Massachusetts Legal Developments Blog

Massachusetts Legal Developments Blog

Massachusetts Slow to Record Gun Background Checks into Federal Databases

A recent report by the Boston Globe shows that three years after the state overhauled its gun laws, the Commonwealth is still struggling to send the results of their background checks to federal investigators. According to the Boston Globe, the delays in reporting stretch for weeks, or even months. This could allow individuals who are not legally allowed to procure firearms to purchase one, and potentially attack another citizen or citizens.

In fact, there has been a renewed attention on mandatory reporting laws. If the laws were followed as directed, it is possible that the church shooting in Sutherland Springs, Texas, as well as the church shooting in Charleston, S.C. would not have occurred. Both men should have been on a federal registry preventing them from purchasing firearms.

Furthermore, this shows how a state with even the most stringent gun laws can still have security loopholes. Until 2013, Massachusetts did not even report mental health conditions to the federal database. Similarly, according to the Boston Globe, Massachusetts did not report misdemeanor domestic violence convictions or substance abuse convictions. After the shooting at Sandy Hook Elementary in Newtown, Connecticut, the Commonwealth changed their policies and began more aggressively reporting convictions to the federal database.

The Commonwealth has since backtracked and added more than 20,000 convictions in the last several years, most dating back to the mid-1990s. However, as new cases have come in, Massachusetts has struggled to incorporate them into the federal database in a timely fashion.

“I’m very concerned. We need a system where nobody can slip through the cracks, and we’re unfortunately in a situation now where someone can potentially fall through the cracks,” state Representative David Linksky said while pushing for a new system in 2014.

Even gun rights advocates are outraged by Massachusetts’ inability to keep the database updated with the convictions of domestic abusers and violent felons. “I thought this was all taken care of, I didn’t realize this was still going on. This is something that needs to get fixed. Certainly, we don’t want people who have severe mental health [or other disqualifying] issues to have firearms.”

Many Massachusetts residents are questioning the delays. According to the DCJIS, officials must manually sort through all criminal convictions to determine which ones need to be reported to the federal database. Then, once those offenders are identified, prosecutors need to fill out a form that complies with the federal requirements, according to officials, this tedious process can take weeks or even months. Gun control advocates worry that this is the exact amount of time for a recent convict to seek out a gun with the intention of harming another person.

Sadly, the slow and incomplete reporting of mentally ill individuals or convicted felons is a nationwide problem. While funding increases and regulatory changes have helped boost the number of records in the federal database, much work remains to fill the gaps.

Massachusetts, for its part, plans to create an automated system for processing the records which it hopes will ultimately serve as a model for real-time input into the federal gun database.


Drugged Driving an Increasing Problem in Massachusetts

According to Massachusetts data license revocations, OUI, or operating under the influence charges are up a whopping 65% in the last three years, according to NBC Boston. According to Massachusetts State Police Trooper Patrick Mahady, many Massachusetts drivers do not know the amount of a drug, especially marijuana, that actually impairs them to the point they should not be driving on the road.

Unlike alcohol, for which a Blood Alcohol Test can clearly and accurately define when a driver is too intoxicated, no such test exists for marijuana, which is a widely used drug, especially since it became legal last month. While the effects of marijuana on a person’s driving ability are uncontested – with a slower reaction time and decreased motor skills, the drug still lacks a test to tell when a person is operating under the influence of cannabis. According to NBC Boston, even a small hit of marijuana can have devastating consequences. With the introduction of legalized cannabis throughout the state in 2018, the police worry that impaired driving may only increase.

According to the National Highway Traffic Safety Administration, an ideal drugged driving test would include:

“A field sobriety test for marijuana use would detect that a suspect is impaired by marijuana. Such a test would have high specificity, meaning that the test would only detect impairment due to marijuana use and nor for any other reason. Law enforcement would not use a test that had false positives, in other words falsely suggested someone was impaired by marijuana when they were not. At the same time, the test would ideally be appropriately sensitive to the effects of marijuana and not indicate that someone was not impaired by marijuana when they were driving.”

Unfortunately, no such test exists. Therefore, determining intoxication is typically up to the cop’s discretion when he or she performs a field sobriety test. Because most officers lack consistent training on the effects of marijuana and how a person under the influence behaves in a sobriety test, this method is often unreliable. Only 10% of the Commonwealth’s police force has received the training required to identify drugged drivers.

Speaking to NBC Boston, Massachusetts State Police Trooper Patrick Mahady said, “If people get pulled over and the cop isn’t trained in identifying the type of drugs that they’re suing or he’s not trained in identifying the types of impairment, the message will get out ‘It’s OK. He let me go.’ The worst-case scenario is that they let [a person under the influence of drugs] back on the roads.”

Massachusetts hopes to have a mechanism similar to the breathalyzer that can accurately and precisely identify when a driver is under the influence of marijuana. According to Jeff Larson, director of highway safety for Massachusetts, the Commonwealth hopes to implement this new drug testing technology by summer 2018.


Massachusetts Court Rules Search Under Car Hood Violation of Constitutional Rights

The highest court in Massachusetts ruled on an important Fourth Amendment search and seizure case last week. The case concerns an incident in 2015 when a driver in Holyoke was stopped by police officers. The officer then asked the driver if there were any drugs or guns “in the vehicle.” The driver responded, “No, you can check,” thereby providing police consent to search the vehicle, or at least the interior and trunk of the vehicle, according to the driver.

Police then removed all three passengers from the vehicle and brought a K-9 unit to the vehicle, meant to smell both drugs and firearms. The police dog did not indicate any contraband in the car. However, the officers proceeded to search not only the interior and trunk of the vehicle but also underneath the hood of the car – including the air filter inside the engine.

While the search of the interior of the car and its trunk did not turn up any illegal contraband, once the police popped the hood and searched the air filter, they located a black bag containing two firearms. While the driver admitted to granting the police consent to search his vehicle, he did not consent for the police to search underneath the hood of the car, and especially not the air filter in his engine.

The outraged driver said he never consented to have the hood of his vehicle searched. In a divided opinion, the Supreme Judicial Court of Massachusetts agreed with the driver.

According to Supreme Court Chief Justice Ralph Gants, “a typical reasonable person would understand the scope of such consent to be limited to a search of the interior of the vehicle, including the trunk – not the engine compartment.”

Justice Gant further writes, “The most generous understanding of the defendant’s consent, in this case, is that it was ambiguous whether it included the engine area under the hood and whether it authorized the police to remove the air filter. But the police are not allowed to take advantage of such ambiguity when they have the ability to resolve it with clarifying questions.” Therefore, the search would have been perfectly acceptable if the cops had only asked the driver if they could search under the hood, and the driver had acquiesced to their request.

In the dissent, authored by Justice Ellie Cypher, she failed to see the difference between the trunk and the engine – if the driver consented to having the trunk searched, then why would an engine not apply under the same logic? In her opinion, “Both are beyond the passenger compartment and must be opened separately.”

Going forward in Massachusetts, if a person grants permission to a police officer to search his or her vehicle, it is likely to only include the interior of the car and the trunk. If a police officer wants to search underneath the hood of the vehicle, then he or she should also get explicit permission from the driver, absent any exigent circumstances. The driver’s conviction for possession of firearms was thrown out as a consequence of the search and seizure, illegal under the Massachusetts Constitution.

Massachusetts Supreme Judicial Court: Bail Must be Affordable to Defendants

In a unanimous ruling, the Massachusetts Supreme Judicial Court reminded prosecutors, judges, and criminal defendants across the Commonwealth that bail should be affordable to the person charged with a crime. A Massachusetts lawyer that specializes in criminal law will be able to answer any questions about whether this new court ruling applies to your specific case.

In Brangan v. Commonwealth, the Massachusetts Supreme Judicial Court, the highest court in the Commonwealth, ruled that bail cannot substitute for a pretrial detention order. The Supreme Court justices correctly note that all defendants in a criminal trial are guilty until proven innocent and it is necessary to leave the defendants as unencumbered as possible in order to reduce the burden on these presumably innocent individuals and ensure they have access to a fair trial. A bail that is set above the level affordable to a criminal defendant cannot be paid, which means that individual cannot work at his or her job or see his or her family, a massive disruption in the criminal defendant’s life. Perhaps even more importantly, though, a person who is in a holding cell will not be able to meaningfully contribute to his or her defense, a potentially ominous violation of his or her Constitutional rights.

For prosecutors seeking to keep a person charged with a crime in detention until a trial has completed, the Massachusetts justices noted that the proper legal avenue was through a pretrial detention order. Prosecutors should not simply seek a bail amount set so high above the defendant’s means and ability that there has been a de facto pretrial detention order, without the judge actually approving one. According to the Massachusetts Supreme Judicial Court, this amounts to a violation of the Due Process rights guaranteed in the United States Constitution and the Constitution of Massachusetts.

Importantly, the prosecutor still has the option of asking a judge to declare a criminal defendant “dangerous” and thus keep him or her incarcerated until the trial has completed. The judge may also set bail at an unaffordable level if there is a serious flight risk, and therefore incarcerating the criminal defendant would be necessary to ensure the person showed up for his or her trial.

In Brangan v. Commonwealth, Justice Geraldine S. Hines writes, “A bail that is set without any regard to whether a defendant is a pauper or a plutocrat runs the risk of being excessive and unfair.” In a footnote, the Court also drew attention to the racial disparities that exist in bail hearings, where ethnic and racial minority groups are disproportionately affected by excessive bail.

As noted by the Boston Globe, the focus on whether bail is fair or not to individuals charged with a crime has recently come into the national spotlight. In a bipartisan move, Senators Kamala Harris and Rand Paul have introduced legislation meant to nudge states away from excessive bail requirements.

Speak to a Massachusetts Criminal Defense Attorney Today

If you have been charged with a crime or believe that your bail is excessive or unaffordable, then you should contact a Massachusetts criminal law attorney who can advise you of your legal options and answer any questions that you may have about your specific case.

After Drug Lab Scandal, Massachusetts Throws Out 8,000 Convictions


In a bizarre scandal with far-reaching consequences, state prosecutors in Massachusetts are set to throw out over 8,000 convictions that occurred in the Commonwealth over an eight-year period between 2005 and 2013. This is the second case in the Commonwealth in recent years in which a chemist has tampered with evidence and consequently, produced possible false reports that were used to convict people of drug crimes. This is also the second case in which a judge has admonished the prosecution for delaying its findings about the effects of the tainted lab results, or what the judge in this case called, a “fraud” and potential “prosecutorial misconduct.”

According to The Washington Post, the convictions relied on the drug testing at a lab in Massachusetts and were handled by chemist Sonja Farak, who has said that she used some of the drugs she was supposed to be testing. Farak admitted to smoking crack on a daily basis but also used “methamphetamine, amphetamine, ketamine, ecstasy and LSD,” according to the Washington Post. In one particularly egregious violation of the law in 2012, Farak siphoned off 100 grams of cocaine from the police department and used it to create crack-cocaine in the Amherst lab where she worked. Farak’s eight-year bender on the confiscated drugs ended in 2013 when her co-workers finally noticed that drugs were missing and then apparently found “chunks of crack at Fark’s workstation.”

The scandal that led to Farak’s arrest and conviction was only one year after a similar scandal in Massachusetts. In 2012, Annie Dookhan was charged with a long-running scheme of creating false drug analysis for the police and courts. In that case, criminal defense attorneys were able to dismiss almost 24,000 cases with over 20,000 defendants. The Commonwealth of Massachusetts only sought to preserve 1.5% of the convictions that relied on evidence tested by Dookhan. With the second case of long-running incompetence and fraud at a drug testing lab now surfacing, many critics are calling for an overhaul of drug testing policies and more oversight over the facilities charged with handling this sensitive evidence.

In this case, prosecutors are planning to throw out 8,000 convictions where the judge or jury relied, at least in part, on Farak’s lab analysis. According to CNN, that only leaves 40 cases involving Farak that the prosecutors do not plan on dismissing. The American Civil Liberties Union along with several Massachusetts criminal defense attorneys are seeking to have all cases involving Farak dismissed.

The conduct of Farak has been compounded by what many have viewed as prosecutorial misconduct. Since the Commonwealth has become aware of Farak’s behavior, prosecutors have been slow to notify defendants or reveal the full scope of Farak’s conduct. Scolding the prosecution, the judge said that the prosecutors committed “intentional, repeated, prolonged and deceptive withholding of evidence from the defendants…. That constitutes a fraud upon the court.”

If you are charged or convicted of a crime and have any questions about your possible legal options in light of recent developments, you should contact a knowledgeable Massachusetts criminal lawyer.


Operating Under the Influence of Marijuana in Massachusetts

Like all other states, driving while impaired is illegal in Massachusetts. However, when it comes to marijuana, the issue of how to tell when someone is “too impaired” to drive is tricky for several reasons. First, there is no standardized measurement like there is with alcohol. A “breathalyzer” for marijuana with a standardized cutoff, such as Massachusetts OUI law, which sets a legal cutoff at a Blood Alcohol Content of 0.08%, would be helpful, but the science is still out on it. In many states, the presence of any amount of THC in a person’s bloodstream is sufficient to charge the driver with operating a vehicle while impaired.

The problem with that approach is that THC, the psychoactive ingredient in marijuana responsible for the “high,” stays in a person’s system for days and weeks after use has been discontinued. Further, as argued by the criminal defense attorneys in Massachusetts, the sobriety field tests used to determine if someone is impaired by alcohol have not been scientifically proven to show if a person is or is not too impaired by marijuana to safely operate a vehicle.

In light of all this, Massachusetts’ highest court has taken a different approach to judging whether someone is too impaired by marijuana to be operating a vehicle in the Commonwealth. Last year, the Massachusetts Supreme Judicial Court ruled in Commonwealth v. Gerhardt, a case involving a 2013 incident where a driver was charged with impaired driving. According to The Denver Post, the driver admitted to smoking marijuana hours before getting behind the wheel. The driver submitted to a field sobriety test where he was able to recite a portion of the alphabet and count backward, according to the newspaper. The driver was not, however, able do a “walk-and-turn” test or “properly follow instructions,” according to the cops who then determined he was under the influence of marijuana and charged him with the crime.

On the appropriate standard for when someone is operating under the influence, the Massachusetts’ high court left the ultimate burden on the jury. Police officers, the court ruled, will be able to testify about their observations while conducting a field sobriety test on the driver. However, unlike with alcohol cases, the police officers will not be able to testify about the results of the field sobriety tests. Therefore, the officer can testify about what they perceived – for example, if they smelled marijuana, saw that the driver’s eyes were bloodshot, or observed that the driver had difficulty reciting the alphabet. The officer cannot conclude that this means the driver was too impaired to drive.

A conviction for operating under the influence in Massachusetts can result in jail time, a fine, and a person losing his or her driver’s license. Because of the grave consequences, if you have been charged with operating under the influence in Massachusetts then you should speak to a Massachusetts criminal law attorney who has experience litigating OUI cases and is familiar with the forensic evidence common in these specific types of cases.

Massachusetts High Court Narrows Scope of Felony-Murder

Under Massachusetts law, a person can be charged with “felony murder” if someone is killed during the commission of a felony. Felony murder is a first-degree murder in the Commonwealth, and all coconspirators who helped with the commission of the felony can be charged with felony-murder. That means that if four people agree to rob a bank in Boston and then, while robbing the bank, one of the robbers fatally shoots a bank teller, then all four of the robbers will be charged with felony murder.

A new ruling by the Supreme Judicial Court of Massachusetts, the highest court in the Commonwealth, however, appears to narrow that long-held rule on imputed liability. In Commonwealth vs. Brown, the defendant Brown helped plan a 2009 home invasion by providing guns and sweatshirts for his co-conspirators to conceal their identities. While Brown knew the home invasion was going to happen and even assisted in perpetuating the crime, he was not actually present at the home invasion where one of his co-conspirators killed someone in the house during the commission of the crime.

The Massachusetts criminal defense lawyers representing Brown argued that second-degree murder would be more appropriate for a participant “on the ‘remote outer fringes’ of an armed home invasion.” Under Massachusetts criminal law, a conviction for first-degree murder carries the maximum penalty of life imprisonment without the possibility of parole. Second-degree murder, on the other hand, carries the possibility of parole after only 15 years of incarceration. The Supreme Judicial Court of Massachusetts agreed with the criminal defense lawyers representing Brown and reduced his charges from first-degree murder to second-degree murder in the interest of justice.

As noted by the Boston Globe, this is the first time Massachusetts has changed its felony murder law since the Civil War. Going forward, prosecutors seeking a first-degree murder conviction for felony murder will need to prove beyond a reasonable doubt that the co-conspirator intended to kill someone or knew his or her actions would likely result in the death of another person. The majority of the Court held that its holding in the felony-murder case will not be retroactive and will only apply “in trials that commence after the date of the opinion in this case.”

The ruling by the highest court in the Commonwealth will have implications for criminal law and anyone accused of felony-murder – especially when the co-conspirator was not the shooter, or the death was an unforeseeable and unintended consequence of the felony. As noted by the Supreme Judicial Court, in reforming the felony murder law, Massachusetts joins Michigan, Hawaii, and Kentucky in reforming the common law crime.

The decision marks a landmark ruling that changes a law that has not been altered in centuries and highlights the importance of a Massachusetts criminal defense attorney who stays up-to-date with recent developments in criminal law. If you have been charged with a crime, then you should contact a criminal law attorney in Massachusetts who is knowledgeable and up-to-date on Massachusetts criminal law to ensure you receive the best defense possible.

Massachusetts Supreme Judicial Court: Breathalyzer Admissible Evidence in OUI Cases

Last month, the Massachusetts Supreme Judicial Court (SJC) affirmed the admissibility of breathalyzer tests in driving while impaired cases. Breathalyzers are used to measure the Blood Alcohol Content (BAC) of a person and are routinely administered in roadside tests across the country where the police suspect a driver may be impaired by alcohol.

Like all other states, Massachusetts does not allow impaired drivers on the Commonwealth’s roads and sets the BAC cutoff at 0.08%. While it is ultimately up to a court to convict a person of Operating Under the Influence (OUI) in the Commonwealth, breathalyzers are typically treated as conclusive evidence of intoxication by most juries. The observations of the arresting officers and the results of a field sobriety test are other forms of evidence generally used in OUI cases.

In this particular case, Commonwealth v. Camblin, the issue before the Court dealt with a new type of breathalyzer, the Alcotest. The defendant in this case had been convicted by a jury of Operating Under the Influence, and part of the evidence used against him in court included the results of the Alcotest breathalyzer. Because the Alcotest utilizes new technology, the defendant and his Massachusetts criminal defense attorney appealed the lower court’s decision, arguing that the technology had not been rigorously tested enough to be deemed reliable in a Massachusetts court.  

Different from other breathalyzers, the Alcotest has a “dual sensor” used to measure a driver’s BAC. The two sensors utilize “infrared spectroscopy and electrochemical fuel cell sampling to analyze alcohol content in a breath sample,” according to the SJC. Both sensors independently test the driver’s BAC and if there is a significant deviation between the two readings, the breathalyzer will abort the test and not provide any BAC result. The technology used in this dual-sensor breathalyzer is new, and the defendant in the case argued that because the technology was new, it was untested, and therefore should not have been admissible against him in his OUI case.

The SJC disagreed with the arguments advanced by the Massachusetts criminal defense attorney representing Camblin. The SJC held that the Alcotest met the “specific performance criteria” for evidence to be admissible in court. First, the Alcotest is approved by the National Highway Traffic Safety Administration which is responsible for certifying breathalyzers in Massachusetts. Further, the SJC noted, the Alcotest is certified by European regulators which have even more exacting requirements for breathalyzers than their American counterpart.

Contact a Massachusetts Lawyer Specializing in Operating Under the Influence Laws

Operating Under the Influence is a serious crime in Massachusetts. A driver convicted of an OUI can lose his or her license, pay a hefty fine, and even serve time in jail, depending on the severity of the crime. If you have been charged with Operating Under the Influence in the Commonwealth, then you should reach out to a criminal defense attorney in Massachusetts with knowledge of OUI laws and experience in litigating impaired driving cases can help you understand your legal options.



Massachusetts Police Cannot Detain Immigrants Without Charges

The Massachusetts Supreme Judicial Court (SJC) recently ruled that police officers in the Commonwealth cannot detain a person in the state solely because of immigration status. In a unanimous ruling by the SJC, police officers in the Bay State are no longer able to legally comply with Immigration and Customs Enforcement (ICE) detainers. An ICE detainer is a request by federal authorities that asks local law enforcement officials to “hold” a person if the charges against him or her are dropped because the federal government believes the person may be violating the country’s immigration laws.  

In this Lunn v. Commonwealth, Sreynoun Lunn, a Cambodian without a legal right to be in the United States, was arrested for robbery in Massachusetts. At trial, the judge dismissed the robbery charges against Lunn because the prosecution was not sufficiently prepared to argue the case. However, once the charges were dismissed against him, Lunn was not released by the police. Instead, the police held Lunn for several hours at the request of ICE, who wanted to take him into custody for violating federal immigration laws. The SJC held that this was illegal under Massachusetts law. In the simplest explanation, Massachusetts does not provide its police officers the authority to hold someone who does not have any charges pending for the sole purpose of complying with an ICE detainer. Further, the SJC noted, the ICE detainer is merely a request, not a legal obligation.

Moreover, because immigration is a civil law, then violating the law is not even a crime. “Unlawful presence” is a civil infraction, so in the case of ICE detainers, the police are essentially being asked by the federal government to detain someone without an arrest warrant for a violation of the law that is not even a crime. Therefore, voluntary compliance with these ICE detainer requests is not permissible under Massachusetts law, the SJC ruled. Or, in the words of the highest court in the Bay State, “Massachusetts law provides no authority for Massachusetts court officers to arrest and hold an individual solely on the basis of a Federal civil immigration detainer, beyond the time that the individual would otherwise be entitled to be released from State custody.”

Going forward, the police in Massachusetts will not be able to detain someone for violating federal immigration laws if there are no Massachusetts criminal charges pending against them. Critics and advocates alike have claimed the SJC’s new ruling has the effect of making the entire Commonwealth a “sanctuary state,” meaning that the local authorities will not be amenable to enforcing federal immigration laws.

Reach Out to a Local Attorney Today

The recent case by the SJC demonstrates that having an attorney who fights for the rights of his or her clients, even if that means taking a case to the highest Court in the Commonwealth, is invaluable. This case also demonstrates the necessity of a criminal defense attorney in Massachusetts staying up-to-date on all recent developments in the law. If you believe that you have been wrongly arrested or wrongly detained by the police in Massachusetts, then you should speak with a Massachusetts criminal law attorney today.

South Boston Gun and Drug Arrest Based on Ski Mask in Winter

(South) Boston, You're My Home!

I spent several years living just blocks away from where BPD found two people driving in a car around the D-Street projects in Southie with a gun, some marijuana and evidence of drug sales, and $2,200 in cash.

From the BPD Twitter Page:

  • Over the course of two and half hours, the officers’ attention was drawn to a red motor vehicle that appeared to be circling the streets in the vicinity of D Street. After observing the vehicle for a third time and a pedestrian’s suspicious reaction to the vehicle as it passed, officers decided to conduct a stop. When the officers made contact with the two occupants, they observed a rolled-up ski mask in the operator’s pocket and vodka nips in the passenger compartment of the vehicle. When both the operator and passenger continued to nervously glance at a backpack in the backseat of the car, officers feared they may be armed and conducted a frisk of both occupants and the passenger compartment. When the officers patted the backpack, they felt the shape of what they believed to be a firearm inside.

So, according to BPD, what's going on here is that Drug Control Unit officers pull this car over because it passed the same block three times, in a housing project.  Back in the day, when I lived in South Boston, if I left my house to pick up take-out or a six pack, I could easily have driven past the same spot twice in 20 minutes. These police saw this car pass the same spot over the course of two and a half hours!  Seriously.  Okay, so according to the article, based on that they pull the car over and talk to the occupants.  They see a ski mask in the guy's pocket and nip bottles on the floor. 


Please let the record reflect that we are currently in a record cold snap with temperatures below zero. I wore two down jackets this morning just to take the dog out. And nip bottles on the floor? Is the drug control unit really worried about someone having open containers of alcohol in their car?

Well, apparently they are worried enough about it to conclude that these circumstances must mean the people in the car are armed, because the next thing they do is 'pat down' the backpack.  The police have the right to pat down the bag if they have reason to believe that, during the course of a lawful stop (which this was not) that the people they are interacting with are (a) armed, and (b) dangerous. In this case they had neither, and certainly not both.  There is nothing at all about a ski mask and some nip bottles in the middle of winter that would make a reasonable person think they would find a weapon. 

It's entirely possible the police are covering up a confidential informant that told them they would find a gun in the bag, so they strain to come up with legal justification for the stop and search. It is also possible they pulled the same routine with a dozen other unfortunate residents of the D-Street projects until they finally got something, and only wrote up an article on the one that payed off. We will never know.