If you are on probation in Massachusetts state court, and you are charged with a violation, here are a few things to consider. First of all, the standard of proof for the probation department to proceed on is much less than that required for a conviction after trial. The standard is whether there is probable cause to believe there is a violation, and if a violation is found, the court will determine the appropriate sentence.
The sentence options for a violation will depend on the underlying disposition. For example, if a jail sentence is suspended, and the court wants to impose incarceration, then the suspended sentence will be imposed on that count. Similarly, if the disposition was straight probation, the court can impose up to the maximum sentence allowed under that statute.
Similarly, if you are on probation under numerous counts or indictments, then the court may give you a sentence on each count, and the sentences may be run consecutively. As a result, agreeing to probation as part of a criminal disposition on the underlying case may seem like a good idea at the time, but it is not without inherent risk.
With this in mind, if you or someone you know is facing a probation violation in either district or superior court, contact a criminal law attorney who will fight for you. Don’t wait until it’s too late.
If you are arrested for certain specified drug offenses under Massachusetts law, and these offenses occur within 300 feet of a school zone between the hours of 5 a.m. and midnight, there is an enhanced penalty under Massachusetts law. If found in violation of the statute and given a house of correction sentence, the punishment is for not less than 2 years nor more than 2.5.
If sent to the state prison, the sentence is for not less than 2.5 years, and for not more than 15 years. Any sentence under the school zone statute is to run on and after the sentence for the underlying drug case.
It is important to note, however, that the school zone statute was recently amended by the legislature within the past year, changing the distance required to be found in violation under the statute from 1,000 to 300 feet, and abolishing any potential violations between the hours of 12 a.m. to 5 a.m. This highlights the legislature’s intent that the statute be tailored to drug cases occurring in very close proximity to a school, at a time when there is a possibility that a school activity may be taking place.
Even with the legislature’s tightening up of the distance and time requirements under the statute, if you or someone you know is charged with such a violation, contact a criminal law attorney who will fight for you and who will challenge the Commonwealth’s evidence.
Many of you have commented on the Leominster man that is charged with armed robbery after allegedly using a knife in a store robbery last weekend. In general, the government may prove an armed robbery if they show that an individual was armed with a dangerous weapon; that he applied actual force or violence to the body of the alleged victim, or put the alleged victim in fear by threatening words or gestures; that he took money or other property from the alleged victim with the intent to steal it; and that he took the property from the possession or immediate control of the alleged victim.
An often litigated issue in armed robbery cases is whether the item qualifies as a dangerous weapon. The term “dangerous weapon” under the armed robbery statute is a term of art and it includes any instrument that by the nature of its construction or the manner of its use is capable of causing grievous bodily injury or death, or could be perceived by a reasonable person as capable of such injury. This would include obvious examples such as firearms and knives, yet it would also include a pencil, if someone held it in their hand and was perceived as willing to stab another with it.
Another often litigated issue is whether or not it has to be shown by the Commonwealth that the person charged actually possessed a dangerous weapon, or whether it is sufficient that the alleged victim perceived the defendant as having a dangerous weapon. The case law is conflicting in this area, yet it seems likely that the court will allow the charge to stand if it is perceived that the defendant has a dangerous weapon, and it isn’t specifically shown that his possession of such a weapon was impossible.
As a result, if you or someone you know is charged with armed robbery, there may be substantial defenses to explore. Go with a criminal attorney who will fight for you and your rights.
As many of you might have seen in the media lately, there has been an upswing in the number of home invasions across the county. To prove a home invasion under Massachusetts law, the Commonwealth must show: entry upon the dwelling house of another; at a time that the defendant knew or had reason to know that someone was present in the dwelling; while armed with a dangerous weapon upon entry; and finally that force was used upon any person within the dwelling, or any person within was threatened with the use of force, or injury was caused to any person within the dwelling.
To qualify as a dwelling, the Commonwealth must show that the premises were presently a place for the living and habitation of persons other than the defendant. Similarly, to qualify as a dangerous weapon under the home invasion statute, the Commonwealth must show that the item is an instrument that by its nature of construction or the manner of its use is capable of causing grievous bodily injury or death, or would be perceived by a reasonable person as capable of such injury. The definition of dangerous weapon also includes any instrument which, because of its manner of use, endangers the life or inflicts great bodily injury. This could include a pencil if intended as a weapon.
The home invasion statute also carries with it a sentence of not less than 20 years in state prison and up to life. As a result, home invasion is a very serious allegation, and you should choose among the criminal law attorneys who will fight for you and your rights.
As many of us will be attending parties this week in celebration of the New Year, it is important to keep in mind that the police will be out looking for impaired operators. If you or someone you know is arrested for suspicion of OUI, keep in mind that under Massachusetts law, you are not required to submit to a breathalyzer test.
If you refuse such a test, however, your license will be suspended for six months for a first offense, three years on a second offense and for five years on a third offense. This is often how the police are able to encourage those arrested for OUI to submit to the breathalyzer test.
If you find yourself in a position where you have consented to the breathalyzer test, and it is over the .08 limit, remember that the machine does not print out guilty tickets. It only prints out a number from a test that is normally given sometime after the motor vehicle stop, and not while you are operating the vehicle. As a result, if you or someone you know is charged with OUI, look for those criminal law attorneys who will fight for you and your rights. You can contact criminal law attorney Shane W. Surrette at 508-799-9309, or by clicking on the link below.