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On February 1, 2018, Massachusetts banned bump stocks and trigger cranks. It was not the first state to outlaw these firearm attachments. Today, 12 of the 50 states have made it illegal to purchase, sell, or possess a bump stock and a national ban is currently being challenged in court. For people who own or are interested in owning a firearm, understanding the change in the law is important.

What is a bump stock?

A bump stock is a device attached to the part of a rifle held against the shoulder (i.e., the stock) that allows the gun to slide back and forth quickly when it is fired. The effect of the “bumping” stock is that the rifle fires at a faster rate than usual. It allows a semi-automatic weapon to fire at almost the same rate as a machinegun.

If you are searching for the legal definition of a bump stock, General Laws Chapter 140, Section 121 provides it. A bump stock is “any device for a weapon that increases the rate of fire achievable with such weapon by using energy from the recoil of such weapon to generate a reciprocating action that facilitates repeated activation of the trigger.”

What is a trigger crank?

A trigger crank serves a purpose very similar to that of a bump stock. It is also a firearm attachment used to make a rifle fire at a faster rate than it ordinarily would. Specifically, a trigger crank is a lever on a gun that when turned in a circular motion causes the trigger of the rifle to be pulled rapidly.

Like bump stock, trigger crank also has a legal definition in Chapter 140, Section 121 of the Massachusetts General Laws. A trigger crank is “any device to be attached to a weapon that repeatedly activates the trigger of the weapon through the use of a lever or other part that is turned in a circular motion.”

Importantly, a rifle with a trigger crank included as part of the original design of the rifle does not qualify. In other words, a rifle only has a trigger crank for legal purposes when it is attached to a rifle by a person who is not the designer or manufacturer. Buying, selling, or possessing a rifle with a trigger crank added by the designer or manufacturer does not count as possessing an unlawful trigger crank.

Why did Massachusetts outlaw bump stocks and trigger cranks?

The Massachusetts legislature enacted the bump stock and trigger crank ban in response to a 2017 Las Vegas shootingwhich killed 58 people and wounded hundreds. The gunman responsible used a bump stock during the attack.

In 2018, former President Donald Trump directed the Attorney General to ban all devices “that turn legal weapons into machineguns.” Under the direction of the Attorney General, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (also known as ATF) took action and implemented a rule reclassifying firearms with bump stocks as machineguns. The rule is currently being challenged in court. Opponents are not arguing that the rule violates the Second Amendment but instead that it goes beyond ATF’s authority. They say that a firearm with a bump stock is not a machinegun and since ATF can only regulate machineguns, ATF had no authority to act the way that it did.

The outcome of the legal battle over the ATF rule will help determine if bump stocks become illegal not only in Massachusetts but across the whole US.

What is the punishment in Massachusetts for violating the ban?

The law has been changed so that any person in Massachusetts who sells, buys, or possesses a bump stock or trigger ban could be charged with unlawful possession of a machine gun and punished severely. The penalty is a minimum of 18 months jailtime up to imprisonment for life.

Although it is always illegal in Massachusetts now to buy, sell, or possess a bump stock or trigger crank, it is still possible to obtain a license to possess or carry a machinegun in the state. However, the circumstances are extremely limited. The only people who can lawfully obtain this type of license are:

• Police firearms instructors
• Bona fide firearms collectors

A person who qualifies as a federal curios and relics collector qualifies as a bona fide collector. A curio and relics firearm is a firearm that meets any of these descriptions:

• A firearm that was manufactured at least 50 years ago and is not a replica
• A firearm that has been certified by a museum curator as a curio and relic
• A firearm that derives a significant portion of its monetary value from the fact that it is “novel, rare, bizarre, or because of [its] association with some historical figure, period, or event”

Why is it important that I know this information?

All firearm owners need to be aware of the laws and regulations on firearms ownership. This is especially true in Massachusetts, a state where there are many limits on gun use and ownership. If you are a Massachusetts gun owner and have any doubt that you might not be complying with the law, you should contact an experienced criminal defense attorney who understands Massachusetts firearms law.

IF YOU OR A LOVED ONE ARE CHARGED WITH A FIREARMS CRIME, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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Testifying in court is a nerve-racking experience for many people. It often leads to the breakdown of professional relationships. Personal ones can also be affected. This includes family relationships, especially when family is on opposing sides.
Fortunately, Massachusetts law has protections in place to minimize the risk that the criminal justice system will cause lasting family divisions. One of the most important of these protections is called parental privilege.

What is parental privilege?

In Massachusetts, a parent is not allowed to testify against their minor child and a minor child is not allowed to testify against their parent when the victim of a crime is not a family member and not a person who resides in the family’s home. This is called parental privilege and it is defined in General Laws Chapter 233, Section 20. It is also explained in Section 504(c) of the Massachusetts Guide to Evidence.

Additionally, even in cases in which the victim is a family member or a person who resides in the family’s home, a parent is also not allowed under parental privilege to testify to any communications with the minor child regarding the child’s legal rights.

Who counts as a parent or minor child?

Parental privilege is all about parents and minor children. While these terms might seem obvious, they have specific legal definitions. In law, it is important to keep track of legal definitions because sometimes words are given definitions by lawmakers that do not necessarily match the expectations of ordinary people. When a word in a statute has a legal definition, that definition always controls over the word’s ordinary meaning.

For example, there is room to debate outside of the context of law that a minor child is a child under the age of 21. However, for the purposes of parental privilege, a minor child is under 18 years old. This means an 18-year-old maytestify against their parent and a parent is permitted to testify against their 18-year-old child when the victim of a crime is not a family member and not a person residing in the family’s house.

Similarly, some people might think a parent is limited to a biological or adoptive parent. Others might add a stepparent to this list. However, the legal definition of parent for the purposes of parental privilege is even broader. Parent includes a biological parent, an adoptive parent, and a stepparent, but it also includes a legal guardian or any person acting in loco parentis. In loco parentis is a Latin expression translating to “in the place of a parent.” A person who acts in loco parentis is a person who acts as a temporary guardian or caretaker of a child, taking on some of the responsibilities of a parent. For example, the US Supreme Court said in one case that during the school day, a teacher or school administrator could be acting in loco parentis.

When does parental privilege not apply?

Because the legal definition of parental privilege is narrow, there are several situations when parental privilege does not apply. Two examples include:

• Civil Lawsuits. A minor child is allowed to testify under all circumstances against their parent in a civil case. This includes divorce and custody cases. The parental privilege does not apply in this situation.
• In Defense of Child. A minor child who is accused of a crime is allowed to call their parent as a witness in their defense. If the parent is called and is not going to testify against the minor child, the parent cannot refuse to testify unless some other privilege applies for the parent. For example, this could include the Fifth Amendment privilege against self-incrimination.

Why does parental privilege exist?

Courts and lawmakers have long thought about the logic behind parental privilege. For the most part, the consensus is that parental privilege is a kind of compromise. Its purpose is to balance two competing ideas:

• Idea 1: Parental Rights: A parent has primary responsibility over the care and upbringing of their child. Parents should be allowed to use a limited amount of physical force to discipline their children without being legally punished. Family harmony is important and communities should try to promote it.
• Idea 2: Protecting Children: Communities need to protect children from being punished excessively by their parents. The government must prioritize protecting children from physical abuse over family privacy.

Parental privilege tries to take both ideas and combine them into one legal rule. The rule reflects the compromise by allowing parents to testify against minor children (and vice versa) but only under limited circumstances relating to domestic violence.

What are some other evidentiary privileges?

Parental privilege is a type of evidentiary privilege. An evidentiary privilege is a privilege that allows certain types of people to lawfully refuse to provide evidence to a court. Evidentiary privileges also prevent protected evidence that is not testimony from being used in a legal proceeding such as a criminal trial.

Parental privilege is not the only kind of evidentiary privilege. Several others exist. Some of the more commonly applied ones include:

• Attorney-Client Privilege. This privilege protects confidential communications between a client and their attorney from being disclosed.
• Privilege Against Self-Incrimination. Under the Fifth Amendment of the Constitution, the prosecution cannot call criminal defendants to the stand to testify against themselves. Other people also cannot be forced to testify to information that could lead to their prosecution for a crime.
• Psychotherapist-Patient Privilege. Psychotherapist-patient privilege protects confidential information provided by a patient to a psychotherapist related to the patient’s mental and emotional health.
• Marital Privilege. This privilege allows a spouse to choose not to testify. It also prevents another person from testifying about confidential communications between spouses during marriage.

Like parental privilege, the purpose of each of these other privileges is to balance privacy with the need to do justice. The appropriate balance is a question communities decide on their own through their elected representatives.

How can parental privilege help a criminal defendant?

Parental privilege can assist both parents and minor children charged with crimes. For any person to be convicted of a crime, the charge against them must be proven beyond a reasonable doubt. This is a very high burden of proof. If the Commonwealth cannot meet it, the defendant must be acquitted.

If parental privilege did not exist, a parent or minor child’s testimony could be enough to lead to a conviction. As a result, when the privilege applies, parents and minor children do not have to provide their testimony. There is less evidence to convict and the prosecutor is challenged with finding other evidence to meet their burden. Cases are often resolved favorably for criminal defendants before trial when prosecutors expect or know that parental privilege applies. There are methods experienced criminal defense lawyers use to bring to the attention of prosecutors the applicability of the privilege.

IF YOU OR A LOVED ONE ARE CHARGED WITH A DOMESTIC VIOLENCE CRIME OR HAVE A MINOR CHILD FACING A CRIMINAL CHARGE, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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In order to convict a person of a crime, the government must prove beyond a reasonable doubt that the person committed all the elements or parts of the offense. For example, a person cannot be convicted of operating under the influence of alcohol (OUI), unless the Commonwealth proves beyond a reasonable doubt the three elements of (1.) operation, (2.) public way, and (3.) under the influence of intoxicating liquor.

It’s the Commonwealth’s burden to prove all the elements of the crime regardless of the crime. The elements of crimes vary depending on the crime, but there is one element that all crimes share in common. This element is identification. Anytime a person is accused of a crime, the Commonwealth must prove beyond a reasonable doubt that the defendant is the person who committed the crime. In other words, it wasn’t someone else.

Although this might seem obvious, many Massachusetts cases have addressed the problem of mistaken identification. Police use a variety of procedures to have witnesses to crimes identify the perpetrator. When there is a flaw with how that identification procedure was conducted, this increases the chance that the identification was unfair. When the procedure is unfair, this makes it hard if not impossible for juries or judges to determine if the person was actually the person who committed the crime.

The best way to explain the law on identifications is to use an example. A good example is a case decided last year by the Massachusetts Appeals Court. The name of the case is Commonwealth v. Ploude.

What happened in Commonwealth v. Ploude?

In Ploude, a man named Frank was inside a bakery in Fall River when he saw a person he did not know break into his work truck. The truck was parked right outside the bakery. Frank confronted the man who responded that he thought it was his friend’s car and that he had just taken a “bunch of pills” and was “whacked out.”

A bystander observed the interaction between Frank and the man and offered to call the police. Frank said yes and the man responded by threatening to stab him with a box cutter. To avoid escalating the situation, Frank let the man go.

Police arrived and Frank gave a physical description of the man, including his tattoos. They observed that the man had left behind a bag with various items in it, including a cell phone. Police obtained a search warrant and extracted the contents of the phone. They were able to identify the perpetrator from this information and called Frank to try and identify him from a photographic array. This array consisted of eight photos. One was of the suspect and the other seven were fillers of men resembling the suspect physically. The officer leading the array was “blind” or did not have any familiarity with the case.

When Frank was shown the photo he exclaimed that the one of the suspect was the person inside his car. Based on this, the defendant Kevin Ploude was arrested and charged. Later, his lawyer tried to challenge the identification by Frank as unlawful but was unsuccessful. Ploude’s attorney appealed the decision for him.

Why did Ploude’s attorney believe the identification was unlawful?

Ploude’s lawyer filed a motion to suppress on the basis that the way police conducted Frank’s identification was unlawful. Ploude’s main argument was that the identification was too “suggestive” and posed too high a risk that the identification was mistaken. Because of this, Ploude’s constitutional rights were violated.

Specifically, Ploude’s lawyer pointed two errors by police:

• The officer told Frank before the identification that a suspect had been identified based on the cell phone left behind at the scene
• The defendant was the only person with neck tattoos in the photo array

How did the Court rule?

The Appeals Court agreed with Ploude and overturned the decision of the lower court.

It began by explaining the standard of law used to determine if an identification procedure is unlawful: The defendant must prove “by a preponderance of the evidence, considering the totality of the circumstances, that the identification is so unnecessarily suggestive and conducive to irreparable misidentification that its admission would deprive the defendant of his right to due process.”

This legalese essentially means that if an identification is too suggestive, it poses a risk that it could be mistaken and a mistaken identification would not be fair to the accused. For example, an identification would most likely be too suggestive if the perpetrator of the crime was a male and in a photo array a police officer showed the witness photos of six females and only one male (who was in fact the perpetrator).

Here is what the Court had to say on each error Ploude pointed out:

• Mentioning the Phone. This did NOT make the photo array overly suggestive. The officer should not have mentioned it, but it did not have any real impact.
• The tattoos. Photo arrays should not distinguish one suspect from all the other based on some physical characteristic. But if this happens, there are two situations when it is okay. The first is if it is clear that the witness did not select the photo on the basis of the physical characteristic. The other is if the original description of the suspect by the witness never mentioned the physical feature. Neither of the exceptions applied here because Frank’s description of the perpetrator included that he had tattoos and he never confirmed that he picked Ploude’s photo based on some other feature beside the tattoos.

Therefore, since Ploude was the only person with neck tattoos in the array and that was overly suggestive, the identification was illegal. No evidence about the identification taking place could come into evidence at trial.

Why is this case important?

Preparation is everything when it comes to successfully defending a client from criminal accusations. It is important that people who are charged with crimes hire a diligent attorney who is aware of important case law and has the legal skills to challenge evidence that was obtained by police in an unlawful manner.

The Ploude case is important because it holds police to a high standard when it comes to the way they conduct identifications. An overly suggestive identification of a suspect by a witness to a crime is unconstitutional in Massachusetts. Since out-of-court identifications are often pieces of evidence relied upon by prosecutors at trial, getting an identification excluded from evidence is an important strategy in demonstrating that there is not enough evidence to convict the accused. Keeping illegally obtained evidence out at trial is so important that it could be the difference between a guilt or not guilty verdict.

IF YOU OR A LOVED ONE BELIEVE YOU HAVE BEEN MISTAKENLY IDENTIFIED AS THE PERPETRATOR OF A CRIME, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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Massachusetts is a state that takes sex crimes very seriously. Sex offenses include crimes like rape, possession of child porn*graphy, and sexual assault of a minor. Another offense that falls under the category of sex crimes is secretly photographing or videotaping a person who is partially or fully nude. Since most of us have cell phones and social media, it is important to understand what types of photos and videos are permitted and which are illegal.

What does it mean to secretly photograph or videotape a nude or partially nude person?

Massachusetts General Laws Chapter 272, Section 105(b), Paragraph 1 gives us a definition of this crime of secretly photographing or videotaping a nude or partially nude person. There are five elements, or requirements, for a person to be found guilty of the offense. They are:

• Willfully photographing, videotaping, or electronically surveilling another person
• Doing so without the other person’s knowledge or consent
• Intending to do so secretly or in a hidden manner
• The other person was naked or partially naked
• The other person had a reasonable expectation of privacy

No person can be punished for committing this crime unless the government proves each of the five elements beyond a reasonable doubt. An effective criminal defense attorney will show to the judge and jury that the evidence does not satisfy one or more of the requirements.

What does it mean to electronically surveil someone?

The first requirement of the crime is that the accused must have willfully photographed, videotaped, or electronically surveilled another person. To photograph or videotape another person is self-explanatory, but what does it mean to “electronically surveil” them?

Sometimes laws provide definitions of the words they used. In Subsection (a) of the law that defines the crime we are discussing, “electronically surveil” is defined. It means to “view, obtain or record a person’s visual image by the use or aid of a camera, cellular or other wireless communication device, computer, television or other electronic device.”

What does it mean to photograph or record willfully?

To commit a crime usually requires that you have a certain mens rea or state of mind. That state of mind is often, but not always, intent. To do something “willfully” is another way of saying to do something intentionally. This means that for this crime, the photography, video-recording, or electronic surveillance must have not been accidental.

The third requirement of the crime also requires a certain state of mind. Again, that state of mind is intent. To be found guilty, the accused must have intended that the photography, recording, or video surveillance be secret or hidden.

What does it mean to be nude or partially nude?

While it may seem obvious, partially nude has a legal definition. Again, Subsection (a) has it. To be “partially nude” means “the exposure of the human genitals, buttocks, pubic area or female breast below a point immediately above the top of the areola.”

Lawyers always ensure that when a word is defined by a law the ordinary (dictionary) meaning of the word is not used instead. This protects people accused of crimes from being punished for actions that were not illegal.

The law does not say what it means to be fully nude so that is left to the common sense of the jury or a judge to determine.

What is a reasonable expectation of privacy?

The final requirement of the crime is that the person who was photographed, recorded, or electronically surveilled had a “reasonable expectation of privacy.”

A reasonable expectation of privacy has two requirements:

• The person actually expected privacy
• The person’s expectation was reasonable

To “actually” expect privacy means to subjectively expect it. For example, a person changing clothes in the privacy of their own home with the blinds closed would likely expect that they are in private. They would expect that no one outside their home is watching them. To “actually” expect privacy means to think to yourself “I’m in private.”

Whether an expectation of privacy is reasonable is not determined by any one person but by society as a whole. Sometimes a person’s expectation of privacy is not reasonable. For example, a person who walks down the main street of a town completely naked could not reasonably expect privacy. It would be unreasonable to think no one else was looking. On the other hand, society would likely say that it is reasonable to expect privacy when a person takes a shower in their own home with the blinds drawn.

Whether privacy was actually expected and whether it is reasonable is usually a question of fact. This means that it is up to a judge or jury to decide using their common sense.

Are there other ways to illegally photograph or videotape someone?

Yes, there are two other different crimes that involve illegally photographing or videotaping a person that are not the sameas the crime we discuss here. They both involve illegally photographing or videotaping a person who is clothed:

• Photographing, videotaping, or electronically surveilling an adult’s intimate parts when they are clothed
• Photographing, videotaping, or electronically surveilling a minor’s intimate parts when they are clothed

Photographing, videotaping, or electronically surveilling an adult’s intimate parts is punished under General Laws Chapter 272, Section 105(b), Paragraph 2. Doing the same to a child is punished under Paragraph 3.

The statute gives a definition of “sexual or other intimate parts”. They are “human genitals, buttocks, pubic area or female breast below a point immediately above the tip of areola, whether naked or covered by clothing or undergarments.”

What is the punishment for secretly photographing or recording a nude or naked person?

The law says that a person who is found guilty can be punished with a sentence of:

• Up to 2 ½ years in the House of Correction
• A fine of up to $5,000
• Up to 2 ½ years in the House of Correction AND a fine of up to $5,000

IF YOU OR A LOVED ONE ARE CHARGED WITH A SEX CRIME, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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Massachusetts’ highest court the Supreme Judicial Court (SJC) issued a major new decision on Wednesday that will impact 27,000 people who either entered a plea for or were convicted of operating under the influence (OUI). This ruling makes it significantly easier for people who plead out or were convicted on the basis of a breath test conducted between June 1, 2011 and April 18, 2019 to be successful on a motion for a new trial or a motion to withdraw their guilty plea.

What is the SJC’s ruling?

The SJC held that because of misconduct by the Office of Alcohol Testing (a division of the Massachusetts State Police Crime Laboratory), the constitutional rights of about 27,000 people who plead guilty to an OUI offense or were convicted after trial have been violated. Because of this, anyone who was convicted due to breath test results from a breath test machine called Alcotest 9510 between June 1, 2011 and April 18, 2019 is entitled to “a conclusive presumption of egregious government misconduct.”

What does a conclusive presumption of egregious government misconduct mean? It has to do with the standard used to decide whether or not a motion for a new trial or to withdraw a guilty plea should be allowed. A person isn’t allowed to challenge their conviction on this basis unless the government misconduct is so egregious that it makes a guilty plea involuntary. This is proven when these two facts are true:

• First, egregious government conduct happened before the defendant plead guilty
• Second, the misconduct influenced the defendant to plead guilty

So, because defendants are entitled to “a conclusive presumption of egregious government misconduct” if they were convicted at any point between the above dates due to breath test results from the Alcotest 9510, they do not have to prove the first fact. They will only need to establish that the misconduct influenced their decision to plead guilty.

What does it mean to be “influenced” to plead guilty?

The best way to explain what the Court means by “influenced their decision to plead guilty” is to explain the case that was up for review before the SJC. In this case, a woman named Lindsay admitted to “sufficient facts” that she was guilty of a second offense operating OUI-liquor occurring in November 2013.

Lindsay decided to plea out because there was evidence that she took a breath test and blew 0.23%. This is well above the legal limit of .08%. Her attorney advised her that she would not be able to win her case and that a plea was the wisest option. She followed his advice and was convicted. The SJC found that this was enough to establish the second fact that she was influenced and that she should be allowed to withdraw her guilty plea.

What was the misconduct?

The misconduct that led to this decision came from an investigation in 2019 discovering that the breathalyzer machines used in Massachusetts were not being calibrated properly. The Office of Alcohol Testing tried to cover this fact up and was not truthful about the rate at which these machines fail. Because of this, the test results were flawed. There was much litigation surrounding this scandal. For a while, it led to most district attorneys in Massachusetts to stop using breathalyzer test results all together in criminal cases.

What should I do if the ruling applies to me?

If you were convicted or admitted to sufficient facts for a conviction of OUI between June 1, 2011 and April 18, 2019based on breath test results, you may consider if retrying the case is in your best interest.

IF YOU OR A LOVED ONE ARE CHARGED WITH AN OUI OR HAVE BEEN CONVICTED OF ONE WRONGFULLY, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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Thanks to the Constitution, people have privacy rights that protect them from searches by police that are unreasonable. For example, in order for police to search your home they are almost always going to be required to have first obtained a search warrant. The basic idea is that a search is unreasonable if police do not have enough reasons to believe you have committed a crime (or are committing one) before they invade your privacy.

There is a huge amount of case law on what makes a search unreasonable and because of this many different issues have come up. One issue worth discussing is called collective police knowledge. Collective police knowledge is a legal doctrine that helps determine when the suspicions of one police officer carry over to other police officers investigating a crime at the same time.

The idea is pretty abstract, but a recent case decided by the highest court in Massachusetts helps illustrate it. The case also announced a new legal rule that will impact the rights of everyone stopped by the police.

What happened in the case?

In Commonwealth v. Privette, an undercover police officer was working a late-night shift in Boston when he received a dispatch that an armed robbery had just occurred at a gas station in Dorchester. The dispatcher described the suspect as a “Black male, late twenties, five foot seven, blue hoodie, blue jeans, on foot” running toward a pharmacy. There was no mention of the suspect having facial hair but additional dispatch information described him as having some. Less than 10 minutes after the dispatch, the officer spotted a person he believed matched the description.

The suspect, David Privette, complied with the officer’s command to show his hands. He was pat-frisked and over $400 in cash was found in his wallet, although no weapon was discovered. Another officer arrived soon after and conducted a pat-frisk on Privette’s red backpack. He felt a hard object, opened it, and found a gun.

After the victim positively identified Privette as the perpetrator, he was arrested and indicted on five firearms offenses.

How did Privette defend the case?

After obtaining a defense attorney, Privette’s lawyer filed a motion to suppress. A motion to suppress is a method of challenging evidence believed to have been obtained by police unlawfully. Specifically, his lawyer argued that stopping Privette and the two pat-frisks were unlawful. The basis was that there was a lack of reasonable suspicion to conduct these investigative activities.

What is reasonable suspicion?

Police cannot stop a person unless they have reasonable suspicion that the person stopped has committed, is committing, or is about to commit a crime. As many courts have said, reasonable suspicion “must be based on specific and articulable facts, and reasonable inferences therefrom, in light of the officer’s experience.” In plain English: Police cannot stop a person unless their suspicion is reasonable based on the facts of the situation.

The specific fact issue in Privette was whether the first officer had reasonable suspicion to stop Privette based on the information he knew at that time. To determine this, the court had to apply the collective police knowledge doctrine.

How does collective police knowledge work?

The collective police knowledge doctrine gives police officers an exception to the amount of knowledge they need to conduct a search or make an arrest. Put another way, police do not need to have firsthand knowledge. They can rely on the information collectively gathered by their police officer colleagues.

In Massachusetts, there are two types of collective police knowledge:

• Vertical collective knowledge: one police officer directs another to conduct a stop, frisk, search, or arrest. For example, there is vertical collective knowledge when Sergeant X instructs Patrol Officer Y to frisk a suspect.
• Horizontal collective knowledge: the information “the police have” consists of the information each of the individual officers have. For example, there is horizontal collective knowledge if Officer X, Officer Y, and Officer Z all have information that together is enough for reasonable suspicion, even if the information any of the individual officers have alone would not be enough.

This case focused on horizontal collective knowledge. The legal issue was whether horizontal collective knowledge was too broad. In other words, as the law was then-defined was it not giving people enough privacy protections?

How did the Court decide the case?

The Court first settled the legal issue. It determined that horizontal collective knowledge needed to be narrowed as a legal doctrine. The Court ruled that certain new requirements needed to be met for horizonal collective knowledge to apply. These include:

• The officers need to be involved in a joint investigation
• The officers must be pursuing “a mutual purpose and objective”
• The officers must be in close and continuous communication with each other about that shared objective

Importantly, the officer must be aware of at least some of the “critical facts” and must be in communication with other officers who have this knowledge.

Applying this rule to fact issue of the Privette case, the Court concluded that the knowledge of the second officer could carry over to the first. There was a joint investigation and the second officer continuously updated his colleagues about his observations while he was looking for the suspect.

From everything the first officer knew himself and through the second, the Court held that there was reasonable suspicion. The searches were lawful. The motion to suppress should have been denied. That’s what the lower court did so the decision was upheld.

Why is Privette important?

Privette is not an easy case to understand, but it is certainly an important one.

Although the defendant lost, Privette is important because it increases privacy rights. The legal rule of the case requires more out of police when they want to rely on collective knowledge as justification for a stop and frisk. The new standard means police need to communicate better and more clearly with each other when they want to take action. This helps protect the privacy rights of all of us.

IF YOU OR A LOVED ONE BELIEVE YOU HAVE BEEN ILLEGALLY SEARCHED BY POLICE, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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The Second Amendment gives people the constitutional right to keep and use firearms. But the right isn’t unlimited. There has been much debate in politics on what restrictions states and local communities should be able to place on gun ownership. The courts have looked at the question from a legal point-of-view. Courts regularly release new case decisions interpreting the law. They answer what restrictions on gun ownership are lawful and what rights gunowners have to keep and use firearms.

Massachusetts’ highest court released one such case back in April called Commonwealth v. Guardado. Guardado is a very important case for Massachusetts gun owners charged with the offense of unlawful possession of a firearm. It creates a new defense that will help ensure that law-abiding gun owners are not punished for crimes they didn’t commit.

What does it mean to unlawfully possess a firearm in Massachusetts?

Massachusetts has strict laws regulating firearms ownership. Massachusetts General Laws Chapter 269, Section 10 is the key one. This lengthy statute punishes some of the most commonly charged firearms crimes in the state. It includes:

• Unlawfully carrying a firearm
• Unlawfully possessing a firearm
• Illegally possessing ammunition
• Failing to surrender a revoked or suspended license to carry or firearms identification card
• Failing to surrender a firearm after revocation or suspension of a license to carry or firearms identification card

So unlawful possession is just one crime under the law. Before the Guardado case, in order to prove a person guilty of this crime the government needed to prove beyond a reasonable doubt only that the accused:

• Possessed a firearm
• Knew it was a firearm
• Did not have a valid firearms identification card or have a valid substitute

These three requirements or elements of the crime were changed as a result of this case. Thanks to Guardado, the government now has to prove a fourth element: the defendant did NOT have a valid firearms license.

Because the government has to prove an additional element, people charged with unlawful firearms possession now have a defense that the government did not prove beyond a reasonable doubt that the accused did not have a valid firearms license.

What was Guardado about?

In Guardado, Carlos Guardado was indicted by a grand jury on charges that included unlawful possession of a firearm. He was convicted and his lawyer appealed.

Carlos’ argument on appeal was that the jury was not instructed by the judge correctly. At a criminal trial, after the lawyers for both sides call witnesses, present evidence, and give their closing statements, the judge instructs the jury on the law they are to use to decide the case. The ordinary people that make up a jury are not expected to know the law before they serve on the jury. Through jury instructions, the judge tells them what the law is and how they are to decide the case. Juries are factfinders, which mean their job is to decide what happened. Based on what happened, they apply the facts to the law and reach a verdict. A verdict is the final decision of the case: guilty or not guilty.

Carlos’ argument was that the judge did not correctly tell the jurors that the Commonwealth needed to prove beyond a reasonable doubt that the defendant did not have a firearms license at the time of his arrest. This was an error.

Why did the Court determine that Carlos was right?

The Court determined that Carlos was correct. It based its decision off of a recent US Supreme Court case called New York State Rifle & Pistol Association v. Bruen. In Bruen, the country’s highest court ruled that the Second Amendment“protects an individual’s right to carry a firearm in public.” The key phrase is “in public.” Overbroad laws that prohibit carrying a firearm outside of the home are unconstitutional.

Because of this, the Massachusetts Supreme Judicial Court determined that the government needed to prove absence of a license to comply with the Bruen decision. When it comes to constitutional rights in the US constitution, the US Supreme Court has the final say. Even Massachusetts’ highest court must follow these decisions.

As a result, Carlos was granted a new trial.

How does the Commonwealth prove no license?

The Guardado decision also discusses how the Commonwealth proves the new element. Remember that no person can be convicted of a crime unless the government proves each essential element of the offense beyond a reasonable doubt.

The case says that the government should be very careful presenting evidence of no license. One way they could do it is by a signed written statement from an appropriate state official that after a “diligent search,” no record of a valid firearms license could be found at the time the offense was committed. That state official might also be called to testify. However, it is important that any testifying state official must have adequate knowledge on how firearms records are kept. Simply submitting an affidavit or sworn statement of the recordkeeper would likely not be enough.

Why is Guardado important?

Massachusetts courts are still adjusting to the Guardado opinion, so much is still uncertain. However, what is know is that the burden of proving no license has shifted. Before the case, possession of a license was an affirmative defense, meaning the defendant had to submit proof of a license and the Commonwealth only then would be required to rebut it. Now the Commonwealth must submit evidence as it makes its case at trial that the accused did not have a valid license.

The most effective criminal defense attorney holds the Commonwealth to its burden. A person cannot lose their freedom unless the crime is proven beyond a reasonable doubt.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH A GUN CRIME, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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Operating under the influence of alcohol is a crime that is taken seriously in Massachusetts. If you are convicted, the punishment will impact not only your freedom but also possibly your relationships with others and employment opportunities.

When children are in the car when an OUI takes place, the consequences of conviction become even more serious. This is so because children are more vulnerable to injury or death when an accident caused by unsafe driving occurs.

There is a law in Massachusetts that prevents endangering children while operating under the influence of alcohol. It can be found in Massachusetts General Laws Chapter 90, Section 24V. It is called Child Endangerment While Operating a Motor Vehicle Under the Influence. There are two ways a person can be convicted.

What is OUI-Child Endangerment?

OUI-Child Endangerment is a crime in Massachusetts that occurs when a person operating a motor vehicle under the influence of alcohol puts a child in danger of death or other injury. Like all crimes, to convict a person certain facts or elements must be proven by the government beyond a reasonable doubt. They are:

• The accused operated a motor vehicle
• The accused did so on a public way, in a place where the public has a right of access, or in a place where members of the public are given an invitation or license to be at
• Either:
  • While the accused was operating the vehicle, they were under the influence of intoxicating liquor
  • While the accused was operating the vehicle, the percentage of alcohol in their blood was .08% or greater
• While the accused was operating the vehicle, there was a child present in the vehicle who was 14 years old or younger

So, a person cannot be found guilty of OUI-Child Endangerment unless each of these elements are proven beyond a reasonable doubt. If the government cannot prove one or more of these facts to this high degree of certainty, the person on trial must be acquitted.

What is the difference between being “under the influence” and having a blood alcohol content of .08% or greater?

There are two ways or legal theories of proving a person guilty of OUI-Child Endangerment. One is called impairment theory. Impairment means that the person was under the influence of alcohol while operating the vehicle. The other theory is called per se theory. Per se operating under the influence of intoxicating liquor means that the person was driving with a blood alcohol content (BAC) of .08% or greater.

The government can go with either approach if there is supporting evidence. However, in both cases they will have to overcome certain obstacles.

For example, a person is not “under the influence of alcohol” simply because they had an alcoholic beverage before getting behind the wheel. A person is under the influence of alcohol only if they have consumed enough alcohol to reduce their ability to drive their vehicle safely. The state will have to present evidence not only that the accused consumed alcohol but that this impacted their ability to drive safely.

Similarly, to have a blood alcohol content of .08% or greater is a scientific determination. This means scientific evidence must be presented that the blood alcohol content of the accused was tested. A good defense attorney will ensure that evidence of any tests that occurred were reliable by investigating:

• If they were given in a reasonable amount of time after operation
• If the person who gave the test was properly certified
• If the correct pre-test procedures were used
• If the testing device was working properly when the test was given
• If the test was given correctly

What makes OUI-Child Endangerment different from a regular OUI?

Because of the state’s interest in protecting children, being convicted of OUI-Child Endangerment increases the possible punishment.

Importantly, this crime has a punishment of 90 days to 2.5 years in the House of Correction and an automatic 1-year driver’s license suspension for a first offense.

Additionally, a person found guilty of a first offense will receive a minimum fine of $1,000. This fine could be raised as high as $5,000. A person could also receive a sentence of more than 90 days: up to 2.5 years in the House of Correction.

For people who commit this offense more than once, the punishment is increased to:

• Fine of $5,000 to $10,000
• Sentence of 6 months to 2.5 years in the House of Correction or 3 years to 5 years in state prison
• A 3-year driver’s license suspension

People convicted of a second or greater offense cannot have their sentence suspended. They also cannot receive probation or parole for good conduct until 6 months are served.

So, the consequences are harsh. This is why it is important to consult an experienced criminal defense attorney if you or a loved one are accused of this crime. An effective defense attorney will make sure that the state meets its burden of proof.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH OUI-DRUGS, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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What is gunshot residue?

Gunshot residue, often abbreviated “GSR”, is a type of forensic evidence. GSR is the substances that come out of a firearm after it is discharged. Pulling the trigger of a firearm causes a small explosion to occur inside the barrel of a gun that makes the bullet project out of it. As this happens, several residues are released. These include primer residue, residue from the projectile itself, and residue from unburnt or partially burnt gunpowder.

What does GSR show in a criminal investigation?

GSR can be analyzed by a forensic scientist to help prove or disprove a case against a person accused of a crime. If discovered on a person’s body, GSR can also help show that a person discharged a firearm. GSR could be used to show that a gun was transferred from one person to another. Since GSR typically lasts for no more than 4-6 hours on a person, it can also be used to help show when a firearm was discharged.

Take for example a case where a person is accused of discharging a firearm within 500 feet from a building. This is a crime in Massachusetts. To convict a person, the government must prove beyond a reasonable doubt that the accused discharged the firearm. Say police respond to a report of a gunshot fired in a residential area. They discover a bullet hole in a wall and arrest a person with a firearm in the trunk of their vehicle. A forensic analysis of the gun and suspect’s clothing could determine that no GSR was present. This would help prove that the gunowner was not the person who discharged the firearm.

Is GSR analysis flawless?
GSR analysis is not perfect and does not always guarantee a person is guilty of a crime. All crimes must be proven beyond a reasonable doubt. This is one of the highest burdens of proof in law. An effective criminal defense lawyer will consult an expert to determine if a finding of GSR was reliable. There are various ways a GSR analysis could not be reliable.

For example, there could be a false positive. GSR might not necessarily come from a firearm. It could come from another explosive device, like a lawfully discharged firework or a piece of machinery. The sample of GSR could also have been contaminated in the lab.

How can GSR evidence be challenged?

There are a variety of ways to challenge GSR analysis. In addition to challenging the scientific reliability of a GSR analysis, the way GSR evidence was collected could be disputed.

For instance, GSR may have been collected in violation of a person’s constitutional rights. The Fourth Amendment of the US Constitution protects people from unreasonable searches and seizures. The burden of proof called probable cause is usually required. If a person were stopped during a traffic stop, police opened the trunk of the car without probable causeor any other lawful justification, and discovered a gun with GSR on it, that evidence most likely would not be allowed into evidence at trial because it was collected illegally by police.

Thanks to modern technology, forensic science has become a much more valuable tool for solving crimes. For example, the development of DNA analysis has given law enforcement the ability to compare DNA left at crime scenes to DNA stored in databases to help them identify suspects. Although DNA comparisons might be the most well-known modern forensic science technique, it is not the only one. Forensic scientists can also examine gunshot residue (GSR).

GSR analysis is a valuable forensic science, but like all techniques used to prove people guilty of crimes, it has its limitations. Recognizing these limitations may be the difference between whether a person is wrongly convicted of a crime or rightfully acquitted.

What is forensic science?

The definition of forensic science is the application of science to law. In criminal law, it includes using scientific techniques to determine if a person is guilty or innocent of a crime. The fields of science that could be involved include:

• Physics
• Chemistry
• Biology
• Computer science
• Engineering
• Data analysis

For example, in a drug case, chemistry might be used to determine whether a substance is an illegal narcotic (for example, cocaine). In a case involving possession of child pornography, data analysis could be performed to document when files were downloaded and opened. Likewise, biology could be used in a murder case to show a victim’s cause of death.

Forensic science is practiced by forensic scientists. Forensic scientists work in forensic crime laboratories. Forensic crime labs receive forensic evidence, analyze it using scientific techniques, and report their findings to law enforcement. Forensic evidence could include:

• Blood
• Saliva
• Hair
• Semen
• Soil and vegetation
• Fingerprints
• Tire tracks
• Narcotics
• Computer files
• Financial data

Forensic scientists often work for police but not always. For example, Massachusetts has a crime laboratory run by the State Police. Criminal defense lawyers will often use the services of an expert to conduct an independent forensic analysis of evidence. For example, an expert might be used by a criminal defense lawyer to analyze data on financial transactions to determine if the state will be able to prove their client committed a crime like larceny or fraud.

A forensic scientist who provides testimony in a case must be properly qualified. This usually means having degrees or certifications. Their methods must also be scientifically valid and recognized. For example, it is not very likely that a court would allow the testimony of an astrologist who says a person is guilty because of the way the stars were aligned on the night a crime was committed. On the other hand, a MIT PhD with an impressive CV who testifies to the flaws of a ballistics analysis would likely be allowed.

An criminal defense attorney will be very familiar with the law on searches and seizures. It is the job of an effective criminal defense attorney to ensure the constitutional rights of people charged with crimes are protected. This means paying close attention to how evidence was collected and ensuring that it is used fairly at trial.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH A GUN CRIME, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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What is a subsequent offense?

A subsequent offense is a crime that a person has been convicted of before. It happened subsequent or after your first conviction.

A subsequent offense does not always mean “second offense.” It could be a third, fourth, or any number offense after the first. The paper charging you with a crime (complaint, citation, or indictment) will indicate if you are being charged with a subsequent offense.

If I am convicted twice, is it assumed that the second offense was a subsequent offense?

No. If you are convicted of the same crime on two separate occasions the court is not allowed to assume when it sentences you the second time that you are a subsequent offender. The state must prove beyond a reasonable doubt that before the accused committed the second crime they had previously been convicted of the first one.

How is a subsequent offense proved?

In Massachusetts, proving a subsequent offense means proving beyond a reasonable doubt that the person who was convicted of the underlying crime is the same person who was convicted on the first occasion. If the government does not meet its burden, a person cannot be convicted of the underlying crime as a subsequent offender.

The government usually meets its burden of proof by offering certified records into evidence. The record of a person’s conviction is a public record. Courts almost always allow these types of records into evidence. However, that does not mean they cannot be challenged. Sometimes clerks—who are responsible for maintaining the case docket, or official record of the proceedings of a case—make a mistake. A good criminal defense attorney will closely examine any records showing a subsequent offense to ensure they are fair and accurate.

What is the penalty for a subsequent conviction?

If a person is convicted of a subsequent crime, the penalty will depend on the crime. For example, for the crime of assault and battery on a family or household member:

• First Offense: up to 2 ½ years in the House of Correction and/or a fine of up to $5,000
• Subsequent: up to 2 ½ years in the House of Correction or up to 5 years in state prison

As you can see, the punishment for the subsequent offense is worse. A person convicted of second offense assault and battery on a family or household member could be sentenced to state prison. A person convicted of only their first offense cannot be sentenced to state prison. The possible punishments for subsequent offenses is always worse.

Some crimes do not say what the subsequent penalty is. This gives judges discretion to impose a sentence. In these cases, judges in Massachusetts often turn to the Massachusetts Sentencing Guidelines. The Massachusetts Sentencing Guidelines, which can be viewed here, give judges instructions on how to sentence people convicted of crimes when the laws punishing these crimes do not require a particular sentence to be imposed. The Guidelines are not law but they are a very well-regarded source of legal authority in Massachusetts. A good defense attorney will be very familiar with the Sentencing Guidelines and use them to benefit their clients.

Does double jeopardy protect me from being convicted of a subsequent offense?

A subsequent offense is not the same as double jeopardy. The Fifth Amendment of the Constitution protects people from double jeopardy. Double jeopardy means being prosecuted for the same crime twice. A subsequent offense is not double jeopardy because the facts of the crime are different. For example, if a person prosecuted for an OUI occurring on July 1 is then prosecuted for an OUI occurring on September 1, the second prosecution for the subsequent offense is not double jeopardy because the OUIs occurred on two separate days.

This does not mean double jeopardy is not a defense in some cases. It can be when a person is charged with two offenses that are very similar and based out of the same facts.

IF YOU OR A LOVED ONE ARE CHARGED WITH A SUBSEQUENT OFFENSE, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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