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Criminal Charges
Drug trafficking / Drug dealing
Our Boston criminal defense lawyers have extensive experience defending the two major categories of narcotics or drug violations: possession and distribution. Illegal drug possession It is illegal to possess a substance defined under federal and state law as a “controlled substance” without authorization. Possession includes having a “substance” physically on your person (jacket, bag, pocket, …) or in an area which you control (your house, car, apartment, yard…). Illegal drug distribution It is illegal under federal and state law to possess a substance defined as a “controlled substance” with the intent to distribute, sell, or transfer to another, without proper government authorization. The classification of the defense as distribution is determined by the person’s conduct, including but not limited to selling or attempting to sell the substance, or by the amount or weight of the substance that is possessed or controlled (meaning that the narcotic need not necessarily be in your possession, if you control its sale or distribution).
Money laundering
It is against Massachusetts state and federal law to disguise illegally gained monetary proceeds from illegal activities such as: drug trade, counterfeiting, fraud, including international securities and credit card fraud, and similar activities that harm individuals as well as financial systems and institutions. The penalties for such offenses include civil forfeiture of money and property as well as prison sentences.
Theft / Shoplifting
It is illegal to take, steal or embezzle with intent to convert, the property of another. There is a wide array of penalties for theft depending upon the nature of the item stolen, its value, whether force or violence was employed, and the characteristics of the victim from whom the item was taken (penalties tend to be higher if the victim is a “weaker” person, i.e. child, elderly person, mentally disabled, etc). The FitzGerald Law Company Criminal Defense Attorneys in Boston, MA can help vacate a conviction and negotiate the best disposition for any criminal charge.
Sexual assault / Sexual harassment / Sexual molesting
It is illegal pursuant to MA state law to physically touch another person on their “private” body parts with intent and without their consent. Criminal charges resulting in a conviction pursuant to this law generally can result in a prison sentence or a period of probation, depending upon two factors: the criminal history of the defendant, and the age and susceptibility of the victim. These laws often require a person who is convicted to register with state authorities as a “sexual offender”.
Rape / Statutory rape / Sex Crimes
It is against state law to engage in a sex act with another person without their consent. For the purpose of most “rape” law, the evidence must show that the act caused an unprivileged entry of any bodily orifice. Children under the age of majority (varies for each state, for example the age of majority for sexual relations in the Commonwealth of Massachusetts is 16) cannot consent to engaging in sexual conduct. This is strictly prohibited even if the defendant is not aware that the other person is under the age of majority. Engaging in sex with a person under the age of majority, is considered “statutory rape”, whether or not it was “consensual”. Criminal charges pursuant to this law generally can result in a prison sentence or a period of probation, depending upon several factors, including the criminal history of the defendant, whether force or violence was used, and the age and susceptibility of the victim. These laws often require a person who is convicted to register with state authorities as a “sexual offender”.
Domestic violence / Spouse abuse / Child abuse / Elder abuse
State law prohibits physical violence or threats of physical violence between individuals who share a “domestic” relationship (attempting to cause or causing physical harm or placing another in fear of imminent serious physical harm). A domestic relationship is generally defined as a relationship between spouses and former spouses, persons who are or were living together, persons who are or were related by blood or marriage, parents of a minor child (regardless of whether they have ever married or lived together), sons and daughters caring for elderly parents and persons “who are or have been in a substantive dating or engagement relationship.” Recently the penalties for a conviction of Domestic Violence have become more severe. The courts and the prosecutors generally require that an individual undergo therapy or join an “anger management” program. Our Criminal Defense Lawyers in Boston, Massachusetts understand what type of programs can help a defendant obtain the best disposition of the criminal case.
Assault & Battery / Assault & Battery with a Dangerous Weapon / Violent crimes / Bullying
An assault is either an attempted battery or an unlawful offer of harm that places another person in reasonable fear or apprehension of an immediate battery. Battery is the harmful or offensive touching of another person, without justification or excuse. This type of conduct includes most acts of violence or attempted violence. The incidents become more serious if dangerous weapons are used or severe injury is caused. The penalties for this type of crime range from a prison sentence to a period of probation, depending upon several factors, including the criminal history of the defendant, the nature of the force or violence, the type of injury that resulted and the characteristics of the victim (child, elderly person, mentally disabled, sick or infirm…).
Kidnapping
Presently there are two forms of kidnapping: general or traditional kidnapping and parental kidnapping. General Kidnapping A person may be accused of kidnapping if he/she unlawfully and without consent, removes a person from a location, or if he/she unlawfully confines another person for a substantial period of time in a place of isolation. Parental Kidnapping Anyone who is a relative of a child less than eighteen years old, who without lawful authority, holds or intends to hold such a child permanently or for a protracted period of time, or takes or entices a child from his lawful custodian, can be accused of “parental kidnapping”.
Felonies / Aggravated felonies
Felony is a term for a category of crimes that are generally more serious or have punishments that have more severe sentences. For example, under federal law, a felony is a crime for which the potential prison sentence is one year or more. Under the state law of Massachusetts, a felony is a crime for which the sentence may be served in state prison and not in a county jail.
Alien smuggling
According to Section 273 of the Immigration & Nationality Act it is unlawful for any person to bring an alien who does not have a valid passport and an un-expired visa, to the United States from any foreign location. According to Section 274 of the Immigration & Nationality Act, it is unlawful for any person to bring to, or to attempt to bring to the United States in any manner whatsoever, an alien at a place other than a designated port of entry, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien.
Illegal re-entry after deportation
It is against the law for any person who has been ordered deported or removed from the United States by the Immigration & Naturalization Service to re-enter the United States without the expressed consent of the U.S. Attorney General for a prescribed period of time (generally five to twenty years)
Operating or Driving a motor vehicle under the influence of drugs or alcohol (OUI / DUI)
In general it is unlawful to operate a motor vehicle on a public road or way while under the influence of intoxicating liquor, marijuana, narcotic drugs, depressants, or stimulant substances. The penalties for these criminal charges include probation or a jail sentence depending upon the number of times that a person has been convicted previously, and whether there was serious damage to persons or property. The courts and prosecutor will routinely require completion of an alcohol or substance abuse education program as part of any sentence.
Attempted murder / Manslaughter / Homicide
In order for someone to be found guilty of first degree murder the government must prove that the person killed another person, with malice aforethought and that the killing was premeditated. Involuntary manslaughter is “an unlawful homicide, unintentionally caused in the commission of an unlawful act, malum in se, not amounting to a felony nor likely to endanger life or by an act which constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct”. This also includes when someone kills another person in a car accident as a result of speeding or driving under the influence of alcohol or drugs (vehicular homicide). Voluntary manslaughter is an unlawful homicide arising not from malice, but in sudden passion induced by reasonable provocation, sudden combat, or excessive force in self-defense. If you are facing criminal charges in Massachusetts, it’s critical that you contact an experienced Boston criminal lawyer early in the process to establish the best strategy in your case and to protect your rights. Call FitzGerald Law Company today at (617) 303-2600 (ext. 0)
Misdemeanors
Misdemeanor is term for a category of crimes that are generally less serious or have punishments that are less severe. For example, under the federal law, a misdemeanor is a crime for which the potential jail sentence is less than one year. Under the state law of Massachusetts, a misdemeanor is a crime for which the sentence may not be served in state prison but may be served in county jail or by the payment of a fine.
Crimes of moral turpitude
The courts have defined a Crime of Moral Turpitude as a crime involving conduct that is base, vile, or depraved, and contrary to the rules of morality accepted by society. (See Mejia v. Holder, 756 F.3d 64, 68 (1st Cir. 2014)) For an immigrant (any foreign national who is not a U.S. Citizen) being convicted of a “Crime Involving Moral Turpitude” (CIMT) will have serious consequences. There are several sections of the Immigration law that set severe penalties for non-citizens who have a conviction for this type of offense. For example, an individual with Legal Permanent Residency can be removed / deported from the U.S. if they are convicted of even a single CIMT within 5 years of the grant of their resident status. Similarly, a conviction for a crime of moral turpitude will render an individual ineligible for DACA, a non-immigrant visa, and numerous other immigration benefits. In addition to making an individual ineligible for an immigration status they want or causing the loss of an immigration status that they have (LPR, Student, etc.), a conviction for a CIMT can be used by an immigration officer to deny an application in their discretion. It is critical to understand your circumstances and to obtain assistance from a law firm experienced in both criminal and immigration law if you are an immigrant and have been accused or convicted of a crime involving moral turpitude.
Bail hearing
When someone is arrested or charged, one of the first procedures is for the court to determine if the individual should be detained (held in custody) while the criminal court adjudicates the case, or if he/she should be released on personal recognizance which allows the person to be released from custody without bail (money deposited with the court to ensure the person will return to court). The bail hearing is one of the most critical stages of a criminal case because in most instances, it is much more difficult to defend a case if the defendant is in jail. It is vital therefore to have strong representation from a qualified criminal defense lawyer at this point.
Restraining order
Chapter 209 of the Massachusetts General Laws allows an individual who has been “abused” or threatened by a “household” member, to obtain a “Restraining Order” from a Court against the “household” member (Defendant). If the Court grants the restraining order, then the defendant might be ordered to leave the house, not to have contact with the other person directly or indirectly, not to go within 150 yards of the person, to stay away from the person´s home, work, school, and the defendant may even lose custody of their children. In addition, if the Defendant violates the order, he/she can be arrested and charged with a crime. A Restraining Order can even have a negative impact on a person´s immigration status. It is important to be represented by a criminal attorney with experience with restraining order cases in order to prevent, reduce or eliminate these negative consequences. If the accused or defendant is an immigrant, it is recommended that they be represented by an attorney that is experienced with immigration law in addition to criminal law. A Defendant has certain rights in the court proceedings. For example, they have the right to review the written statement that was filed against them; they have the right to “cross examine” witnesses, compel testimony from witnesses and to testify on their behalf. It is critical to have the correct legal strategy when faced with a restraining order and the criminal lawyers at FitzGerald Law Company are very experienced with restraining orders and can help.
Fraud
There are numerous types of “fraud” identified in our criminal laws. In general, “fraud” is the misrepresentation of a fact when you are legally required to be truthful. For example, “welfare fraud” charges may be filed against an individual who applies for a “public benefit” like food stamps and incorrectly claims that he/she actually has no income when they have a salary from a job. The penalties for “fraud” are serious and could result in fines, incarceration as wells as the loss of important benefits or rights. Other types of fraud charges include insurance fraud, bank fraud, theft of intellectual property, healthcare fraud, consumer fraud, etc.
Probation violations
Probation is the lawfully imposed oversight of a criminal defendant by a Court for a period of time. Probation is used by criminal courts as both, punishment (a restriction of one´s liberty) as well as a tool for rehabilitation (i.e. to ensure a criminal defendant is employed or is not using drugs). In Massachusetts, probation may be imposed both, pretrial (before a case is over) and/or post conviction (after a judgement of guilt or admission to facts [continuance without a finding]). A violation of probation occurs when a criminal defendant fails to comply with one of the terms ordered by the court. A violation of probation may result in the defendant being detained until the trial is over (pretrial) or sentenced to a period of incarceration (post conviction). In Massachusetts, a criminal defendant has the right to contest the alleged probation violation during a hearing before the court. During the hearing, the defendant may present evidence, legal arguments and alternative resolutions.
Motor vehicle offenses
There are a large number of laws that regulate the operation of a motor vehicle and they include both, civil (non- criminal) and criminal laws. If you have ever been stopped by a police officer in a car or issued a citation, it is important to understand if the case is criminal or civil (non- criminal). Criminal offenses generally have greater penalties and more significant impacts, for example, incarceration, long term loss of driving privileges, or even immigration consequences for non- citizens of the U.S. Common criminal motor vehicle offenses are operating without a license, driving to endanger and operating under the influence of drugs or alcohol. If you are operating a vehicle and you do not have a valid license under the law of the state you are driving in, then you may be charged with a criminal offense. If you are operating a vehicle in a manner that endangers persons or properties, for example driving at an extremely high speed, then you may be charged with a criminal offense. Similarly, if you are operating a vehicle after using drugs or excessive alcohol (in Massachusetts the legal limit to drive is a “blood alcohol level below 0.08), then you may be charged with a criminal offense.
Clerk Magistrate Hearing
In Massachusetts, some criminal proceedings are initiated by the filing of an application for a criminal complaint with the office of the Clerk Magistrate in a District Court. An application may be filed by a police officer or by an individual who believes they were the victim of a crime. Once an application has been filed, the court will notify the person who allegedly committed the crime, that a Clerk Magistrate Hearing will be held to determine if there is sufficient evidence (probable cause) for a criminal charge. At a Clerk Magistrate Hearing, a Clerk Magistrate or an Assistant Magistrate, will hear testimony and review evidence. This is a critical stage in a criminal proceeding which may allow the accused to avoid criminal charges, and it is therefore, highly recommended to obtain the assistance of an experienced criminal lawyer.
Vacating a criminal conviction
Criminal convictions generally have serious negative consequences for a criminal defendant. Sometimes these consequences are not known or understood by the defendant when the judgement of conviction is entered into the court record. These consequences range from the loss of a license or the payment of a fine, to periods of incarceration or even deportation / removal from the United States. In Massachusetts, rule 30 of the rules of Criminal Procedure, governs motions by a criminal defendant to invalidate (vacate) a conviction. There are a number of basis through which criminal convictions can be vacated, including ones which are specifically immigration related. There are two common procedures for requesting the court to vacate (cancel) a conviction because of the defendant´s immigration status.
- The first is a claim that the alien warnings required by the Massachusetts General Laws, chapter 278 § 29D, were not issued by the judge at the time the defendant pled guilty or made an “admission of sufficient facts”
- The second is a claim under the law established by a Supreme Court case, Padilla v Kentucky, and a Massachusetts case, Commonwealth v Clarke. These cases have established the basis to vacate a conviction if the defendant was not provided any advise about the immigration consequences of the conviction by his defense attorney or if the advise provided was improper, and if the defendant had a defense to the charge that was not pursued.
For example, if an immigrant was charged with a crime of domestic violence and accepted a plea because their lawyer told them that all they had to do was complete probation by “not getting in trouble for 12 months”, so the immigrant did not go to trial even though there was a witness who may have helped their defense, then this person may be able to get that plea vacated (cancelled).
Federal crimes
Historically, most criminal laws were enacted by individual states, however the federal government has increased and expanded its criminal law enforcement role. Today the federal government prosecutes a wide variety of criminal cases, ranging from crimes of theft to the trafficking (distribution) of illegal drugs, to terrorism. While the criminal justice system in the Federal Court is similar in many ways to the State Court, there are numerous and important differences, such as rules for the disclosure of information and the procedures to determine a sentence through the use of “pre-sentencing report” and the “federal sentencing guidelines”.
