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Webcam.jpgAccording to a report in the Barnstable Hyannis Patch, Kevin McNicol of Hyannis, Massachusetts has been charged in the Massachusetts Federal Court for Sexual Exploitation of a Child. Authorities allege that McNicol had a minor engage in sexually explicit acts for the purpose of transmitting a video of that act. The crime occurred in April of 2004. McNicol’s home was searched on May of last year at which time his computer was seized. An analysis of the computer hard drive disclosed the presence of Child Pornography created through a web cam.

Massachusetts Child Pornography Defense Lawyer

The article does not disclose under which statute McNicol was charged. I would imagine however that 18 U.S.C. Section 2251 applies here. That statute makes it a crime for anyone to entice, persuade or coerce a minor to engage in explicit sexual conduct for the purpose of transmitting a live depiction of such conduct. The sentence for a conviction under this statute mandates fifteen years in federal custody and has a maximum sentence of thirty years in prison.

There is an unusual defense to this crime. Federal case law has held that if a defendant shows by clear and convincing evidence that he was not aware that the actor was under the age of eighteen he can avoid a conviction. Unlike Statutory Rape laws in Massachusetts, this statute permits someone to defend the case on the basis that he made a good faith mistake as to age. There is a caveat to this however. The First Circuit Court of Appeals has not addressed this issue and the supporting authority comes from the 8th, 9th and 11th Circuits.

The challenges to sentences under this law have not been very successful making it all the more important that anyone charged with this crime hire an experienced Massachusetts Federal Crimes Lawyer.

So how is the defendant going to fight these charges? For one thing, anytime there is a Search Warrant issued lawyers look to see if the warrant violated the Fourth and Fourteenth Amendment rights of the accused. Was there probable cause to issue the Search Warrant? Does the supporting affidavit provide sufficient evidence that the crime was committed and that the items searched would likely contain evidence of the commission of the crime? Sometimes in cases like this there is a live issue as to who actually orchestrated the criminal act. The mere presence of the illicit material does not necessarily mean that the person viewing it is responsible for the creation of the act. Nor for that matter is it always clear that child pornography on a one person’s computer means that he or she is responsible for downloading or viewing it. The age of the victim and his or her role in the act is important for reasons stated above. Differences in age between the defendant and victim can also have an effect on the sentence imposed in the case. It is important to remember that no matter how severe the accusation there is always a defense to criminal charges and the ability to mitigate any sentence that might be imposed.

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Carmen Beltre of Lawrence, Massachusetts disappeared in mid January following the release of information that she was one of about fifty people being charged in a Federal Identity Fraud Scheme. It is alleged that Beltre and others accessed and distributed false documents such as birth certificates and Social Security cards. Last summer Beltre was arrested on several Massachusetts Motor Vehicle Crimes including Operating with a Suspended License, Operating Uninsured and Attaching Plates. During the booking process Beltre was found in possession of various Social Security numbers, immigration papers and a “suspicious” list of names. Beltre claimed that she worked for the government and that the information found in her possession was job related. Authorities turned this information over to the Essex County District Attorney for investigation and charges were filed. Beltre was held at the Wilmington, Massachusetts Police Department awaiting arraignment in the Federal District Court for the District of Massachusetts.

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Massachusetts Federal Criminal Defense Law Firm

While the article is silent as to what crime Beltre is charged with I would imagine that she is accused of violating 18 U.S.C. 1028(a)(7) which states that it is a crime for anyone to knowingly transfer, possess or use someone else’s identification with the intent to commit an act that constitutes a violation of Federal or State law. The punishment for a conviction varies depending on the circumstances in which the fraud was committed. For instance, if the identity fraud implicated drug trafficking activities then the statute authorizes a twenty year prison sentence. If it involves terrorism then a thirty year sentence can be imposed. In Beltre’s case the accusation is unclear however if drugs are not involved I would imagine that the maximum sentence is fifteen years. The statute in this situation might permit a sentence of probation making it necessary that Beltre’s Massachusetts Federal Criminal Lawyer be experienced in these matters. Beltre’s sentence in large part will depend on the Federal Sentencing Guidelines. Factors that will come into play are her age, criminal record, involvement in the Identity Fraud Scheme, level of obstruction with the investigation, ultimate cooperation and extent of her acceptance of responsibility. Or, perhaps this is the type of case that will be tried before a jury.

One more thing came to mind when I first read this article. As is the case here, a tremendous number of Massachusetts Criminal Cases start with Motor Vehicle Stops. Beltre’s arrest for the Motor Vehicle Offenses permitted the officers to search her incident to her arrest. Under Massachusetts and Federal law they were also permitted to conduct a limited search of her car. Suppressing these searches would be extremely unlikely given the circumstances addressed in this article. I am always amazed at just how often people involved in major crimes commit minor motor vehicle infractions that precipitate Searches and Seizures. This stupidity at times makes the job of law enforcement officials ridiculously easy.

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According to a report in the Lawrence Eagle Tribuen, Carlos Domitriz of Lawrence, Massachusetts was stopped for driving through a stop sign near Lowell and Morton Streets. The officer making the stop was familiar with Domitriz, having arrested him on occasions in the past. This officer saw Domitriz prior to driving through the stop sign and decided to follow him. Once he saw the Motor Vehicle violation the office effectuated the stop. The report states that the officer was on routine patrol at the time.

Once the stop occurred the officer saw Domitriz “moving his hands from in between and under his seats to his mouth”. The officer believed this was an effort on Domitriz’ part to destroy drug evidence. In response, the officer opened the driver’s side door and tried to pull Domitriz out of the car. Supposedly the defendant offered resistance and even though the officer succeeded in subduing him Domitriz continued to resist. Two other officers approached. One of them used a Taser on the suspect. Domitriz was searched. On his possession officers found small bags of cocaine and heroin. A BB gun and cash were also seized as a result of the search. Domitriz was charged with Possession With Intent to Distribute Heroin and Possession With Intent to Distribute Cocaine as well as resisting arrest. The case is pending in the Lawrence District Court.

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Lawyers Who Defend Drug Dealer in Massachusetts

Tasers are weapons that use an electrical charge to disrupt voluntary muscle control. They are being used by law enforcement officers more frequently as a tool to subdue unruly suspects. These weapons have been used by the police for just over a decade and their popularity is increasing. Some say that these weapons save lives in that tasing is an alternative to firearms that were often used for the same purpose as Tasers. Tasers have however caused death or serious injuries. Some authorities have taken the position that these weapons have been abused by police officers. One sources claims that Tasers have killed at least five hundred people in this country. Over ninety percent of Taser casualties have involved people who are unarmed.

Here is what I see as a problem with the use of a Taser in this case. The arresting officer was able to get Domitriz from his car safely. The two responding officers could arguably have assisted this officer without the use of a weapon. As a matter of fact, there is no indication from this article that this type of force was at all necessary. Domitriz’s Massachusetts Criminal Defense Attorney will also be questioning the integrity of the stop in this case. Domitriz and the officer passed on another. The officer was on routine patrol, thus most likely in a marked cruiser. The officer turned around after seeing Domitriz. He followed Domitriz. Then, Domitriz ran a stop sign? Unlikely for someone who is carrying drugs and knows that he is being followed by the police will act in this manner. It makes no sense and casts doubt on the constitutionality of the stop. More and more Massachusetts Criminal Lawyers are going out to the locations of these “routine stops” these days trying to find security videotapes or surveillance cameras that focus on the areas near the alleged activity and finding that many officers “observations” are not as accurate as they have reported. Whether or not that is the case for Domitriz only time and good defense investigation work will tell.

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marijuana-seeds.jpgYesterday, the Massachusetts Supreme Judicial Court rendered its decision in Commonwealth v Keefner, SJC – 11019. The Court held that the Decriminalization of Marijuana in Massachusetts for quantities of one ounce or less does not extinguish the crime of Possession With Intent to Distribute Marijuana where the quantity is one ounce or less. The Court in Keefner found the following facts:

In May of 2010 police received a call from a woman who complained that Keefner and her daughter were smoking marijuana in front of her home. The officer who arrived knew the defendant and had arrested him for Possession of Marijuana and Possession With Intent to Distribute Cocaine in the past. The caller pointed the defendant out to the officer. The defendant was searched and found in his possession were three individually wrapped bags of pot, collectively weighing far less than one ounce. There was also less than one hundred dollars cash and a cell phone. The Court held that the quantity of marijuana in this case (less than one ounce) was not controlling as to the felony of Possession With Intent to Distribute and that in circumstances like these the district attorney can proceed with these charges, notwithstanding the fact that the defendant possessed less than one ounce of marijuana.

Since the Decriminalization of Marijuana in Massachusetts I have been telling my clients that distributing marijuana or possessing marijuana with the intent to distribute it would still be a crime regardless of weight. Shortly after the passage of Massachusetts General Laws Chapter 94C Section 32L the wording in many police began to change. Previously officers would write something to the effect that the defendant had marijuana on his possession or that he was smoking marijuana. The defendant would be arrested and charged with simple possession. After G.L. 94C Sec. 32L passed the reports would reveal that the defendant was observed passing a lit marijuana cigarette to another. This was law enforcement’s way of trying to hold the marijuana smoker criminally responsible for a crime. I was amazed at just how much their observations had evolved after the passage of this law. The bottom line is this: the decriminalization of less than one ounce of marijuana has not made its use legal. Don’t be fooled into thinking it is okay to carry around marijuana, smoke it with friends and share it with friends. There are still many circumstances in which even less than one ounce of this drug on your possession can subject you to criminal prosecution. If you get caught with marijuana you risk being charged with a criminal offense. If you get caught with drugs you need to call a Massachusetts Criminal Lawyer right away. Don’t talk. Just call a lawyer and get good competent legal advice. What might seem like benign or even legal activity to you might in fact be felonious.

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Last Thursday, Keith Millan was charged with five counts of Possession of Child Pornography in the West Roxbury District Court. According to a report on Boston.com, Millan was an employee at a local property management company. It is alleged that co-workers found Child Pornography on his laptop. Images were also found on some compact discs and an external hard drive. Millan is a resident of Needham, Massachusetts. The images were characterized as disturbing and violent. Bail was set in the amount of twenty five thousand dollars cash.

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Massachusetts Child Pornography Defense Lawyer

As a Massachusetts Criminal Lawyer I am seeing Child Pornography cases in being charged at an exponential rate. Online child pornography is one of the fastest growing internet based businesses worldwide. Just over three years ago there were over one thousand five hundred child abuse domains, more than one half of which were housed in this country. The demand for this material is growing at an alarming rate. One source estimated that back in 2005 the child pornography industry was grossing three billion dollars per year. There are studies that show that about forty percent of child pornography possessors had also had unlawful sexual contact with children. It is this fact that has prompted many Massachusetts prosecutors to advocate for more stringent penalties for people charge with Possession of Child Pornography even though Distribution of Child Pornography is considered the more serious offense in this state. These laws are getting tougher each time they are reviewed. There is a recent movement by federal prosecutors to have Congress increase the sentences for people convicted of child pornography possession cases. This is being watched closely by criminal lawyers in Massachusetts and throughout the country.

There are however problems inherent in most prosecutions for Possession of Child Pornography. Cases are charged when illicit images are found on someone’s personal computer, laptop, smart phone or other device. The first and most natural tendency is to accuse the owner of the property of possessing the material. This is not always fair. Most people, even today, are relaxed about these devices. People share cell phones and computers. They leave these items out in the open for hours or days at a time not worrying about who might be using them. People receive certain emails or texts that they immediately open or download without first checking to see if they know the sender. Spammers send links to illicit websites under the guise of a friend, employer, marketer and even at times a government agency. There is an inclination to open these messages, read them and to sometimes innocently download the content. The owner of the device can at times be oblivious to the presence of these materials. If caught up in this type of situation there is a great need to hire an experienced criminal defense lawyer, one who has defending child pornography case in Massachusetts with success.

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Two days ago Raymond McAllister of Woburn, Massachusetts was charged with several Massachusetts Sex Crimes. The crimes alleged include Enticement of a Child, Posing or Exhibiting a Child in a State of Nudity and Dissemination of Matter Harmful to a Child. It is alleged that had a Skype video connection with a thirteen year old boy from Arizona. The defendant asked the boy to engage in sexual acts that could be viewed while the two were Skyping. The victim told law enforcement officials in Arizona. The investigation led them to McAllister who was just arraigned on these cases. A headline to an article in the Lawrence Eagle Tribune identified this crime as Child Pornography related. Bail was set in the amount of ten thousand dollars with house arrest and an order that the defendant not use the internet.

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Massachusetts Child Enticement Defense Lawyer

Massachusetts General Laws Chapter 272 Section 28 makes it a crime for anyone to Disseminate Matter Harmful to Minors. The conduct must be done knowingly meaning that the defendant must know that the matter is harmful to minors and he must believe or know that the person is a minor. For the purpose of this statute the work “knowing” requires a general awareness of the character of the matter. Matter is deemed harmful to minors where it is obscene, contains sexual content or nudity, lacks artistic value and contravenes “prevailing standards of adults in the county where the offense was committed as to suitable material for such minors”. A conviction for this offense carries a potential five year state prison sentence, making it a felony. The Massachusetts District Courts do have jurisdiction over this crime. The statute sets out certain Affirmative Defenses to this crime as well.

Child Enticement in Massachusetts is a crime under Massachusetts General Laws Chapter 265 Section 26(c). The word “entice” maintains its usual meaning for the purpose of this law. Anyone entices when he lures, persuades, invites, coaxes, etc. The statute makes unlawful anyone who entices someone under the age of sixteen to “enter, exit or remain within” a particular place with intent that he is going to commit an enumerated Massachusetts Sex Crime. The penalty for a conviction under this law is also up to five years in state prison. This law also establishes jurisdiction within the district courts.

Massachusetts General Laws Chapter 272 Section 29A sets out the crime of Exhibiting a Child in a State of Nudity. As applicable to this case, the district attorney will have to prove that the defendant knew or should have known that the boy was under the age of eighteen and that he enticed him to pose in state of nudity, doing so with lascivious intent and for the purpose of representation or reproduction. This crime has a minimum mandatory ten year state prison sentence. The Massachusetts Superior Court has jurisdiction over this charge.

Sometimes cases like this one are defended by attacking the validity of the Search Warrant. If the Search Warrant Affidavit lacks sufficient probable cause the search could be deemed unconstitutional and the items seized during the search will be suppressed. This might ultimately affect the sustainability of the prosecution. However, in this case, since Skype was used there is a possibility that the victim can make an independent identification of the person who committed the act.

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Two days ago the Massachusetts Appeals Court handed down its decision in
Commonwealth v Renaud, 11-P-382. The facts in Renaud are as follows:

There was a breaking and entering in Falmouth, Massachusetts. No one was home. Television sets and a DVD player were stolen. The police arrived to investigate and found an electronic bank card bearing Renaud’s name on it. Renaud was not known by the victims. Renaud lived in Falmouth, a fact known to the police. The police called him the next day and told him that someone found his bankcard on the side of the road. He was further told that he could pick it up at the police station. Renaud responded that he did know that it was missing. He elected not to go to the police station. The case went to trial. Renaud was convicted based almost exclusively on the fact that his bankcard was found in the victim’s home. Reversing the conviction the Massachusetts Appeals Court stated that “ownership of [the bankcard] cannot allow a factfinder to conclude beyond a reasonable doubt that the owner of the card was in possession of it during the commission of a crime”. As to the bankcard itself, the court made the observation that “[i]dentification cards are common currency of everyday life. They are also portable objects that can be lost, stolen, or transplanted by others.” In the circumstances of this case the trial judge should have allowed the defendant’s Motion for a Required Finding of Not Guilty and entered a verdict of Not Guilty.

The standard in Massachusetts for sustaining a prosecution is whether the evidence introduced up to the time the Commonwealth rests its case, “viewed in the light most favorable to the Commonwealth, was sufficient for a reasonable jury to infer the existence of each essential element of the crime charged, beyond a reasonable doubt”. Thus, when reviewing claims for sufficiency of the evidence Massachusetts Appellate Courts pay no attention to any evidence that follows the Commonwealth’s case. For instance, if the defendant puts on evidence that evidence has no bearing on the challenge for insufficient evidence provided that the defendant has moved the Court for a Required Finding of Not Guilty after the district attorney rests his case.

In this case Renaud’s trial lawyer did a great job preserving this issue for appeal. The trial judge should have entered the required finding of not guilty after hearing the motion. The appellate attorney then did a fantastic job articulating the basis for the appeal to the Appeals Court. This case demonstrates the importance of hiring an Experienced Massachusetts Criminal Lawyer to represent you at both the trial and appellate levels. The defendant here should be pleased with his decision to hire two excellent lawyers.

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Bath-Salts-Lines-300x224.jpgAccording to an article in the Brockton Enterprise, Senator John Keenan from Quincy has authored legislation that would ban “bath salts” in Massachusetts. The Massachusetts Senate agreed upon the bill yesterday. If enacted, the law would make it illegal for stores to sell what is now an over-the-counter substance sold for purportedly lawful purposes. Bath salts contain methylenedixoypyrovalerone, a stimulant that has an effect on the central nervous system. At this time this substance is not illegal to sell or buy, at least in Massachusetts and it is available in convenience stores and smoke shops. It can also be ordered online. The federal government is in the process of making this product illegal nationally.

So what exactly does this drug do to you? According to Web MD bath salts cause “agitation, paranoia, hallucinations, chest pain and suicidalilty”. The drug is a stimulant, much like methamphetamine or cocaine. There is one significant difference. Bath salts produce the side effect of hallucinations. This drug is also associated with hypertension, increased heart rate, aggressive behavior and at times extreme violence. There is a split of authority as to whether this substance is addictive. Authorities have warned that abusing bath salts can result in permanent brain damage. It is universally agreed that taking this substance is dangerous, toxic and potentially lethal. There is no medicinal value associated with bath salts. This is a very dangerous drug. Using it is not only dangerous to the user but it can lead to the commission of crimes.

Right now in Massachusetts Criminal Lawyers are waiting for this law to pass and to determine the effects possessing and distributing bath salts will have on the accused. Will there be a minimum mandatory sentence associated with its use or sale? How will the state law compare to the inevitable federal law that will ultimately pass? How will Massachusetts bath salt laws be viewed relative to similar laws already having passed in other states? Perhaps most interesting is just how will use of this drug effect defenses in Massachusetts Criminal Cases? Right now there is a case being tried in Pennsylvania wherein a woman was charged with Theft Crimes she claims were the result of bath salt intoxication. The woman and her boyfriend are alleged to have stolen electronic equipment and jewelry at a home they broke into. The couple was charged with Receiving Stolen Property and Larceny. In Massachusetts a Criminal Lawyer might defend on the theory that the drug intoxication prevented the defendant from forming the requisite criminal intent needed to sustain a conviction. It is important that once this law passes anyone in Massachusetts who gets charged with a “bath salt” relate crime immediately contact a lawyer who is experience in defending drug cases of all types in Massachusetts. The law, as with any law, might be subject to a constitutional challenge, particularly where the substance is one that is not currently criminalized in this state.

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Lawyers Who Defend Drug Crime Activity in Massachusetts

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probationofficer.jpgLast week Herman Rodriguez of Methuen, Massachusetts was driving his car ninety-two miles per hour on Route 495. The posted speed limit is sixty-five miles per hour. A state police office pulled Rodriguez over and was taken to the local state police barracks. Rodriguez identified himself as Kelvin Caraballo-Ostolaza and had a New York driver’s license in that name. During the booking process a fingerprint scan alerted the police to Rodriguez’s true identity. The United States Marshall’s Office confirmed that Rodriguez was wanted on a Probation Violation. He was on probation for a Federal Drug Trafficking conviction. Rodriguez had been in default for six years. It was also determined that Rodriguez has an outstanding matter where he has been charged with Possession of Burglarious Tools and Malicious Destruction to Property over $250, a felony. Based on the Motor Vehicle incident last week charges of False Name to a Police Officer have been filed in the Newburyport District Court.

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Massachusetts Probation Violation Defense Lawyer

Massachusetts Federal Drug Trafficking Defense Lawyer

We frequently represent people accused of violating their probation. When this happens, the defendant is served with a surrender notice. He must appear in court and a Surrender Hearing is scheduled. These hearings are much less formal than trials however the consequences associated with Probation Violations can be significant. The accused is looking at an extension of probation and in some cases a jail or prison sentence up the maximum permitted by the statute for the offense for which the defendant is on probation. This makes it imperative that the defendant facing a Probation Violation Hearing in Massachusetts hire an experienced Massachusetts Criminal Lawyer. In Massachusetts the law states that probation may be revoked after a Surrender Hearing if the prosecution establishes to a reasonable degree of certainty that the defendant has violated one or more of the terms of his or her probation. The violation must occur during the probationary period and not after. So, for instance, if someone is charged with violating probation and the hearing occurs after the probation was to terminate, then only the court can consider only the acts of the defendant prior to that termination date. Keep in mind that not every probation violation requires probation revocation. Sometimes the violations alleged or minor or unintentional. These can often be addressed without a formal hearing. At Probation Surrender Hearings judge determine first, whether the conditions of probation have been violated and second, whether in fact probation should be revoked. The first determination is fact based. The second is discretionary. Way too many judges in Massachusetts are inclined to revoke probation after a violation is found making it extremely important that you hire a lawyer who is prepared to fight for you and has a good understanding of the history of your case. A strong presentation against probation revocation can be the difference between you remaining free or being committed to serve your sentence in jail.

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Indecent Exposure.jpgThis past weekend Lowell, Massachusetts police were running a “downtown disorder detail”. Between the hours of midnight and 2:00 a.m. they arrested five local men, four of whom are accused of urinating in public. The fifth is alleged to have been walking on a downtown street with his genitals exposed. Here is what has been reported. The first man was seen urinating in a doorway on Merrimack Street just before 1:00 a.m. The second man was caught peeing near Merrimack and John Streets. This was at about 1:20 a.m. The third man was seen urinating on the door of a local shrine less than one half hour later. The last man, a Dracut resident was found relieving himself in a downtown parking lot. All five men have been charged with Indecent Exposure. The cases are being prosecuted in the Lowell District Court.

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Lawyer Who Defend Sex Offenses and Crimes in Massachusetts

Indecent Exposure in Massachusetts is a misdemeanor. The law provides a maximum sentence of six months in the jail or a two hundred dollar fine. The statute, Massachusetts General Laws Chapter 272 Section 53 states verbatim that “[c]ommon night walkers, common street walkers, both male and female, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, keepers of noisy and disorderly houses, and persons guilty of indecent exposure shall be punished by imprisonment in a jail or house of correction for not more than 6 months, or by a fine of not more than $200, or by both such fine and imprisonment.”. Massachusetts case law has held that to be convicted of Indecent Exposure the prosecution must prove beyond a reasonable doubt that the defendant committed an intentional act of lewd exposure and that the act was offensive to one or more persons. An essential element of Indecent Exposure in Massachusetts is the exposure of genitalia. Exposure of pubic hair ironically does not satisfy the statute. Exposure of one’s buttocks does fit within the definition of Indecent Exposure in Massachusetts.

Usually cases like this one get resolved by way of dismissal with court costs. In some cases pre-trial probation will be ordered. That means that the accused will be on some sort of probation, usually something informal that included community service or fees. Once the probationary term ends the case will be dismissed in its entirety provided that the defendant has complied with the conditions of probation. If he or she fails to honor the imposed obligations then the district attorney has the right to prosecute the case. If the defendants in this case do not have criminal records I imagine that one of these two forms of disposition will result. This is a situation where it is important that your Massachusetts Criminal Lawyer have the experience necessary to get you the best result possible.

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