Law Office of Isaac J. Mass -- Greenfield, Massachusuetts
On Friday August 8, 2014 the Governor signed an “Act Relative to Domestic Violence” which imposes significant changes to arraignment, bail, detention, and criminal penalties in cases involving “domestic abuse.”   Below are some of the most significant changes:

Required 6 Hour Delay for Arraignment.  Under the new law, defendants charged with crimes involving domestic abuse are cannot be released within six hours of arrest, unless bail is set in open court by a judge. 

Written Findings of Domestic Abuse Allegations. At arraignment on any crime against a person or property of another, the court must inquire of the District Attorney whether domestic abuse is alleged to have occurred immediately prior to or in conjunction with the alleged crime.  The prosecutor must file a written statement, and the judge must make written findings that domestic abuse is alleged.  The judicial finding is then stored in the new “statewide domestic violence record keeping system.”  The statement will only be removed if the defendant is acquitted, or a no bill is returned; and will remain in the statewide database even if the case is dismissed. 

Bail Considerations for Domestic Abuse Cases.  For defendants charged with a violation of a 209A or a crime of domestic abuse, the district court  will not only consider the defendant’s likelihood of appearing at future dates, but also the safety of the alleged victim, any other individual, or the community.  Bail set out-of-court by any person authorized to take bail may now also include conditions of release in addition to or in place of cash.

Bail Revocation under 58B.  Failure to comply with a condition of bail, including picking up a new offense, now subjects all defendants to a 90 day revocation of bail. 

120 Day Detention. Detention after a Dangerousness Hearing is expanded from 90 days to 120 days in all cases. 

Summoning Alleged Victim or Family Member and Use of Hearsay.  Under the new law when a defendant wishes to summons an alleged victim or alleged victim’s family member to a dangerousness hearing, counsel must move in advance for permission of the court and demonstrate a “reasonable belief…that the testimony will be material and relevant to support a finding that there are conditions of release that will reasonably assure the safety of any other person or the community.”   

Reopening Dangerousness Proceedings. Now, in addition to reopening proceedings to introduce information not known at the time of the hearing, proceedings may also be reopened by the court or either party when there has a been a change in circumstances that has a material bearing on whether there are conditions for release that will reasonably assure the safety of any person of the community.

Dangerousness information on CORI.  Under the new law, whenever a judge finds dangerousness to detain or impose conditions, the clerk must notify probation, who places the order of detention or conditions in both the defendant’s CORI information and the statewide domestic violence record keeping system.  If there is no finding of dangerousness, then the fact that a Dangerousness Hearing was made is STILL kept in the statewide system, but not CORI. 

CORI for Employers.  Dangerousness information on CORI may be available to employers where they are permitted by law to obtain information on the underlying crimes.

New Crimes Created by the Statute

Domestic Assault, and Domestic Assault and Battery. The statute creates a new crime of domestic assault and domestic assault and battery, G.L. c. 265 § 13M.  The victim must be a family or household member, which is defined differently than under 209A § 1.  The victim must be a current or spouse, have a child in common, or be in a “substantive dating relationship,” to be determined by the trier of fact in accordance with the factors set forth in 209A § 1.  PENALTY: up to 2.5 years house of correction and/or fine of up to $5000.  The court is required to order the defendant to complete a certified batterer’s intervention program for all convictions or CWOFs under the new law, absent specific written findings showing good cause to omit the requirement.

Subsequent Offense Domestic Assault or Assault and Battery. The penalties are increased and the defendant is subject to a felony conviction for a subsequent domestic assault or assault and battery. PENALTY: up to 2.5 years house of correction, or up to 5 years in state prison. 

Strangulation/Suffocation.  The law creates a new crime of strangulation, G.L. c. 265 § 15D, with concurrent district court jurisdiction.  This may cause strangulation cases that otherwise would be charged as attempted murder to remain in the district court under this new offense. PENALTY: up to 2.5 years house of correction, or up to 5 years state prison, fine of up to $5000.  Now with all crimes involving “domestic abuse,” a batterer’s program is also required.

Aggravated Strangulation. For any strangulation offense resulting in serious bodily injury, or where the victim is pregnant, or where there is an active restraining order, or after previously being convicted of a strangulation offense, the penalty is increased.   PENALTY: up to 2.5 years house of correction, or up to 10 years state prison.  Batterers program is also required.  The district court maintains concurrent jurisdiction over the aggravated offense. 

New District Court Jurisdiction over Kidnapping. The law gives the district court concurrent jurisdiction over kidnapping, G.L. c. 265 § 26.  Although certain forms of kidnapping under § 26 do not have house of correction sentence alternatives, the amendment language appears to grant concurrent jurisdiction over § 26 broadly.

If you or a loved one has been charged with one of these new crimes or a crime where domestic violence is alleged to have happened near in time, it is essential that you have an attorney who understand the new statute.  It is also important to have an attorney who knows how to challenge  some of the statutes new procedural rules.  If you would like a consultation, contact contact the Law Office of Isaac Mass.

Today in COMMONWEALTH vs. Christopher DOYLE, No 11-P-1779, the Massachusetts Court of Appeals held damage done to a container for the sole purpose of obtaining the property inside a container is not Malicious destruction of property.

To prove malicious destruction of property, according to G.L. c. 266, § 127 a defendant's actions must be both "wilful" and "malicious." Under Commonwealth v. Redmond, 53 Mass.App.Ct. 1, 4 (2001). "In addition to the intent to inflict injury to property, the crime requires a state of mind infused with cruelty, hostility or revenge."

The Appeals Court held that this case was like Redmond where the defendant was arrested while apparently in the process of stealing computer equipment. In pursuit of that goal, Redmond had:

1)      ripped a security alarm from the wall

2)      broken a window

3)      and forcibly opened the front door of the office

4)      A second door, leading into a computer room, appeared kicked in

In Redmond the Court of Appeals held that "[a]lthough clearly intended, such property damage was nothing more than the 'the adventitious by-product of a wholly discrete criminal enterprise' (the theft of the computers) and was not 'gratuitous, excessive violence purposefully designed to intimidate and overpower,' ... or destructive activities that were by design and hostile to the owner of the property." Redmond, quoting from Commonwealth v. Wynn, 42 Mass.App.Ct. 452, 456 (1997).

In Commonwealth v. Morris M., 70 Mass.App.Ct. 688 (2007) the Appeals Court also found destruction of property caused by driving a Jeep across the driving range of a golf course and smashing the car into a pole was not malicious because the juvenile was driving the vehicle in order to escape another who apparently intended to harm him.

In the case of Mr. Doyle, the Appeals Court believed it was clear that the damage was done in an effort to steal from the ATM and not with "a state of mind infused with cruelty, hostility or revenge." as required under Commonwealth v. Redmond. Even viewed in the light most favorable to the Commonwealth, the evidence was not sufficient to establish the necessary element of malice and so the conviction for Malicious Destruction of Property was overturned.

If you have been charged with malicious destruction of property or another crime, it is important to have an experience criminal defense attorney who understands all the elements of each crime, and what the legal definitions of each element are.  Sometimes a complaint can be dismissed at a pretrial stage or even following the district attorney's opening statement, if they do not allege an essential element of the crime.  For a consultation, contact the Law Office of Isaac J. Mass.

Today, in Commonwealth v. Reyes SJC 11270 (2013), the Massachusetts Supreme Judicial Court held that the storage of a firearm in securely locked container (like a glove compartment) inside a parked vehicle is not a violation of the carrying statute and may be adequate under the storage statute.

 Amaury Reyes, was convicted in the Salem District Court of improperly carrying a firearm in a motor vehicle in violation of M.G.L. c. 140, § 131C (a) (carrying statute), and unlawfully storing a firearm (after leaving it in his motor vehicle) in violation of M.G.L. c. 140, § 131L (a ) and (b ) (storage statute). Reyes possessed a class A license permitting him to carry a firearm for all lawful purposes under M.G.L. c. 140, § 131 (a ). On April 10, 2010, he drove from his home to work, during which time he carried his personal firearm with him in a holster without passenger. When he arrived at  work, he parked his motor vehicle, removed the firearm and holster from his person, placed them in the glove box, and locked the vehicle.

Reyes consented to a search of his vehicle alerting the officer that his firearm was in the glove box of his
vehicle. He acknowledged that the firearm was not outfitted with a cable locking device. He unlocked
the car with a remote opener. The officers entered the vehicle from the passenger side, opened
the glove box, and retrieved the firearm in its holster. The firearm contained a loaded magazine, but no round in the chamber.

On appeal Reyes argued insufficient evidence at trial to support his convictions under the carrying and storage

The carrying statute provides in relevant part that "no person carrying a loaded firearm ... shall carry the same in
a vehicle unless such firearm while carried therein is under the direct control of such person." The Court
held that there was no evidence that his firearm was out of his possession (or his direct control) when he traveled to work in his vehicle. They further held that the carrying statute does not apply once the defendant leaves his
vehicle and leaves the firearm in it. The Court held that when Reyes left his motor vehicle and the firearm in it, he became subject to the storage statute because he was storing or keeping his firearm in a "place" neither on his
person nor "under the control of the owner or other lawfully authorized user." G.L. c. 140, § 131L (a ).

 As to the storage charge, the court maintained that a motor vehicle is not itself a securely locked container.
However they held “that the storage of a firearm in a securely locked container within a motor vehicle would
satisfy its requirements.” This may include a locked glove compartment if it locks according to the SJC. 

If you have been charged with a firearms violation you may need a criminal defense attorney who is abreast of the latest developments in firearms statutes and new court rulings reacting to the deluge of firearms litigation.  For a consultation contact the Law Office of Isaac J. Mass.

Hardship Licenses, sometimes called a Cinderella License are issued by the Massachusetts Registry of Motor Vehicles to some offenders for a legitimate purpose such as going to work, attending school, or receiving medical treatment. Hardship Licenses are valid for a consecutive 12 hour period (e.g.  8:00 AM to 8:00 PM). Such licenses are only granted to Massachusetts license holders.  In order to apply for a hardship license, you must attend a hearing at a Registry of Motor Vehicles hearings site

A hardship will only be considered for the following offenses certain offenses. You will need all required documents with you when you meet with the Hearing Officer.  Obtaining a hardship license is sometimes difficult, especially without a
skilled lawyer. Although an applicant may meet all requirements, issuance of a hardship license is only granted at the reasonable discretion of the Registry of Motor Vehicles, based on the facts of the case.

An attorney can help present your case in the light most favorable to you emphasizing the issues that are most important to the Registry of Motor Vehicles.  For example in accordance with Melanie's Law, the Registry of Motor Vehicles is changing its policy regarding who is eligible for a hardship license. To be eligible for a hardship license, you may now be required to present proof that you do not have access by public transportation to your required destination.  You should be represented by an attorney when seeking a hardship license.  

For an opportunity to consult a an attorney about representation at a Registry of Motor Vehicle hearing contact the Law Office of Isaac J. Mass.  The Law Office of Isaac J. Mass can also represent you in hearings before the Board of Appeals after an unsuccessful hearing at the Registry of Motor Vehicles. 

December  18th, 2012 , in Commonwealth v. Jones,  
the Massachusetts Supreme Judicial Court held that it was ok to deny a defendant’s right to admit into evidence that, shortly after he had declined to take a breathalyzer test, he changed his mind and requested but was not given the test.

On May  14, 2010, a witness was driving north on Route 10 in Southampton when she reported a pickup truck being driven erratically. The defendant was the driver of the truck and was stopped by the Easthampton police.  The police administered a field sobriety test, and the defendant performed poorly.  He was then placed under arrest.

The defendant, prior to trial, moved that he be permitted to testify that, at the police station, he initially declined to take a breathalyzer test, then "shortly afterwards" changed his mind and asked to take the test, but one was not administered.  Although the prosecutor did not  object, he wanted to introduce evidence that the defendant did not recant his initial refusal, and that he had also refused certain field sobriety tests and suggested the proposed testimony would “open a can of worms”. The judge denied the defendant's motion. 
The Supreme Court found, the judge acted within the scope of his discretion in excluding the testimony. The defendant sought to testify that, shortly after declining to take a breathalyzer test, he requested to do so.  Such evidence could only exonerate the defendant by suggesting that he thought he was not intoxicated at the time the request was made. But the court has held that "consciousness of innocence is of very little value, because there are a variety of different motives that can prompt action consistent with innocence." Commonwealth v. Espada, 450 Mass. 687, 698 (2008). 
The court  believes a recantation of an initial refusal to take a breathalyzer test is likely motivated by the desire to avoid suspension of the suspect's driver's license as it is with consciousness of innocence.

IF you have been arrested for operatining under the infulence or neglegent operation, contact the law office of Isaac J. Mass for a consultation.

Saturday, December 22, 2012 at 10:00 a.m. the Law Office of Isaac J. Mass is hosting a free showing of the the holiday classic Elf!  Tickets are first come first serve at the Greenfield Garden Cinema in beautiful, downtown Greenfield, just one block from the Law Office of Isaac J. Mass.

Staring Will Ferrell, Elf is the story of Buddy, a baby in an orphanage who stowed away in Santa's sack and ended up at the North Pole. Later, as an adult human who happened to be raised by elves, Santa allows him to go to New York City to find his birth father, Walter Hobbs. Hobbs, on Santa's naughty list for being a heartless jerk, had no idea that Buddy was even born. Buddy, meanwhile, experiences the delights of New York City (and human culture) as only an elf can. When Walter's relationship with Buddy interferes with his job, he is forced to reevaluate his priorities.

The Law Office of Isaac J. Mass assists clients in many of the area discussed in the movie including adoption, child support,  family law, defense for criminal mischief, assault and battery defense, disturbing the peace, disorderly conduct, and vandalism.

If you need a consultation because you've been on Santa's naughty list or if you simply have an elf of your own which you wish to adopt call the Law Office of Isaac Mass at 413-774-0123 for a consultation.

Some Common Questions About Sentencing

1) Concurrent sentences- Where do I serve the sentence?

Prisoners are housed in the institution specified on their mittimus for the sentence imposed on the earliest date. M.G.L. c. 279 §8.

2) Can the court sentence me to a house of correction in a different county?

Yes. M.G.L. c. 279 §15.

3) What Is A ''Forthwith" Sentence?

Pursuant to M.G.L. c. 279 §27, a person currently serving a house of correction sentence may be sentenced on a felony to the state prison, said sentence to take effect "forthwith, notwithstanding the former sentence." as opposed to "from and after" which means waiting for the release from the first sentence "by parole or otherwise" before beginning the second M.G.L. c. 279 §8A .

4) Can a sentence to the house of correction run concurrently with a state prison sentence or vice versa?

There is nothing that prevents the imposition of a house of correction sentence concurrent with a state prison sentence. See Commonwealth v. Parzyck, 41 Mass. App. Ct. 195 (1996).

5) If I am serving a mandatory minimum sentence, can I be classified to electronic monitoring?

No. Commonwealth v. Cowan, All Mass. 546 (1996); Commonwealth v. Morasse, 446 Mass. 113 (2006).

6) Do I receive jail credits for time spent awaiting trial on electronic monitoring?

No. Commonwealth v. Cowan, All Mass. 546 (1996); Commonwealth v. Morasse, 446 Mass. 113 (2006).

7)  How do weekend sentences work?

M.G.L. c. 279 §6A. These sentences are typically served from Friday to Monday, though a court can specify any beginning and ending time for each weekly period of confinement.  If you work weekends you should alert your attorney in advance. Inmates are required to report on his or her own to the correctional facility each week at a time directed by the court. This sentence allows an inmate to maintain employment during the week while serving a sentence on weekends.

8) Can the Superior Court continue a case without a finding (CWOF)?

Yes. Commonwealth v.Powell, 453 Mass. 320 (2009).

Police officers heavily depend on so-called field sobriety tests when they suspect a driver of being intoxicated.  The first thing you should know is that you have a constitutional right enshrined in the 5th amendment of the US Constitution to refuse the field sobriety test.  Furthermore, your failure to take the test may not be used against you at trial.  Additionally, unlike a refusal to take a breathalyzer, there are not statutory civil penalties for failing to take a field sobriety test, i.e. you will not lose your license for the refusal. 

The appeal of field sobriety tests for law enforcement is clear: Drunk driving is dangerous and law enforcement agencies need easy-to-use, scientifically and legally valid ways of identifying drunkenness. The field sobriety tests that are most commonly used in Massachusetts, however, aren't as reliable as they should be, and are often administered improperly. This means that completely innocent drivers who haven't even had one drink can sometimes be arrested for driving under the influence of alcohol.

The National Highway Traffic Safety Administration (NHTSA) recommends three specific tests as the most reliable: the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand. The NHTSA says that police officers who use all three tests on a suspected drunk driver have a high chance of making the right call as to whether or not the driver is actually drunk. In what the NHTSA considers the most accurate, the horizontal gaze nystagmus test a police officer asks a driver to follow a small flashlight side to side with his or her eyes. If the driver is drunk, his or her eyeballs shake as they look to the side. The walk-and-turn test is similar to walking a balance beam back and forth on an imaginary straight line. And the one-leg stand involves perhaps the greatest physical challenge: drivers are must stand still with their arms at their sides, raise one leg six inches off the ground while keeping it straight and pointing at their toes, looking at their raised toes, and count forward from 1,001. Swaying, raising arms for balance, hopping, putting the foot down, or starting to count before the police officer instructs are all be viewed as signs of drunkenness.

The scientific basis of field sobriety tests lies in a 35-year-old study of how well field sobriety tests could identify blood alcohol content. That study was conducted with only 238 subjects, mostly men 22-29 years old, and no control group. The Washington Post reported, "hundreds of thousands of drivers have been arrested -- no doubt many deservedly so -- on the basis of a 30-year-old study that, critics argue, has never been published in a peer-reviewed, scientific journal, never tested on a large scale with a control group and, perhaps more astonishing, has nothing to do with actual impairment from alcohol."

Besides the tests' scientific faultiness, they can also falsely identify as drunk people who just have medical issues. Balance disorders affect 40% of Americans at some point in their lives, and dizziness and vertigo are the third leading cause for visits to doctors. The older you get, and the heavier you get, the worse your balance. For an aging population with a growing number of overweight and obese people, the one-leg stand test sounds like a pretty ineffective gauge of whether someone is drunk.  The CDC reports that by 2030 42% of the US population will be obese.

If you have been arrested or charged with Operating Under the Influence you need a criminal attorney who knows, how to point out the scientific problems with both the field sobriety test, the breathalyzer, and the administration of those tests in your case.  If you would like a free consultation on your case, contact the Law Office of Isaac J. Mass.  Attorney Mass’ Greenfield office is located the heart of Franklin County, a block from the Greenfield district court. Attorney Mass represents clients with criminal and civil motor vehicle offenses throughout Franklin, Hampshire, Hampden and Berkshire Counties as well as across the Commonwealth of Massachusetts.  Attorney Mass is a featured speaker at driving schools in western Massachusetts.


(c) 2012 Law Office of Isaac J. Mass, 289 Main Street, Suite 201 Greenfield, MA 01301