April 10, 2014

Massachusetts Man Wrongly Accused

Yesterday, Ross Currier, a Boston man, was cleared of sexual assault charges in the North End. Suffolk County prosecutors entered a nolle prosequi, which resulted in the termination of the charges of assault and battery, which carries a maximum penalty of 2 years in the House of Corrections, and indecent assault and battery, which carries a maximum penalty of 5 years in the House of Corrections, that Currier had been facing stemming from an incident that occurred on February 15, 2014.

On February 15, 2014, a woman told police that she was approached from behind earlier that morning outside her North End apartment by a man who then threw her to the ground, groped her body and private areas, and took a picture under her skirt with his cellphone. Police arrested Currier on March 10 after the same woman saw him in the neighborhood and told police officers that she was "90 to 95% positive" that he was the man who attacked her. Not only did Currier have an alibi, stating that he was at home with his fiancee at the time of the woman's attack, but the same woman had already previously misidentified another man as her attacker. The other man was incarcerated at the time of the attack and could not have possibly committed the crime.

District Attorney Daniel F. Conley's office said in a statement Wednesday that while prosecutors do believe the woman acted in good faith when she identified Currier, investigators later "developed evidence to suggest he was not the assailant." That evidence included a detailed review of Currier's alibi, a forensic investigation of his cellphone and an investigation of related cell tower location records.

Currier demanded an apology from authorities, who he said "put him and his family through an extremely difficult ordeal" by charging him with a heinous crime he did not commit."Someone needs to take responsibility for the mistakes that were made throughout this entire process," said Currier. He placed blame on "the lack of due diligence by the police and everyone along the way."

In a case like this, a dismissal of the case with prejudice would have been a better outcome for Currier than a nolle prosequi. A dismissal with prejudice would acknowledge that an innocent man had been wrongfully accused of the crime and the charges could never be brought against Currier again. Where as a nolle prosequi is a prosecutor's decision to voluntarily discontinue criminal charges and only shows that the prosecuting attorney is unwilling to pursue the case. It is an admission that the charges cannot be proven rather than an admission of the Defendant's innocence.

Though it may seem as though Currier has a slam dunk case against the police, it is not that simple. Police officers are protected by a doctrine called qualified immunity. Qualified immunity shields government officials from liability for the violation of an individual's federal rights provided to them by the U.S. Constitution.This grant of immunity is available to state or federal employees performing discretionary functions where their actions, even if found to be unlawful, did not violate "clearly established law." In this case, Currier would have to prove that the officers actions violated some clearly established law. He may have a tough time proving this especially because as of yet, there have been no reports of unlawful behavior by the police or a lack of compliance with police protocol.

If you have been charged with assault and battery, indecent assault and battery, or any other criminal offense in Massachusetts, contact my office immediately for your free initial consultation:

(617) 830 - 2188

March 17, 2014

Massachusetts lets Peeping Tom Peep

The Massachusetts Supreme Judicial Court recently ruled that a law used to charge an Andover man, Michael Robertson, with taking up-skirt photos of women in 2010 did not apply in the case because the women did not have any expectation of privacy in a public place and they were not in a state of undress.The SJC decided that the state law that Robertson was charged with violating in 2010 does not actually make what he did a crime.

In the case, Robertson did not contest that he took up-skirt photos of two women on the Green Line in December 2010, however, he did contest that, because the women were not nude, not partially nude, and were in public, he did not violate state law as written.The court ruled that the law as written only applies to people in private settings when they are nude or partially nude. Because in this case these women were fully clothed, wearing under garments, and in public, the incidents do not fall within the law. The court did say that riders should have protections from peeping toms on the MBTA, but the law as written needs to be changed.

"We conclude that the law, as written, as the defendant suggests, is concerned with proscribing Peeping Tom voyeurism of people who are completely or partially undressed and, in particular, such voyeurism enhanced by electronic devices. The law does not apply to photographing, videotaping, or electronically surveying persons who are fully clothed and, in particular, does not reach the type of up-skirting that the defendant is charged with attempting to accomplish on the MBTA," read the SJC's decision. Because the MBTA is a public transit system operating in a public place and uses cameras, the two victims here were not in a place and circumstance where they reasonably would or could have had an expectation of privacy.

Many may believe this decision is outrageous and nonsensical. Generally, it is clearly accepted that a woman riding on public transportation has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt. The SJC agreed but decided that the "proposition is eminently reasonable, but the law in its current form does not address it."

It is clear here that the Commonwealth tried to use an old statute to reach this new kind of conduct, which has increased with the proliferation of cellphones. However, you can't take an old statute and twist it and make it try to fit new conduct." Behavior cannot be punished as a crime if there are no laws that make that behavior a crime.This is a very clear indication that an updated, all encompassing law is needed as soon as possible.

March 12, 2014

Arrest made in North End Sexual Assault Case- Identification Questionable

After last year's string of sexual assaults in the north end, women living in Boston's historic Italian neighborhood had a reason to become weary again last month. A woman was attacked around 1 am when entering the foyer of her Unity Street home. The attacker pushed the woman into her foyer, indecently assaulted her, and took a picture up her skirt with his cellphone before fleeing.

On Monday night, the victim contacted police after she spotted the man she believe attacked her last month. He was playing basketball in the North End. Ross Currier, 26, was arrested that evening, and arraigned in court the following day. Police Superintendent Robert Merner praised the woman for coming forward and being proactive in the search for her attacker, stating "We think it's tremendous that the woman [responded] the way she did."

In my opinion, residents of the north end should not completely feel comfortable that the perpetrator of the sexual assault in their neighborhood last month has been caught. There are some real issues with the identification of Mr. Currier as the attacker.

First, he is the second man that the victim has identified as her attacker from last month. Just 13 days after her attack, she fingered a man from a photo array as her attacker. But police later determined that she was wrong, since the man she accused was incarcerated at the time she was attacked.

Second, when questioned by police, Mr. Ross's fiancee did not hesitate to provide an alibi for him- they were together, in their apartment, all night when the victim was attacked.

Third, eyewitness identification is inherently unreliable. It is difficult enough for a person to identify a stranger based on a brief, 15- 30 second interaction. That identification becomes even less reliable when the only witness making that identification is the victim who was undoubtedly frightened for her life, fighting, scratching, looking around for help, with little if any time to get a good look at the facial characteristics of her attacker.

In the absence of other evidence to identify Mr. Ross as her attacker, the Commonwealth's case against him looks very weak at this point. And based on the fact that he was released on a GPS monitoring bracelet, but no bail was set, it appears that the judge at Boston Municipal Court had similar reservations at Tuesday's arraignment.

If you have been charged with indecent assault and battery, or any other criminal offense in Massachusetts, contact Urbelis Law at (617) 830- 2188. Initial Consultation is free.

December 12, 2013

Springfield Man Arrested for OUI and Motor Vehicle Homicide

On December 7, 2013 police arrested 32-year-old Mauricio Velasquez of Springfield for motor vehicle homicide, operating under the influence, and other crimes after being involved in a head-on crash in Easthampton, MA that left 2 dead and 3 injured. The Northwestern District Attorney's Office has identified the man and young girl killed in the head-on crash as 71-year-old Charles Hoffman of Easthampton and a 3-year-old girl that is believed to be Velasquez's daughter.

Officials say Hoffman's pickup was struck by an oncoming van that crossed the center line while being driven by Velasquez. A woman riding with Hoffman, a second passenger in Velasquez's van, as well as Velasquez himself were all seriously injured. Velasquez is currently being detained on $50,000 bail and it is not yet clear if he has a lawyer.

Though it may seem that this is a strong case against Velasquez, there are many factors that must be examined. In order to fight this case, Velasquez's best bet is to hire a skilled criminal defense attorney who will look into the validity of the evidence gathered against him. For example, the Commonwealth must not only prove that a life was lost because of the accident but also that Velasquez caused the accident. In this case, it is clear that two lives were lost because of the accident but it is not clear that Velasquez was the cause of it. There are many things that could have happened to cause Velasquez's vehicle to hit Hoffman's vehicle. A skilled criminal defense attorney would have to take time to gather evidence in a number of ways such as: accident reconstruction, crime scene investigation, and witness interviews in order to protect Velasquez's rights to the fullest extent. All these factors play a huge part in whether or not Velasquez can be convicted of Motor Vehicle Homicide.

In order for Velasquez to be convicted of operating a motor vehicle under the influence, the Commonwealth must prove that he operated a motor vehicle, on a public way (where the public has a right of access), while under the influence of alcohol. It is not in dispute that Velasquez was operating a motor vehicle on a public way so the key factor is whether or not he was under the influence of alcohol. In order for Velasquez to fight the case, he should hire a skilled criminal defense attorney who would examine many things in order to disprove this charge. For example, if Velasquez was given field sobriety tests, which is highly unlikely because he was injured by the accident, a skilled defense attorney would look into whether those tests were administered correctly, who administered them, and whether or not Velasquez was a proper candidate for those specific tests. If Velasquez was given a breathalyzer, a skilled defense attorney would have to look into the validity of the breathalyzer machine (calibration check). All of these factors play a part in the outcome of Velasquez's case and whether or not he can be convicted of operating a motor vehicle under the influence of alcohol.

If you have been charged with an OUI, motor vehicle homicide, or other criminal offense in Massachusetts, contact my office immediately for your free initial consultation:

(617) 830 - 2188

October 30, 2013

Brockton man indicted on drug and gun charges.

Victor A. Merlino
, a Brockton resident, is being charged in Brockton Superior Court with trafficking in cocaine, unlawful possession of a firearm, unlawful possession of a loaded firearm, unlawful possession of ammunition without an FID card, unlawful possession of a class E substance (steroids), assault and battery with a dangerous weapon, two counts of assault and battery and two counts of a threat to commit a crime.

Reports indicate that during the early morning hours on Sunday, Sept. 1, police forced their way into Merlino's apartment after receiving reports from an unknown source that a 27-year-old woman who was in a relationship with Merlino had been missing and could be in danger. Police forced entry into Merlino's home with weapons drawn to find Merlino and the woman in a back bedroom. During the forced entry, police officers seized a bag of cocaine, prescription pills and firearm ammunition. Police officers later returned with a search warrant and seized over $10,000 in cash, an additional 40 grams of cocaine, as well as digital scales.

Though this case may seem like there is strong evidence against Merlino, there are many factors that come into play. In order to fight this case, a skilled criminal defense attorney would have to look at the validity of the information given to law enforcement, the validity of the forced entry into Merlino's home, the validity of the seizures, as well as the validity of the search warrant.

All citizens are protected against unlawful searches and seizures by the Fourth Amendment to the U.S. Constitution and Article 14 of the Massachusetts Declaration of Rights.This means that police officers are prohibited from searching your body, property or home unless they have probable cause to believe an illegal activity is occurring, or they have a court-issued search warrant. In this case, the original search of Merlino's home was based on information given to police through an unidentified informant. The validity of the search therefore becomes based on the reliability of the information given to police officers. Because it isn't clear how law enforcement received this information about the 27-year-old woman, there are important questions to be asked. For example, did law enforcement receive this information from other law enforcement officials? If not, were police officers familiar with this informant? Had they used this informant before? Did the information the informant gave seem plausible at the time? Were there any other factors present that corroborated the informant's information?

A criminal defense attorney must attack this information and show that it was unreliable. For example, if the informant was not other law enforcement and there was no other evidence to raise a suspicion that the 27-year-old woman was in danger or located in Merlino's house, the search and seizure was based solely on the information given by an unknown source. The defense can argue that an unreliable informant's information alone is not enough to establish probable cause to forcibly enter Merlino's home.

Also, though the woman was found in Merlino's home, there is no indication that the woman was in danger or harmed in any way. It is stated that the woman and Merlino were in a relationship and were found in a back room but there is no reference to her unwillingness to be there. These are factors that a defense attorney can use to show that the information that law enforcement relied upon was unreliable and unreasonable.

If it is shown that the information given was invalid to establish probable cause to search Merlino's home, (unconstitutional), a skilled criminal defense attorney must formally move the Court to suppress any and all evidence that stems from the invalidity in order to protect their client's rights. If the defense is successful, the government may not use any of the suppressed evidence against Merlino at trial which significantly weakens their case. This means that the bag of cocaine, prescription pills and firearm ammunition were all invalidly seized based on an unreliable informant. As for the evidence seized based on the search warrant, the defense can argue that the warrant was issued by the Court based on facts that only came to light as a result of the illegal entry into Merlino's home. Consequently, the $10,000 in cash, 40 grams of cocaine, and digital scales are all "fruits of the poisonous tree," meaning their discovery stemmed from the original unlawful search and also cannot be used against Merlino.

If you have been charged with a drug offense, firearm offense, or other criminal offense in Massachusetts, contact my office immediately for your free initial consultation:

(617) 830 - 2188

October 10, 2013

Massachusetts Trooper Faces OUI Arraignment

Recently, John Basler, a 25-year-old Massachusetts state trooper, was involved in a car accident that resulted in the death of two women from Carver, Massachusetts. Basler is set to face a judge and be arraigned today in Plymouth District Court on OUI charges as well as charges for improper storage of a firearm.

According to investigating police, Basler's blood-alcohol level was over twice the legal limit to drive in Massachusetts on Sept. 22, 2013 when his vehicle was involved in a head-on collision in Plymouth during the early morning hours. The other vehicle was being driven by 64-year-old Susan Macchi, with her 23-year old daughter Juliet Macchi in the passenger seat. Both women died as a result of the fatal accident.

In general, law enforcement officers are held to a higher standard than the average person. Basler was trained and educated on the serious dangers involved in drunk driving and still chose to do so. As a result of these charges, Basler was put on unpaid suspension pending the outcome of this case and it is likely he will face much more severe consequences if he is convicted of OUI-manslaughter.

If Basler intends to fight the case, he will need to be advised by a skilled criminal defense attorney that can properly advocate on his behalf while explaining to him the possible outcomes and penalties that may arise from a criminal conviction. A skilled defense attorney must look into all the elements of this case in order to adequately represent Basler.

In order to convict Basler, the government must prove that he operated a motor vehicle on a public way while under the influence of alcohol. Because the first two elements are not disputed, the main investigation surrounds the third element (while under the influence of alcohol.) First, the defense attorney must look into the accuracy of the blood alcohol level and whether or not those results may be used against Basler in court. Next, they must look into the investigation done by police officers in order to determine whether or not the investigation was done thoroughly and whether or not proper protocol was followed. Though this case appears very simple by the way it has been explained by the media, it is not as cut and dry as it seems to be.

If you have been charged with an OUI, traffic offense or any other criminal offense in Massachusetts, contact my office immediately for your free initial consultation:

(617) 830 - 2188

September 16, 2013

Is Marijuana Prohibition in Massachusetts Bound to End?

In late August 2013, the United States Department of Justice announced that it is "deferring its right to challenge" the Colorado and Washington initiatives that "tax and regulate marijuana like alcoholic beverages." This announcement indicates that the administration is willing to take another look at marijuana laws and discuss possible reform with Congress and the States.

It has been suggested that the states and Congress should adopt a "child-protection agricultural produce" model for the cultivating of marijuana.This model would make marijuana possession legal for adults only. The Massachusetts Cannabis Reform Coalition conducted a poll in 2011 and found that 58 percent of Massachusetts voters already support a similar model. The model would be sure to severely punish the distribution of marijuana to minors with significant jail time and/or fine, and would require adults to take serious precautions in order to prevent access to marijuana by minors.

Currently, possession of marijuana has been decriminalized in Massachusetts and is not punishable as a crime unless a person is in possession of more than one ounce. According to this suggested model, for those under the age of majority, it would remain a crime/delinquency to grow, sell, or possess over an ounce of marijuana and a civil offense to possess an ounce or less. Despite these changes, the model would have no affect on the "drug-free" schools policy and it would still be a crime to possess marijuana on school property. Also, by recognizing marijuana as the herb it is, all laws that now apply to selling fruits and vegetables (including regulation of fertilizers and pesticides, income tax and land use) would apply to those cultivating marijuana.

If Massachusetts chooses to follow this model there will be many changes within the Commonwealth. Though possession of less than one ounce of marijuana is already decriminalized, it is still a civil infraction. With this model, possession and use of marijuana will be completely legal for adults no matter the quantity. Those who are opposed to this model feel that this will be a gateway to other possible drugs being decriminalized and eventually legalized. Those who support this model believe that the regulation of marijuana throughout the Commonwealth can be as beneficial to the economy as the regulation of alcoholic beverages. Both sides to this argument have valid points and objections. It is only a matter of time before we see what the legislature decides to do in reference to Marijuana possession in the Commonwealth.

September 10, 2013

Massachusetts man sentenced to 12 years in prison on drug charges

Thirty year old Joshua Snow, of Lynn, Massachusetts, recently plead guilty to charges of possession with intent to distribute oxycodone. He was sentenced in federal court in Maine to twelve years in prison as well as six years of probation upon release.

According to court records, Snow was discovered to be in possession of 500 oxycodone pills when pulled over by police officers. Snow allegedly admitted that the pills were his and that he intended to distribute them. In my opinion, based on the limited information given, this admission made to the officers was the main evidence that allowed for Snow to be charged with drug distribution. There is no mention of the packaging of the pills, presence of cash, or any other incriminating evidence. Though the quantity was extremely excessive, if Snow had a valid prescription for that amount of oxycodone there would have been no other evidence of his intent to distribute. Snow's statements incriminated himself and allowed for him to be charged with a much more severe crime.

Additionally, though it may seem that twelve years in prison and 6 months of post prison probation are unheard of in relation to a drug distribution matter, Snow was found to be a career offender which subjected him to harsher sentencing penalties. No matter the offense, a Defendant's criminal record is always a factor when deciding what disposition to reach in their case. Snow's best bet was to be advised by a skilled criminal defense attorney in regards to his case and the possible penalties.

If you have been charged with a drug offense or any other criminal offense in Massachusetts, contact my office immediately for your free initial consultation:

(617) 830 - 2188

September 5, 2013

Firearm Legislation in Massachusetts

The Massachusetts legislature will be reviewing new possible gun legislation in the upcoming session. Many suggestions are being made as to how to approach gun regulation while simultaneously decreasing gun crimes in the Commonwealth. One suggestion is for Massachusetts to pass laws that keep illegal guns out of the hands of criminals.

Generally, legally owned guns are less likely to be used to commit crimes than illegally owned guns. In most instances, when legally owned guns are used against a person, it is a case of self defense, defense of a third party, defense of property, domestic violence, or suicide. Because most criminals are using illegally obtained guns to commit crimes, it is important that the Massachusetts legislature do something to stop criminals from acquiring and carrying these illegal firearms.

One specific suggestion made is that the Commonwealth pass certain legislation requiring that anyone over the age of 16 who is discovered to be in possession of an illegal firearm be prosecuted in an adult gun court. Those offenders under the age of 16 would be prosecuted in a juvenile level gun court. The gun court would not only have the authority to charge, but also try, and sentence for the possession of the illegal firearm and/or ammunition. If convicted, it is suggested that there be a mandatory minimum incarceration for first time adult offenders, and a mandatory rehabilitation program for first time juvenile offenders.

The theory behind gun court is fast paced procedures and dispositions. Currently, the gun courts implemented by the Suffolk County District Attorney, Dan Conley, have claimed an 89% conviction rate. "Conley conceived of the Gun Court after hearing repeatedly from community members who were frustrated that gun defendants were back on the street so soon after arraignment and for so long before their cases were finally resolved." As a solution to this problem, Gun Court was created. Now, when a case is prosecuted in gun court it receives a pre-trial hearing date within 45 days of arraignment. This way, prosecutors and defense attorneys are able to conference the case with one another soon after the Defendant has his or her first day in Court. Additionally, in each case placed in gun court, a final disposition is reached within 120 days of arraignment. Due to this fast paced approach, alleged firearm criminals spend much less time on the streets while their case is pending.

In my opinion, Gun Court is an effective way to prosecute firearm crimes separately than other crimes. It allows for special attention and time considerations to be placed on those who are alleged to have committed these offenses. Currently, Gun Courts are not present throughout the entire Commonwealth. If they were implemented state-wide, I believe it would be a positive step towards keeping illegal guns off the streets and decreasing firearm crime throughout Massachusetts.

If you have been charged with a firearm or weapon offense or any other criminal offense in Massachusetts, contact my office immediately for your free initial consultation:

(617) 830 - 2188

August 22, 2013

Boston Red Sox broadcaster's son charged with murder

Recently, 34 year old Jared Remy, son of Jerry Remy (popular Boston Red Sox broadcaster), was charged with assault and battery with a deadly weapon on his girlfriend Jennifer Martel. Martel later told prosecutors that she "was not afraid" and refused to pursue a restraining order against Remy. At his arraignment, prosecutors did not request that Remy be held on bail and he was released on his personal recognizance. The very next day, Remy was charged with the murder of Jennifer Martel.

The Middlesex District Attorney's office has been under scrutiny ever since this incident occurred. Many are under the impression that this situation could have been prevented if prosecutors had requested bail instead of letting Remy go free. MaryBeth Long, a spokeswoman for the district attorney's office stated, "We did what we believed was appropriate given what we knew on Wednesday."

When deciding whether or not to ask for the Defendant in a criminal case to be held on bail, the prosecutor must weigh many different factors including; The nature, circumstances, and potential penalty of the offense charged; family ties, financial resources, employment record, and history of mental illness; Reputation and length of residence in the community; Record of convictions; Illegal drug distribution or present drug dependency; Flight to avoid prosecution, defaults, or fraudulent use of an alias or false identification; Whether the defendant is on bail for a pending prior charge, on probation or parole, or awaiting sentence or appeal of a prior conviction; Whether the acts alleged involve domestic abuse, violation of a restraining order, or whether the defendant has any history of restraining orders.

In this case, prosecutors assured the public that the above factors as well as Remy's criminal history and the facts and circumstances involved in his case were all reviewed when deciding whether to request bail. However, the fact that Remy showed up to Court for his arraignment accompanied by a defense attorney implied that he was not only taking the case seriously, but also not a flight risk. Also, in many cases, such as this one, the prosecutor must face the reality that without the cooperation and testimony from the alleged victim, the case is likely to be dismissed. In these instances, requesting bail would basically turn into punishing an accused Defendant by holding them in jail even though the Prosecutor is aware that the case is likely to disappear. Though the public seems to be under the impression that this was outrageous behavior from the prosecutors, this is something that would likely happen on a day to day basis.The question becomes: Is our system really working?

Attorney General Martha Coakley commented "Of course the system failed, because now Jennifer Martel is dead. This was a horrible, horrible tragedy. That young women should not be dead." Coakley, who served as Middlesex district attorney for eight years, said there may need to be changes to state law regarding domestic violence cases. Many are now urging the State Legislature to adopt a policy that keeps Defendants that are alleged to have committed multiple incidents of domestic violence from being released without significant bail.

If you have been charged with a violent crime or any other criminal offense in Massachusetts, contact my office immediately for your free initial consultation:

(617) 830 - 2188

August 12, 2013

Bulger case leaves more questions than answers

In any criminal trial, the Defendant's right to present a defense is paramount, yet not absolute. Any time the defense is affirmative (in other words, "yes, I committed that criminal act, but here is my justification, excuse, or exemption from prosecution...") the judge is faced with complicated issues, one of the most important being the Defendant's right to due process of law. In the Bulger case, if he is convicted on any one of the 32 counts of the indictment, his main argument on appeal is likely to be that he was denied his opportunity to present his "immunity" defense to the jury, which would have allowed him to argue that he had an agreement with Assistant United States Atttorney Jeremiah O'Sullivan (who died in 2009) which granted him immunity from prosecution for all crimes, including murder.

U.S. District Court Judge Denise Casper may have been correct in finding that one can't be granted immunity from a murder prosecution, but her decision leaves the victims, their families, and everyone else who was negatively impacted by the corrupt Bulger- FBI relationship without the answers they've been desperately seeking for decades.

If the judge allowed the presentation of an immunity defense, dozens of high-ranking public officials, including former Governor William Weld and U.S. District Court Judge would likely have been called to testify, exposing them to a vigorous cross-examination by Jay Carney and Hank Brennan which undoubtedly would have provided at least some insight into what was actually taking place during those dark days in the Commonwealth. Further, had Bulger been able to pursue this defense theory, he would have taken the stand, and likely provided a tell-all, at least from his perspective. The public is well-aware of the torment Bulger put so many through during the 70's, 80's, and early 90's... but allowing him to present the defense of his choice might have provided detailed answers about who else was involved, and how deep this corruption really went.

One of the judge's main roles is to act as a gatekeeper, making sure that the jury is presented with only the relevant and fair evidence on both sides. But when an 84 year old man is on trial for his life, almost certain to face execution, with the mountains of evidence against him, why not let him try to make his own case? If ever the public deserved to get the full story, or at least as much of it as could be uncovered, this is that case and forum. Now, the issue will be brought up on appeal, costs hundreds of thousands of dollars and years of the federal court's resources, and we are still left with more questions than answers. The immunity defense would have satisfied the Defendant's due process claim and provided long overdo answers to the public. The only "winners" in having the immunity defense theory barred was the Department of Justice and all of the corrupt officials who were involved, the extent of which may forever remain unknown.

- Benjamin P. Urbelis, Esq.

August 12, 2013

Massachusetts Voodoo Woman Mocks Cop and gets Charged with 2nd OUI

Last Wednesday, a 25-year-old Everett woman named Vivencia Bellegarde was charged with OUI causing serious injury when she crashed into a Boston Globe delivery truck and ran it off of Interstate 93 and onto the Leverett Connector. The driver of the delivery truck was taken to Massachusetts General Hospital where he was said to be in fair condition.

According to police, the woman was also found to be in possession of three EBT cards, only one of which belonged to her. When asked why she had two other people's EBT cards, the woman accused the police officer of being a racist, mocked him for having to pay for his food while she got hers for free, and threatened him with a Haitian voodoo curse. She also stated that she "didn't care about the guy she hit because he isn't dead and that all she cares about is smoking a cigarette."

A spokesman for the Massachusetts Department of Transitional Assistance (DTA), which oversees welfare, said in a statement that the agency "will take appropriate action" in regards to Bellegarde's possible fraudulent EBT card usage. The statement also explained that "DTA investigates every 
tip that it receives from members of the public or law enforcement, and refers cases to the auditor's Bureau of Special Investigations for further action, which has the power to investigate potential criminal matters."

Bellegarde is currently being held on $10,000 cash bail and is awaiting her day in court. It is very unlikely that any leniency will be shown to her because of her lawless actions and her obvious disregard for the safety and welfare of others on the road. Additionally, Bellegarde's driving record includes 10 suspensions as well as a prior charge for OUI. Due to this being her second OUI offense, and her refusal to take a breathalyzer test, Bellegarde will surely have to deal with all RMV consequences; including license suspension and installation of an interlock ignition device in her car once her suspension has ended. She will also have to deal with heightened car insurance rates and pay all of the appropriate fines/fees.

Bellegarde also faces the possibility of being prosecuted criminally for her possession of two EBT cards that did not belong to her coupled with the statements she made in reference to them. In my opinion, Bellegarde's best bet is to hire a skilled criminal defense attorney to help her fight her case by advising her of her rights, explaining possible penalties, and advocating on her behalf.

If you have been charged with an OUI, traffic offense or any other criminal offense in Massachusetts, contact my office immediately for your free initial consultation:

(617) 830 - 2188

August 5, 2013

Massachusetts' 17-year-old offenders may be treated as Juveniles rather than Adults

In Massachusetts, 17-year-olds accused of a crime are treated as adults, regardless of the circumstances involved or the seriousness of the offense. This means that they are generally sent to prison rather than juvenile detention facilities. However, a bill pushed by Massachusetts representative Brad Hill that would allow 17-year-olds to be treated as juveniles rather than adult-level criminals in most cases in Massachusetts, has recently been cleared through the Senate and approved by the House of Representatives. Hill stated that there are a number of reasons he supports the bill. One being the negative effects that prison can have on 17-yr-olds, and another being the conflicting age of majority in many other states and the federal system.

The bill would encompass a plan called the youthful diversion program which would differ from person to person.The district attorney's office would have full discretion as to whether a 17-year-old would be charged as an adult criminal or juvenile offender. The bill would allow for flexibility depending on the severity of the crime and not, for example, change the law dictating that 17-year-olds accused of murder or other serious violent crimes be tried in adult court.

I agree with and support the logic behind this new bill.18 is the age of majority in 39 other states and the Federal system so why is it different within the Massachusetts criminal justice system? Because 17-yr-olds are minors, they should be treated as such in all aspects of their lives. They cannot vote, serve on a jury, or even buy tobacco; so why should they be sent to adult prisons? When 17-yr-olds are charged as adults, their names and criminal records are made public. This could cause many of them extreme difficulties when it comes to finding employment, applying for college, or other aspects of their adult lives. There is not even a possibility of these adult records being sealed until a minimum of 10 years after the disposition has been completed. On the other hand, when charged as a juvenile, records can be sealed after only 3 years from the completion of the disposition. Many of these teens are still very impressionable and have a great chance of changing their ways if given the proper care and assistance. In my opinion, prison can be a further problem for these 17-yr-olds rather than a much needed solution.

If you have been charged with any criminal offense in Massachusetts, contact my office immediately for your free initial consultation:

(617) 830 - 2188

July 29, 2013

Massachusetts man faces OUI & Drug charges

A Massachusetts man was arraigned in court on drug and OUI charges after he was arrested early Thursday morning. Fortunately, the man was released on personal recognizance after being charged with a marked lanes violation, operating under the influence of alcohol, possession of cocaine, possession of MDMA (Ecstasy) and possession of amphetamine salts (Adderall) with intent to distribute. According to police, he also failed three sobriety tests and had $1,792 in cash at the time of his arrest.

In Massachusetts, the maximum penalty for being found guilty of a 1st offense OUI is 2.5 years in jail, up to $5000 in fines, and license suspension for up to one year. According to MGL Chapter 94C 32(A), the maximum penalty for drug possession with the intent to distribute is imprisonment in the state prison for not more than ten years, or in a jail or house of correction for not more than 2.5 years, $10,000 fine, or both. Based on the information released, it is not clear as to whether this was the man's first offense or if he has any other drug or alcohol related charges on his record. These factors have the potential to play an important part in determining what penalty the man will end up facing.

In this situation however, a few facts imply that there could have been some questionable police behavior involved. The information released informs us that the police officer found the drugs but waited until after the man had failed not one, but three field sobriety tests to inform him he was being charged with a drug crime. In my opinion, it seems as if the police officer had every intention of arresting the man and purposely withheld the fact that he had found the drugs in order to obtain more incriminating evidence against the man.

When a person is involved in a custodial interrogation by a police officer or law enforcement official, they must be provided with Miranda Warnings. (Right to remain silent, Anything you say can and will be used against you in a court of law, Right to an attorney, If you cannot afford an attorney one will be provided for you.) Miranda Warnings are only necessary if the person is in custody and being interrogated.

In this case, if the police officer had informed the man that he found the drugs, it is likely that the man probably would have reasonably believed that he was in custody and not free to leave and the Police officer would then have had a duty to provide him with Miranda warnings. Giving Miranda warnings would have increased the possibility that the man would have refused to participate in the field sobriety test and therefore, provided the police officer with less incriminating evidence for conviction.

In my opinion, this man should attempt to have the evidence found against him suppressed (kept out of trial.) Many arguments could be made by a skilled defense attorney at a Motion to Suppress hearing in front of a Judge in order to suggest that the incriminating evidence was obtained unconstitutionally and must be kept from being used at trial.

If you have been charged with an OUI, drug offense, traffic offense or other criminal offense in Massachusetts, contact my office immediately for your free initial consultation:

(617) 830 - 2188

July 23, 2013

Lowering the OUI limit in Massachusetts

DUI's, OUI's in Massachusetts, have become a huge problem throughout the United States. Recently, in an effort to lower the many cases of drunk driving, the National Transportation Safety Board (NTSB) recommended that states lower the legal blood-alcohol limit from .08 to .05. This recommendation is not receiving much support in Massachusetts from establishments that serve alcohol as well as prominent safety organizations. Specifically, the Massachusetts chapter of Mother's Against Drunk Driving (MADD) does not support the NTSB's recommendation and believes that there are more proficient ways of curbing drunk driving within the State such as interlock ignition devices and other drunk driving laws that are already in place.

If Massachusetts were to implement a new law based on the suggestion of the NTSB, there could be many positive and negative consequences. For instance, if the OUI limit is lowered, it could reduce the amount of fatalities and property damage caused by drunk driving within the state. People may choose to be more careful with their drinking and therefore create a safer and more law abiding environment on Massachusetts public roadways. On the other hand, lowering the limit may also flood the MA court system with an abundance of less severe OUI cases. Depending on the weight of a person and how long they have been drinking, a blood alcohol level of .05 can likely be reached after two beers or two glasses of wine. This may cause an outpouring of OUI cases in the state of Massachusetts that would never have come through the court system if not for the change in the law.

Although changing the legal blood-alcohol limit is not yet on the state Legislature's agenda, the Senate will be working with law enforcement and a variety of advocacy groups to review the NTSB recommendation. If the change is made, MA will surely see a drastic change whether it be in it's OUI fatality statistics, OUI court statistics, or more. Clearly, we all want a safer Massachusetts but the question becomes: is this new legislation really the way to go or are the laws that we currently have in place good enough?

If you have been charged with an OUI, traffic offense or other criminal offense in Massachusetts, contact my office immediately for your free initial consultation:

(617) 830 - 2188