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Archive for the ‘Ask the Lawyer’ Category

mike asks: If someone had sold a counterfeit controlled substance to me knowingly, for the purpose to rip me off, and I reported it to the authorities are there any possible charges or penalties that I may face by doing so?

Wednesday, November 19th, 2014

You indicated via email that this is a purely hypothetical situation that hasn’t happened to you, so here is a purely hypothetical answer. Yes. The ripped off buyer in such a scenario could be charged with attempting to possess a controlled substance, even if the “controlled substance” turns out to be a perfectly legal counterfeit substance.

Here’s how that works. It is illegal to attempt to commit a crime. The law views an action as an “attempt” if the person both intends to commit the crime and performs an act that is so closely connected to making the intended crime happen that the crime is reasonably likely to happen, barring outside interference. Under this definition, it doesn’t matter if the crime actually happens. A common example is the would-be thief who puts his hand in the till and then learns the till is empty. He could be charged with attempted larceny, even though he didn’t take any money. He intended to steal and he performed an act that was reasonably likely to result in him stealing, if not for the unforeseen fact of the empty till.

So somebody who intends to buy a controlled substance (say a few ounces of marijuana), and then learns that he actually bought oregano, could be charged with attempt to possess marijuana. The buyer intended to possess marijuana and then committed an act that was reasonably likely to result in him possessing marijuana, if not for the unforeseen fact of the seller’s duplicity.


Eileen asks: Can a constable enter your home in broad daylight when there is no suspected crime in progress? What if the door is ajar? Can he enter the house?

Saturday, December 21st, 2013

Only if the house is “a billiard, pool or sippio room, bowling alley, skating rink, the licensed premises of a common victualler or room connected therewith, or a grove required to be licensed under section one hundred and eighty-eight, or any building therein.”  Under MGL chapter 140, section 201, a constable may enter any of these places “at any time . . . for the purpose of enforcing the law.”

Somebody else asks: This isn’t really a legal question, but why is Massachusetts a commonwealth and not a state?

Thursday, October 13th, 2011

Massachusetts is a state.   In fact, from 1776 to 1780, Massachusetts was officially designated the “State of Massachusetts Bay.”   So why did Massachusetts start calling itself a commonwealth?

The short answer is that the second draft of the Massachusetts Constitution, which was adopted in 1780, states “that the people . . . form themselves into a free, sovereign, and independent body politic, or state by the name of The Commonwealth of Massachusetts.”  At that point, Massachusetts legally became a commonwealth.

The longer answer is more interesting.  The word “commonwealth” started life in 15th century England, when the word “wealth” included the meaning “weal” or “well-being.”  To speak of  “the commonwealth” in those days was to invoke the abstract idea of a common or general good.  By the late 18th century, however, the word “commonwealth” had become somewhat radical and cool, because it was associated with the idea of political power being rooted in the people rather than the king.   A “commonwealth” was a state in which the common good was associated with common power.   A “commonwealth” was understood by educated people as a republic, or as any political entity in which sovereignty belonged to the people.

Massachusetts adopted the designation of commonwealth in 1780 to underscore that it was now a self-governing republic with no allegiance to the king.

Somebody asks: Is it true that you can’t be forced to testify against your spouse? What if you have a common law marriage?

Friday, July 8th, 2011

As a general rule, you cannot be forced to testify against your spouse in a criminal proceeding. This is known as spousal privilege. You may, however, choose to testify against your spouse.

Spousal privilege has limits.  It does not exist in matters involving nonsupport, desertion, neglect of parental duty, or child abuse.  Spousal privilege does not apply to civil matters.

Spousal privilege is sometimes confused with spousal disqualification, which is recognized in both criminal and civil proceedings. Spousal disqualification prevents one spouse from testifying about private conversations with the other spouse that occurred during their marriage.  Spousal disqualification also has limits.  It does not apply to matters involving:

a) a contract dispute between spouses;
b) the establishment of paternity or the modification or enforcement of a support order;
c) nonsupport, desertion, or neglect of parental duty;
d) allegations of child abuse;
e) a spouse who is charged with a crime against the other spouse;
f)  restraining order violations;
g) a deceased spouse’s declaration;
h) criminal proceedings in which the private conversation reveals a bias or motive on the
part of the spouse who is testifying against the other spouse

As to common law marriage.

Many couples believe that they are “common law married” simply because they have cohabited for a period of time.  However, you cannot enter into a common law marriage in Massachusetts. Because Massachusetts does not recognize such arrangements as marriages, marital privilege does not apply.  One member of the couple can be compelled to testify against the other.

Massachusetts does recognize common law marriages that were legally created and recognized in a state that permits such marriages. Those states are Alabama (prior to January 1, 2017), Colorado, Iowa, Kansas, Montana, New Hampshire (only after the death of one spouse), Rhode Island, South Carolina, Texas, and Utah.

Therefore, if a couple has a legally valid, recognized, common law marriage in Alabama, and then moves to Massachusetts, Massachusetts will recognize that couple as legally married. In such cases marital privilege and marital disqualification would apply.


Cali asks: What is the difference between jail and prison?

Tuesday, May 10th, 2011

Massachusetts jails are for individuals who are held awaiting trial or who are serving sentences of two and one-half years or less.  Prisons are for people serving sentences that are longer than two and one-half years.  District courts may only sentence convicted individuals to jail.

Historically, counties ran the jails and the Commonwealth ran the prisons.  This is no longer always so, because several Massachusetts county governments no longer exist.  The Commonwealth now performs their functions, including jail keeping.  However, each county still elects its own sheriff to be its jail’s chief officer.

Nyla asks: Why do judges wear black robes?

Wednesday, March 30th, 2011

Tradition, but that hardly answers your question.  If you search around the Internet, you’ll find several websites claiming that the black robe tradition started in 1694 with the death of Britain’s Queen Mary II.  The story is that Britain’s judges donned black robes in mourning for the queen, the attire propagated through the British colonies, and that is why judicial black robes remain in most former colonies of Britain.  There may be something to this story, but it appears a little too neat to me.

There are images predating 1694 of legal officials wearing simple black:

Henry Rolle
Henry Rolle, Chief Justice of the
King’s Bench (1668 engraving
by A. Hertochs)
There are also late 18th century portraits of US judges wearing red and black:
John Jay Gilbert
Gilbert Stuart’s portrait of John Jay,
first Chief Justice of the United
States Supreme Court, 1794

Clearly black robes were “in the mix” so to speak before Queen Mary II died.  It is possible, however, that the official mourning period coupled with Britain’s rapidly increasing colonization gave impetus to what was already an existing theme.

After the American Revolution, Thomas Jefferson and others favored eliminating judicial robes, because their association with the British aristocracy offended egalitarian sensibilities. Jefferson thought judges should wear suits like other citizens, which is funny when you realize that robes probably evolved from tunics, which were originally the dress of common people if you go back far enough.   John Adams wanted to keep the distinction of special judicial attire, including the striking red robes and white wigs favored in the British courts.  Adams was a lawyer, by the way.  British judges were wearing red in the late 18th century, nearly a century after the death of Queen Mary II, which also calls into question the degree to which the black robe tradition started with her death.  The founders’ compromise was to forgo the white wigs and keep the robes, although it isn’t clear that black was necessarily the preferred color at this time (see John Jay portrait).  Further decisions regarding judicial dress were reserved to the states.   By the 19th century nearly all US judges wore simple black robes, as they still do today.  Some people consider black to represent neutrality.

Kringer asks: I thought it was illegal to have an open container of alcohol in a car unless it’s sealed in a bag by a restaurant. Then I heard that’s illegal, too, although I always see restaurants doing it. What’s the law say?

Tuesday, March 1st, 2011

You mean, when is an open container not an open container?

When it is a bottle of wine that is:

a) purchased, along with a meal, by a restaurant or hotel patron
b) partially consumed by that same patron
c) resealed by the restaurant or hotel, and
d) transported outside of the passenger area of a car

Under Massachusetts law, it is illegal to have any kind of open or unsealed bottle, can, or other receptacle containing an alcoholic beverage in the passenger area of a car.  This prohibition includes partially-consumed bottles of wine resealed by restaurants, which is why you might have heard they are illegal.  However, under the open container statute, which you can read at M.G.L. ch. 90 § 24I, a car’s passenger area does not include the trunk or a locked glove compartment.  So you may legally transport in your trunk a partially-consumed bottle of wine that was resealed by the restaurant you purchased it from to complement your dinner.  Transporting that same resealed wine bottle in your car’s passenger area carries a $100 – $500 fine, just like any other open container containing an alcoholic beverage.

Frosty asks: Is it legal to have tinted car windows in Massachusetts?

Sunday, February 20th, 2011

To a point.  The statute governing tinted car windows is at M.G.L. ch. 90 § 9D.

Under the statute, you may not tint any of your car windows if the tinting results in your windows being nontransparent or obscured from either the inside or the outside of your car.  A conviction carries a $250 fine. A third or subsequent conviction carries a 90 day license suspension.

However, the statute provides several exceptions.  You may use tinting on the side windows if the tinting does not reflect more than 35% of visible light or if it transmits at least 35% of visible light.  The same percentages apply to the rear window, but only if your car is equipped with an outside mirror on each side that clearly shows your rear view.  It is also acceptable to use any transparent material along the upper 6 inches of the windshield, if the strip does not impede the driver’s forward viewing area.

Vehicles registered outside Massachusetts are exempt.  Vehicles that are registered and hired as public livery vehicles (but not taxicabs) may tint the side windows immediately to the rear of the operator and front passenger seat as well as the rear window.  It is also possible for individuals who are light or photo sensitive to get a medical exemption.

Bill asks: Didn’t Maine used to be part of Massachusetts? Does that mean there was a point in history when Maine law and Massachusetts law was identical? Are they still close?

Wednesday, February 9th, 2011

Taking these questions in order: 1) Yes.  2) Yes, but that point in history is long past. 3) I have no idea.

The District of Maine was part of Massachusetts until 1820, when Maine became the 23d state as part of the Missouri Compromise.  The new free northern state of Maine and the new slave state of Missouri (the 24th state) were approved by Congress to keep the US Senate balanced between pro and anti-slavery interests.  The people of Maine had wanted to separate from Massachusetts since the American Revolution.  Just as Bostonians had resented rule from London, Mainers resented rule from Boston.   Resentment peaked during the War of 1812, because Massachusetts failed to protect the Maine coast from British raids.  Also, Mainers felt they were not getting fair representation in the Massachusetts legislature and that Massachusetts was imposing unfair, heavy-handed taxation on them.  Sound familiar?

The upshot was that the people of the District of Maine wrote their own constitution and affected a bloodless revolution against Massachusetts by getting their statehood approved.  Maine continued to rely on Massachusetts common law, that is, the rulings of Massachusetts judges on individual cases.  So in a sense, Maine law originally evolved from Massachusetts legal decisions (which in turn had their roots in English common law).

As to whether the laws are still “close” after nearly two centuries of separate jurisprudence, I have no idea.  I don’t practice in Maine.  If you have questions about Maine law, ask a Maine attorney.

Ryan asks: Is marijuana legal in Massachusetts?

Wednesday, February 9th, 2011

Update:  My previous response was posted on February 9, 2011 (see below).  My new response is:

Yes, it is.  As of Thursday, December 15, 2016, persons who are 21 or older may legally possess up to one ounce of marijuana outside their homes, and up to 10 ounces of marijuana inside their homes.  They may also legally cultivate up to 6 marijuana plants within their homes for personal use.

There are restrictions.

You may not use marijuana in a public place.  The civil penalty is a maximum $100 fine.

If you have more than one ounce of marijuana in your home you must secure it with a lock.  Failure to do so is a civil violation.  The penalty is forfeiture of the marijuana and a maximum $100 fine.

If you have an open, partially consumed package of marijuana in your car, you must lock it in your trunk or glovebox or you can be charged with open container.

Selling marijuana is illegal without a retail license.  If you sell even one joint to a willing buyer, absent a retail license, you can get charged with distribution.  A first conviction for distributing marijuana carries a jail sentence of up to 2 years and a $500 – $5000 fine.   Subsequent convictions carry a mandatory minimum jail sentence of one year with a maximum of 2 ½ years, and a $1000 – $10,000 fine.

You cannot legally cultivate marijuana plants in your home if they are visible from a public place, or outside of an area that is locked or protected by a security device.  The civil penalty is a maximum $300 fine and forfeiture of the marijuana.

There is a 12 plant limit per residence.  If you and your roommate are each growing 6 plants at home for your respective uses, that’s fine.  If a third roommate then grows one more plant on the premises, all of you could be charged with possession with intent to distribute a class D substance (marijuana).

If you grow more than 6 but not more than 12 marijuana plants for yourself at home, or possess more than 1 ounce but less than 2 ounces of marijuana outside of your home, you will be subject to a civil penalty of a maximum $100 fine and forfeiture of the marijuana.

The penalty for individuals between 18 and 21 who possess less than one ounce of marijuana is a maximum civil fine of $100 and forfeiture of the marijuana. The penalty for individuals under 18 is the same except that they are also required to complete a drug awareness program.

Anyone who is found with more than 2 ounces of marijuana outside his or her home will be subjected to the existing criminal penalties, which include up to 6 months in jail and a $500 fine.

My previous response (posted on February 9, 2011):

No, it isn’t.  But as of January 2, 2009, possession of one ounce or less of marijuana became a civil rather than a criminal offense.  The penalty is a $100 fine (which is comparable to the fine for some motor vehicle violations) and forfeiture of the marijuana.  The penalty for individuals under 18 is the same except that they are also required to complete a drug awareness program.

Possession of more than an ounce of marijuana is still a criminal offense, and can be punished by up to 6 months in jail and a $500 fine.   It is also still a criminal offense to distribute marijuana in any amount.  A first conviction for distributing marijuana carries a jail sentence of up to 2 years and a $500 – $5000 fine.   Subsequent convictions carry a mandatory minimum jail sentence of one year with a maximum of 2 ½ years, and a $1000 – $10,000 fine.