Here is an overview of what to expect if you are suspected of OUI.
]]> Massachusetts Breath Test Refusal LawsAfter you are pulled over, a police officer will most likely ask you to take a Breathalyzer test. You do not have to take the test. However, if you refuse, your license will be immediately suspended for 180 days on a first offense. If you are a repeat offender, the suspension will be much longer - often several years.
If you choose to take the breath test, but fail, your license will be immediately suspended for 30 days.
Massachusetts OUI Penalties
The penalties for OUI conviction vary based on the number of prior offenses. A first-time offender will be ordered to pay a fine of up to $5,000 and may be sentenced to up to 2.5 years in jail. In addition, their driver's license may be suspended for one year.
By contrast, a second offense carries a fine of up to $10,000, along with a prison term ranging from a minimum of 30 days to a maximum of 2.5 years. It also brings a two-year license suspension.
The penalties continue to increase with each subsequent offense. After the fifth offense, the driver's license will be suspended for life.
Massachusetts Ignition Interlock Laws
Anybody convicted of multiple Massachusetts OUI offenses will be required to install an ignition interlock device in their vehicle. Essentially, the device functions as a mini-Breathalyzer, requiring the driver to prove sobriety before the car will start.
The devices are relatively expensive. They can cost up to $500 to install, and the monthly maintenance fee is about $85. In most cases, the device will need to be used for a minimum of two years.
These are just some of the penalties that come along with a Massachusetts drunk driving charge. If you are suspected of drunk driving, talk to an OUI defense attorney who can help protect your rights.
Source: Massachusetts Registry of Motor Vehicles, "Bad Breath is a Crime in Massachusetts," June 2009.
]]>The suspect admits that he was drinking with the victim on the night in question, but says that he left the home before the attack occurred.
Of course, every person charged with such a serious crime as murder must put significant effort into a vigorous criminal defense. However, this suspect has much more than a lengthy prison sentence riding on the outcome of his case; he is a legal immigrant from Colombia, who, if found guilty, could eventually be forced to leave the United States.
]]> Massachusetts Immigration CrimesMost people understand that undocumented immigrants can be deported back to their home countries if they are apprehended by law enforcement. Many don't realize, though, that there is also a wide range of criminal offenses that can form the grounds of removal for legal immigrants.
Among those crimes are a list of "aggravated felonies" that include violent crimes like murder, rape or assault, sex offenses and child pornography crimes, some theft offenses and some drug crimes. It is not necessary for the crime to involve an act of violence.
It is extremely important for non-citizens to take immigration crimes into account when planning their defense strategies. Often, something that may be a good move for a citizen - like pleading guilty in exchange for a reduced sentence - can have significant negative consequences for non-citizen defendants.
If you are a non-citizen charged with a crime in Boston, make sure you and your criminal defense lawyer take your immigration status into account before deciding how to resolve the charges against you.
Source: The Boston Globe, "Revere Man Held Without Bail in East Boston Fatal Stabbing," John R. Ellement and Martin Finucane, May 7, 2012.
]]>They do this because of flaws in the way the American legal system punishes misdemeanor offenses.
Felony offenses - major crimes like murder, robbery, sex crimes and drug trafficking - get a disproportionate share of the attention when we talk about the criminal justice system. In truth, felonies represent less than 10 percent of all criminal convictions.
]]> Many people end up pleading guilty to misdemeanor offenses because the system isn't set up to handle the large number of cases that are filed. Defendants who can't afford to post bail have to wait in jail until they can have their day in court. But, because of overcrowding in the system, that could take weeks or even months.Being in jail means missing work, and maybe even getting fired. Parents who can't arrange alternative childcare options might lose custody of their kids. Many people plead guilty simply because they believe the "cons" of carrying a misdemeanor conviction are outweighed by the "pros" of getting out of jail and getting on with their lives.
In reality, though, misdemeanor convictions can carry life-long consequences. Often, the criminal penalties - like fines, probation or jail stays - are only a small part of the picture. Even a petty conviction can make it hard to get a job or qualify for student loans, government assistance or professional licenses. In some cases, misdemeanor convictions can interfere with child custody proceedings or even lead to deportation.
Most people don't understand these consequences when they make the decision to plead guilty.
If you ever find yourself charged with a misdemeanor offense, do yourself a favor and talk to an experienced criminal defense attorney before making a decision about how to proceed.
Source: Slate, "Why Misdemeanors Aren't So Minor," Alexandra Natapoff, April 27, 2012.
]]>Despite the fact that the most high profile pardons are usually granted by the president, the majority of pardons are granted at the state level. This includes Mississippi, where recently departed governor Haley Barbour has faced criticism concerning his pardon of an OUI offender in January. On its own merits, the pardon may appear innocuous. The individual pardoned, Harry Bostick, was a convicted OUI felon who was recommended by the Mississippi Parole Board for a full pardon for a March 2009 felony OUI conviction. Bostick was one of 203 other convicted felons pardoned in the last days of Barbour's administration. He was not in jail, but the pardon restored significant rights to him (including the right to vote).
]]> It is the context which makes this particular pardon so unsettling. Harry Bostick was certainly not granted leniency on the strength of his reformation. He was still in rehab when he was recommended for a full pardon, not yet through with his treatment. However, as a former IRS investigator, he had the connections to make his voice heard in the governor's office. Former US Attorneys and a wide array of lawyers wrote letters touting Bostick's changed lifestyle. One friend who had worked with him, former federal prosecutor Bob Whitwell, wrote: "He can now be a positive factor in many lives." This sentiment, although admirable, proved stunningly inaccurate. In October, a mere week after being recommended for a full pardon, Bostick was involved in a car crash that took an 18 year old's life. Police believe Bostick was OUI at the time. The pardon went through anyway.This incident offers a glimpse into a pardon process which is often times rife with influence peddling. Those who are involved in the political process or who are in positions of influence or wealth have an unfair advantage in accessing those who make important decisions. The amount of pardons handed out by governor Barbour, four times that of all his predecessors combined, is not the issue. To err is human, to forgive is divine. In a country where .75% of the adult population is incarcerated, due consideration should be made for allowing people second chances. The issue is in the lack of access for the everyday citizen. At Cunha & Holcomb, we believe that the administration of justice should not be swayed by power and influence. We have a long history of aggressively defending the rights of everyone, and it is our position that all persons should be given the same consideration when applying for a pardon. Pardon is a word adopted from French, it means "to forgive." A just society does not take social hierarchy into account when doing so.
]]>Throughout the country, a number of jurisdictions have implemented "mental health courts" designed to aid criminal defendants who have documentable mental illnesses. Massachusetts is home to three of these courts, in Boston, Springfield and Plymouth.
]]> The courts can be a boon to mentally ill defendants, especially those who experience substance abuse or addiction. Mentally ill individuals tend to be at higher risk for drug and alcohol problems, given their propensity to self-medicate.Mental health courts are designed to provide an alternative to jail. Participants have to agree to a strict set of rules, including participating in therapy or treatment and making weekly appearances before a judge. Participants who fail to abide by the program's guidelines can be sent to jail.
Program participants also benefit from closer relationships with their probation officers. In the Springfield mental health court, one case manager oversees 21 people. By contrast, the average probation officer has a caseload of 150 people.
Although the programs are relatively new, it appears that they are working. Studies suggest that mental health courts have a recidivism rate of between 17 and 20 percent, about half of what is seen in traditional courts.
Officials say that part of the reason the program is so successful is because the participant pool is intentionally kept small. That way, program managers can be sure participants are getting the services they signed up for. Unfortunately, this means that many qualified individuals can't be served.
Hopefully, programs like this can be expanded in the future so that everyone who qualifies for help can get it.
Source: WBUR, "'Mental Health Courts' Strive to Provide Treatment Instead of Jail Time," Deborah Becker, April 23, 2012.
]]>Despite continuing weakness in the economy, immigration has emerged as a flashpoint in the political landscape. It ended Texas governor Rick Perry's bid for the Republican presidential nomination, and is an issue that excites tremendous passion on both sides of the debate. The more extreme base of the Republican party is vociferously opposed to anything less than the complete expulsion of all undocumented immigrants, while more liberal voters tend to argue for a path to citizenship. All lament the status quo.
]]> Into this void has entered the Development, Relief and Education for Alien Minors Act (known universally by its acronym, Dream Act). The bill was crafted in 2001 by Orrin Hatch and Dick Durbin to deal with the issue of undocumented persons who entered the United States as minors. Essentially, the bill states that if an undocumented immigrant entered the United States before the age of 16, has no criminal record, has a high school diploma or the equivalent, and has been in the United States for at least 5 years before the bill is passed, then the person is eligible for "conditional" status for six years. If within those six years, the individual finishes two years of higher education or two years of military service, then the person becomes eligible for permanent resident status. After that, the person can eventually become a citizen.Not surprisingly, this has been an issue which has become very important to Hispanics in the United States. The overwhelming majority support it. Meanwhile, the harsh tone adopted by conservatives against immigration reform, and undocumented immigrants in general, has been hurting their candidates enormously amongst Latino voters. Many Republican politicians have had no choice but to change their positions to avoid being ousted from their seats (Mccain is a prime example). Long term, this is problematic for the party, as Latinos are the fastest growing population in the United States and the largest minority in the country. In an effort to win back some Hispanic voters (recent polls show nominee Mitt Romney having only 14% of the Hispanic vote), there have been calls from several Republicans for an alternative to the Dream Act.
Amongst these is a proposal by Senator Marco Rubio (R-Florida) to make an alternative Dream Act, which does not provide citizenship, but instead relegates people to permanent non-citizen resident status. This is done, Rubio has argued, to prevent "chain migration". A US citizen has the right to sponsor their immediate relatives to come live in the United States and eventually to become citizens themselves. The Dream Act, Rubio and other conservatives argue, would allow millions to come into the United States and reward those who flaunted the law. His version of the law, first proposed by the Center for Immigrant Studies, will not permit those undocumented immigrants who legalize their status as a result of the statute to ever become citizens. Although the numbers being bandied about with regard to the number of relatives who would eventually follow those who obtain eventual citizenship under the statute are questionable, it is undeniable that Rubio knows what he is talking about: chain migration is how his parents entered into the United States in 1956, and is the only reason he is currently a United States citizen.
This proposed class of legalized permanent resident, who will never have the option of applying for citizenship, has only one precedent in American immigration law: The Chinese Exclusion Act of 1882, certainly not our nation's proudest moment, and not one we should be seeking to relive. Furthermore, it is doubtful that Senator Rubio's plan will be well met by a ultra conservative base who seems unwilling to support even what was originally a compromise bill, proposed by one of the most conservative lawmakers of the past decade.
Cunha & Holcomb, P.C. welcomes your comments.
]]>The rise of the Internet and the proliferation of cellphone cameras and other mobile devices have introduced new wrinkles into the discussion of First Amendment rights.
This issue hit home last month, when the City of Boston settled its case with a criminal defense attorney who was prosecuted for using his cellphone to record an arrest on the Boston Common. The attorney said that he felt the arresting officers were using excessive force.
]]> The attorney was arrested and charged with violating the Massachusetts wiretap law, disturbing the peace and aiding in the escape of a prisoner (even though the arrestee did not escape). The charges were dropped after the case went to court.The attorney, along with the American Civil Liberties Union, later sued the City of Boston, alleging that the arrest was a violation of his First Amendment rights. The case eventually went to the U.S. Court of Appeals for the First Circuit, which agreed. It noted that the "newsgathering" protections enshrined in the First Amendment extend well beyond traditional media outlets.
The court elaborated, stating that the right of the public to record "is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties... Such peaceful recording of an arrest in a public space that does not interfere with the police officers' performance of their duties is not reasonably subject to limitation."
The court's decision, combined with the city's settlement, sets a clear rule: the peaceful recording of an arrest in public spaces is not a crime.
Source: CNET News, "Boston Admits It: Cell Phone Photography Is Not a Crime," Declan McCullagh, March 27, 2012.
]]>In the early morning of September 28, 2010, Eyanna Flonory, her 2 year old son Amanihotep Smith, Simba Martin, and Washum Levaughn Washum-Garrison were gunned down after a robbery at their home, and Marcus Hurd was paralyzed after being shot in the head. The victims were marched down the street before their executions, two of them stripped nude by Kimani Washington, an admitted participant in the crime, who became the government's "star" witness. Over the course of five grueling weeks, the jury knew everything possible to know about the Mattapan Murders. Given the nature of this emotionally explosive crime the defense worked hard to keep the jury focused on the evidence, the lack thereof, resulting in the acquittal of Eddie Washington.
The government's case rested in large part on the testimony of Eddie Washington's cousin, Kimani. The prosecution's decision to use him as a witness, made under enormous political pressure to bring the case to trial as quickly as possible, was a poor one. As Jack Cunha told the jury, "They made a deal with the devil." Kimani was brought to the attention of the police after being found inebriated driving a car he had carjacked from the Marcus Hurd. Although Kimani implausibly denied connection with the car, he was released, and the next day Kimani fled the state.
Kimani told investigators that he had hurt no one, that he parted ways with Eddie and Dwayne Moore after the robbery but before the shootings. The defense introduced evidence showing the stolen car Kimani was driving returned to the shooting scene prior to the murders. The jury determined Kimani was not worthy of belief. Edward Washington was exonerated.
The trial was contentious. Emotions ran high and there were repeated outbursts from the victims' families. One Boston Herald columnist called it a trial to "save the soul of Boston." Defense counsel were accused during the government's closing statement of lying to the jury. Nonetheless, the jury displayed not only tremendous courage, but also a willingness to look beyond the graphic horror of the murders which occurred. The not guilty verdict did not dissipate the tension. Afterward, many expressed outrage at the verdict. Understandably, the victims' loved ones had difficulty overcoming their grief and reaching a more objective understanding of the evidence. They were encouraged, however, by statements from prosecutors embarrassed by their loss and politicians who knew nothing about the trial.
The drama of the Mattapan Murders case has not ended. Eddie Washington's arrest on these charges triggered a probation surrender on a minor charge, and a judge sent him to jail last year, exceeding the prosecution's recommendation 2½ fold. Upon being acquitted of the offense triggering the probation violation, Mr. Washington asked to be released. In a petty move the request was denied without a hearing, thereby effectively punishing him for being acquitted. Jack Cunha pointed out after trial, "No tragedy can be reversed, but it would have been a greater tragedy if Eddie Washington had been convicted."
]]>Earlier this month, the task force's work resulted in a Boston woman being convicted on several counts of wire fraud, bank fraud and theft of public money. She was accused of perpetrating a mortgage fraud scheme and stealing public housing assistance money.
]]> Prosecutors alleged that between 2003 and 2009, the woman purchased several properties with loans secured by providing false income figures to mortgage lenders. She then sold the properties to "straw buyers" who had also secured loans using fraudulent information. After the sale, the woman collected the profits and the buyers allowed the properties to immediately go into default.The woman was also alleged to have fraudulently collected approximately $60,000 in Section 8 Housing Assistance by creating a false identity to pose as the landlord for her own residence.
The woman is facing some very significant prison time. She was convicted on two counts of bank fraud, each of which carries a maximum of sentence of 30 years in federal prison. In addition, she could be sentenced to 20 years in prison on each of three counts of wire fraud and 10 years in prison for one count of theft of public funds. She could also be required to pay a fine of up to $3 million.
Federal prosecutors do not take financial crimes lightly. If you are accused of federal financial crimes, don't make the mistake of thinking that you will automatically get off easily simply because your crime didn't involve drugs or violence.
Source: FBI Boston Division, "Dorchester Woman Convicted in Mortgage Fraud Scheme," April 3, 2012.
]]>Para Ganar un Caso de OUI es Esencial un Abogado que lo Represente de Forma VigorosaEl estado de Massachusetts aplica amplios recursos hacia el patrullaje por parte de la policía y hacia el procesamiento penal de casos de OUI. Por lo cual, aquellos individuos acusados de OUI, u otros delitos vinculados al alcohol y el tránsito en las vías públicas, difícilmente escaparán sanciones severas sin la ayuda de un abogado capaz de analizar todo ángulo en su caso, y que además se enfrente al ministerio público empleando estrategias creativas y de manera agresiva.
En casos de OUI, la policía normalmente comienza a recopilar evidencia en su contra aun antes de que lo detengan. El oficial se fijará en la forma en que usted conduce su vehículo, en cuanto tiempo le toma sacra y mostrar su licencia de conducir, en cuanto tiempo le toma y cuan difícil se la hace salir de su vehículo, y en su apariencia física. A menudo le harán preguntas que parecen ser inocentes, como por ejemplo: "¿de donde viene usted?, con el proposito de obtener evidencia que demuestre que usted estuvo en un lugar donde se suele consumir bebidas alcohólicas. Si usted tuvo un accidente de tránsito, en muchos casos la policía ordenará a los paramédicos o personal de rescate a extraer su sangre y entregarsela a la policía para uso como evidencia en su contra. Un abogado experto en casos de OUI debe saber como evitar que el fiscal utilice dicha sangre como prueba en su caso. El abogado Jaime Zambrana tiene vasta experiencia en esta área del derecho y es autor de escritos sobre la materia, véase su artículo: HIPAA: A New Weapon in DUI Cases, DWI Journal of Law and Science, June 2004.
Tanto el abogado Jack Cunha como el abogado Jaime Zambrana han litigado con éxito mociones de supresión del resultado de las pruebas de aliento, impugnado con éxito la legalidad de detenciones y arrestos, obligando a la fiscalía a desestimar los cargos, y obtenido veredictos de inocencia en un numerosos juicios ante jurados.
Comuniquese con Nuestros Abogados Probados en Todo Massachusetts.
Mientras mas rápido consulte con nuestros abogados, mejor probabilidad tendrá de evitar las sanciones severas que conlleva un OUI. Para una consulta llame por teléfono e escriba un e mail ya. Uno de nuestros abogados es hispanoparlante.
To learn more about Appeals, visit our appeals page.
]]>According to police reports, the teen was under the influence of alcohol when he crashed into a car on Cabot Street around 2 a.m. on Saturday morning. He then got out of his vehicle and threatened the car's occupants with a baseball bat.
The teen fled the scene of that accident, but police caught up with him shortly thereafter - he had crashed on nearby Dodge Street, first hitting a telephone pole and then crashing into a house. In doing so, he caused a small fire and knocked out power to the neighborhood.
]]> After firefighters pulled the teen from the wreck, he apparently tried to escape on foot. He was finally apprehended by police in the backyard of the home he crashed into.The teen is facing a number of criminal charges including operating under the influence, speeding, resisting arrest and leaving the scene of an accident.
Boston Teen Crimes
This incident highlights the need to enlist the help of an experienced criminal defense lawyer when young people run into trouble with the law.
At age 18, this teen is considered an adult in the eyes of the law. However, science shows that teens' brains are often not fully developed at this age. It is not unusual for young people to do things in their late teens that they would never dream of when they are older.
In many cases, an attorney can help older teens achieve a fair outcome that will not present undue difficulties as the teen grows older.
Source: WCVBTV, "Driver Charged With DUI After Crashing Into Pole, House," March 31, 2012.
]]>Mihos is accused of pushing his wife during an argument in Yarmouth last July, and of again becoming physical during a disagreement in Florida in February. The Boston Globe also reports that Mihos is accused of making statements that implied his wife could be hurt, killed or made to "disappear."
The convenience store magnate is facing possible criminal charges in the earlier incident. However, the Florida case was dropped, apparently after Mihos's wife decided not to cooperate with the police.
]]> In a statement, Mihos apologized for his actions and said he was hopeful that treatment would help him repair his relationship with his wife and children. He further said that he thought his personality had changed after major cancer surgery and a bad fall that left him unconscious.A magistrate's hearing in early May will determine if Mihos's Massachusetts domestic abuse charges will move forward. In the meantime, police seized a gun that Mihos owns and suspended his license to carry a firearm.
Massachusetts law treats allegations of domestic violence as serious crimes. If he is charged and convicted, Mihos could face substantial fines and even jail time.
If you are being accused of domestic violence or domestic abuse, it is important to confront the charges head-on. Contact a Boston criminal defense attorney who can help you understand your options.
Source: Boston Globe, "Mihos to Seek Treatment After Violence Allegation," March 1, 2012.
]]>Legislative leaders project that a so-called "three strikes" law will be enacted before the legislative session is over. If passed, the law would mandate a maximum sentence on the new case without parole for anyone convicted of three or more felonies involving acts of violence.
Both the House and the Senate passed versions of the bill last year. However, lawmakers could not immediately reconcile the differences between the two bills. Currently, a House-Senate conference committee is working to reach a compromise solution.
]]> The main difference lies in the fact that the House passed the three strikes law as its own standalone bill, while the Senate included it as part of a larger package of criminal justice reforms. The House has already agreed to accept the Senate's recommendation to eliminate mandatory-minimum sentences for non-violent drug charges.Bill Draws Worries of Cost, Disproportionate Impact
The bill's proponents say that the law will keep dangerous criminals off the streets. However, others worry it may erode an already struggling state budget and lead to prison overcrowding. Many opponents also worry that the law could have a disproportionate impact on Massachusetts' racial minorities.
Others concede the need for strict sentences in some cases, but argue that judges should have the discretion to impose the sentence that best fits the crime.
Last week, more than 300 people showed up at the State House to protest the bill.
The current legislative session ends on July 31. If lawmakers do not reach a compromise by then, they will likely have to start the process over from the beginning next year.
Source: WCVB Boston, "Lawmaker: 3 Strikes Will Likely Be Passed," March 16, 2012.
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