Boston Criminal Defense Lawyer Blog

As I am sure most people involved in the criminal justice system are aware the legislature recently changed the law relative to an individual charged with possession of marijuana that is one ounce or less. Possession of an ounce or less of marijuana had been decriminalized. The new section changes possession of an ounce or less of marijuana from a criminal offense to a civil infraction. For adults, this offense is now punishable by a $100.00 fine and forfeiture of the substance. Under the new law, an individual found to be in possession of marijuana simply receives a citation.

Experienced and successful defense attorneys must strongly argue that an odor of marijuana, whether burnt or fresh, does not provide probable cause for the police to search an individual, a car or a home. An experienced attorney would file a motion to suppress any marijuana and related evidence i.e., a scale, baggies and money, that the police confiscated at a result of search a person, car or home because of an odor of marijuana. Although prior to the decriminalization of marijuana, in certain situations the Courts held that the odor of fresh marijuana provided reasonable suspicion to search, that rule does not comport with the proposition that marijuana citations should function like traffic citations. See Commonwealth v. Garden, 451 Mass. 43 (2008).

If you have been arrested and charged with possession of marijuana, trafficking marijuana, possession of marijuana with intent to distribute in a school zone and/or distribution of marijuana and the search was based on an odor of fresh or burnt marijuana, an experienced Massachustts defense attorney must file a motion to suppress evidence. A reasonable line of argument is that similar to the fact that evidence of a traffic violation provides a basis to issue a civil citation not to search, even if the court believes that a police officer possessed the training and experience to smell marijuana, that would not provide a basis to search a car, a person or a home. Clearly, an amount of marijuana cannot be determined based on a smell of the substance. Therefore, an odor of marijuana is more likely to be indicative of a non-criminal infraction of possessing an ounce or less of marijuana. Accordingly, the police must not be permitted to presume a criminal offense based simply on an odor of marihuana. The smell of fresh or burnt marihuana, without more, does not suggest that a person is committing or about to commit a crime and does not provide probable cause to search under the new law.

Continue reading " Understanding The New Marijuana Law " »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

Posted In: Drug Crimes , Search and Seizure

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The Boston Globe recently reported that a girls basketball coach at the Melrose YMCA was arrested and charged with rape and indecent assault and battery on a child under fourteen. According to the Boston Globe, the Middlesex County District Attorney alleges that the Reading defendant, ". . . over the course of a number of years, violated the trust placed in him as a coach of young girls and sexually assaulted this young victim." The North Reading Police Chief stated that, "Because of the way that the suspect operated, our investigators are concerned that there could be additional victims who have not yet come forward." The Reading resident was arraigned in the Woburn district court. However, the Middlesex County Grand Jury will likely indict the defendant and the case will proceed through the Middlesex Superior Court now located in Woburn, MA.

The maximum penalty for the crime of rape [M.G.L.A. 265 § 22] is life in prison. In order for the District Attorney to prove someone guilty of rape, it must prove that the defendant compelled another to have intercourse by force against an individual's will or compelled by threat of bodily injury. Although the crime of rape in Massachusetts is a crime of violence, the force used to accomplish the rape need not be physical force. Additionally, in certain circumstances the force necessary for the District Attorney to prove rape may be constructive force as well as physical force, violence, or threat of bodily harm. However, if Commonwealth relies on constructive force it must also prove that sexual intercourse was against the victim's will.

The maximum sentence for a defendant who is convicted for indecent assault and battery on a child under fourteen [M.G.L.A. 265 § 13B ] for the first time is two and one half years in jail or ten years in state prison. For proceedings under this statute, a person under fourteen years of age is considered incapable of consenting to the conduct of the defendant.

In Massachusetts, a touching is considered indecent when the conduct of the defendant violates social and behavioural expectations to such a degree that A touching is indecent, within meaning of statute governing indecent assault and battery, when, judged by the normative standard of societal mores, violates social and behavioural expectations, in a manner which is fundamentally offensive to moral values and which the common sense of society would regard as immodest, immoral and improper.

Continue reading " Reading Man Who Was Girls Basketball Coach At The Melrose YMCA Charged With Sexual Assault " »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

Posted In: Indecent Assault and Battery , Rape

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The Vancouver Sun recently reported that singer Chris Brown was arrested and initially charged with making criminal threats. Brown was arrested and released after posting $50,000.00 bail. According to reports, Brown is also being investigated for domestic assault and battery and felony assault and battery.

Initial reports indicate that Brown and an "unidentified woman," suspected to be Rihanna, got into an argument that led to a physical altercation. The police responded to the area as the result of a 911 call for help. It is believed that Rihanna suffered physical injuries as a result of the incident.

In Massachusetts, if you are convicted of the misdemeanor assault and battery the maximum sentence that you can received is two and one half years in jail. In order to be convicted of assault and battery the District Attorney's Office must prove that you committed an intentional, unconsented to and unprivileged touching on another person. The government must prove that an individual committed an intentional touching of another person. Wanton and reckless conduct may substitute for the “intentional conduct” element necessary for the battery.

To successfully defend against assault and battery cases in Massachusetts, experienced defense attorneys often maintain that the defendant acted in self-defense or in defense of another at the time that he or she struck the victim. Another, strategy that many successful trial attorneys assert in Massachusetts is to present evidence proving that the defendant did not possess the intent necessary in order for the District Attorney's Office to get a conviction.

In Massachusetts, in order to prove threats, the District Attorney's Office must prove that an individual possessed an intent to threaten the victim but does not have to prove an intent to carry out the crime. Another unusual part of this crime is that in Massachusetts is that the actual receipt of the threat by the victim is not a necessary element of the crime.

Continue reading " Chris Brown Arrested And Charged With Threats And Assault And Battery " »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

Posted In: Assault and Battery , Celebrity Crimes , Domestic Assault and Battery , Self Defense , Threats

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Kathleen Hilton was held in custody for ten years before an Essex County jury acquitted her of first degree murder. Hilton was charged with arson and murder of five people following a fire that tore through a triple decker home in Lynn, Massachusetts. Experienced Boston criminal defense attorney Michael Natola secured the not guilty verdict following delays which he described as "of monumental proportion" over the suppression of the confession that Mrs. Hilton gave to police. Further adding to the delay was litigation relative to Hilton's competence.

During an interview with New England Cable News, retired Superior Court Justice Isaac Borenstein maintained that in this case, the court system took too long. Judge Borenstein was involved in some of the pre-trial hearings in this case and recognized that the case should not have taken ten years to go to trial. According to New England Cable News, Borenstein believes that the Massachusetts Court system has made strides to ensure that criminal cases move more quickly through the system.

In Massachusetts, a case must be tried within one year of a defendant's arraignment. However, routine pre-trial delays, including a defendant's motion to suppress evidence and motion to suppress statements are generally excludable time periods and do not count towards the one year period. However, the time that a case languishes in a session following a hearing, provided experienced trial counsel pushes for a decision, in certain situations may be included in the one year time frame.

Continue reading " Boston Attorney Secures Acquittal For Lynn Woman Charged With Murder " »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

Posted In: Arson , Motion to Suppress Statements , Murder

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Popular swimming phenom and eight gold medal winner Michael Phelps has been suspended by USA due to the picture of him holding what is believed to be a marijuana bong. The now famous picture of Phelps surfaced in Star magazine. According to reports, the incident occurred in November, when Phelps attended a house party while visiting the University of South Carolina. Phelps has apologized to his fans and referred to his behavior as regrettable. Phelps has never tested positive for any banned substance.

Phelps has been in the spotlight before for "regrettable behavior" including a previous conviction for operating under the influence of alcohol often referred to as driving under the influence or DUI in Massachusetts.

In Massachusetts, a conviction for driving under the influence can carry a sentence of up to two years in jail. The District Attorney has to prove that you were driving a car on a public way and that you were under the influence of alcohol. Any one of these areas should be challenged when defending an OUI case in a Massachusetts. To prove operation the District Attorney does not have to show that you were actually driving. Massachusetts Courts have held that starting the engine of the car or making use of the power provided by the engine constitutes operation. Massachusetts Courts have held that putting the keys in the car's ignition can be enough to establish operation.

Continue reading " Michael Phelps Suspended For Three Months By USA Swimming " »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

Posted In: Celebrity Crimes , Drug Crimes , Motion to Suppress Statements , OUI/DUI

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According to The Lawrence Eagle Tribune, a twenty-eight year old Lawrence man is accused of repeatedly whipping his step daughter on her back with a belt. As a result of the beating, the young girl developed welts on her back that were observed by a teacher and the school nurse. According to the paper, the child reported to the police that the beating occurred because she told her stepfather that she took $100.00 from her mother's wallet to buy a present for her teacher. The defendant was arrested and charged with assault and battery on a family member, assault and battery on a child under 14 causing bodily injury and assault and battery with a dangerous weapon. The defendant was arraigned in the Lawrence District Court and $1000.00 bail was set. Upon his release he is not to have contact with his stepdaugher.

The girl reported that she heard her mother tell her step father that he could have punished her in a different way. According to the paper, the girl stated that her mother treated her injuries with lotion. However, the mother told the authorities that she did not observe the injuries.

Continue reading " Lawrence Man Arrested For Domestic Assault and Battery and Related Charges " »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

Posted In: Assault and Battery , Domestic Assault and Battery

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The Lawrence Eagle Tribune reports that the police arrested four Lawrence teenagers and charged them with a number of property offenses after the stolen car they were driving was located using a LoJack tracking device. After finding the stolen car, the police determined that the local youths stole the car, a license plate and a battery from another car before leaving the tow lot located at 24 Medford Street, Lawrence, MA.

According to the Tribune, after the police located the car on Smith Street, they monitored it and ultimately recovered more stolen items including a computer tower, keyboard, monitor and an amplifier that was taken from the trunk of another car. The police arrested four teenagers who were all charged with a number of offenses based on their involvement. The charges included breaking and entering in the nighttime with intent to commit a felony, larceny of a motor vehicle, driving without a license, receiving stolen motor vehicle, malicious destruction of property, attaching improper plates, theft of the license plates and unauthorized use of a motor vehicle.

Continue reading " Lawrence Teenagers Charged With Numerous Offenses Including Larceny Of A Motor Vehicle, Receiving Stolen Motor Vehicle, Receiving Stolen Property and Malicious Destruction Of Property " »

Posted by Kathleen M. McCarthy | Permalink | Email This Post

Posted In: Property Crimes

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