251 Harvard Street Suite 4
Brookline, MA 02446
Tel: 617-733-7207
Fax: 617-716-4440

Criminal Defense FAQ

1. Can the police officer stop me if I just stand there or walk down the street?

They are not supposed to but they always do. If they already stopped you there is not too much you can do about it - be polite, cooperate but don't hand over any evidence against you and do not make any incriminating statements. I will raise the issue of an illegal stop before the judge and try to suppress the evidence officer obtained pursuant to the stop. Absent a good reason to stop, whatever happens later is most likely a violation of your constitutional rights. Oftentimes though the court is sympathetic with police. In Massachusetts recently the court justified a stop of a person who was limping and holding his hand along the right side of his body - the officer realized that the person was awkwardly concealing a gun, and stopped him.

2. Can the police officer search me even if he does not have a right to do that?

Yes, and I assure you, he will.

What if he finds something I don't want him to find?

In that case I will file a motion to suppress asking the judge to disregard whatever the officer took from you - and, if the policeman abused his discretion, the judge will do just that. It will be like the search never occurred.

3. Can the officer make me take any kind of tests if he stops my car? Do I have to agree to the tests, and what happens if I fail?

The answer depends on what he wants you to do.

For a field sobriety test the answer is: yes he can, but you do not have to.

If you refuse, your refusal will not be held against you in any way.

If you fail the test though the failure will be entered into the police report - and they will have more incriminating evidence against you. The officer will not immediately take your license for failing the test.

My advice therefore is: take it if you are sure you will do fine, but do not if you are not confident.

For a breathalyzer test the answer is more complicated: if you refuse to take the test the RMV will revoke your license for 6 months. Moreover, such refusal will prevent you form getting a hardship license. If you agree to take the test and fail it - which means that it shows more than .08% of alcohol in your blood - your license will be suspended for 3 months, but they will have more evidence against you. With respect to this latter test, it is a pure judgment call.

My advice is: refuse if you are drunk enough that you know you'll fail it, but definitely take a test it if you have nothing to fear.

4. I took the field sobriety and/or breathalyzer test and failed it. What happens now?

Well, it certainly makes your case harder to defend, however, it is not impossible. Your attorney will most likely try to prove other cause for failure of the test (which is not perfect anyway) - for instance blame it on your diet or medicine that you were taking. Also, your attorney can try to arrange for a hardship license for you (a license that may be issued if you cannot reach your place of employment by any other means than driving, and that includes a special device installed in your car, whereupon you have to basically blow into it proving there is no alcohol in your breath - or the vehicle would not start.)

5. What is the whole arrest is a mistake? For instance, I quarreled with my friend, s/he got mad at me and called the police on me - but s/he did not want me to go to jail, and s/he is sorry now. Do I still have to go with the police?

Unfortunately, yes. Whatever was the cause of the arrest, once you are arrested it is up to the judge to decide your future fate. That happens in course of the arraignment hearing.

6. What if the prosecutor decides not to bring any charges against me?

They will let you go instantly. It is called nolle prosequi - no prosecution. It will not affect your criminal record, but the arrest will show in the police internal records.

7. Do I get an attorney at the arraignment hearing?

The state in most cases will attempt to provide you with an attorney: one of your own choice, or a public defender. If the arrestee does not have a lawyer present with him at the time of the hearing, the state provides him with the services of one of the public defenders. If the arrestee is considered indigent, a public defense counsel will be appointed by the state to protect him for free. However, if you know which attorney you want to represent you and he is not there at the time of the hearing, the judge may appoint a public defender for you or hold you in the lockup until your attorney shows up.

Can I represent myself?

Technically anyone can represent himself at the bail hearing, and you will be required to sign a waiver form. It is important to have an attorney only because an attorney can probably negotiate a better deal for his client, than a lay person would for himself. If the defendant is charged with a serious crime, attorney's presence at the arraignment hearing could mean the difference between incarceration and release.

8. What are motions? What are they for?

Motions (or pleadings) are documents, requesting the court to issue some kind of a disposition in the case. They are drafted by the prosecutor and by the defense attorney in order to better resolve the case and preserve the rights of the client.

The bulk of motions in a criminal case is brought before the pre-trial hearing - their purpose is various. For example, motions are used to suppress illegally obtained evidence, to request that the court dismisses the case, to challenge the existing evidence in the case, or to request additional discovery.

Motions that are brought at the eve of the trial deal primarily with attempts to prevent certain evidence from being admitted at the trial. Some motions can be brought in course of the trial - most of those are oral, and require the judge's immediate reaction.

A timely motion can and will determine the outcome of the case even before the trial starts.

9. Why would anyone plea guilty and make the prosecutor's life easier?

Maybe you don't. Talk to your attorney who can tell you if you are offered a good deal. One thing you have to realize upon signing a plea bargain agreement that it has the same effect as a jury finding you guilty in a trial. It goes on your record. The only difference is in the sentence. That means, if the jury finds you guilty, you may receive 2 years in prison for the same offense that would have resulted in 6 months probation, have you taken the plea. Whether to take the plea or to go for a trial is always a tough choice.

10. What are the possible immigration consequences of a conviction?

One thing you have to realize upon signing a plea bargain agreement that it has the same effect as a jury finding you guilty in a trial. Hence it goes on your record. If the crime you allegedly committed is one of moral turpitude, and you plead guilty to it, the guilty record might interfere with your citizenship application afterwards, or with your receiving a green card, or, if it is a deportable offense, you might be even sent out of the country. You have to weigh your options very carefully.