
defendant is mentally capable of facing a trial. Defendants cannot be
prosecuted if they suffer from a mental disorder that prevents them from
understanding the proceedings and assisting in the preparation of their
defense. Based on a defendant's unusual behavior, a judge, prosecutor, or
defense attorney may ask that trial be delayed until the defendant has been
examined and her ability to understand the proceedings has been determined in a
court hearing. If a judge finds that a defendant doesn't understand what's
going on, the defendant will probably be placed in a mental institution until
her competence is reestablished. At that time, the trial will be held.
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Assault and
Battery –
What is the definition of
"assault"?
Assault is the most commonly committed violent
crime in the U.S. In Massachusetts, assaults are classified as either "simple,"
or "aggravated." A simple assault is an attempt or a threat to commit a
physical injury without using a weapon. An aggravated assault is an unlawful
attack on another person, done with the intent to cause that person a severe
physical injury. Typically, an assault is classified as aggravated when the
assault involved use of a weapon, or something else that could cause the victim
to suffer serious physical harm, or even death. There can be a conviction for
aggravated assault even if the victim was not physically hurt.
How is "assault" different from
"battery"?
Traditionally, if the victim has been actually
touched by the person committing the crime, then battery has occurred. If the
victim has not actually been touched, but only threatened, then the crime is
considered to be assault. In many states, the distinction between assault and
battery has been abolished, and either type of action may be charged as an
assault.
Are there any defenses to an assault
charge?
Yes. Possible defenses include self-defense,
defending your property, defending another person, or lack of intent (it was an
accident). Every case is different, and you should discuss your possible
defenses with an experienced criminal defense attorney.
What is self-defense, and how will it
help me?
Self-defense is a defense often used by
defendants charged with a violent crime, such as assault. The defense is an
admission by the defendant that he or she did the act charged, but doing it was
justified because of the threatening or aggressive conduct of the person
assaulted. In most cases in which self-defense is raised, the core questions
include:
- Which party was the aggressor (who started
it)?
- Was the defendant reasonable in believing
that it was necessary to use force?
- If the belief was a reasonable one, was the
force used reasonable?
What could happen to me if I am
convicted of assault?
A conviction for assault could stay on your
record for the rest of your life. You may be sentenced to serve time in prison,
to pay a monetary fine, or some combination of imprisonment and a fine. In
addition, you may be placed on probation for a substantial period of time. Some
form of counseling, or anger management training, is often a condition of
probation in assault cases. You may also lose your right to own a firearm.
How is rape different from sexual
assault?
The crime is called sexual assault, sexual
abuse, or criminal sexual conduct. The crime normally thought of as rape is
prohibited by these laws, and may be charged as first degree, or aggravated,
criminal sexual conduct or sexual abuse. The laws now take in more than
traditional rape, and include acts committed by homosexuals, and by women
against men. Husbands may be charged with sexual assault against their wives,
although the penalty may be somewhat less. Offenses such as unwanted touching
or fondling, or other indecent acts, also may be included within the definition
of sexual assault.
Does sexual assault usually involve a
weapon?
No. Seventy-five percent of all sexual assaults
are committed without the use of a weapon. The figure is even higher for sexual
assaults committed by an acquaintance.
Do I need to hire a
lawyer?
Yes! If you think you need a lawyer, then you
need a lawyer. Anyone who is charged with a crime, or who might be charged with
a crime, should have legal representation. You have the right to the assistance
of counsel at all stages of a criminal proceeding. It is important to have an
attorney present in court to protect your rights. Even a relatively minor
criminal charge can result in jail time and a substantial fine. Many crimes
will prevent you from owning or even possessing a firearm. A criminal
conviction may mean that you lose your job. If you are convicted of a crime,
something as basic as renting an apartment can be come a problem, as many
landlords hesitate to rent to convicted felons. The stakes in a criminal
prosecution are high, and you need to consider all the possible options for
your defense. An experienced criminal defense attorney can investigate your
options, and help you to decide on the best possible course of action. Also,
please understand that conviction of a sexual assault may result in
registration as a "sex offender" by the Sex Offender's Registration Board. This
process can be far more invasive and punishing than the actual penalty
resulting from conviction.
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Drugs –
What does a "grand jury" do in a drug case?
A grand jury is a group of people called
together by the prosecutor to gather information about suspected criminal
activity by listening to testimony from witnesses and examining documents and
other evidence. At the end of the proceeding, the grand jury decides whether
there is enough evidence to put the defendant on trial for the drug charges.
Grand juries are more likely to be convened in connection with more serious and
complicated drug crimes, like conducting a drug-related criminal
enterprise.
How does the prosecutor decide which
drug cases to pursue?
The first thing the prosecutor looks for is a
legally sound case, or one without any obvious defects that will get it thrown
out of court, such as violations of the defendant's constitutional rights or
destruction of evidence crucial to the defense. The prosecutor next decides if
there is enough evidence, with regard to both the quantity and the quality
thereof, to make conviction probable. Finally, the prosecutor decides if
prosecuting the case fits in with the office's policy objectives, or whether a
more informal disposition, like drug counseling or treatment, may be in
order.
Can a defendant plea bargain in a drug
case?
Plea bargaining, which involves negotiating
with the prosecutor to get the charges reduced and the punishment minimized, is
allowed in drug-offense cases. For example, a person charged with three
separate drug charges-possession, possession for sale, and transportation of
drugs-may be able to negotiate the charge down to simple possession in exchange
for an agreement to plead guilty to that charge. The prosecutor agrees to plea
bargains in appropriate cases because the government simply does not have
adequate resources to try every case, so both sides benefit from the
bargain.
What defenses can be raised in drug
cases?
The most common defense raised in drug cases is
to challenge the search and seizure that resulted in the police finding the
drugs. If the police violated the defendant's Fourth Amendment search and
seizure rights, the court will suppress, or throw out, the drugs as evidence.
The prosecution will then have far less evidence to prove the case beyond a
reasonable doubt and the case could even be dismissed.
Can a defendant be acquitted if he or
she was on drugs when the crime was committed?
Defendants who commit crimes under the
influence of drugs sometimes argue that their mental functioning was so
impaired that they should not be held accountable for their conduct. Generally,
however, voluntary impairment does not excuse criminal conduct, since people
know or should know that drugs affect mental functioning, and they should
therefore be held legally responsible if they commit crimes as a result of
their voluntary use. An exception to this rule may exist in cases involving a
crime that requires "specific intent," in which the offender must have intended
the precise result that occurred but arguably could not have formed that intent
in his or her drugged state.
Are children charged with committing
drug-related crimes prosecuted in the same manner as adults?
Children are subject to a separate judicial
system called the juvenile court system. Generally, the focus of the juvenile
court system is more on rehabilitation than on punishment. In some cases,
however, older juveniles who commit more serious crimes will be charged as
adults and tried in the regular criminal courts. In such cases, their sentence,
too, will be more in accord with adult punishment, whereas in juvenile court
any incarceration is usually in a more rehabilitative setting and generally
ends when the juvenile attains the age of majority.
Do I need a lawyer to represent me even
if I am innocent?
Every criminal defendant needs an attorney.
Innocent defendants are perhaps in even greater need of vigorous representation
throughout the criminal process to ensure that their rights are protected and
that the truth prevails. Even innocent people end up in jail, so the best way
to prevent that miscarriage of justice is to employ the services of a seasoned
veteran of criminal defense law, particularly one with experience defending
against drug charges.
If I simply intend to plead guilty, why
do I need a lawyer?
A: Even if you are guilty of the drug crime
with which you are charged, it is imperative that you seek the advice of
experienced counsel so that you can minimize your sentence and maximize your
opportunities to move ahead toward a brighter future. Criminal defense
attorneys are needed to equalize the balance of power between the defendant and
the prosecution and to ensure that the constitutional rights that are
guaranteed to all criminal defendants, whether guilty or not, are preserved.
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Drunk Driving -
Although it may have many names, including driving under the
influence (DUI), driving while intoxicated (DWI), operating under the influence
(OUI), drunk driving and drunken driving, operating a car after consuming or
while using alcohol or drugs is a serious matter. As the name varies, so do the
laws in each state concerning DUI/DWI. However, there is one constant: it can
cause serious injuries or death and it is against the law. The following
provides answers to some common questions that arise in situations involving
DUI/DWI.
Is it "safer" to drink beer, wine or
hard liquor in excess?
Any type of alcohol is dangerous when consumed
in excess. Different types of drinks contain different concentrations of
alcohol or what may be called "proofs." The proof rating is two times the
alcohol concentration. Therefore, 200 proof liquor has a 100 percent alcohol
concentration. Most hard liquors have a higher alcohol concentration than most
wines and most wines have a higher alcohol concentration than most beer,
meaning that it may take fewer drinks containing hard liquor or fewer glasses
of wine than beer to become intoxicated. However, the alcohol concentration of
a drink is not everything. You also have to consider the size of the drink that
you are consuming. Therefore, a shot glass of hard liquor, which is usually
only about 1 1/2 ounces of alcohol, may end up having the same effect as one
five-ounce glass of wine or one twelve-ounce beer. Drinking any alcoholic
beverage to excess is never a good idea. You may seriously injure yourself or
others if you decide to operate a car. However, even if you decide not to
drive, you may also suffer other physical injuries. Excessive alcohol
consumption over a long period of time can cause damage to the kidneys, liver,
heart or brain. Excessive use of alcohol within a short period of time can lead
to death.
What is a blood-alcohol
content?
Blood-alcohol content (BAC) or blood-alcohol
level (BAL) is a measure of how much ethanol is in your blood. Ethanol in your
blood is a byproduct of the broken-down alcohol that you consumed. BAC and BAL
are scientifically measured by calculating the ratio of ethanol to blood within
your system. Therefore, if you have a BAC of .15, you have .15 grams of ethanol
per 210 liters of breath, which equals .15 grams of ethanol per 100 milliliters
of blood. If your BAC or BAL is above .08 and you are operating a car or other
vehicle (including some machinery), you are probably breaking the law in all US
states. • You may still be charged with DUI/DWI even if your BAC or BAL is
under .08
How drunk or high does someone have to
be before he can be convicted of driving under the influence?
In Massachusetts, it's illegal to drive a car
while "impaired" by the effects of alcohol or drugs (including prescription
drugs). This means that there must be enough alcohol or drugs in the driver's
body to prevent him from thinking clearly or driving safely. Many people reach
this level well before they'd be considered "drunk" or "stoned."
How can the police find out whether a
driver is under the influence?
Police typically use three methods of
determining whether a driver has had too much to be driving:
- Observation. A police officer will pull you
over if he notices that you are driving erratically -- swerving, speeding,
failing to stop or even driving too slowly. Of course, you may have a good
explanation for your driving (tiredness, for example), but an officer is
unlikely to buy your story if he smells alcohol on your breath or notices
slurred words or unsteady movements.
- Sobriety tests. If an officer suspects that
you are under the influence, he will probably ask you to get out of the car and
perform a series of balance and speech tests, such as standing on one leg,
walking a straight line heel-to-toe or reciting a line of letters or numbers.
The officer will look closely at your eyes, checking for pupil enlargement or
constriction, which can be evidence of intoxication. If you fail these tests,
the officer may arrest you or ask you to take a chemical test.
- Blood-alcohol level. The amount of alcohol in
your body is understood by measuring the amount of alcohol in your blood. This
measurement can be taken directly, by drawing a sample of your blood, or it can
be calculated by applying a mathematical formula to the amount of alcohol in
your breath or urine. Some states give you a choice of whether to take a
breath, blood, or urine test -- others do not. If you test at or above.08, you
are presumed to be driving under the influence unless you can convince a judge
or jury that your judgment was not impaired and you were not driving
dangerously. Defense attorneys often question the validity of the conversion
formula when driver's alcohol levels are based on breath or urine tests.
Do I have to take a breath-analyzer
test?
No. A breath-analyzer test measures a person's
BAC or BAL. The amount of ethanol that is in your system is the same as the
amount of ethanol that is "on" your breath when you exhale. As a result, police
are able to test your BAC or BAL by having you breathe into a breath analyzer.
Whether you are required to take the test depends on the law of the state you
are in at the time you are pulled over. If you refuse to submit to a
breath-analyzer test or other similar test for measuring your BAC or BAL, such
as a blood test, your license will automatically be suspended for 6 months. If
you are later found not to have been intoxicated or impaired, your license may
still be suspended.
If I'm stopped for driving under the
influence, can a police officer ask me questions without reading me my
rights?
Sometimes. The answer depends on whether or not
you are in police custody -- that is, whether you are subject to the restraints
common to a formal arrest. For example, the U.S. Supreme Court has ruled that
the police do not have to provide Miranda warnings during roadside questioning
of a motorist detained pursuant to a traffic stop. Thus, roadside questioning
about your drinking, drug-taking, or performance on field sobriety tests does
not constitute "custodial interrogation." However, once you are arrested -- or
restrained by the police in a manner consistent with arrest -- you must be read
your Miranda rights.
Can I be charged with DUI/DWI for
driving after taking drugs?
Yes, although the crime may have a different
name. If you operate a car under the influence of drugs such as heroin,
cocaine, marijuana or any other illegal substance, you can be charged with a
crime. In addition, it is not only illegal drugs that can get you into trouble.
Many prescription medications and some over-the-counter medications carry with
them specific warnings that they may impair abilities and should not be used
while operating any motor vehicles. Check the labels on all medications
carefully. Do not get behind the wheel if you are taking any medications that
are incompatible with safe driving.
What will happen if I have more than
one DUI/DWI conviction?
The consequences of multiple DUI/DWI
convictions are very serious. In Massachusetts, , a person will be required to
pay a fine and perhaps, but quite rarely, serve a minimum term of imprisonment
for a first conviction, in addition to having their license suspended. For a
second offense, the penalty may increase the fines and imprisonment or term of
suspension. Additional offenses may result in drivers license revocation,
incarceration or the loss of driving privileges for life. Additionally, a judge
may order that the offender participate in an alcohol or drug treatment and
education program. Of course, if you seriously injure or kill another person
while operating under the influence, you may face additional charges and civil
lawsuits.
Are "alternative" penalties appropriate
for DUI/DWI?
In many cases "alternative" penalties are
allowed in DUI/DWI cases. A judge hearing your case may have discretion in
deciding how you should be punished. In situations where you have seriously
injured or killed another person, the judge may not have such discretion, but
in first-time offenses or in less serious matters, a judge may be able to
require you to perform community service, such as giving talks about the
dangers of drunk driving.
I was pulled over at a roadblock and
asked to wait and answer a police officer's questions. Is this
legal?
Yes, as long as the police use a neutral policy
when stopping cars (such as stopping all cars or stopping every third car) and
they minimize any inconvenience to you and the other drivers. The police can't
single out your car at a roadblock unless they have good reason to believe that
you've broken the law.
Should I get an attorney if I have been
charged with DUI/DWI?
Defending against a charge of drunk driving is
a tricky business. Defenders need to understand scientific and medical
concepts, and must be able to question tough witnesses, including scientists
and police officers. If you want to fight your drunk driving charge, you're
well advised to hire an attorney who specializes in these types of cases.
Although you are not required to have an attorney, it is advisable to retain a
defense lawyer if you have been placed under arrest or charged with DUI/DWI.
These laws are strictly enforced and an experienced DUI/DWI attorney can help
protect your rights. Your chances of successfully making defense arguments or
finding mistakes that may have been made in your arrest are much greater if you
have an attorney assisting you. If you are faced with a DUI/DWI charge, an
attorney is your best bet for avoiding or reducing potential penalties or
imprisonment.
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Motor Vehicle
Violations –
In Massachusetts, a reckless driving ticket or
other moving traffic violation can lead to a fine, higher insurance premiums,
the loss of your driver’s license, and in some cases, even jail time. If
you are a CDL truck driver, you may lose your livelihood as well. A traffic
violations lawyer may be able to successfully fight these charges for you, or
minimize the consequences of a conviction. Some of the more common traffic
violations in Massachusetts are:
- reckless driving
- speeding
- driving without a license or with a suspended
license
- driving with no insurance
- hit-and-run accidents
- vehicular homicide
- and others
Minimizing Points and Protecting Your
Record.
A misdemeanor traffic violation can cost you money. One offense too
many and you may lose your license. However, traffic tickets are not issued
consistently over the various jurisdictions in Massachusetts and various local
courts may consider traffic charges differently. If there are good grounds for
dismissal of the charge, I will work to overcome the charge in court. When the
State’s case is strong, I understand how to represent you when seeking to
minimize the consequences, protect your record.
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Theft
–
What is theft?
Theft involves the unlawful taking of another's
property with the intent of permanently depriving the owner of the property.
Theft also includes appropriating property fraudulently or defrauding a person
of money, labor, or property by a false or fraudulent representation or
pretense. Theft offenses typically include burglary, shoplifting, petty theft,
grand theft, auto theft, joyriding, embezzlement, extortion, identity theft,
fraud, car jacking, or computer access theft. The common thread is that each
offense relates to conduct involving taking the property of another without his
or her consent.
Will I be charged with a misdemeanor or
a felony?
Most theft offenses can be prosecuted as either
a misdemeanor or a felony. The value of the item taken or the existence of
prior convictions often determines the seriousness of the crime. For example,
in Massachusetts, taking items valued at under $250, is prosecuted as a
misdemeanor. Thefts involving items in excess of that amount can be prosecuted
as a felony.
What is the penalty for a
theft?
The penalty for a theft crime depends on many
factors, including the laws of the jurisdiction, the severity of the act,
whether the offender has previously been convicted, and whether the victim was
injured. First-time offenders of a misdemeanor are usually sentenced to
probation, restitution, community service, lesser fines or a relatively short
jail term. The punishment for a felony can involve a significant sentence in
the county jail or state prison and significant fines.
What do I do if charges are filed
against me?
If you are arrested for theft, do not talk to
anyone before contacting an attorney and be sure not to agree to any charges
until you have consulted an attorney. You have the right to have an attorney
represent you in a criminal action, and an attorney, if contacted soon enough,
can help you try to reduce any bond, investigate the charges, and possibly get
the charges reduced or dropped. Only by hiring an attorney experienced in theft
charges can you present the best defense possible under the circumstances of
your case.
What is robbery?
As with other theft crimes, robbery involves
depriving personal property from another. However, in robbery, the property is
taken from the other's person by force, threats, or intimidation. Therefore,
the victim must be present. All states provide that certain robberies are a
felony. Massachusetts also have laws providing for a more serious offense of
aggravated robbery that generally involves the use of a deadly weapon.
What is burglary and how does it differ
from robbery?
Burglary is the unlawful entering of a premises
to commit a crime, usually theft. Unlike robbery, burglary does not involve the
use of force against another person and the other person need not be
present.
What is shoplifting and how does it
differ from burglary?
Shoplifting is the crime of taking goods while
at a store without paying or intending to pay for them. A person who shoplifts
will be convicted of either a felony or misdemeanor, depending on the value of
the stolen items. Because of the costs to business (and society in the form of
increased prices), most storeowners now prosecute all shoplifters, even for
first offenses and regardless of the shoplifter's age. In many states, a person
can be arrested for shoplifting if he or she simply attempts to conceal an item
within the store.
What can happen to me if I've been
caught shoplifting?
If you shoplift and it is your first offense,
the owner can usually order you never to reenter the store and the court may
order you to pay a fine, to return the goods to the store, and to pay for the
store's property loss, damages, and time. If the shoplifter is a juvenile, the
business may sue his or her parents in civil court in some jurisdictions to
recover any losses. A repeat offender will usually be assessed more severe
penalties.
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