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.
back
to top
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.
back
to top
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.
back
to top
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.
back
to top
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.
back
to top
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.
back
to top
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.
back
to top
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.
back
to top |
