MA Crime Blog
When you get pulled over for an OUI in Massachusetts you will be faced with the question of the OUI breathalyzer. The biggest question facing OUI defendants is whether they should take the breathalyzer. There are many factors that OUI defendants should consider when making the decision regarding the breathalyzer. There is no great answer when dealing with the breathalyzer. The best thing to do in avoiding an OUI is to not drink and drive. (Picture taken by My_southborough)
Probably the most important factor for OUI defendants is the license implications. The OUI license suspension increase depending on the number of OUI offense the OUI defendant is facing. For a first offense OUI, if the OUI defendant decides to take the breathalyzer and the test reads .08 or above the OUI defendant’s license will be suspended for 30 days. For a first offense OUI, if the OUI defendant refuses to take the breathalyzer, then the OUI defendant’s license will be suspended for 180 days.
The OUI laws were written in a fashion to encourage all OUI defendants to take the breathalyzer. The OUI defendant’s license is suspended for a much longer period of time if the OUI defendant fails the breathalyzer verses refusing the breathalyzer.
The second important factor that most OUI defendants’ should consider is how the breathalyzer will affect their OUI case. If the OUI defendant takes the breathalyzer and tests .08 or above, the breathalyzer result is a strong piece of evidence against them in court. The breathalyzer result is a difficult piece of evidence to overcome in any jury trial. OUI defendants stand a much better chance to win their case without breathalyzer evidence in their case. If the OUI defendant wins their OUI trial, the OUI defendant can file a motion to reinstate the license. If allowed by the court, the OUI defendant could get his license back before 180 days.
So finally, if you are an OUI defendant you must weigh the importance or your license verses giving yourself the best chance to win your OUI case at trial. In most cases, the OUI defendant is better off refusing to take the breathalyzer and taking their cases to trial.
Read more about OUI:
You are arrested for OUI for the first time in your life. Now, the police officers ask you if you want to take a breathalyzer. If you refuse to take the breathalyzer, your license will be suspended for 180 days. If you decide to take a breathalyzer and fail the test, your license is suspended for 30 days. If you plead guilty to a first offense OUI, your license will be suspended for at least 45 days. (photo taken by sahxic)
Whether an OUI defendant’s license is suspended for refusing to take a breathalyzer, for failing the breathalyzer or because the OUI defendant pleads to a OUI, it is extremely important that the OUI defendant does not drive. If the OUI defendant drives while his license is suspended for refusing a breathalyzer, failing a breathalyzer or pleading to an OUI the OUI defendant could be charged with license suspended for a OUI. It is a huge problem if the OUI defendant is charged with license suspended for an OUI.
If the OUI defendant is charged with license suspended for an OUI, there is a minimum mandatory jail sentence of 60 days. Therefore, if the OUI defendant is convicted of license suspended for an OUI, the OUI defendant will be sent to jail for a minimum of 60 days. Unlike other types of criminal charges, it is not uncommon that OUI defendant doesn’t have a criminal history at all. Those OUI defendants who are first time offenders of the law then decide to drive on a suspended license face a tough reality. Even though the OUI defendants haven’t been in trouble in the past, if the OUI defendants are convicted of driving while your license is suspended for an OUI, the law requires that the judge send the OUI defendants to jail for a minimum of 60 days.
If you ever have your license suspended for an OUI, it is extremely important to remember not to drive until your license is fully reinstated. Most OUI defendants don’t realize that if they drive while their license is suspended for an OUI they will have to go to jail. The police and judge certainly don’t take the time to warn OUI defendants that they can end up going to jail for driving while their license is suspended for an OUI.
A lot of OUI defendants need to work or drive their children to school. With public transportation only being available in the cities, it is impossible for the majority of OUI defendants to travel without driving. However, the potential penalties for driving while an OUI defendant’s license is suspended for an OUI are very harsh. It simply isn’t worth the risk for any OUI defendant to drive while their license is suspended for an OUI. The results of being convicted of driving while your license is suspended for an OUI can and is usually more severe than being charged with a first offense OUI. If you want to avoid jail, don’t drive while your license is suspended for an OUI.
Many people who get pulled over in the state of Massachusetts do not fully know their rights with the officer who pulled them over. Unfortunately this can lead to some police officers taking advantage of those uninformed. Knowing what the officer, who just pulled you over, can and can’t do can help protect your 4th amendment and other rights.
(Picture taken by JSmith) First off, Police officers can not randomly stop and search a vehicle to check the license and registration without a reasonable suspicion of wrongdoing. What does reasonable suspicion of wrongdoing mean? It means that the officer reasonably believes or believed that you have committed a traffic violation or some other crime. So therefore if you have been speeding or driving while under the influence of alcohol then the officer can pull you over and ask you for your license and registration. The police cannot randomly pull people over to see if your car is licensed and registered. It is important to note that even though the police do not have a reasonable suspicion to pull you over, sobriety checkpoints are legal and valid due to the fact that they are categorized as “fixed checkpoints to test for compliance related to driver safety”.
When an officer pulls you over for a routine traffic stop (speeding, burnt out headlight, etc.) his inquiry about the stop must end on the production of a valid license and registration. However the officer can continue their inquiry if they have the grounds for inferring that either you (the driver) or your passengers were involved in the commission of a crime or engaged in other suspicious activity. If the officer does believe you are engaged in a suspicious activity and continues his inquiry, he must stop his inquiry once any potential threat to his safety has been dispelled and there is no reasonable suspicion that criminal activity is afoot. Once this happens any basis for further detention of you is gone and the office must allow you to leave. Also the officer cannot interrogate any of your passengers unless there is a reasonable basis for him doing so; such as he sees them holding drug paraphernalia.
So lets say you get pulled over for a traffic violation and the officer decides to arrest you. Once this happens the officer can search your body due to the search incident to arrest doctrine. This doctrine basically states that the police can search you for any dangerous weapons or incriminating evidence (e.g. a pat-down) and anything within your immediate control. Due to this doctrine, the officer can search your entire passenger area, including the glove box and any containers found in the passenger area because these areas have been deemed to be within your immediate control at the time the handcuffs are put on you. The officer can search these areas even if you are sitting in the back of the police cruiser.
The searching of an automobile and when you can be stopped is a complex and well litigated issue with many rules applying to many different situations. It is such a complex issue that several blog posts need to be written about it in order to fully explain all the nuances of this area of the law. However the above, basic, laws regarding your rights during a traffic stop are crucial and the ones that citizens need to know about the most. It is especially pertinent to know these basic officer cans and cant’s during the holiday season as there will be many drivers and police officers on the road this holiday season.
Article written by Andrew Kussmaul
OUI can lead to accidents and accidents can lead to people dying. There are many OUI horror stories in which a passenger, driver of another car or pedestrian is struck and killed by an OUI defendant. In OUI cases where a death is the result, the OUI defendant can also be charged with OUI vehicular manslaughter. (picture of medical helicopter taken by drewleavy)
We hear it on the news a lot. An OUI defendant was in the car with two of his friends. The OUI defendant had been drinking alcohol at a party and later decides to drive his friends. Later the OUI defendant loses control of the car and ends up hitting a tree. The passenger of the car ends up dying as a result of the OUI defendant’s driving. The OUI defendant also gets charged with OUI vehicular manslaughter. These OUI vehicular manslaughter incidents are especially heartbreaking for the parents of both the OUI vehicular manslaughter victims and OUI defendants.
An OUI defendant can also be charged with OUI vehicular manslaughter under M.G.L c 265 §13 when the OUI incident results in a death. The prosecutor needs to show that the OUI defendant’s conduct was reckless. The prosecutor will usually try to show that the OUI defendant acted recklessly did not intend for the vehicular manslaughter victim to die and the OUI defendant was under the influence of drugs and alcohol.
If convicted of OUI vehicular manslaughter, the OUI defendant could be sentenced to a maximum of 20 years in prison. At a minimum, the OUI defendant must serve at least 5 years in state prison if convicted of OUI vehicular manslaughter. In many OUI cases, the OUI defendant accidently kills his friend and then is sentenced to a long prison sentence. This is a huge price to pay for a reckless OUI night of drinking. Don’t make this mistake, if you have been drinking call for a ride if you need one. Don’t risk killing another person or sending yourself to prison.
Larceny is just a fancy legal word for theft, not to mention it is fun to say. It is the unlawful taking; carrying away; of personal property of another; with the specific intent to deprive the person of the property permanently. This crime is becoming more and more rampant in Massachusetts and the rest of the Nation due to the hard economic times we are facing and the fact that it is the holiday season. It may seem like a straight forward crime but there are a few things worth mentioning about it. (picture of larceny taken by Katedubya)
There are 2 main subsets to the crime of Larceny; lost or mislaid property, and false pretenses. First I will explain lost or mislaid property. One can be found guilty of larceny if they come upon lost or mislaid property of another. However, they will only be found guilty of larceny of the lost property of another if at the time they took the item, they had the intent of keeping the item for themselves and they knew or had a reasonable mean of ascertaining who the owner of said property is. For example; Lets say you are on the T and you see someone leave a book, umbrella or even a cellphone, ipod, or ipad (personally don’t know how someone could forget that considering how much they paid for it, but it does happen). If you go over and pick up the item, it is in your possession and control, and if you purposefully don’t try to return it to the person who just got off the train, you will be found guilty of larceny of said item. However lets say that you wanted to return that item to the person, but the T doors closed before you could give it back to the person who stepped off and now you are on your way to another station.
Well now it is almost impossible to find that person to give it back to them so you eventually just hold on to the item, meaning to give it over to MBTA officials for their lost and found. However you forget to hand it over and take it home with you. According to the state, you would not be found guilty of larceny of said item because at the time you took it, you intended to give it back to the owner; you didn’t intend to steal it, and unfortunately, or fortunately, you took the item home with you and made it yours. With that being said most ipods and ipads have the tracking device in them so the lost user can find them, not to mention pass codes on the devices. So in the end you might not have gotten a free ipod or ipad.
False pretenses is exactly how it sounds. It is where someone fraudulently and purposefully coaxes another to give them their property. The person committing the crime must have given a false statement of fact (legal oxymoron; there are a lot of those) to the person deceived and the deceived believed it and parted with the property because of it. For example, Bob tells Frank that he can convert Frank’s TV into a 3D TV and save him the trouble and money of buying one. Bob purposefully deceives Frank into believing that his TV is capable of 3D, it just needs to be worked on by Bob outside of Franks home. In fact Franks TV is not capable of 3D, it is impossible to make it so. Frank doesn’t know this of course, and allows Bob to take the TV with him, never to be seen or heard from again by Frank. Bob is guilty of larceny by false pretenses.
The crime of larceny is one of the oldest crimes around and is one to watch out for this holiday season, so please don’t trick or let anyone trick you into believing your TV can be turned into a 3D TV.
Blog was written by Attorney Andrew Kussmal
If you have been drinking and hit someone with your car that is a serious. Aside from being charged with an OUI, if you hurt someone with your car, you can also be charged with leaving the scene of personal injury. When you hit someone with your car it is a natural human response to panic. People who have been drinking and hit someone with their car are also concerned about being charged with OUI. If you have been drinking and hit someone with your car, you may want to try to run from the scene and cover up the accident. This is a huge mistake. Leaving the scene of personal injury is much more serious than OUI leaving the scene of property damage. (picture of ambulance taken by Mikeway)
As many of us have heard from our parents, you can’t run away from your problems. And running away from an accident scene after you hit someone will only be followed by bad consequences. Aside from the issue that it is a just plain wrong to hit someone and leave try to run away, there are other serious consequences of hitting someone and leaving the accident.
The most obvious problem is that the OUI victim may die as a result of your actions. With medicine being as remarkable as it is in Massachusetts, the OUI victim may be saved if you decided to call for help right away. Aside from the fact that calling for help being the right thing to do, it will also make you more sympathetic in the court of law. If you are convicted of leaving the scene after causing personal injury as a result of OUI, you could face serious criminal penalties. The judge and jury will look at you in a more favorable way if you stopped the car and tried to help the OUI victim. It may also help you when you attempt to ask for a more lenient sentence in your OUI case. Conversely, judges tend to look very harshly upon OUI defendants being charged with leaving the scene of personal injury.
If you are charged with an OUI and leaving the scene of personal injury it will make it much more difficult to get a favorable result. Judges and society want people to own up to their mistakes and help OUI victims they have injured. If you have been drinking and injure someone with your car, don’t drive away and try to cover up the accident. Instead choose to do the right thing, stop the car and call for help immediately. It is the right thing to do, it will help the OUI victim and likely to help your OUI case in court.
Conspiracy is a strange a crime where one is guilty simply by manifesting an agreement with another to commit an unlawful act. It does not matter what the unlawful act is. It could be an agreement between you and your buddy to break into your neighbors home and steal his lamp. The fact that you and your friend talked about, planned, and agreed to do such an act makes you guilty of conspiracy. With that example I have pretty much given you the main components to the crime of conspiracy. These components are: 2 or more persons; who agree to work together; to commit some unlawful act; and an overt act in furtherance of committing that unlawful act. (picture taken by Sahaja Meditation)
Massachusetts has made it easier for one to be convicted of conspiracy by dispensing with the overt act requirement. By general definition, a single person in the group had to commit an overt act in furtherance of the conspiracy in order for him and the other members of the conspiracy to be found guilty of conspiracy. For example lets say that a group of 4 have decided to burn down the local library because the despise the dewey decimal system. They have planned and talked about it for months but it has not gone any further than that. Then one afternoon one of the members goes to the store and buys a shopping cart full of lighter fluid and a box of matches. That act of going to the store and buying those items (which will obviously be used to burn the library down) is an act committed in furtherance of the conspiracy (an overt act), and all the members are now guilty of said conspiracy. However, as mentioned above, Massachusetts has done away with this overt act requirement. So if the example above took place in Massachusetts the act of the 4 members talking, planning, and agreeing with each other about burning down the library will make them guilty of the conspiracy to do that crime. In Massachusetts one member does not need to buy the arson kit (the overt act) in order for him and the others to be found guilty.
It is important to note that after you agree with someone else to commit a certain crime, you are automatically guilty of conspiracy to commit said crime, and there is NO way you can withdrawal from the conspiracy. Once you consent you condemn. Using the above example, lets say one of the members decides they do not want to participate in the burning of the library because they have changed their minds. They either tell the others they don’t want any part in this, don’t show up to the burning, or inform the local authorities about the plan. In Massachusetts that person would still be found guilty of the conspiracy to commit arson because they were guilty the moment they agreed to or helped plan the crime. It does not matter what actions that person took after they agreed; they would still be found guilty of the conspiracy. So your best defense is to not agree or plan with others to commit a crime because once you have done so, you have sealed your fate.
You must understand that the crime of conspiracy is totally separate from the crime the conspirators plan to commit. In the above example the 4 members would be guilty of conspiracy to commit arson, and if they actually burned down the library they would be guilty of the crime of arson. They are 2 separate crimes, meaning they do not have to carry out the planned crime of burning the library in order to be found guilty of conspiracy to commit arson. It is a unique crime and one that many are probably unknowingly guilty of right now. Remember, just because you have not committed the agreed upon crime does not mean you are innocent, you are still guilty of another crime, the crime of conspiracy. Authored by Andrew Kussmal
In Massachusetts, other than facing an OUI, DUI or drunk driving charge you may also be charged with hit and run. If you damage property during a hit and run and do not stop you could be charged with failure to stop after causing property damage. If you are charged with failure to stop after causing property damage on top of a OUI, DUI or drunk driving it makes your case a lot more complicated.
In Massachusetts, being charged with failure to stop after causing property damage in conjunction with being charged with an OUI, DUI or drunk driving is pretty common. Some people being charged with OUI may be scared to stop after hitting another car or running into a mail box. The fear that people have of being charged with an OUI after causing property damage makes a lot of OUI defendants want to run away from their problems. Others may not even notice that they have caused property damage or have gotten in the OUI accident. (picture of broken mail box taken by CJ Sorg)
In any Massachusetts criminal OUI case, the assistant district attorney also known as a prosecutor will want to make sure that the alleged victims in the case are protected. In the situation where you are charged with failure to stop after causing property damage, the prosecutor will want to get the input of the victims. The victims in many failure to stop after causing property damage are usually pretty upset about the OUI defendant’s conduct. OUI victims tend not to like the idea that a person was trying to run away from a car accident especially once the victim finds out that the person was drinking. If the victim is upset that makes it more difficult to work out your OUI case in a favorable way.
If you are convicted of failure to stop after causing property damage you could face some serious penalties. The registry may want to further suspend your sentence beyond the OUI suspension. It is never a good idea to run away from your OUI problems. Hundreds if not thousands of car accidents happen every day. Just because you got into a car accident and you are charged with an OUI doesn’t mean that you are automatically guilty of OUI. Trying to run away after causing property damage will not help your OUI case in the end.
If you have been drinking and get into a car accident, stay calm, get out of the car and exchange insurance information. If you are charged with failure to stop after causing property damage, it will make it more difficult to work out your OUI case and you will be facing more jail time.
Every person in America has a Fifth Amendment right against self incrimination. Once you are arrested police officers will often recite you your Miranda Rights. Miranda was actually a case in 1966 in which the court ruled that certain rights need to be given to a person in order to protect his or her 5th Amendment rights.
Most of us have watched enough police related television shows to know what our Miranda rights are. However, there are many misconceptions of what Miranda Rights actually mean. Many people will tell me that they weren’t given their Miranda rights and then ask me will that result in an automatic dismissal of the criminal case. The answer is no. If the police didn’t give you your Miranda rights, it doesn’t lead to an automatic dismissal of your criminal case. (picture of jail bars taken by the_kid_cl
Miranda rights deals with your right against self incrimination. This means that if the police place you in custody, the police need to give you your Miranda rights prior to interrogating you. Now there is a lof of case law that define the term custody and interrogation for the purposes of Miranda.
However, let’s just say that you were arrested and the police interrogate you without giving you any Miranda rights. The court finds that you were in custody and were interrogated by police. You confess to the crime and the prosecutor wants to use your confession against you. If the court finds that by not giving you your Miranda rights prior to your confession are a violation of your constitutional rights, the confession will be suppressed. If the court suppresses your confession, the prosecutor cannot use your confession against you at trial. However, the prosecutor may go forward with other evidence to continue to prosecute or convict you.
You should never talk to the police without first talking to a lawyer. It is never a good idea to start confessing to crimes. Your confession will not help your case in the end. In summary, after arresting and prior to interrogating you the police are supposed to give you your Miranda rights. However, even if the police violate your Miranda rights that will not lead to an automatic dismissal to your case.
It seems like every year you hear about a fraternity or a sports team that ends up hurting a student due to hazing. Sometimes, hazing can even lead to the death of a student. Many cases involve public embarrassment. Even more commonly, hazing involves forced consumption of mass amounts of alcohol, which is depicted in famous movies such as “Animal House.” Massachusetts has tried to address this problem through a series of criminal statutes.
Hazing has been made a criminal offense by M.G.L.A. 269 § 17, which states “Whoever is a principal organizer or participant in the crime of hazing, as defined herein, shall be punished by a fine of no more than the thousand dollars or imprisonment in a house of correction for not more than one year, or both such fine and imprisonment.” The language of the statute shows us that it applies to not only those who actually participate in the hazing but those who are a “principal organizer.” This means that even if you are not present at the time the hazing occurs or participate at all in it, but still tell other people to commit the hazing, you are just as at fault and subject to the penalties listed above. (Picture of buses taken by Loop_oh)
The statute defines hazing as willfully or recklessly endangering the physical or mental health of another student or person through any method of initiation on public or private property. This means that the person doing the hazing must desire to cause harm or know that they are taking a risk of causing harm through their actions and go through with the actions anyway. An example of this is the drinking scenario highlighted earlier; no one in a fraternity intends to harm a pledge when they force them to drink too many drinks at an initiation party. Despite this, they know of the risks of alcohol poisoning that go along with drinking too much, but force pledges to drink too much anyway. The statute also tells us that endangering physical or mental health of another person is actionable. This adds acts of humiliation to the list of actionable offenses such as tying someone to a pole and leaving them there (another movie classic). Finally, the legislature makes it clear that hazing is a crime whether it is done on private or public property.
The crime of hazing is a serious offense, so make sure you and your children know to stay away from initiation practices that could be harmful to others. There are ways of initiation that are not dangerous and just as fun. There has been an issue with enforcement of the law in its 25 year history; however, there have been cases that have been prosecuted.