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.

When you sell alcohol to someone who is intoxicated, personal injury or death due to drunken driving on the highways is foreseeable.

“A violation of a criminal statute is some evidence of the defendant’s negligence as to all consequences the statute was intended to prevent.” Adamian v. Three Sons, Inc., 353 Mass. 498, 499 (1968).

When you sell alcohol to a minor you may also reasonably infer that that minor is going to drink the alcohol.  It is also foreeable that those minors will share alcohol with other minors who might then drive.   

“While evidence of a sale of alcohol to a minor in violation of a statute does not, standing alone, establish a prima facie case of negligence, evidence of such a sale can be used to support a finding of negligence.” Zinck v. Gateway Country Store, Inc., 72 Mass. App. Ct. 571, 577 (2008) (citation omitted).

If you have been injured by a drunk driver, sometimes there is not adequate insurance to cover your damages.  You may have other sources to recover from other than the driver and their insurance company.   The source of the alcohol may have acted negligently when providing it.  For a free consultation, contact the Law Office of Isaac J. 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.

_ Every four years most people know that they get to vote for President, watch the Summer Olympics and have an extra day in February to get things done.  For those who are incarcerated though it means an extra day in jail or prison.

The amount of days you will serve in the House of Correction or State Prison may depend on when you are sentenced.  If you are held on bail or sentenced prior to February 29th on a leap year, you are likely to serve an extra day in jail if you are sentenced to a specific number of months or years in the House of Correction.    This may also effect when you are eligible for parole.  In 2006, the Massachusetts Appeals Court in Commonwealth v. Mello, 65 Mass.App.Ct. 674 (2006) overruled a trial judges approval of a motion to correct the mittimus and upheld the Massachusetts Department of Corrections policy of not crediting the extra leap day every four years.   

John Mello had been convicted of the crimes of home invasion, assault and battery by means of a dangerous weapon, and armed assault in a dwelling house.  He was sentenced to a term of ten years to ten years and one day on the home invasion conviction and to a concurrent term of four to six years on the armed assault in a dwelling house conviction. The defendant was also sentenced to five years probation for each of the three convictions of assault by means of a dangerous weapon, to be served concurrently on and after the completion of his State prison sentence. Mello sought two days of jail time credit for February 29th, 2000 and 2004.

The Appeal Court, however, found that the legislature “defined a "year" as a calendar year, not as a compilation of 365 days.”  General Laws c. 4, § 7, Nineteenth, reads:

"In construing statues the following words shall have the meanings herein given, unless a contrary intention clearly appears:

" 'Month' shall mean a calendar month, except that, when used in a statute providing for punishment by imprisonment, one 'month' or a multiple thereof shall mean a period of thirty days or the corresponding multiple thereof; a 'year', a calendar year " (emphasis added).

It is vital when accepting a plea agreement in a leap year to negotiate for a stay of execution until after February 29th or to seek a sentence which is for a term of days not months or years.  Two days may not seem like a lot of time to most of us, but when you are incarcerated every day counts.  If you have been arrested and face criminal charges, you should contact a lawyer who is familiar with how time in jail is calculated and credited.  The Law Office of Isaac J. Mass represents criminal defendants zealously and advocates for them even on the smallest details which effect their lives; contact us for a free consultation. 


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