On Friday August 8, 2014 the Governor signed an “Act Relative to Domestic Violence”
which imposes significant changes to arraignment, bail, detention, and criminal penalties in cases involving “domestic abuse.” Below are some of the most significant changes:
Required 6 Hour Delay for Arraignment
. Under the new law, defendants charged with crimes involving domestic abuse are cannot be released within six hours of arrest, unless bail is set in open court by a judge. Written Findings of Domestic Abuse Allegations
. At arraignment on any crime against a person or property of another, the court must inquire of the District Attorney whether domestic abuse is alleged to have occurred immediately prior to or in conjunction with the alleged crime. The prosecutor must file a written statement, and the judge must make written findings that domestic abuse is alleged. The judicial finding is then stored in the new “statewide domestic violence record keeping system.” The statement will only be removed if the defendant is acquitted, or a no bill is returned; and will remain in the statewide database even if the case is dismissed. Bail Considerations for Domestic Abuse Cases.
For defendants charged with a violation of a 209A or a crime of domestic abuse, the district court will not only consider the defendant’s likelihood of appearing at future dates, but also the safety of the alleged victim, any other individual, or the community. Bail set out-of-court by any person authorized to take bail may now also include conditions of release in addition to or in place of cash. Bail Revocation under 58B
. Failure to comply with a condition of bail, including picking up a new offense, now subjects all defendants to a 90 day revocation of bail. 120 Day Detention
. Detention after a Dangerousness Hearing is expanded from 90 days to 120 days in all cases. Summoning Alleged Victim or Family Member and Use of Hearsay.
Under the new law when a defendant wishes to summons an alleged victim or alleged victim’s family member to a dangerousness hearing, counsel must move in advance for permission of the court and demonstrate a “reasonable belief…that the testimony will be material and relevant to support a finding that there are conditions of release that will reasonably assure the safety of any other person or the community.” Reopening Dangerousness Proceedings
. Now, in addition to reopening proceedings to introduce information not known at the time of the hearing, proceedings may also be reopened by the court or either party when there has a been a change in circumstances that has a material bearing on whether there are conditions for release that will reasonably assure the safety of any person of the community. Dangerousness information on CORI.
Under the new law, whenever a judge finds dangerousness to detain or impose conditions, the clerk must notify probation, who places the order of detention or conditions in both the defendant’s CORI information and the statewide domestic violence record keeping system. If there is no finding of dangerousness, then the fact that a Dangerousness Hearing was made is STILL kept in the statewide system, but not CORI. CORI for Employers
. Dangerousness information on CORI may be available to employers where they are permitted by law to obtain information on the underlying crimes. New Crimes Created by the Statute Domestic Assault, and Domestic Assault and Battery.
The statute creates a new crime of domestic assault and domestic assault and battery, G.L. c. 265 § 13M. The victim must be a family or household member, which is defined differently than under 209A § 1. The victim must be a current or spouse, have a child in common, or be in a “substantive dating relationship,” to be determined by the trier of fact in accordance with the factors set forth in 209A § 1. PENALTY: up to 2.5 years house of correction and/or fine of up to $5000. The court is required to order the defendant to complete a certified batterer’s intervention program for all convictions or CWOFs under the new law, absent specific written findings showing good cause to omit the requirement. Subsequent Offense Domestic Assault or Assault and Battery.
The penalties are increased and the defendant is subject to a felony conviction for a subsequent domestic assault or assault and battery. PENALTY: up to 2.5 years house of correction, or up to 5 years in state prison. Strangulation/Suffocation.
The law creates a new crime of strangulation, G.L. c. 265 § 15D, with concurrent district court jurisdiction. This may cause strangulation cases that otherwise would be charged as attempted murder to remain in the district court under this new offense. PENALTY: up to 2.5 years house of correction, or up to 5 years state prison, fine of up to $5000. Now with all crimes involving “domestic abuse,” a batterer’s program is also required. Aggravated Strangulation
. For any strangulation offense resulting in serious bodily injury, or where the victim is pregnant, or where there is an active restraining order, or after previously being convicted of a strangulation offense, the penalty is increased. PENALTY: up to 2.5 years house of correction, or up to 10 years state prison. Batterers program is also required. The district court maintains concurrent jurisdiction over the aggravated offense. New District Court Jurisdiction over Kidnapping.
The law gives the district court concurrent jurisdiction over kidnapping, G.L. c. 265 § 26. Although certain forms of kidnapping under § 26 do not have house of correction sentence alternatives, the amendment language appears to grant concurrent jurisdiction over § 26 broadly.
If you or a loved one has been charged with one of these new crimes or a crime where domestic violence is alleged to have happened near in time, it is essential that you have an attorney who understand the new statute. It is also important to have an attorney who knows how to challenge some of the statutes new procedural rules. If you would like a consultation, contact
contact the Law Office of Isaac Mass
In Massachusetts, the Commonwealth has established strict firearm storage statutes and regulations. If someone does not follow those requirements and their weapon is stolen and then used in a shooting. The firearms original owner or the owner of the property where the firearm was stored may be liable.
That is what happened in Jupin v. Kask, 447 Mass. 141, 142 (2006)
. The defendant shared her home with a gun collector who kept his guns in a cabinet. The gun collector’s son, who had a history of violence and mental instability, had a key to the house and was given full access to the property. The son removed screws from the lock on the cabinet, stole a gun, and used it to shoot a police officer. The court held that the theft and subsequent use of the gun were foreseeable and that, as a matter of public policy, “there is a significant social benefit to be realized by recognizing a duty of the person in control of the premises to exercise due care with regard to the storage of guns on the premises, particularly with respect to those who have been granted regular access to it.” Jupin v. Kask, 447 Mass. at 153
If you or a love one has been injured by a stolen firearm, you may have a claim against the original owner. Each case is very fact dependent. For a free consultation contact
the law office of Isaac J. Mass
When you sell alcohol to someone who is intoxicated, personal injury or death due to drunken driving on the highways is foreseeable.
“A violation of a criminal statute is some evidence of the defendant’s negligence as to all consequences the statute was intended to prevent.” Adamian v. Three Sons, Inc., 353 Mass. 498, 499 (1968)
When you sell alcohol to a minor you may also reasonably infer that that minor is going to drink the alcohol. It is also foreeable that those minors will share alcohol with other minors who might then drive.
“While evidence of a sale of alcohol to a minor in violation of a statute does not, standing alone, establish a prima facie case of negligence, evidence of such a sale can be used to support a finding of negligence.” Zinck v. Gateway Country Store, Inc., 72 Mass. App. Ct. 571, 577 (2008) (citation omitted).
If you have been injured by a drunk driver, sometimes there is not adequate insurance to cover your damages. You may have other sources to recover from other than the driver and their insurance company. The source of the alcohol may have acted negligently when providing it. For a free consultation, contact
the Law Office of Isaac J. Mass.
Patrons of a bar have a special relationship with the establishment because of the service of alcohol. It is not uncommon for people to get heated in a tavern or night club. These clubs and bars have a duty to prevent harm to patrons. Telling the rowdy parties to take it outside is not enough.
In 2003 the court found where a doorman knew that antagonism between
two groups of patrons that began in the tavern had festered to the point of violence outside on the street, they had a duty to take reasonable steps to prevent foreseeable
harm by calling the police. Christopher v. Father’s Huddle Cafe, Inc., 57 Mass. App. Ct. 217, 225 (2003).
Where you injured by other bar patrons after leaving the club? You may have a cause of action against the bar and their insurance company. For a free consultation, contact the Law Office of Isaac J. Mass.
How bad does a car accident have to be before it is worth a law suit? That is a hard question to answer. Often there are many damages that you don’t think of right away, lost wages and the cost of a rental car for example. Pain and Suffering can be a big factor as well. Massachusetts General Laws c. 231, § 6D
. Section 6D generally restricts recovery of damages for pain and suffering to cases in which the injured party’s “reasonable and necessary” medical expenses are over $2,000. In Lima v. Marshall, 70 Mass. App. Ct. 424, 425–27 (2007)
, the Appeals Court affirmed summary judgment entered against the plaintiff based on her failure to reach the monetary threshold for motor vehicle cases required by the statute.
While it is definitely possible to get recovery from an insurance company when you have less than $2,000 in medical bills, you can expect a much smaller recovery. $2,000 is not a hard threshold to meet. Remember you may have the cost of an ambulance ride, additionally the court looks at the total costs not what you pay after insurance.
If you have had an auto accident and want to know if you should consider bringing a claim, contact
the Law Office of Isaac J. Mass
for a free consultation.
Sometimes people hand over the keys to the wrong person. They know that that person should not be driving. When you are injured by that driver’s negligent or intentional actions, you not only have a claim against the driver, but the person who gave them the keys.
To establish a negligent entrustment claim, you must be able to show that
(1) the defendant entrusted a vehicle to an incompetent or unfit person whose incompetence or unfitness was the cause of the your injuries;
(2) the persons who owned and controlled the vehicle gave specific or general permission to the operator to drive the automobile; and
(3) the defendant had actual knowledge of the incompetence or unfitness of the operator to drive the vehicle. Picard v. Thomas, 60 Mass. App. Ct. 362, 369 (2004)
. Compare, e.g., Mitchell v. Hastings & Koch Enters., Inc., 38 Mass. App. Ct. 271, 276–78 (1995)
(accident caused by friend with poor driving record and suspended license), with Dovner v. Edelman, 72 Mass. App. Ct. 904, 905–06 (2008)
(accident caused by person taking car for “joyrides” without owner’s knowledge).
If you have been injured by someone driving an automobile, make sure you have an attorney who goes after every person who played a role in your injury. For a free consultation about automobile accidents, contact
the Law Office of Isaac J. Mass
August 1st 2013, Massachusetts adopted new child support guidelines
for the Probate and Family Court.
While the court reviews guidelines every four years, these changes are the most sweeping in some time. the most significant changes are:
- Income from means tested benefits such as SSI, TAFDC, and SNAP are excluded for both parties from the calculation of their support obligations.
- Availability of employment at the attributed income level must be considered in attribution of income cases. (i.e. if you can work as a nuclear scientist, but they just closed Vermont Yankee the closure is a factor to be considered).
- The text makes clear that all, some, or none of income from secondary jobs or overtime may be considered by the court, regardless of whether this is new income or was historically earned prior to dissolution of the relationship. (You do not have to be penalized working more to meet already established child support obligations and your own reasonable living expenses.)
- Reference is made to the 2011 Alimony Reform Act; the text does not, however, provide a specific formula or approach for calculating alimony and child support in cases where both may be appropriate.
- Clarification is given as to how child support should be allocated between the parents where their combined income exceeds $250,000.
- A new formula is provided for calculating support where parenting time and expenditures are less than equal (50/50) but more than the assumed standard split of two thirds/one third. (You can pay less child support if you have a high level of visitation, likewise the court can order more child support for less than on third visitation.)
- Guidance and clarification is given in the area of child support over the age of eighteen where appropriate. While the Guidelines apply, the court may consider a child’s living arrangements and post- secondary education. Contribution to post-secondary education may be ordered after consideration of several factors set forth in the Guidelines and such contribution must be considered in setting the weekly support order, if any.
- The standard for modification is clarified to reflect the recent Supreme Judicial Court decision in Morales v. Morales, 464 Mass. 507 (2013). (Modification to child support does not require a material change in circumstances).
If you have a case involving custody, support or visitation and want more information on the application of the new child support guidelines, or advice on seeking a modification to an existing order, contact the Law Office of Isaac Mass at 413-774-0123 to schedule a consultation.
- Circumstances justifying a deviation are expanded to include extraordinary health insurance expenses, child care costs that are disproportionate to income or when a parent is providing less than one-third parenting time.
Today in COMMONWEALTH vs. Christopher DOYLE, No 11-P-1779, the Massachusetts Court of Appeals held damage done to a container for the sole purpose of obtaining the property inside a container is not Malicious destruction of property.
To prove malicious destruction of property, according to G.L. c. 266, § 127 a defendant's actions must be both "wilful" and "malicious." Under Commonwealth v. Redmond, 53 Mass.App.Ct. 1, 4 (2001). "In addition to the intent to inflict injury to property, the crime requires a state of mind infused with cruelty, hostility or revenge."
The Appeals Court held that this case was like Redmond where the defendant was arrested while apparently in the process of stealing computer equipment. In pursuit of that goal, Redmond had:
1) ripped a security alarm from the wall
2) broken a window
3) and forcibly opened the front door of the office
4) A second door, leading into a computer room, appeared kicked in
In Redmond the Court of Appeals held that "[a]lthough clearly intended, such property damage was nothing more than the 'the adventitious by-product of a wholly discrete criminal enterprise' (the theft of the computers) and was not 'gratuitous, excessive violence purposefully designed to intimidate and overpower,' ... or destructive activities that were by design and hostile to the owner of the property." Redmond, quoting from Commonwealth v. Wynn, 42 Mass.App.Ct. 452, 456 (1997).
In Commonwealth v. Morris M., 70 Mass.App.Ct. 688 (2007) the Appeals Court also found destruction of property caused by driving a Jeep across the driving range of a golf course and smashing the car into a pole was not malicious because the juvenile was driving the vehicle in order to escape another who apparently intended to harm him.
In the case of Mr. Doyle, the Appeals Court believed it was clear that the damage was done in an effort to steal from the ATM and not with "a state of mind infused with cruelty, hostility or revenge." as required under Commonwealth v. Redmond. Even viewed in the light most favorable to the Commonwealth, the evidence was not sufficient to establish the necessary element of malice and so the conviction for Malicious Destruction of Property was overturned.
If you have been charged with malicious destruction of property or another crime, it is important to have an experience criminal defense attorney who understands all the elements of each crime, and what the legal definitions of each element are. Sometimes a complaint can be dismissed at a pretrial stage or even following the district attorney's opening statement, if they do not allege an essential element of the crime. For a consultation, contact the Law Office of Isaac J. Mass.
Today, in Commonwealth v. Reyes SJC 11270 (2013), the Massachusetts Supreme Judicial Court
held that the storage of a firearm in securely locked container (like a glove compartment) inside a parked vehicle is not a violation of the carrying statute and may be adequate under the storage statute.
Amaury Reyes, was convicted in the Salem District Court
of improperly carrying a firearm in a motor vehicle in violation of M.G.L. c. 140, § 131C (a)
(carrying statute), and unlawfully storing a firearm (after leaving it in his motor vehicle) in violation of M.G.L. c. 140, § 131L (a ) and (b )
(storage statute). Reyes possessed a class A license permitting him to carry a firearm for all lawful purposes under M.G.L. c. 140, § 131 (a ).
On April 10, 2010, he drove from his home to work, during which time he carried his personal firearm with him in a holster without passenger. When he arrived at work, he parked his motor vehicle, removed the firearm and holster from his person, placed them in the glove box, and locked the vehicle.
Reyes consented to a search of his vehicle alerting the officer that his firearm was in the glove box of his
vehicle. He acknowledged that the firearm was not outfitted with a cable locking device. He unlocked
the car with a remote opener. The officers entered the vehicle from the passenger side, opened
the glove box, and retrieved the firearm in its holster. The firearm contained a loaded magazine, but no round in the chamber.
On appeal Reyes argued insufficient evidence at trial to support his convictions under the carrying and storage
The carrying statute provides in relevant part that "no person carrying a loaded firearm ... shall carry the same in
a vehicle unless such firearm while carried therein is under the direct control of such person." The Court
held that there was no evidence that his firearm was out of his possession (or his direct control) when he traveled to work in his vehicle. They further held that the carrying statute does not apply once the defendant leaves his
vehicle and leaves the firearm in it. The Court held that when Reyes left his motor vehicle and the firearm in it, he became subject to the storage statute because he was storing or keeping his firearm in a "place" neither on his
person nor "under the control of the owner or other lawfully authorized user." G.L. c. 140, § 131L (a ).
As to the storage charge, the court maintained that a motor vehicle is not itself a securely locked container.
However they held “that the storage of a firearm in a securely locked container within a motor vehicle would
satisfy its requirements.” This may include a locked glove compartment if it locks according to the SJC.
If you have been charged with a firearms violation you may need a criminal defense attorney who is abreast of the latest developments in firearms statutes and new court rulings reacting to the deluge of firearms litigation. For a consultation contact
the Law Office of Isaac J. Mass