In Massachusetts, a probationer has only a conditional liberty interest. See Commonwealth v. Wilcox, 446 Mass. 61, 64 (2006). The probationer must comply with the conditions of probation. A breach of a condition of probation constitutes a violation, and if the probation officer receives information tending to show that the probationer has breached, the officer may “surrender” the probationer to the court. Id., at 64-65. A probation revocation hearing is not part of criminal prosecution and, thus, a probationer need not be provided with the full panoply of constitutional protections available at criminal trial. See Commonwealth v. Wilcox, 446 Mass. at 67, see also Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). “The revocation of probation does, however, result in a deprivation of liberty within the meaning of the due process clause of the Fourteenth Amendment to the United States Constitution and thus, the Commonwealth must provide probationers with certain protections at surrender hearings. Commonwealth v. Durling, 407 Mass. 108, 112 (1990); Gagnon v. Scarpelli, 411 U.S. at, 783; Morrissey v. Brewer, 408 U.S. 471, 487-88 (1972). “The hearsay on which the judge relies must be reliable.” Commonwealth v. Nunez, 446 Mass. 54, 58 (2006). The Supreme Judicial Court has written that unlike the confrontation clause, due process demands that evidence be reliable in substance, not that its reliability be evaluated in a particular manner. See Commonwealth v. Given, 441 Mass. at 747 n.9. While the court did not define what it meant by the term “reliable in substance” the high court has set the standards to verify reliability. Evidence that would be admissible under standard evidentiary rules is presumptively reliable for due process purposes. See Commonwealth v. Given, 441 Mass. at 747, see also Commonwealth v. Durling, 407 Mass. at 118; Ohio v. Roberts, 448 U.S. 56, 66 (1980), overturned 541 U.S. 36. Hearsay evidence that is inadmissible under the rules of evidence or statute is inadmissible. See Commonwealth v. Given, 441 Mass. at 743-44.

Thus, if you have received notification that you are facing a surrender hearing you must have an experienced criminal defense lawyer on your side. Knowing the applicable standards and ensuring that the probation department is held to meet their burden is imperative. Most defendants do not go to jail because of the initial charges in district court. They find their way to the house of correction because the probation department maintains that he or she did not fulfill his or her terms of probation. In most cases, there is a reasonable argument that the defendant did not violate the terms of probation and/or that the probation officer has improperly issued a violation notice.

In defending against a restraining order it is important to point out that the complainant's fears are not reasonable and/or that there is not REASONABLE apprehension of IMMINENT PHYSICAL HARM. For example, if a plaintiff is alleging that the defendant caused him or her to fear for his or her safety it is important to establish when the alleged incident occurred. If the plaintiff is alleging the defendant's conduct occurred weeks or months ago, the judge may decide that the actions were not recent enough to establish an imminent fear.

In order to apply for a restraining order in Massachusetts the defendant and the plaintiff must be married or were married to each other; must be or reside in the same household; are or were related by blood or marriage; have a child together or are or were in a "substantive dating or engagement relationship." Thus, not only are couples often at the center of restraining order hearings but a disgruntled roommate may apply for a restraining order in an attempt to oust a roommate. In these situations, an experienced Massachusetts restraining order attorney can establish that the plaintiff is not in fear of the defendant but merely wants him or her removed from the apartment.

In the event that a restraining order issues, it usually states that a defendant cannot have any direct or indirect contact with the plaintiff. In the age of electronics, this includes no text messaging, no phone calls and no e-mails. Obviously, a defendant must refrain from leaving notes, sending messages or flowers to a plaintiff even if the items are not personally delivered by him or her. Any contact, direct or indirect, is considered a violation. Thus, even a defendant's attempt to have a message delivered to a plaintiff from another individual is considered indirect contact.

In Massachusetts “assault and battery” is the intentional and unjustified use of force upon t another, however slight, or the intentional doing of a wanton or grossly negligent act causing personal injury to another. An “assault” is an attempt or offer to do bodily harm to another by force or violence, or simply an attempt to commit a battery. Depending on the facts of the case, self-defense or defense of another are often a viable defenses to a charge of assault and battery. Once a claim of self-defense or defense of another is viably presented, the burden shifts to the Commonwealth to disprove such affirmative defense.

In Massachusetts, the charge of unarmed robbery must be litigated in the Superior Court because it is a felony. A felony is any charge in which a potential penalty is a sentence to state prison. In the event that the District Attorney's Office decided to keep the case in district court the defendant may be charged with a misdemeanor crime such as breaking and entering in the the nighttime. However, the District Attorney's office has the final say on what charges a defendant will face.

Based on the facts in this case it appears that attacking the identification of the defendant may be a viable area for the defense to pursue. Any time that a suspect is not apprehended at the scene of an incident attacking the identification procedure is always a fertile area for the defense. In these types of cases, filing appropriate pre-trial motions for disclosure of identification procedures are critical.

The Essex County District Attorney's Office moved to have Holden held without bail because he violated a term of pre-trial probation on his previous arrest by driving. A Salem District Court Judge denied this request but imposed $5,000.00 cash bail. Holden will be held in the Middleton Jail until he posts bail. He is due in court later this month for a pre-trial conference.

In Massachusetts, in order for the Commonwealth to prove that a defendant was drunk driving they must show that the person was driving a motor vehicle, on a public way and was under the influence. A commonly litigated issue is whether the defendant was under the influence. In order to prove this the District Attorney's Office often relies on the observations of the police officers, the field sobriety tests, a breathalyzer (if any) and any statements of the defendant.
In order to counter the testimony of the officers, a good strategy is to emphasize all of the defendant's behavior that is consistent with sobriety. For example, illustrating that the defendant had not problem producing his or her license, no problem getting out of the car and could follow directions are fertile areas of cross examination.

The witness testified that after he left his house to buy cigarettes at the store, Ehlert and a co-defendant dragged him into a Marblehead cemetery and beat him. Defense counsel highlighted inconsistencies between the teenager's initial statement to the police and his "official" version given nine days after the incident. Despite pressing by counsel, the witness maintained that the relationship between Ehlert and himself was limited to interaction at the town's skateboard park with mutual friends. Ehlert and eighteen year old Michael "Tampa" Leoni are facing charges that include robbery, assault and battery, and witness intimidation. Ehlert's twenty-two year old brother is facing a charge of witness intimidation. It is alleged that the made phone calls to the witness following Michael Ehlert's arrest.

Based on the facts in this case it appears that a thorough pre-trial investigation must be conducted to determine the motive for the complaining witness to change his story. Massachusetts General Laws 268 § 13B states that the crime of witness intimidation requires proof that (1) an individual was a witness in a stage of a criminal proceeding, and that the defendant (2) willfully endeavored or tried to influence the witness, (3) did so by means of intimidation, force, or threats of force, or the offering of inducements, and (4) did so with the specific intent of influencing the witness. Based on Massachusetts case law, it is not necessary that charges be lodged at the time of any alleged intimidation. "Any stage of a criminal proceeding" may encompass actions committed by a defendant before the police was called or the alleged crime was reported. For example, the authorities often charge a defendant with "intimidation of a witness" when a complainant alleges that the defendant took his or her phone in an effort to prevent the reporting of a crime.

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.

Many defendants believe that they are home free when they walk out of the courthouse on probation. However, a large number of individuals find themselves in prison due to the fact that they did not live up to the terms of their probation. If you have been served with a notice from your probation officer that you have violated the terms of your probation it is important that you have an experienced defense lawyer on your side. At a preliminary hearing the probation officer must present evidence indicating that you have in fact violated your probation. A skillful attorney will argue that the probation department failed to meet the initial threshold. During a final surrender hearing it is critical that a defendant has a prepared, persuasive and organized attorney on his or her side to prevent a defendant from being surrendered and possibly imprisoned.

Sheen's arrested was prompted by a 911 call to the police from his wife Brooke Mueller. According to reports, an argument began when Meuller informed Sheen that she wanted a divorce and custody of their twin boys. Mueller claimed that Sheen grabbed her by the upper neck and threatened her with a knife. It has been reported that Mueller had high levels of alcohol in her system at the time she made the report. As we all know, there are two sides to every story. Sheen denies his wife's allegations. This type of case is categorized as a case of "domestic violence." When police are called to a residence because of an allegation of "domestic abuse" usually one of the parties is arrested and it is usually the man.

If you have been arrested and charged with a crime of domestic violence you must have an experienced Massachusetts defense lawyer on your side. In most circumstances, the police advise the complaining party of his or right to have a civil restraining order. The standard for the issuance of a restraining order is low. Although a restraining order is a civil order, criminal charges may issue if there an allegation that the restraining order has been violated.

If you have been charged in a case of "domestic violence," developing a strategy and conducting a complete investigation must take place early. Based on the facts of the case it is often important to document and/or photograph any injuries to the defendant, interview witnesses and take pictures of the scene in order to mount a successful defense.

According to The Boston Herald, because he failed "several" breath tests while under home confinement the probation department has issued a notice of detention which requires Galluccio to appear in court and explain why he should not be committed for violating his terms of probation. Apparently, Galluccio is blaming his toothpaste for his failed tests. The Herald reports that Galluccio stated the following after he was served with a detention notice, "[W]hile I knew that mouthwash or cold medicine would set the machine off, it did not occur to me that toothpaste would.” Despite the allegation, Galluccio maintains that he "fully committed to sobriety and continuing treatment, and remain focused on serving my constituents.”

In Massachusetts, a probation detention hearing is the first step that the probation department takes when seeking confinement for a probationer. Generally, notice of e detention hearing issues when a probation officer becomes aware that a defendant has not complied with conditions of probation. In this case, the probation department is claiming that Gallucio's failure to remain alcohol free is a violation of probation and warrants "detention" or "incarceration." During the initial hearing a judge will hear the probation officer's reasons for wanting the defendant held pending a final hearing that generally takes place within ten days if a defendant is held. At both the initial and final detention or surrender hearings the defendant is given a chance to present evidence as to why he should not be surrendered. Although all of the facts of this case are not known at this time, the Senator seems to have an uphill battle on his hands as the Plymouth District Attorney Timothy Cruz, whose office prosecuted the case, said last night Galluccio should have been tossed in jail in the first place.

If you are facing a probation detention hearing or a probation surrender hearing in Massachusetts it is important that you have an expereinced Boston defense attorney on your side. In many Massachusetts District Courts defendants are not committed to jail because of the initial conviction however, as the result of a probation surrender. The consequences for not prevailing at a surrender hearing are high as a defendant may face serving the maximum sentence allowed for the underlying conviction.

The standards that the probation department must meet during surrender hearings are lower than the "beyond a reasonable doubt" standard that the Commonwealth must meet at trial to sustain a conviction. If you are facing a surrender hearing it is imperative that you have a qualified Massachusetts lawyer on your side to navigate you through the process.

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.

If stealing were not enough to dampen the holiday season, the culprits left water faucets running causing overflow and additional damage to the building. Tenants who went to the recording studio during the early morning hours noticed dripping water from the ceiling. Investigation revealed that the building had been broken into and ransacked.

When the perpetrators are caught they may face a number of charges including breaking and entering a building in the nighttime with intent to commit a felony, malicious destruction of property over $250.00 and larceny over $250.00. If a person is convicted for breaking and entering in the nighttime with intent to commit a felony he or she faces the possibility of serving twenty years in state prison or two and one half years in jail.

In order to prove breaking and entering the Commonwealth must prove beyond a reasonable doubt that the defendant broke and entered into a building in the nighttime with intent to commit a felony. In Massachusetts the breaking and entering are considered two distinct acts. Areas that are often litigated in these types of cases are whether the defendant actually broke into the building and/or whether he or she actually entered the premises. For example, the opening of a window or door, which was partly open, further than it was before in a manner in which was intended to be used is not considered a breaking. However, going through and open window that is not intended for use as an entrance is considered a breaking.

Although the facts of this case are not all known, in the event that anyone is arrested a viable defense may be that the individual was misidentified. As in many cases when a defendant is not arrested at the scene, an experienced Massachusetts defense lawyer must examine the circumstances under which a witness identified the defendant. The lighting, the opportunity for a witness to observe the defendant and whether the identifying witness was familiar with the defendant are a few area that must be explored.

If you have been served with a temporary restraining order in Massachusetts it is important that you know all of your rights. Although a restraining order is a civil order an alleged violation can result in the issuance of a criminal complaint. Thus, it is not always in one's best interest to agree to the continuance of the order. M.G.L. Chapter 209A states that a person "suffering from abuse" by a "family or household member" may seek protection from such abuse by application to the court for an order requiring the defendant (among other measures) to refrain from abusing or contacting the victim. "Abuse" is defined by the statute as acts "(a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress." G.L.c. 209A, § 1, as amended through St. 1996, c. 450, 232. See Commonwealth v. Gordon, 407 Mass. 340, 344-345 (1990); Wooldridge v. Hickey, 45 Mass. App. Ct. 637 638-639 (1998). In deciding whether to issue such a c. 209A order, a judge must consider carefully whether serious physical harm is imminent. Smith v. Joyce, 421 Mass. 520, 523 n. 1 (1995). "Generalized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress from vexing but nonphysical intercourse, when there is no threat of imminent serious physical harm, does not rise to the level of fear of imminent serious physical harm." Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998), citing Larkin v. Ayer Div. of the Dist. Ct. Dept., 425 Mass. 1020 (1997). The Court also reads the Legislature's language in § 1 ("attempting," "placing," and "causing") as revealing an intent to limit the definition of abuse to the present tense. See United States v. Wilson, 503 U.S. 329, 333 (1992) ("Congress' use of a verb tense is significant in construing statutes"). Language in § 3 also suggests that c. 209A was designed to allow persons presently "suffering" from abuse to seek relief. Therefore, the Court concluded that G.L.c. 209A, § 1(b), focuses on preventing imminent serious physical harm, not merely responding to past abuse. Dollan v. Dollan, 55 Mass. App. Ct. 905 (2002). If you oppose the continuance of the restraining order having an experienced Massachusetts domestic violence lawyer on your side who knows the legal standards is important.

In Massachusetts operating under the influence of alcohol and assault and battery are considered misdemeanor offenses. Assault and battery by means of a dangerous weapon and attempted murder are felonies. A charge is a misdemeanor when the most that a defendant could be sentenced to is a committed sentence in jail or in the house of correction. If the potential penalty for a crime is committed time in state prison then the offense is considered a felony.

If you have been charged with a crime you should have an experienced Boston defense attorney on your side. If you are facing charges in Peabody, Lowell or Lawrence having a local defense lawyer on your side can make a big difference in the outcome of your case. In cases where a defendant is charged with "domestic violence" a 209 A civil restraining order is often sought by the complaining witness. Although the order itself is civil, a criminal charge may issue if there is an allegation of a violation of the order. Thus, preventing the issuance of the order by having an attorney present your side of the case is crucial.

There are a variety of turns that this case could take. Although it appears that the man suffered serious injuries, the circumstances surrounding the stabbing must be thoroughly investigated. In the event that the woman in charged with a crime charges may stem from assault and battery with a dangerous weapon to assault with intent to murder. However, as of the publication of this article, it had not been determined that the woman was even the person that committed the stabbing.

When an arrest is made in a case of "domestic violence," the complaining witness is given information relative to applying for a restraining order. If issued a 209A restraining order usually requires that the defendant refrain from abusing the plaintiff and often times orders him or her to stay away from the plaintiff's residence and sometimes children. Although it is a civil order if the defendant is accused of violating the order criminal charges may issues. The standard for issuing an order is low. If you have been served with a temporary restraining it is important that you contact an attorney to explain your rights and what to expect at the next hearing. If you want an experienced Massachusetts domestic violence attorney on your side contact Attorney Kathleen M. McCarthy.

In cases with similar facts, a potential defense would be investigating whether the individual that used the knife was acting in self-defense or in defense of another. Another aspect of the case to be examined in the event that a suspect gave an incriminating statement would be to determine whether the statement was given freely and voluntarily with knowledge of his or her "Miranda Rights."