Boston Criminal Defense Lawyer Blog

The Lawrence Eagle Tribune reports that a Lawrence Massachusetts man faces a minimum mandatory sentence of 10 years in state prison if convicted of charges stemming from a drug bust. Marcelo Perez, 48, of 210 Lawrence St., was charged with drug crimes including two counts of trafficking cocaine, two counts of unlawful possession of a handgun, two counts of unlawful possession of ammunition and possession of a dangerous weapon.

Three local authorities worked together focusing on suspected drug activity in the Dunkin' Donuts parking lot on Main Street in Haverhill Massachusetts. Reports indicate that when he was arrested Perez had loaded .38 caliber pistol and 305 grams of cocaine in his jacket. With the assistance of the Tewksbury K9 unit, police discovered a hidden compartment in the back floor of Perez's jeep. It has been reported that the authorties seized an additional 30.7 grams of cocaine another loaded handgun, a box of ammunition and a digital scale. Police estimated the street value of the cocaine at $6,500.

If you have been charged with any drug crime in Massachusetts, it is imperative that you have an experienced defense attorney on your side. Most drug arrests stem from a search that has been conducted by the police. Attacking the legality of the search is often times the first step to a successful litigation of a drug offense. Depending on the circumstances of the case, this is done by filing a motion to suppress evidence seized from a defendant, his or her car and/or his or her home or apartment. Attorney McCarthy has successfully litigated these types of motions. If the evidence is suppressed the government is left without a case.

Based on the recent Supreme Court decision of Melendez-Diaz v. Massachusetts, it is imperative that a qualified defense lawyer attack any drug certificate that the District Attorney attempts to introduce in order to establish that the seized substance is in fact an illegal drug. The Supreme Court has indicated that the Commonwealth cannot merely introduce a drug certificate to prove that a retrieved product is contraband. Based on this new case law, in most cases, the Commonwealth is required to produe a chemist that examined the item and determined that is was an illegal drug. The Courts and the District Attorneys' offices are scrambling to try to get around this requirement. If you find yourself facing drug charges you must have an experienced Massachusetts criminal lawyer on your side to fight for all of your rights.

Continue reading "Lawrence Massachusetts Man Faces Mandatory Jail Sentences Stemming From Drug And Gun Charges In Haverhill District Court" »

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Posted In: Assault and Battery By Means Of A Dangerous Weapon , Drug Crimes , Firearm Offenses , Search and Seizure , Weapon Offenses

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The Lawrence Eagle Tribune reports that a fifteen year old high school student has been charged with distributing marijuana in a school zone. According to reports, the juvenile is believed to be the person that sold marijuana to another student at the school. The principal recovered nine ten dollar bags of marijuana and twelve dollars on the juvenile. The juvenile is scheduled to appear in Lawrence Juvenile Court.

Although all of the facts in this case are not known, a defendant charged with distribution of marijuana or intent to distribute marijuana in a school zone faces a mandatory sentence of two years in jail. The fact that in Massachusetts possession of under an ounce of marijuana has been decriminalized has given many teenagers a false sense of security. Although straight possession of marijuana under an ounce is not considered a criminal offense, the possession of under an ounce of marijuana with the intent to distribute and/or the distribution of under an ounce of marijuana is a criminal offense with stiff penalties. Simply passing a joint or a small amount of marijuana to a friend is considered "distribution" in Massachusetts. There is no requirement that money pass from a "seller" to a "buyer" in order for the "seller" i.e., distributor, to be charged with distribution.

In this case, the juvenile was questioned and told the authorities that he sold the contraband in Lowell Massachusetts. Depending on the circumstances, filing a motion to suppress this statement may be appropriate. In Massachusetts, the police (or anyone acting under the color of the state) cannot interrogate or question a suspect who is in custody unless he or she has been advised of the "Miranda Rights." The "Miranda Rights" basically inform a suspect that he or she does not have to speak to the police, that he or she may contact an attorney, that anything he or she says can be used against him or her in court and that if he or she cannot afford an attorney one will be appointed to him or her. In the event that the statement is suppressed, the Commonwealth's case against the juvenile for possession with intent to distribute is significantly weakened if not destroyed.

The types of factors that a finder of fact examines to determine whether a controlled substance was simply "possessed" or "possessed with intent to distribute" are the following: Whether a scale was found: Whether a large sum of money was found; Whether any cuttting implements were found such as a mirror: Whether plastic baggies were found and whether there were any admissible incriminating statements made by the defendant. The presence of any drug paraphernalia is a factor that is carefully scrutinized.

If you have been charged with possession with intent to distribute a controlled substance or distribution of a controlled substance you must have an experienced Massachusetts criminal defense attorney on your side.

Continue reading "Lawrence High School Student Charged With Distribution of Marijuana In A School Zone" »

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

Posted In: Drug Crimes

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Many people applauded when the legislature "decriminalized" the offense of possession of marijuana that is one ounce or less. The new section changes possession of an ounce or less of marijuana from a criminal offense to a civil infraction and an offender receives a civil citation. For adults, this offense is now punishable by a $100.00 fine and forfeiture of the substance. However, if a person is under eighteen years old he or she must complete a drug awareness program. This program requires of a minimum of four hours classroom instruction or group discussion and ten hours of community service. A certificate of completion of the program must be filed with the Clerk of the local district court within one year of the offense or the offender may face higher fines and possibility a criminal charge. Furthermore, being charged with possession of marijuana can still be problematic and sometimes have legal consequences.

For example, it appears that many teenagers are looking at this offense as a "free pass" to smoke marijuana and drive -- it is not. If an individual is "high" and driving he or she can still face charges of driving under the influence of drugs. Furthermore, even if someone is in possession of an ounce or less of the substance admitting that he or she shared a "joint" with a friend or gave some of the product to another can result in being charged with distribution of marijuana. Informing the police that he or she intended to share the drug can result in charges of possession of marijuana with intent to distribute. In the event that a search is conducted and scales, baggies, a large amount of money, razor blades and/or mirrors [items often used to package contraband for distribution] are found when an ounce or less is involved, the police will likely charge those involved with possession with intent to distribute marijuana. Make no mistake about it -- these are serious criminal charges that carry the potential for jail sentences, license loss and have life altering consequences. If you are in the unfortunate position of being charged with distribution or intent to distribute marijuana within 1000 feet of a school zone you face the possibility of a mandatory minimum of two years in jail. Furthermore, if you are on probation and being drug tested, testing positive for marijuana may be a violation of your probation. Make sure you and your teenagers understand the pitfalls people have been facing by underestimating the teeth in this recent legislation.

Continue reading "Understanding The Pitfalls Of 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 Lawrence Police reacted when a group of neighbors complained about the occupants of a gray Toyota Camry being involved in what they thought were "drug transactions." The Lawrence Tribune reports that as a result of a police surveillance and a tip from a citizen, four individuals were arrested and charged with drug offenses. The charges ranged from drug offenses including distribution of heroin, possession of heroin with intent to distribute to possession of cocaine and possession of marijuana.

If you face criminal drug charges it is important that you have an experienced Boston criminal lawyer on your side. Although all of the facts of this case are not known at this time, gathering all of the facts that led to the arrest of these defendants is essential to mount a complete defense. In the event that the police did not have reasonable suspicion to approach the defendants and/or probable cause to search the individuals or the car, the case could be dismissed. Whenever someone faces drug chares as the result of a search of his or her person or car, the appropriateness of filing a motion to suppress the evidence must be evaluated. In most situations, the facts are such that the filing of the motion is the exercise of effective assistance of counsel.

Filing a motion to suppress is one of many tools that a qualified criminal defense attorney has in her aresenal. If a client is charged with any type of offense where the Commonwealth must prove possession, arguing that the defendant did not have possession and control of the object or substance is often a viable defenese.

Continue reading "Concerned Citizen Prompts Lawrence Police To Conduct Drug Surveillance That Leads To Arrest Of Four Suspects Now Facing Drug Charges " »

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Posted In: Drug Crimes , Firearm Offenses

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A Salem Massachusetts man, Edward Vidinha, charged with a subsequent offense of possession of heroin faces up to two and one half years in prison if convicted. According to The Salem News, Salem police officers approached Vidinha after they saw, what they claimed to be, a drug transaction. According to reports, the officers claim that they saw Vidinha throw a small bag, of what they believe to be heroin, to the ground before they approached him. Vidinha pleaded not guilty at his arraignment in Salem District Court but was held on $7,500.00 cash bail. It is believed that the judge imposed such a high bail because of Vidinha's lengthy record.

Although all of the facts are not known at this time, it appears that there may be a viable motion to suppress the evidence in this case. In Massachusetts, the police must have "reasonable suspicion" before approaching and individual and conducting a "threshold inquiry." Here, it appears that the officers claim that they saw what they believed to be a drug transaction between Vidinha and another individual. In this type of case, it is important to file pre-trial discovery motions requesting specific information relative to the officers qualifications to make such a determination. It is also critical to do a thorough pretrial investigation to determine whether the officers could have seen what they claimed to have seen from their location. There are numerous ways to attack the legality of the officers conduct. Attorney McCarthy is experienced in defending drug cases in local courthouses including Stoughton and East Boston.

Having an experienced Massachusetts defense attorney on your side to protect your rights is crucial to presenting a successful defense. If you have been charged with a drug offense, you must contact a Massachusetts trial attorney to ensure that the police did not violate your state and federal constitutional rights when they conducted any search of your person, car or home. A successful result relative to a motion to suppress often results in the suppression of incriminating evidence and is often the end of the case.

Continue reading "Salem Massachusetts Man Behind Bars And Charged With Possession Of Heroin" »

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

Posted In: Drug Crimes

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In Melendez-Diaz v. Massachusetts, 557 U.S. – (June 25, 2009), the United States Supreme Court held that in a prosecution for a drug offense the introduction of certificates of analysis from Massachusetts drug crime laboratories violated a defendant's constitutional right to confront witnesses against him at a trial. The Supreme Court recognized that the Sixth Amendment to the United States Constitution, provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The Court has been narrowing the exceptions that state courts have carved from the Constitution to make prosecutions easier and more convenient for the government. Melendez-Diaz relied on the holding in Crawford v. Washington, 541 U.S. 36, 51 (2004) in which the Court reaffirmed the basic tenet of the constitution that a defendant has a right to confront those “who ‘bear testimony’” against him. Crawford v. Washington, 541 U.S. 36, 51 (2004).

Melendez-Diaz, affirmed Crawford’s holding that a witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. In Melendez-Diaz, the Court discussed that the Crawford opinion described the class of testimonial statements covered by the Confrontation Clause as follows: “Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id., at 51–52. The Court held that relative to a Massachusetts drug “certificate,” which the court concluded was the functional equivalent of an affidavit, there is little doubt that the document fell within the “core class of testimonial statements.”

This landmark decision will have the effect of forcing the government to meet its burden in all Massachusetts drug cases. Based on the language in the opinion, it also appears Massachusetts criminal defense attorneys should object during the prosectuion of gun offenses to the admission of ballistic certificates when the District Attorney moves to introduce them without a live witness. The reasoning in Melendez-Diaz requires the exclusion of the certificate as rank hearsay and a violation of the defendant's rights to confront witnesses against him or her.

Continue reading "Supreme Court Ruling In Suffolk County Cocaine Case Will Benefit Massachusetts Criminal Defense Lawyers " »

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

Posted In: Drug Crimes , Firearm Offenses

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The shooting death of Robert Plaza, 32 of Lawrence Massachusetts marks what the police suspect is the fourth homicide in the city this year and the second in less than a month. The Lawrence Eagle Tribune reports that Plaza careened into a chain-link fence in front of a local assisted living building. When firefighters and concerned citizens attempted to pull Plaza from his vehicle they discovered a gun shot wound to his chest. He was pronounced dead at the hospital a short time later. The authorities are treating Plaza's death as a homicide and believe it was the result of a "drug transaction gone bad."

If you have been charged with a firearm offense or a drug offense you must contact an experienced defense attorney as soon as possible. In Massachusetts, a conviction for possession of a controlled substance, possession of a controlled substance with intent to distribute and possession of a controlled substance with intent to distribute in a school zone can result in a commitment to the house of correction or to state prison. A conviction for a firearm offense can result in a defendant serving a minimum of eighteen months in jail.

In order to properly defend against these types of crimes, a good Massachusetts trial attorney often files appropriate pre-trial motions. These motions include motions to dismiss and motions to suppress physical evidence and statements. Successful litigation of these types of motions often result in the dismissal of the charges.

Continue reading "Lawrence Massachusetts Man Killed Marking The City's Fourth Homicide Of The Year" »

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

Posted In: Drug Crimes , Firearm Offenses , Motion to Suppress Statements , Search and Seizure

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Four mail carries who delivered mail in Lawrence Massachusetts have been charged with a number of offenses relating to receiving fraudulent prescriptions for Percocet from a long time receptionist at a North Andover doctor's office. The Lawrence Eagle Tribune reports that the receptionist and mother-in-law of one of the carriers, and another worker in the office, provided the prescriptions in the names of the carriers, which were then taken to local pharmacies to be filled.

The plot was successful until the doctor's office received a call from a Methuen pharmacy because a patient attempted to fill the prescription in the same week. Suspecting foul play, the Doctor brought in the North Andover police and the investigation led to the arrests four mail carriers, and two employees of the doctor. According to reports, the carriers were using the Percocet for themselves and not dealing them for profit.

The carriers were each charged with receiving stolen property, uttering a false prescription, obtaining drugs by fraud, and conspiracy to violate drug laws. The receptionist. who accordinf to the police, is the mother-in-law of of one of the carriers, was charged with larceny under $250, forgery, uttering a false prescription, obtaining drugs by fraud, and conspiracy to violate drug laws. The other employee was charged with larceny under $250, forgery and conspiracy to violate drug laws. The crew is due back in court on June 19th.

In order for the Commonwealth to secure a conviction against a defendant for conspiracy to violate the drug laws it must prove that there was an agreement between the parties or possession from which an agreement to posses s may have been incurred. In Massachusetts, the Courts have held that it is the agreement to possess the controlled substance with the intent to violate the particular controlled substance law that is the key not the actual possession of the contraband. If convicted for the offense an individual can receive imprisonment or a fine, or both, which punishment shall not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the conspiracy.

If you have been charged with any violation of the controlled substance act, you must have an experienced Massachusetts defense attorney on your side. Depending on the facts of the case, filing pre-trial evidentiary and non-evidentiary motions can lead to a favorable disposition. A successful trial attorney will file all necessary motions and fight for your rights from the arraignment through disposition.

Continue reading "Lawrence Massachusetts Mail Carriers Face Charges Of Uttering A False Prescription And Related Offenses " »

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

Posted In: Drug Crimes , Search and Seizure

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According to the Tri-Town Transcript, Blake Smith, of Boxford was arrested and charged with what police allege is marijuana in a school zone. According to the paper, the Topsfield police arrested Smith after a plain clothes officer saw him trying to sell drugs inside the Topsfield Village Shopping Center. Apparently, more than one ounce was found on the suspect and a search of the area netted $800.00 in cash and a scale in side of the suspect's car.

If you have been charged with a drug offense in Massachusetts, it is imperative that you contact an experienced drug defense attorney to get to work on your case. If you, your clothing, car or home was searched it may be appropriate to file a motion to suppress any evidence seized as the result of an illegal search. In Massachusetts, the police must have a reason to conduct a threshold inquiry and probable cause to search an individual. Successful litigation of any drug crime in Massachusetts is often set in motion with the filing of a motion to suppress. In the event that the court allows a motion to suppress, the government is often left without a case.

In order for the government to convict a defendant for possession of marijuana with intent to distribute in a school zone it must prove that the substance was marijuana, that the defendant had the intent to distribute it and that the offense occurred within a school zone. In order to demonstrate that an individual possessed the intent to distribute the prosecutor often points to large amounts of cash that was confiscated, scales and baggies. However, there are often innocent explanations for the presence of these items and presenting this explanation to the jury is critical to a successful defense.

Continue reading "Boxford Teenager Charged With Possession Of Marijuana With Intent to Distribute In A School Zone" »

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

Posted In: Drug Crimes , Search and Seizure

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According to The Lawrence Eagle Tribune, the FBI is alleging that Dr. Paul D. Weinstein used OxyContin prescriptions to entice a woman to buy his Lexis SUV. The paper reported that he offered to provide Oxycontin prescritions to the woman and an undercover government informant who was posing to broker the deal. The undercover agent recenty filed an affidavit in the U.S. District Court. Court papers allege that Weinstein made thousands of dollars selling illegal oxycodone prescriptions from his office in Lawrence, Massachusetts.

According to reports, during February and March of 2009 Weinstein sold the prescriptions to an undercover agent and a confidential informant. As the result of the execution of a search warrant the authorities retrieved evidence from his office. Weinstein faces up to 20 years in federal prison to be followed by up to three years of supervised release and a $1 million fine if convicted. He is due back in court on May 7th.

If you are charged with the distribution of a controlled substance the penalties are harsh. For example, the charge of distribution or intent to distribute a controlled substance in a school zone or in a park calls for a mandatory jail sentence of two years in prison. In addition to the count of distribution or intent to distribute a defendant faces and on and after sentence on the "school zone" violation. An experienced Massachusetts defense attorney will often file a motion to suppress physical evidence and a motion to suppress statements as a first line of defense in cases where a search warrant has been executed and where a defendant has made inculpatory statements without being given his or her "Miranda Warnings." If the police confiscated illegal substances and drugs from your person, motor vehicle or home a motion to suppress is often filed in appropriate circumstances. If you are charged with a violation of the Massachsuetts drug laws, an experienced Massachusetts trial attorney will often argue that the government did not have reasonable suspicion to conduct a threshold inquiry of a defendant and lacked probable cause to conduct a search.

Continue reading "Doctor Accused of Selling OxyContin From His Office In Lawrence Massachusetts" »

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

Posted In: Drug Crimes , Motion to Suppress Statements

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According to The Lawrence Eagle Tribune, police executed a search warrant inside a Haverhill Massachusetts apartment and found illegal controlled subtances and a big surprise --- an alligator. According to the police, following the raid on a High Street apartment in Haverhill they arrested Daniel Tiberio, 20 and William Morris, 40. The pair was charged with trafficking in cocaine and conspiracy to violate drug laws.

It was reported that the police found an alligator that was fed mice and rats. According to an Animal Control Officer the reptile, which was two feet long when it was discovered, could grow to be as large as thirteen feet. The animal was transported to an animal shelter.

In Massachusetts, in order to legally enter the home the police must have had a valid search warrant. In these circumstances, the police would have to present facts establishing probable cause for a clerk magistrate to issue a warrant. There are different types of warrants that a clerk may issue. For example, in certain situations the warrant may allow for any person present to be searched and/or indicate that the police do not have to knock before entering the premises. This type of warrant is commonly referred to as a "no knock" warrant.

If you have been charged with an offense as the result of the execution of a search warrant it is imperative that you contact an experienced defense attorney. The probable cause to issue the warrant and ultimately search the area must be within the four corners of the affidavit filed in support of the search warrant. In most circumstances, if a defendant challenges the affidavit, the government is limited to rely on the four corners of the affidavit to argue that there was sufficient information presented to the clerk to issue the warrant. Depending on the circumstances of the case an aggressive Massachusetts attorney can file a motion to suppress raising a number of issues including that the area searched was beyond the scope of the warrant, the apartment or home searched was the wrong home and the police did not have a valid reason to search every person present.

Continue reading "Haverhill Massachusetts Men Charged With Trafficking In Cocaine and Conspiracy" »

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

Posted In: Drug Crimes , Search and Seizure

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Last week Lawrence, Massachusetts police were out looking for a 1990 Toyota Camry wagon. Lawrence officers had received information from Haverhill police that the two men in that vehicle may have been involved in the stabbing and assault of two Newburyport men earlier that same evening. Officers spotted the vehicle and found Joel Sabino and Angel Hernandez in the car with a pound and a half of marijuana. Both were immediately arrested and charged with possession of class D with the intent to distribute the substance and a school zone violation. Also found was a kitchen in Hernandez's possession. It was reported that the knife might have been the weapon used in the stabbing. Apparently Sabino had been arrested one week earlier on unrelated charges. Both Sabino and Hernandez tried to avoid apprehension when stopped by running. They were unsuccessful.

Read Story: Stabbing Incident Leads To Arrest, Drug Charges Of Two Lawrence Men

No charges relative to the stabbing have yet been filed. If charges do issue they will likely be either assault and battery by means of a dangerous weapon, assault with intent to murder or both. Both of these crimes are felonies and carry a maximum sentence of ten years in state prison. Assault with intent to murder in Massachusetts is controlled by G.L. c. 265 Section 15. Assault and battery by means of a dangerous weapon is prohibited by G.L. c. 265 Section 15A. If charged, these cases will be prosecuted in the Haverhill District Court. The drug charges are likely being prosecuted in the Lawrence District Court.

Continue reading "Lawrence Massachusetts Men Arrested On Drug Charges May Have Stabbed Haverhill Man Earlier" »

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

Posted In: Assault and Battery , Drug Crimes , Weapon Offenses

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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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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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A State Police Trooper pulled over a car claiming that the driver was traveling "too close" behind the car in front of it in the passing lane. The Trooper asked the driver for his license and registration. The driver produced a valid passport however, the Trooper ordered him out of the car. While the driver was standing at the rear of the car, the Trooper frisked and searched him. During this search the Trooper felt what he believed to be a vile in the driver's front right pocket. He retrieved the vile and found which he believed contained oxycontin pills. After placing the defendant under arrest, the Trooper searched the car and found a grater with residue of a controlled substance.

The driver was arrested and charged with illegal possession of controlled substances. I filed a Motion to Suppress Evidence claiming that the stop, search and subsequent confiscation of the vile and its contents from the defendant and the retrieval of the grate from the car violated the driver's state and federal constitutional rights to privacy.

The motion specifically moved to suppress from the use in evidence of all evidence seized from ththe driver or from the car. The supporting reasons that I gave were the following:

1. said evidence was not seized pursuant to a lawful arrest;
2. it was not in plain view;
3. there was no probable cause;
4. no warrant;
5. no exigent circumstances;
6. not pursuant to a lawful stop-and-frisk;
7. not consented to;
8. the search and/or inquiry of the defendant was conducted without probable cause, reasonable suspicion or exigent circumstances;
9. the search was a “pretextual search”;
10. the search was not done in conformity with written police inventory policy;
11 the search was in violation of the Fourth and Fourteenth Amendments of the United States Constitution, Article 14 of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts and G.L. c. 276.

Following an evidentiary hearing, the judge agreed with me and allowed the motion to suppress. Based on this ruling, the Commonwealth had no case and moved to dismiss all charges against the driver.

If you, a loved one or a friend is charged with possession of drugs, possession with intent to distribute drugs or trafficking in controlled substances contact Boston area Attorney Kathleen M. McCarthy immediately and I can get to work on your case.

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

Posted In: Drug Crimes , Search and Seizure

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According to the Lowell Sun, police officers observed a driver of a car and his passenger engage in a drug transaction. As a result of these observations, the police pulled the car over and determined that the driver's license to operate was revoked. The police found bags of marijuana and a 9 mm handgun on the passenger and cocaine and illegal prescription drugs on the driver. The driver's girlfriend gave the police permission to search the home that the couple shared and the police retrieved what is believed to be cocaine, bullets, a 9 mm handgun and a shotgun. The driver was charged with multiple counts of illegal possesssion of controlled substances with intent to distribute and firearm offenses.

If you are charged with a violation of the controlled substances act or with a firearm offense it is crucial that you contact an attorney as soon as possible. If you are charged with possession with intent to distribute a controlled substance in a school zone or distribution of a controlled substance in a school zone you face a mandatory sentence of two years in prison. Similarly if you are charged with possession of a firearm you also face a mandatory minimum sentence. To successfully defend against these types of cases it is necessary to file appropriate pre-trial non evidentiary and evidentiary motions. These motions include requests for informant information, measurement of the place of the alleged offense to the school and motions to suppress the stop and/or physical evidence. Contact Kathleen M. McCarthy today if you are charged with these types of offenses so that she can get to work and successfully defend you.

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

Posted In: Drug Crimes , Firearm Offenses

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On September 21, 2007, a local Police Officer observed a motor vehicle in a residential area traveling at 30 miles per hour in a 20 miles per hour zone. The officer pulled the car over and when he called in his “stop” he allegedly observed the operator, later identified as the defendant, slide down in his seat and pulling his hand out of his pants. The officer ultimately determined that the defendant's right to operate a motor vehicle was suspended and the defendant was paced under arrest for operating with a suspended license. The officer conducted a pat frisk for weapons and did not find any.

During the pat search the officer observed that the defendant was wearing layered clothing and claimed that this attire was consistent with a person hiding drugs on himself. Upon returning to the police station, the officer conducted a strip search and found a substance he believed was heroin and glass pipes in the defendant's possession.

Attorney McCarthy filed a motion to suppress the evidence and argued that the confiscation of the heroin and paraphernalia violated the defendant's state and federal constitutional rights to a reasonable expectation of privacy. Specifically, she claimed that the seizure of the evidence was unlawful for the following reasons:

1. said evidence was not seized pursuant to a lawful arrest;
2. it was not in plain view;
3. there was no probable cause;
4. no warrant;
5. no exigent circumstances;
6. not pursuant to a lawful stop-and-frisk;
7. not consented to;
8. there was no reasonable suspicion or probable cause to stop and/or seize the car,
question the defendant and/or search the defendant;
9. and stop and search were in violation of the Fourth and Fourteenth Amendments of the United States Constitution, Article 14 of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts and M.G.L. c. 276 §1 et seq.

Following an evidentiary hearing the judge allowed Attorney McCarthy's motion holding that the strip search of the defendant was overly intrusive and unreasonable.

Continue reading "Attorney McCarthy Successfully Litigates Motion to Suppress Evidence and Drug Charges Are Dismissed" »

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

Posted In: Drug Crimes , Search and Seizure

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