Restraining order defense

In Massachusetts, thousands of 209A restraining orders and 258E protective  orders are issued each year based entirely on hearsay and  “he said, she said” scenarios.  It is important to note these are civil orders and do not become criminal until such time the order is violated. Often times the alleged perpetrator is the victim of intentional falsehoods to effectuate a divorce settlement, custody or simply because someone wants someone out  of the house. There is a place for these orders however as they do provide protection to those truly in abusive relationships and the courts usually err on the side of caution when deciding whether to issue them.

So what if your a victim of these falsehoods and find your self temporarily homeless?   First hire an attorney !  Second, file a counterclaim 209A or 258E  if you feel your in danger of physical abuse, victim of stalking or harassment. Often times this does not mean you need to be physically harmed first,  but if the other person is acting in such a way that threatens you then this may be enough to have mutual orders issued.  It is important to note that any issuance of any 209A or 258E order may have an impact on your ability to obtain a professional license or job., so make sure it is based on true facts and that the person represents a true threat to you.

I believe the court system should be wary of issuance of these requests and require hard evidence of abuse or threats before issuing an order. Too many folks are wrongly  accused for the wrong reasons. If a person files an application for an order, and it turns out not to reach the level of evidence required for issuance then they should be responsible financially to the other person for any and all expenses incurred as a result of being forced from their home.

Massachusetts Clerks hearings

What is a clerks hearing?

You may have received a summons from the court or the police stating that you must appear at a show cause or clerks hearing to answer to a criminal complaint.  A clerks hearing is an informal hearing conducted by a clerk magistrate to determine whether there is enough evidence to determine whether there was a crime committed or not. If the clerk finds there was, then criminal charges are issued against you to issue formal criminal charges. A date will be set for arraignment in which the Defendant will plead guilty or not guilty. At this point, regardless of the outcome if you are arraigned then you will have a permanent criminal record on file until such time it can be sealed.

 What goes on at a clerks hearing?

Evidence from both sides are presented in the form of witnesses, witness affidavits, documentary evidence, videos, photos.  Although you do need more then just a  “he said, she said” situation to show enough evidence of a crime. The clerk will hear both sides and if there is sufficient evidence (usually probable cause standard) that a crime was committed,  then the clerk will issue formal criminal charges against you. You will then receive notification by mail to appear in a court to be arraigned on the charges.

Who can file for a clerks hearing?

Anyone can file these complaints, although it usually the police that do so.  When the police show up at the scene and they do not actually observe a misdemeanor crime being perpetrated, then they will usually file a criminal complaint requesting a clerks hearing through the mail.  If the police do not feel there is enough evidence to charge someone, then you as the vicitim may file a criminal complain at the local court house the exact same way the police do. You must have enough evidence to do so though, “he said, she said” is not enough. You need witnesses, photos, videos, anything that can convince a clerk that a crime was committed against you.

Do I need a lawyer?

Absolutely. The ramifications of having one of these criminal complaints issued against you means you would have a permanent record on file, whether you are convicted or not.  This record is accessible to the public and is often viewed by employers and educational institutions. An experienced lawyer will know exactly what kind of evidence and how much may be needed to assure the charges are issues or dismissed.  Often times a lawyer may file cross complaints against an alleged victim if they feel the complaint was filed falsely and that the defendant may have been a victim themselves.

CLICK HERE FOR ADDITIONAL INFORMATION.

Guide to sealing your Massachusetts criminal record

Michael Rodney St Louis Esq.

Written by: Boston Criminal Defense Attorney

The new CORI (Criminal Offender Record Information) act went into effect on May 5, 2012. The types of cases available for sealing are as follows:1)  Non-convictions:One must petition the court directly, however there is no waiting period. Cases such as acquittal at trial, no probable cause, a dismissal and CWOF(continued without a finding). Note however that no sealing may take place on CWOF until the case is actually dismissed. Pending cases can be disseminated until dismissed. Also, its important to note that the court will not seal the record unless “substantial justice” is served. In other words, the defendant must show the court that they will suffer a specific harm if the case is not sealed.The procedure is to submit a single petition along with a motion and affidavit that must be publicly posted at the court. The court will likely allow a hearing under M.G.L. c. 276 Section 100C.2)  Convictions:Under the new law, the waiting period for misdemeanor convictions has been reduced from 10 years to 5 years. The waiting period for felony convictions has been reduced from 15 years to 10 years. The time for sealing now begins for those incarcerated when they are released, or if no incarceration the time begins on the date of disposition. The procedure is to submit a petition available at the office of Commissioner of Probation purusant to M.G.L. c 276 Section 100A.Agencies that have access to sealed records:
1) Law enforcement agencies
2) Municipalities for licensing and housing purposes only
3) Court – “In camera” view only for domestic abuse casesNote, that employers are barred from asking a job applicant on an initial application whether they have a criminal record.  After the initial job application, such as at a job interview employers can ask you if you have ever been arrested or ever convicted of a crime. However, the employer must give the applicant a copy of his/her criminal record before asking these questions.
Exceptions:

1) Sex offenders are eligible for sealing after 15 years following final disposition or incarceration if he/she has no duty to register as a sex offender; and he/she was never classified as a  Level 2 and Level 3 offender.

2) Convictions for perjury, witness intimidation, false reports, escape from custody and resisting arrest, public corruption  and certain firearm convictions can never be sealed.

Massachusetts Drug sentencing laws

Michael Rodney St Louis Esq.

Written by: Boston Criminal Defense Attorney

The drug sentencing law vary depending on the class of drug and the amount.  Within each drug category there are 3 main possible charges:  (1) Possession  (2) Possession with intent to distribute and (3)  trafficking  and (4) Conspiracy to violate the drug laws.This guide will focus on Massachusetts marijuana, cocaine and heroin drug classes.Marijuana possessionis governed by M.G.L. 94C Sect. 32C. Marijuana is a class “D” substance. Penalties can lead to up to 6 months in jail and a fine of up to $500 for first offenders. Second offense can result in up to 2 years and a $2000 fine. First time offenders with no previous convictions can have their case continued without a finding, but face a 1 year loss of license. Possession of less then 1 ounce is a violation only that carries a fine of up to $100. If you are under 18, you are required to attend a drug awareness program. No such violation shall be grounds for denial of student aid.

Marijuana possession with intent to distribute

s governed by M.G.L. Chap.94C,. Intent to distribute can be inferred from various sources such as amounts involved, drug paraphernalia found or associations with known narcotic informers. The penalty for first time offenders is 2 year jail sentence and a $500 fine or both. Second or subsequent offenders face a minimum 1 year jail sentence and a 2 ½ year maximum jail sentence. There is also a fine of at least $1,000 and up to $10,000 dollars for anyone convicted of a second and subsequent possession with intent to distribute marijuana offense. There is also a mandatory loss of license for 2 years for first time offenders.

Marijuana distribution or trafficking falls under MGL Chap. 94C, Sect. 32E.

If you possess between 50 lbs and 100 lbs., then the penatly is a state prison term for not less than two and one-half nor more than fifteen years or by imprisonment in a jail or house of correction for not less than one nor more than two and one-half years. No sentence imposed under the provisions of this section shall be for less than a mandatory minimum term of imprisonment of one year and a fine of not less than five hundred nor more than ten thousand dollars may be imposed but not in lieu of the mandatory minimum one year term of imprisonment, as established herein.

COCAINE

MGL Chap.94C, Sect.34 governs cocaine possession. Cocaine is a class “B” substance. If you are convicted of cocaine possession for the first time you could face up to 1 year in jail and a fine of up to $1000. You also face an automatic loss of license for 1 year.

M.G.L. Chapter 94C Section 32A governs cocaine possession with intent to distribute. The penalty for this offense is a 2 ½ year jail sentence and a fine of not less than $1,000 and up to $10,000. Second and subsequent offenders can face a 3 year mandatory state prison sentence and a maximum sentence of 10 years. Fines in the range of $2,500 to $25,000. You also face a mandatory 3 year loss of license.

MGL Chapt. 94C, Sect. 32E governs cocaine trafficking. (1) Fourteen grams or more but less than twenty-eight grams, be punished by a term of imprisonment in the state prison for not less than three nor more than fifteen years. No sentence imposed under the provisions of this clause shall be for less than a minimum term of imprisonment of three years, and a fine of not less than two thousand five hundred nor more than twenty-five thousand dollars may be imposed but not in lieu of the mandatory minimum term of imprisonment, as established herein.

(2) Twenty-eight grams or more, but less than one hundred grams, be punished by a term of imprisonment in the state prison for not less than five nor more than twenty years. No sentence imposed under the provisions of this clause shall be for less than a mandatory minimum term of imprisonment of five years, and a fine of not less than five thousand nor more than fifty thousand dollars may be imposed but not in lieu of the mandatory minimum term of imprisonment, as established herein.

(3) One hundred grams or more, but less than two hundred grams, be punished by a term of imprisonment in the state prison for not less than ten nor more than twenty years. No sentence imposed under the provisions of this clause shall be for less than a mandatory minimum term of imprisonment of ten years and a fine of not less than ten thousand nor more than one hundred thousand dollars may be imposed but not in lieu of the mandatory minimum term of imprisonment, as established herein.

HEROIN

M.G.L. Chapt. 94C, Sect.34 governs heroin possession. Heroin is a class “A” substance. Any person who violates this section by possessing heroin shall for the first offense be punished by imprisonment in a house of correction for not more than two years or by a fine of not more than two thousand dollars, or both, and for a second or subsequent offense shall be punished by imprisonment in the state prison for not less than two and one-half years nor more than five years or by a fine of not more than five thousand dollars and imprisonment in a jail or house of correction for not more than two and one-half years.

Massachusetts General Laws Chapter 94C Section 32 governs possession with intent to distribute heroin. If you are found guilty of this offense you face up to 2 ½ years in jail or 10 years in state prison for a first offense. There is also a fine of $1,000 to $10,000. If you are convicted of this crime a second time you are looking at a mandatory minimum 5 year prison sentence and as much as 15 years.

MGL Chapt. 94C, Sect. 32E governs heroin trafficking. (1) Fourteen grams or more but less than twenty-eight grams, be punished by a term of imprisonment in the state prison for not less than five nor more than twenty years. No sentence imposed under the provisions of this clause shall be for less than a mandatory minimum term of imprisonment of five years and a fine of not less than five thousand nor more than fifty thousand dollars may be imposed but not in lieu of the mandatory minimum term of imprisonment, as established herein.

(2) Twenty-eight grams or more but less than one hundred grams, be punished by a term of imprisonment in the state prison for not less than seven nor more than twenty years. No sentence imposed under the provisions of this clause shall be for less than a mandatory minimum term of imprisonment of seven years and a fine of not less than five thousand nor more than fifty thousand dollars may be imposed, but not in lieu of the mandatory minimum term of imprisonment, as established herein.

(3) One hundred grams or more but less than two hundred grams, be punished by a term of imprisonment in the state prison for not less than ten nor more than twenty years. No sentence imposed under the provisions of this clause shall be for less than the mandatory minimum term of imprisonment of ten years, and a fine of not less than ten thousand nor more than one hundred thousand dollars may be imposed but not in lieu of the mandatory minimum term of imprisonment, as established therein.

DRUG CLASSIFICATIONS

Drug classifications generally fall into Class A, B, C, D, and E. The following is a brief listing of controlled substances in the State of Massachusetts for the purposes of drug penalty classification.

Class A substances include Heroin & other opiates such as Morphine; some designer drugs such as GHB; and Ketamine (Special K).

Class B substance include Cocaine; prescription opiates such as Oxycontin, Oxycodone (Percodan/Percocet),and Codiene, Methadone; LSD; MDMA; Ecstasy (XTC); PCP; Amphetamines (speed) ; & Methamphetamine (meth).

Class C substance examples include prescription tranquilizers and narcotics diazepam (Valium), Librium, Hydrocodone (Vicodin, Lorcet, Dolacet, Hydrocet, Lortab, Codiclear DH, Tussionex, Cogesic, Anexia), mescaline, psilocybin/mushrooms, peyote, STP, other hallucinogenic substances, some medium doses of prescription narcotics.

Class D substances include marijuana / pot (most common), chloryl hydrate, phenobarbital, and some lesser doses of prescription narcotics.

Class E substance charges are typically for lighter doses of prescription narcotics containing codeine (Tylonol #3), morphine, or opium.

Additional Resources

Drug crimes

How to file your own criminal complaints

Michael Rodney St Louis Esq.

Written by: Criminal Defense Attorney

 
Reasons why, steps involved and what to expect in court

1.  Why should you file your own criminal complaint ?

Justice for victims is not always served! Why ? because the police, prosecutors and the judicial system are grossly understaffed and not adequately funded to deal with the current case load. If your a victim, and the police have not adequately investigated your case, or worse have no bothered to file criminal charges when probable cause exists! Take matters into your own hands and file a civilian criminal complaint at the clerks office.

2.  Steps and requirements

(a.) File a police incident report (b.) Gather and determine whether you have a reasonable amount of evidence beyond just “he said,she said” to prove a crime was committed against you. (c.) File a criminal complaint form at your the local District court where the offense took place. (d.) Appear at the show cause hearing and present your witnesses and/or evidence to the clerk magistrate. There are no formal rules of evidence at a show cause hearing. This means that hearsay is allowed. You may also bring your own stenographer to create a record. Be prepared and have a legal strategy to prove your case. If possible, hire a competent attorney to attend this hearing to help assure charges are issued against the perpetrators.

Additional Resources

How to file a criminal complain

How to obtain a divorce in Massachusetts

Massachusetts Divorce Information

Michael Rodney St Louis Esq.

Written by: Michael Rodney St Louis Esq.Boston Divorce / Separation Lawyer

How to obtain a divorce in MassachusettsTo obtain a divorce in Massachusetts, one party to a valid marriage files a “Complaint For Divorce.” The Complaint is filed in the County where the parties last lived as husband and wife (if one party still resides in that County.) (If the “cause of action” occurred outside Massachusetts, there is a one-year residency requirement before the now Massachusetts resident can file for a Divorce.) In the past, there had to be a fault upon which to base the Complaint. Today, there is the “irretrievable breakdown” cause of action, also known as the “no fault” divorce. In the “no fault” situation, one party to the marriage can file the Complaint (pursuant to G. L. ch. 208 section 1B); or, the parties together can file a Joint Petition (pursuant to G. L. ch. 208 section 1A). See FAQabout divorce in Massachusetts.Most divorcing parties choose to file for a “no fault” divorce. There are procedural differences between the two “no fault” situations . When a joint petition is filed, the parties must be prepared to file the written “Separation Agreement” within 30 days. This can be a difficult requirement. On the other hand, when one party files the Complaint, there is a statutory waiting period of six months before the Court will have a Divorce hearing. In my experience, it is best to have one party file the Complaint and then work diligently on the terms of the “Separation Agreement” while the statutory clock ticks away. If the parties have been able to come to terms before that six month time period, the Complaint can be amended to a Joint Petition. “No fault” does not mean “uncontested.”What is Required to file for divorce?

  • Marriage Certificate;
  • Complaint or Petition;
  • Summons or Return of Service;
  • Form R 408 Statistical Form;
  • Financial Statement from both parties; and
  • Certificate of attendance at a Parent Education Program (if there are minor children).

In addition to the documents above which are part of the record of the case, the Rules of Domestic Relations Procedure require mandatory self disclosure of a whole host of financial records. (See Supplemental Rule 410 below) Also, the filing of the Complaint for Divorce effectuates an automatic restraining order requiring both parties to preserve marital assets. Failure to abide by the restraining order may be deemed a contempt of Court.

When negotiating the Separation Agreement, the factors that seem to carry persuasive weight with the Judges are: length of the marriage, health of the parties, amount and sources of income, employability and special needs of children. (See factors list at end). The assets available for division include all the normal stuff and such things as pensions and inherited property. In Massachusetts, all assets acquired during the marriage without regard for the title are deemed “marital assets.” In a medium or long term marriage, assets acquired by one party before the marriage, in most instances, will be considered a “marital asset.”

Alimony is awarded based upon need. (Length of the marriage is a very important factor to alimony awards.) There is no set formula or time period. This is an area that needs discussion.

Child support, in most cases, is set according to the “Child Support Guidelines” in effect at the time the Court makes the child support order. Guidelines support orders are computed using gross income figures. Income includes: salary and wages (overtime and tips); commissions; severance pay, royalties, bonuses, interest and dividends, partnerships or self-employment income, social security, veterans benefits, workers’ and unemployment compensation, pensions, annuities, income from trusts, lottery or gambling winnings, net rental income and so forth.

A “Complaint for Divorce” is an civil action. If the parties cannot mutually come to terms about the division of assets, custody and support (and all the particulars of each situation), then there is a trial and the Court renders a Judgment (weighing the “section 34” factors offered into evidence, see list at end). At the time of the hearing or trial, the Court enters a “Judgment of Divorce Nisi” which becomes “Absolute” 90 days later.

Typically, your Divorce attorney will require a retainer and bill for services by the hour. The amount of the retainer often depends upon your attorney’s assessment of the amount of contention he or she perceives to exist between the parties. The client should expect to sign a “Fee Agreement” and replenish the retainer whenever the time billed has depleted it. The Client understands that due to the personal nature and circumstances of domestic relations matters, no precise estimate of legal fees can be given.

Additional Resources

http://www.bostonsbestlawyer.com/pages/content/massachusetts-divorce