Massachusetts Recent Legal Answers from Lawyers

Hi there Stephanie, What a crazy situation.  The father of your child absolutely broke the law by secretly recording your fight.  His conduct is a felony and you should seek the assistance of an experienced criminal attorney in seeking a cross-complaint against him. Mass. G. L. c. 272, s 99: provides that "any person who— willfully commits an interception ... of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment." Also, the dissemination or use of the recording constitutes a separate crime (a misdemeanor) under the same statute: "any person who ... willfully discloses ... to any person the contents of any wire or oral communication, knowing that the information was obtained through interception; or ... willfully uses ... the contents of any wire or oral communication, knowing that the information was obtained through interception, shall be guilty of a misdemeanor punishable by imprisonment in a jail or a house of correction for not more than two years or by a fine of not more than five thousand dollars or both." The secret audio recording itself is categorically inadmissible in court against you. G.L. c. 272, s. 99 further provides, as here relevant, "any person who is a defendant in a criminal trial in a court of the commonwealth may move to suppress the contents of any intercepted wire or oral communication or evidence derived therefrom, for the following reasons ...  That the communication was unlawfully intercepted [or] That the evidence sought to be introduced was illegally obtained." While a silent recording may have been lawful, that the recording contained an audio feed renders it inadmissible.  That the recording was made may also call into question the admissibility of your kid's dad's testimony about the incident itself.  To the extent that he referred to or relied on the recording in any way to aid his testimony may render his testimony inadmissible.  Of course, your kid's father would also be wise to refuse to testify pursuant to his 5th amendment right against self-incrimination.     Suffice it to say, the decision to secretly record you was highly unlawful, and a skilled attorney can make use of this fact to seek dismissal of the charges against you.     Let me know if you would like to discuss further.... Read More

Good morning Joseph, First, as a categorical matter, an affidavit similar to what you described does not mandate dismissal of the charges against you.  However, the prosecutor may take such an affidavit into consideration in determining whether the charge against you should be dismissed.  In order to find insight into whether a prosecutor might wish to do so, you should consider the issue from the prosecutor's perspective.   The prosecutor will first consider the facts and circumstances of the case to determine whether, in context, the affidavit of your co-defendant is both consistent with the evidence and credible.  If you send me the police report, I can provide some specific perspective.  But generally, by way of example, if the police report otherwise tends to establish that the drugs were under your co-defendant's control, rather than yours, favorable action might be appropriate.  Conversely, you probably can see that if the drugs were found under your control, for instance, on your person, then the affidavit of the co-defendant would carry little weight.  Other things to consider might be the other circumstances of the case.  If other evidence suggests, for example, that you and your co-defendant were seeking drugs together, your co-defendant's affidavit would not do much to help you. Finally, the prosecutor will consider the overall credibility of the affidavit.  In that regard, if the co-defendant already has a plea deal in place, what does he have to lose by falsely claiming the drugs were only his?  The prosecutor may view the affidavit skeptically.  He or she may see it not as a truthful statement, but as an effort to help out a buddy without any risk to himself. Let me know if you want to discuss further.  There are various ways to successfully defend a drug case other than relying on the affidavit of a co-defendant which prosecutors generally reject as unpersuasive.  ... Read More

Each child inherits an equal share.  If some would like to gift or sell their share, they may.  If others would like to inherit their share, which may force the house to be sold, they may.    If you think that there is a conflict of interest, you may oppose someone's appointment as personal representative and ask to be appointed yourself.  Alternatively, after a certain amount of time (typically two years) has passed and you have not received a distribution, you can ask the court to replace the personal representative.... Read More

There is no legalization program at this time that you qualify under. If you are unmarried, you may be able to adjust status to permanent residence through a bona fide marriage with a US citizen. Marriage to a  permanent resident would take a longer period of time and most likely necessitate your leaving the US for you to finish your process. Prior to that time, you would have to obtain an I-601A waiver of the 10 year bar for being illegal in the US for a year or more. That waiver would likely be based upon extreme hardship to your permanent resident spouse if the waiver was not approved. For other situations, you should make an appointment with an immigration lawyer. Due to the limitations of the Lawyers.com Forums, Alan Lee, Esq.'s (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. The information provided herein by the Firm is general, and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence.... Read More

It is unclear to me why your license was suspended for life in the circumstances you have described.  In relevant part, the terribly unwieldy and incomprehensible Massachusetts OUI law (General Law ch. 90, s. 24) provides that "a person previously convicted of, or assigned to a program for 3 or more [OUI offenses] shall have the person's license or right to operate suspended forthwith for life based upon such refusal."   In the fact pattern you have described, you were convicted of 3rd offense OUI.  I infer from your description that one of the charges resulted in a dismissal or acquittal.  If that is so, your license loss should have been for 5 years, in addition to the suspension flowing from your OUI 3rd offense conviction.  If, however, you were convicted or admitted to sufficient facts in each of your prior offenses, your license is indeed suspended for life. If you were not advised of the consequences of your refusal, there may exist avenues to challenge the suspension on due process grounds. Alternatively, depending on the particulars of your past case(s), you may be able to challenge one or more of your underlying convictions by way of a motion for new trial.  If your conviction were vacated on constitutional grounds, there may be arguments that your license should be restored.  You may wish to arrange for a consultation with a skilled attorney to discuss the facts and circumstances of your case to determine if there is any relief available to you. Best regards, Murat Erkan... Read More

Hi there, If the MassCourts website reflects that your case is closed, it should also contain information as to the reason it was closed. It is possible that the court dismissed your case in absentia given the low-level nature of the offense.  It is also possible that the notation that your case was closed reflects an administrative error rather than a decision of the court.  It is difficult to speculate as to what the "closed" status truly means without seeing the actual docket report.  If you like, feel free to contact me so that I can pull the court record and help you make sense of what occurred.  You can also pull your docket report again and review the docket text to see if you can gain any further insight as to where you stand with your case.  ... Read More

I'm so sorry to hear about the terrible circumstances of your home life.  The answer to your question is no, beating your wife for twenty years is not "ok."  Physical aggression is never "ok."  You should immediately seek the protection of the court by seeking an emergency restraining order, commonly referred to as a  "209A."  You can request an order by contacting the police if you are in an emergency situation - at any hour of the day.  You can also request an order at the courthouse.  The court has the authority to issue a ten-day order on the spot, following which it will notify your husband to appear at an extension hearing.  Although no attorney is required, many people choose to retain an attorney in order to help with this process.  The restraining order laws provide strong protections for individuals in your situation.  Violation of a restraining order is a crime and your husband will be arrested if he violates the order.   Given the extensive and pervasive nature of the violence you have suffered, you should contact the police department in the city or town in which these incidents occurred.  You should furnish all the details of the incidents you have suffered, together with any evidence you might have to corroborate your report, including medical records, or witness statements. You should understand that none of that corroboration is legally required.  However, the presence of confirming circumstances may aid in building a case.  Your husband should be prosecuted for hurting you.  What he has done is not ok.   There are various resources available for individuals who suffer from domestic violence.  Check out the Commonwealth's website which provides various crisis phone numbers, contact information for transitional living facilities, and a list of support groups that can help you.  https://www.mass.gov/service-details/domestic-violence-programs-for-survivors.... Read More

Hi there,  I would like to give you some information in response to your question.  Would you be able to provide a bit more context and describe your case in some more detail?  Any useful answer to your question will depend on the particular circumstances of the case. For purposes of clarity, please answer the following questions: Have you been charged with a crime?  If so, please list the specific charges. If you have not been charged with a crime, please describe the facts and circumstances of the incident with which you are concerned. As a starting point, I can say this in response to the specific offenses you have cited.  Simple domestic assault and battery is a misdemeanor punishable by up to 2.5 years in the county jail.  There are various aggravated forms of this offense which constitute penalties with much more severe sentencing exposure. Assault with a dangerous weapon is a felony punishable by up to 5 years in state prison. The crime of larceny over $1,200 is a felony punishable by up to 5 years in state prison.  If the  charge is larceny under $1,200, the offense is a misdemeanor punishable by up to 1 year in the county jail. The crime of burglary (unarmed) is a felony punishable by not less than 5 years not more than 20 years in state prison.  An armed burglary is punishable by up to life in prison, with a minimum term of imprisonment of 10 years.... Read More

Hi there, Massachusetts law allows adults to possess two ounces of marijuana for recreational use.  However, it is illegal for persons under 18 to possess or smoke marijuana.  Police may choose to issues you a citation which is punishable by a fine of $100.  The law also mandates participation in an approved drug awareness program for those responsible for underage possession. You could also be in trouble for trespassing, but only if there was adequate notice that the park was closed to the public at the time.   It is possible that police will contact your parents to discuss your behavior, however, it is unlikely that they would make the effort if they have not done so yet. Finally, it is possible that you will receive a citation or summons in the mail regarding either a charge of trespassing and/or marijuana possession.  If you receive a delinquency summons, you should consider engaging an attorney to assist you in addressing the matter. I hope this answers your question and I wish you the best of luck.... Read More

You have many defenses, including that it was a gift and that in any case you repaid the money in other ways.  He can sue you for whatever he wants, although unjust enrichment doesn't realy fit as well as breach of contract (to repay the expenditure), but who will wins depends on who the judge/jury believes.... Read More

Hi there Allison,   While there are more circumstances to consider, and the decision as to whether a firearm license should be granted is generally in the discretion of the police chief, the answer to your question is "yes."   The Massachusetts firearms licensing laws are found here:  https://malegislature.gov/Laws/GeneralLaws/Parti/Titlexx/Chapter140/Section131 A right to carry a firearm is a personal right.  I don't see the disqualification of one household member as a categorical basis to exclude another from exercise if their constitutional right to bear arms - provided that the firearm was adequately controlled, secured, and otherwise in compliance with the law.   Second, a sealed record is not a basis for disqualification from possession of a firearm.  Depending on whether the record is sealed or expunged, the record may or may not be accessible to law enforcment.  Assuming the record is sealed (not expunged), your husband's prior convictions may or may not disqualify him from firearm possession.  Not all criminal offenses result in the loss of the right to own a firearm.   We can discuss the specifics if you like.  Please feel free to reach out to my office at (978) 474-0054, or check out my website at www.erkanlaw.com  ... Read More

What an interesting question.   It seems highly doubtful that a video can constitute sufficient evidence to support a drunk driving charge.  There are many reasons why.  First, I cannot imagine that a video alone can support a finding that any unusual driving or personal behaviors arose as a result of alcohol impairment.  If the driver seems impaired on the video, the question is - what is the cause of the impairment?  Is it alcohol? Drugs? A medical condition?  Speculation is not a basis for charges.  In the case described, there would be no breathalyzer or blood test results to establish that the person had alcohol in their system.  There would be no field sobriety tests which would support a finding of impaired operation.  There would be none of the common observations that support an inference of alcohol impairment - such as a detectable odor of alcohol on the driver's breath. Second, what evidence would the government have as to the time and place of the offense? As a predicate to charges, the government must show when and where the offense occurred.  I struggle to see how a video standing alone can establish the where and when of the offense. Jurisdiction and compliance with the statute of limitations (in this instance, 6 years) must be proven by the prosecution.   Third, who would authenticate the video - in other words, establish that it fairly and accurately represented what it appears to depict?  Except in unusual circumstances, the court would need a live witness who could establish that the events on the video accurately depict an event that they witnessed occurring - an insurmountable obstacle if the only evidence is a video somewhere. In my over 22 years as a criminal lawyer, I've never seen a criminal case filed under similar circumstances.  I'm happy to speak more if you have questions.  Call my office (978) 474-0054 or check out my website at www.erkanlaw.com... Read More

Great question.  Though the answer is case specific, I can give some general info.  Feel free to contact me to discuss specific strategies for your case. The first question is whether police gave you a ticket at the time and place of the incident.  Failure to comply with MA "no-fix" laws can lead to dismissal. Next, what was the basis for the stop?  The grounds for the stop, and the reasonableness of the ensuing investigation, are important considerations in any criminal case.  Errors can lead to dismissal. Where your case involves meds, I should point out that these cases can be tough for the prosecutor to put together correctly.  Testimony that you were impaired by meds may require expert testimony to explain how the meds affected your ability to drive a car safely.  The government frequently overlooks this requirement, leaving it with little evidence to support a conviction. Does the case involve alcohol too? If you took the breathalyzer, we will check whether the test was valid.  Police may have needed a warrant prior to this test.  Errors here can lead to exclusion of your breathalyzer. You may also consider a trial. A not guilty verdict will constitute no obstacle to your plans to become a nurse.  OUI is a relatable offense to which jurors tend to give the benefit of the doubt.  A competent attorney will help you weigh the risks associated with trial, and aid you in determining whether trial might be the best choice for you. If trial is not advisable, there are methods of resolving your case which can result in dismissal, even if you are responsible for the crimes charged.  MA law allows a person to take responsibility, following which the court can continue the case without finding you guilty.  If you comply with the terms of probation, your case will be dismissed. One more thing to consider - depending on the manner in which your case is resolved, there are procedures in place that can allow for sealing or even expungement of your criminal record.  A properly sealed or expunged record will return a criminal record check result of "no record found." In the end, every case is different, but the short answer is, yes: there are plenty of opportunities to get your case dismissed. The key is to get the best help possible to increase your chances for such a favorable outcome.  I worked as a prosecutor for eight years, following which I opened my own defense firm in 2006.  With over 22 years dedicated exclusively to criminal law, I can help you put this case in your past with the least amount of risk possible, and with the smallest footprint on your future possible. There's a ton of useful info on my website - www.erkanlaw.com.  If you want to chat, give us a call at (978) 474-0054. Good luck!... Read More

When someone dies without (known) named beneficiary, the 401k passes to the heirs through the estate.  When someone dies without a Will, the estate is probated (proven) through an heirship proceeding.  Ask a probate attorney who practices in the county where your mother lived and died to help you with this.  ... Read More

HelloLet me first say that I am so sorry to hear about your injury at work. The situation you are facing is sadly a pretty regular occurrence. I would assume that you have timely reported your injury to your employer and made them aware of the limitations placed upon your return to work on a light duty basis? Assuming this all is all true and correct, I would encourage you to first go directly to your employer or to human resources and remind them about the injury and the limitations your doctor has placed upon your return to work on a light duty basis. Advise that you are making all proper efforts to continue working, but that being asked to perform, duties that are contrary to the limitations specified by your doctor are making the situation worse. If this falls upon dead ears, I would suggest going back to the doctor and advise what is happening with the employer not honoring the limitations specified. I am certain that the doctor will reiterate the limitations and hopefully indicate that you should not be working at all if the limitations are not honored. I can tell you that the judges at the Department of Industrial Accidents are very supportive and do not appreciate when an employer does not comply with limitations following an injury at work.Hope this helps... Read More

Contact Volunteer Legal Services in your area to request pro bono representation in settling your mother's estate.  If that is not available and you want to sell the home, some probate attorneys will agree to be paid out of the estate.  Be sure to put the money in a special needs trust (or master pooled special needs trust) and/or spend it in the month in which you receive it so that you can continue to receive SSI/Medicaid.... Read More

  I assume that the harassment prevention order is equivalent to an order of protection. I do not believe that having one against you will affect F-1 status or obtaining an H-1B, but a violation of an order of protection where it involves current or former spouse, person by whom you had a child, person who is cohabiting with or has cohabited with you as a spouse or person similarly situated to a spouse, would make you removable if you violated the part of the protection order involving protection against credible threats of violence, repeated harassment, or bodily harm.  I also note that under today's stricter standards of the Trump administration, even an arrest might put you on DHS's radar. Due to the limitations of the Lawyers.com Forums, Alan Lee, Esq.'s (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. The information provided herein by the Firm is general, and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence.... Read More

  You can apply for advance parole for the purpose of obtaining permanent residence in Canada, and the advance parole instructions say that you should include a copy of the appointment letter in your request for the advance parole. I have no comment on your plan of coming back to the US and staying for one more year before going back to Canada.  Whether it will complicate your situation is something that I could not tell you. Due to the limitations of the Lawyers.com Forums, Alan Lee, Esq.'s (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. The information provided herein by the Firm is general, and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence.... Read More