Author: Alexander Conley

Can someone be required to pay “restitution” for a crime?

The simple answer is yes, someone who enters into a plea agreement or is convicted of a crime in Massachusetts can be required to pay restitution to any victims of the criminal offense.

Restitution can be ordered after conviction at trial, as part of a plea, or even be part of an agreement with a prosecutor that includes dismissal of the charges.


There are a few things to know about criminal restitution in Massachusetts. First, for restitution to be ordered, a court must find that that the criminal action of the defendant caused the economic damage to the victim. Sometimes, if an amount is not agreed to, the court may hold a full hearing to determine this amount.


Second, a person cannot have their probation sentence extended solely because they are financially unable to pay restitution. If your financial circumstances change during the course of being on probation, it is important to let your probation officer or attorney know immediately.


Third, many offenses could include restitution, even when it may not seem obvious. Driving offenses such as operating under the influence (OUI) or negligent operation are often subject to restitution if there was a car accident involved. Assault and battery charges can include restitution for medical bills. And, more directly, theft offenses, such as larceny or shoplifting can include restitution for stolen property.


It is always important to have an attorney you trust review your case, including to determine if there is a possibility of restitution.

Should you have taken a breathalyzer test?

 

Probably the most common question that a person arrested for a charge of operating under the influence of alcohol (“OUI”) asks is whether they should have taken a breathalyzer or breath test. Of course, the answer is not always so simple.

 

First, it is important to distinguish between a portable breathalyzer test and the breathalyzer test at the police station. The result of a portable breathalyzer test done at the side of the road is generally not admissible at trial in Massachusetts. Additionally, your decision to take it or not will not have any consequences to your driver’s license.

 

If you are arrested and booked at a police station for OUI, you will be offered a breath test there as well. The results of this test can be used at trial against you and could be a basis for a conviction of OUI on a “per se” theory. This is where the District Attorney proves its case by showing that your Blood Alcohol Content (“BAC”) was at or above 0.08%, without needing to show impaired driving.

 

Before making a choice on the breathalyzer you should understand the consequences to your driver’s license. Under what is known as an “implied consent” law, you are deemed to have already consented to taking a breath test if arrested for OUI when you got your driver’s license. As such, refusing to take the breath test will result in an automatic suspension of your driver’s license. If you have never been charged with an OUI before, your license would be suspended 180 days for refusing the test.

 

On the other hand, if you take the test, and your BAC is measured to be above the legal limit of 0.08%, you could still face a 30-day suspension of your driver’s license.

 

Beyond these issues, there can be numerous other issues regarding breathalyzer tests. These issues include things such as “deemed” refusals for failure to give a sufficient sample, the reliability of the machine itself, different consequences for CDL drivers or drivers under the age of 21, and even whether the police properly followed the regulations surrounding the administration of the test.

 

Many issues regarding a breath test can and should be litigated, and you should have an attorney you trust to advise you on the strength of a defense to your OUI charge whether or not you took a breathalyzer test.

What happens if a crime occurs in a courthouse?

Obviously, a courthouse generally is a place where there are numerous witnesses and surveillance cameras. It is also a place that is generally filled with police or court officers. If a crime is alleged to occur in a courthouse, it can be hard to defend for those reasons alone.

Additionally, there is sometimes a concern about whether you would get a fair trial in the same court where a crime allegedly occurred. Court personnel could be witnesses and could play roles in the prosecution, trial or sentencing. It is easy to imagine a situation where decision makers could be improperly influenced by their own personal or professional relationships with their coworkers who could be witnesses, or even victims.

Under the Massachusetts Rules of Criminal Procedure, you are entitled to ask that a case such as this be transferred to another court. Essentially, there would need to be a finding of prejudice against you in the court that would otherwise have jurisdiction over the charge. The transferring of venue, enumerated in Massachusetts Rule of Criminal Procedure 37, is not mandatory however, and generally must be requested by the defense. It would be a good idea to have a knowledgeable attorney by your side to properly advocate for this kind of relief and to ensure your fair treatment in court.

What is a CWOF and should you take it?

If you have or have spent time in a courtroom in Massachusetts you have probably heard attorneys, judges, or probation officers talking about a “CWOF.” “CWOF” is a commonly used acronym for a Continuation without a Finding. It is a way of resolving a case short of a guilty plea.

If you accept a CWOF disposition there are a few things to know and understand. First, a CWOF requires that you admit to the facts underlying the criminal charge. Second, it requires that you are placed on some period of probation. Third, that if you complete probation without any violations, then the case will be dismissed.

There are pitfalls and risks when you take a CWOF though. Because you admit to the facts, you must also waive your constitutional right to a trial, or to otherwise challenge the facts. This is important because if you were to be found to have violated your probation while on a CWOF, then you could be found guilty and sentenced up to the maximum possible penalty for the charge, without a trial. Additionally, for some charges, such as for an OUI, having received a CWOF in the past is sufficient for another OUI in the future to be charged as a subsequent offense.

A criminal defendant is not entitled to a CWOF, and the Court can decide whether or not to resolve a case in this way. Because of the benefits and risks associated with a CWOF, whether you should accept this disposition or not is highly case specific, and you should make sure you have an attorney you trust to help you make this decision.

Mental Health and Criminal Law

It is not uncommon for mental health issues to overlap with criminal charges. In some cases, mental health concerns are the root of actions leading to criminality.

However, the question often arises as to how mental health interacts with the criminal justice system once someone is charged with a crime. In Massachusetts, there are two main ways that come up regularly.

First, a person who is unable to comprehend the basic concepts of the criminal justice system may be deemed legally “incompetent” to stand trial. If this finding is made, then the case may remain open until that person becomes “competent” or the interests of justice warrant dismissal of the charges. The Court can order involuntary commitment to a mental health facility if a person is incompetent, although recent decisions in Massachusetts have made this ostensibly less likely by increasing the standard that must be shown to hold someone against their will.

Second, a person suffering from a mental health disease at the time they commit a crime, may not be “criminally responsible.” If this is the case, they can still proceed to trial, but may be able to raise this as a defense. In classic terms, this is an “insanity” defense. Again, although this could lead to acquittal, such findings could be used to involuntarily commit someone to a mental health facility.

If you, or a loved one, is charged with a crime, and also suffers from a mental health disorder, an experienced lawyer can help them navigate the system, assist with getting the help they need, and avoid either conviction or involuntary commitment.

Is a criminal case sealed automatically if it is dismissed?

The answer to this question is more complicated than it may appear. Prior to 2023, there was no such thing as automatic sealing of a criminal charge in Massachusetts. If a person wanted to have their criminal record sealed, and thus not readily available on most background checks, they would need to either file a petition with the Court where the charges were issued, or with the Office of Commissioner of Probation.


Last year, the Supreme Judicial Court decided, in Commonwealth v. J.F., that public interests warranted the automatic sealing of certain cases. However, the decision does not apply to all closed cases.


Specifically, the court made automatic sealing available only for cases where a person is:

  1. Found not guilty after trial
  2. A grand jury finds “No Bill”

  3. A case is dismissed for no probable cause


In these three narrow circumstances, the Court should automatically seal the case, unless the defendant objects. There are certain reasons that a person should object, including people facing immigration proceedings.


Other favorable results of a case, including dismissals for lack of prosecution, discovery violations, or prosecutorial misconduct would not be sealed automatically. Neither are dismissals after a period of pretrial probation or a continuance without a finding automatically sealed. Even the filing of a Nolle Prosequi, or a voluntary dismissal by the District Attorney’s Office, is not subject to automatic sealing.


In these other circumstances, or after a conviction, a person who wants to have their criminal record must still use the previously available petitions to the Court or the Commissioner of Probation.


An experienced Massachusetts criminal attorney can help guide people through the sealing process, as well as explore other post disposition options such as expungement, vacating a plea, or filing a motion for a new trial.

Can I be held without bail on “dangerousness”?

In Massachusetts, a court can hold a person charged with certain crimes in jail, without the right to bail, if the court finds the person to be a danger, and that no conditions of release will ensure the safety of the community, or any specific person.

 

What crimes can a person be incarcerated for based on Dangerousness?

The District Attorney’s office cannot request that a criminal defendant be held on dangerousness for just any kind of charge. The law only allows this kind of detention for a few different kinds of crimes:

 

First, the law enumerates some specific crimes, such as arson, violating an abuse prevention order, witness intimidation, as well as certain firearm and drug offenses.

 

Second, any misdemeanor or felony offense that alleges abuse, as defined in the domestic violence laws.

 

And third, any felony offense involving “force.”

 

This third category of crimes, involving the use of force, threatened force, or attempted force, has resulted in substantial litigation, and some unexpected results. For example, a person can be held on dangerousness for a charge of assault with a dangerous weapon, but not assault and battery with a dangerous weapon. Similarly, statutory rape cannot be a basis to hold someone as a danger, but rape generally allows this kind of detention.

 

The dangerousness statute is complex, and the stakes of being held are high, as a person can be held for a substantial period of time, with no right to bail, even while presumed innocent. this can happen the first time you appear in court, which is why it is important to obtain an attorney as soon as possible if you charged with any crime.