Attorney Chan's Massachusetts Criminal Defense Law Blog

Self Defense: Defending your home

Its late at night, you are asleep. Suddenly you awake to what sounds to be your front door knob jiggling and turning. You tell yourself its nothing and try to fall back asleep. Then all of a sudden you hear a window break. You run downstairs to find a masked robber with a loaded gun in his hand. A nightmare situation for anyone to be sure, but if you also had a gun, for home defense, would you be able to use force to stop the burglar?

In Massachusetts, like anywhere else, you have the right to defend your own dwelling. This right derives from self-defense and can be used if say you attacked the robber, injuring him and disarming him; or you killed him. The law states that an occupant is relieved from liability for the death or injury to the robber if the occupant acted in the reasonable belief that the person who unlawfully entered the house was about to inflict great bodily injury or death upon the occupant or another person lawfully in the dwelling. 

Massachusetts is a little weird when it comes to self-defense. Generally you only have the right to run away before you can use any force. This is known as the duty to retreat. In a nutshell it says that in order before you can use any force, especially deadly, to defend yourself, you must have exhausted every available option to not use force and escape. If you cannot escape, then you can use force to defend yourself. However, it is important to note that you do not have a duty to retreat when someone unlawfully enters your home. So you do not have to run from your own home if you see the burglar has a gun before you can use force to defend your home. (picture taken by the shopping sherpa) 

On a final note, the term dwelling is meant to refer to the inside of your home or apartment unit, not the property surrounding it. In other words, you can only use force on the burglar if he is inside your home, not in your driveway.

So to answer my question above, yes I feel that the court would find that you would be justified in using force, even deadly force on the burglar to defend your home. He is clearly an unlawful entrant, he is holding a deadly weapon that he appears to use on you and possibly others in the home, and this weapon can cause great bodily injury or death. Therefore it seems to me that any force you use on the robber would be justified under the defense of defending ones dwelling.

MA OUI Ignition Interlock Device

Under the Melanie Laws Massachusetts has toughened its OUI laws.  One of the ways the Massachusetts has increase the penalties for OUI laws is require the ignition interlock device in certain OUI violations.  If you are facing an OUI second offense and refused the breathalyzer, you will most likely have to install an ignition interlock device inside your vehicle. (picture of ignition taken by Billaday) 

The OUI ignition interlock device is a small machine that is attached to your car’s ignition.  The OUI ignition interlock device is no larger than an average cell phone.  The OUI ignition interlock device will make the OUI offender blow into it prior to starting your car.  Once the car is started the ignition interlock will require the OUI offender to re-take the breathalyzer ever so often.  The frequent testing was integrated to prevent OUI offenders from drinking in the car while driving.  

An OUI offender could be charged with violating the ignition interlock device law for doing several things.  First, the OUI offender cannot tamper with the device.  Second, the OUI offender cannot allow someone else to take the breathalyzer for him or her.  Third, the OUI offender cannot drive a car that doesn’t have the ignition interlock device. 

It is important that the OUI offender doesn’t violate the OUI ignition interlock laws.  Massachusetts has very strict penalties for violating the OUI ignition laws.  If the OUI offender violates the OUI ignition interlock laws the OUI offender could face up to 2 ½ years in jail.  The OUI offender could also face up to 5 years in state prison.  Either way, the OUI offender must serve at least 150 days of his or her jail sentence.  Long story short, an OUI offender that violates the OUI ignition interlock laws will be in jail for at least 150 days and not allowed to be parole until that time is over.  Be smart, avoid OUI charges, but if you find yourself with an ignition interlock, don’t violate it.  

How can I be guilty if I didn't commit the crime?

 Lets say someone wants to commit the crime of robbery. They have it all planned out in their mind on when and how to rob the local convenient store. They hide a gun in their jacket, walk into the convenient store, pull out the gun, but are stopped by a police officer in the store before they can reach the clerk, and effectively rob the store. In this scenario the would be robber did not actually complete the crime of robbery since they were not able to take the money by force. However, they are still guilty of attempted robbery. (picture of store taken by rexbogg)

Attempt is an offense where one can be found guilty simply by their personal intentions. In order to be found guilty of attempt for any crime one must have 1) the specific intent to commit a crime (any crime); 2) an overt act; 3) non-achievement of the crime.

The 1st and 3rd elements are really self-explanatory. In line with the example above, the accused had the intent to rob the store as shown by his actions of getting a gun, and walking to the store. He was unable to complete the crime because he was stopped and arrested as soon as the police officer saw the gun. Those elements are easy to grasp and easy for the State to prove in the prosecution.

The hardest element for the State to prove, and in fact to understand, for the crime of attempt is the overt act element. An overt act is defined as some actual, outward, physical action, as opposed to mere talk or plans. In other words the accused must have taken actual steps beyond planning and talking about the crime in order to be found guilty of attempt. In the above example with the attempted robbery, if the the would-be robber had only talked about robbing the store and planned on buying a gun, and then was turned in by someone who overheard the plan, the State would have a real hard time convicting that person of attempted robbery. This is because all that person has done was just talk and plan the robbery, they didn't take any steps beyond planning that the State would define as an overt act. The State must prove that the accused came reasonably close to actually carrying out the crime.

Now that we know what an overt act isn't it should be a little clearer on what an overt act is, granted this is all subjective on the crime and the actions taken by the accused. However it is safe to say that in the above example, when the would be robber acquired the gun, and actually walked into the convenient store, the State would be able to prove that those actions were an act beyond mere preparations and planning and therefore constitute an overt act towards committing the crime.

The crime of attempt is one of the few crimes where one can be found guilty by not actually carrying out a crime. It may sound weird and a little confusing to hear it like that but hopefully this entry has made sense of a crime that happens more often than the crimes the defendants were going to commit.

Does the police need a search warrant to use GPS?

20 years ago it was difficult to find someone that had GPS.  In the modern world where new tech toys are coming out every few months, GPS is more common than ever.  GPS is in cars and even in the palm of most people’s hands. 

With technology moving so fast the law is trying its best to keep up.  GPS is used now more than ever in criminal cases.  GPS is used in all stages of a criminal case.  First, GPS could be used a way to hinder the movement of a defendant who has plead guilty to an offense.  Second, a judge could require that a defendant abide by a GPS while their case is pending.  And finally, the GPS is being used more and more as an investigative tool by the police. 

When a person is placed on probation or on pre-trial release they know that they are on a GPS.  On the other hand, when the police use the GPS as an investigation tool, the suspect has no idea that the GPS is being used.  The giant legal question was does the police need to have a search warrant to tag someone with a GPS?  The question regarding GPS and criminal police investigations was very much a gray area until now. 

The United States Supreme Court (Boston Globe Article) has ruled that the police do need a search warrant to use GPS in investigating a case.  The US Supreme Court found that the police using a GPS without a search warrant violate a suspect’s constitutional rights.  With the police having access to greater technology these legal questions and limits are just the beginning of a new world. 

 

 

5 Bail Factors a Judge Considers

 

There are many factors that a judge takes in consideration in determining whether bail should be set or how much the bail should be.  Judges are required to state their reasons for assessing the bail they entered.  If you don’t like the judge’s determination of bail you have the ability to attempt to reduce the bail by ways of a bail review in superior court. (picture taken by billaday) The judge will consider a number of factors, but here is a list of 5 important ones:

1. Nature and circumstances of the offense

The judge will consider and listen to the background surrounding the criminal charge.  For example, for assault and battery types of cases, the judge may consider the relationship between the defendant and the victim. The judge may ask if the assault and battery is domestic in nature and if it is an ongoing issue between the parties. 

2. Accused family ties

If the defendant has a lot of family ties in Massachusetts that will usually be a big help in convincing the judge to let the defendant go on bail.  Usually a defendant with a lot of family ties in the state will not want to leave his or her family. 

3. Employment

Most judges feel that more ties a defendant has to the community, the more likely the person will show up for court.  The point of bail is to ensure that the defendant will show up in court.  If the defendant has a job for a long time that shows that the defendant the defendant is likely to stay around to continue working.  It also doesn’t hurt for the defendant to show that he or she is a productive member of the community by working. 

4. length or residence

This is an important factor.  If the defendant has been living in Massachusetts his entire life most would assume that it would be difficult for the person to just pick up and leave the state.  Because it is harder for the defendant to leave if he has lived in the state for his entire life most judges will take that into consideration when assessing bail.  The longer period of time a defendant has lived in Massachusetts the better for the person’s bail argument. 

5. Failure to appear for court proceedings

One important factor in assessing bail is the defaults on the defendant’s record.  Assistant District Attorneys will not hesitate to highlight each default to the judge.  If the defendant has a lot of defaults on his or her record the judge is likely to set bail. 

Here are just five of the many factors that a judge will consider in determining whether he or she will set a cash bail.  And if the judge decides to set a cash bail use the factors to determine how much the cash bail should be.  

Will you get out of jail on bail? 

Will you get out of jail on bail?

You are arrested and brought to court the following morning.  The biggest question that most people have is will they get out of jail that day.  The answer is it depends on the judge and the decision he or she will makes.  The judge at arraignment can do several things in deciding your freedom. (Picture taken by Mindsay Mohan)

Option 1, the judge could decide to let you leave on your own personal recognizance.  That means the judge has decided to release you without any bail.  This is the best case scenario.  Option 2, the judge could decide to hold you without bail.  This is the worst case scenario.  Most judges will lean towards holding a person on a very high cash bail verses holding you without bail. 

The reason the court tends to stray away from holding a person without bail is because the rights we are afforded under the constitution.  Therefore, judges tend to stay away from holding a person without bail.  Holding a person without bail is usually reserved for cases in which a person is being held on a murder charge. 

Option 3, the judge could decide to hold you on some type of bail.  The bail needs to be reasonable for the circumstances, but judges have wide discretion in deciding what reasonable means.  The judge will usually say something like $1,000 cash bail or $10,000 surety.  In Massachusetts, that means in order to obtain your freedom you need to put up $1,000 cash or sign over something that is of the value of $10,000 or more.  If you show up to all your court dates you can get your bail money back or get to keep the item you put up for surety.  If you default or fail to show up to court, then the court gets to keep the money or gets to seize the item you put up for surety. 

There are many factors that a judge will use in determining your bail.  Read my next blog post for bail factors that a judge may consider.  

The Murder Slayer Rule

Many states have established a form of the slayer rule. The slayer rule has to do with states trying to prevent the murderers from financially benefitting from their actions.  So take this example, a defendant is charged with the murder of his parents.  The defendant is the only child.  The parents who are the victims have a sizeable life insurance policy.  The life insurance policy names the defendant as one of beneficiaries. (picture of a blade taken by Angie)

If a state has established the murder slayer rule, then the defendant would not be eligible to receive anything under the life insurance policy.  Under most murder slayer rules, the defendant doesn’t need to have been motivated by the life insurance money.  In fact, the defendant doesn’t even need to know that there was a life insurance naming him as a beneficiary.  If it is established that the defendant murdered his parents, then the money from the life insurance will not be released to the defendant. 

Recently, in Pennsylvania a woman was charged with the death of her husband.  The life insurance named the wife as the primary beneficiary.  Pennsylvania has enacted the murder slayer rule and as a result the wife forfeited her right to collect any proceeds.  The son of the victim and defendant was the next in line to collect the life insurance money.  The son intended to use a portion of the life insurance proceeds to pay for a private defense lawyer for the defendant.  When the court found out that the son was going to use the life insurance proceeds to the benefit of the defendant, the court ordered that the life insurance proceeds to be held by the insurance company until the case is resolved.  (Pennsylvania murder slayer rule case) 

Each state have different rules when it comes to murder.  It will be interesting to see the development of the murder slayer rule.  It is the first time in which Pennsylvania has decided to require the insurance company to freeze the life insurance proceeds to someone other than the defendant under the slayer rule.  

OUI and reinstating your license

This scenario happens a lot.  The question is should an OUI defendant reinstate his license while the OUI defendant’s case is still pending in Massachusetts’ court?  This is the typical situation.  An OUI defendant takes the breathalyzer and tests .08 or above.  The OUI defendant’s license is suspended for 30 days.  The OUI defendant has no criminal record.  The 30 days is up and the OUI defendant needs to get to work, but the OUI case is still pending.  Should the OUI defendant reinstate his or her license? (picture of driver licenses taken by Aaron Anderer) 

The question really depends on how important the license is to the OUI defendant.  Under this scenario, Massachusetts OUI laws allow the OUI defendant to reinstate his or her license while the OUI case is pending.  The cost to reinstate the license is around $500. The OUI defendant will usually get a letter from the registry to notify him or her about their eligibility to reinstate their license.  If the OUI defendant decides to reinstate the license while the OUI case is pending, the OUI defendant can drive. 

If the OUI defendant is able to get the OUI case dismissed which is highly unlikely or wins his case at trial then the OUI defendant can continue to drive after the reinstatement.  The problem occurs in the situation where the OUI defendant either pleads to the OUI or is found guilty of OUI.  If the OUI defendant is convicted of an OUI offense then his or her license will be suspended for a minimum of 45 days for a first offense OUI. 

This means that if the OUI defendant decides to reinstate his or her license after 30 days for failing a breathalyzer he can drive unless the OUI defendant is convicted of an OUI.  If the OUI defendant is convicted of an OUI then the OUI defendant will have to pay another reinstatement fee at the end of the 45 day suspension.  Bottom line, if your license means that much to you and you don’t mind potentially paying two reinstatement fees then reinstate your license after 30 days for failing the breathalyzer.  If you do mind paying two reinstatement fees then I would wait until your OUI case is resolved to reinstate your license.  

Do you have a license to carry those guns?

"Uhhhh...license?"

With the Holiday season here, many, such as myself, return home to family and loved ones. While at home we do many, sometimes too many, family activities. Some, such as myself, who enjoys shooting, travel to gun ranges with their fathers over the holidays to have some father-son, father-daughter, etc. time. However if you plan on transporting any weapon across the state of Massachusetts this holiday season, there are a few things you should know about before you load up the car with your favorite rifles or pistols and head to the gun range to see if you have better accuracy than your old man. (Picture of guns taken by Svadilfari)

In Massachusetts it is illegal for someone to be in possession of a firearm, loaded or unloaded, or even in their vehicle unless they and the firearm are on the persons residence or place of business, or they have a license to possess and carry the firearm. Failure to comply with this law can result in being sent to State prison for a minimum of 2 and a half years and a maximum of 5 years. Or you could be sentenced to 18 months to 2 and a half years in a house of correction. That is a heavy sentence and has been laid down upon recreational shooters who were transporting their recreational firearm through the state.

This law does not only apply to firearms. The state has listed many things which are considered dangerous weapons (some of them a little absurd) but nonetheless the State has deemed that you can’t possess them. If any of the about to be mentioned items are found on you or in your car you could be facing a 2 to 5 year state prison sentence or 6 months to 2 and a half years in a house of corrections. Some of the weapons are as follows: a dagger or any form of knife; a sling shot (kinda silly); a blowgun; brass knuckles; nunchucks; a throwing star; batons; and those leather armbands with spikes on them that you see punk rockers wear. So beware if you receive a slingshot for a present this holiday season, because if you are found in possession of it in public or it is in your car, you could be facing a somewhat silly jail sentence. I would comment further on how some of these "weapons" I listed and didn't list aren't really dangerous weapons but that would take up several pages at least.

If you do have a firearm and you are not licensed to have one, I strongly suggest you take a Massachusetts firearm license and training course as required by the state. There are many to choose from and all are pretty reasonably priced. Such a class would be a great gift to give this holiday season to the family member who enjoys recreational shooting. After all it’s a lot cheaper than having to deal with the legal costs associated with defending that family member if they are caught in possession of a firearm without a license in Massachusetts.

Blog Post Written By Andrew Kussmaul 

Breathalyzer Refusing It or Not

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: 

Lessen your chances of being pulled over for a OUI 

OUI Lifetime Look Back Rule  

Tis the Season for OUI Road Blocks  

OUI Licese Suspension Starts on Date of Conviction  

Under 21 and Caught for OUI  

MA OUI: Key is the Point