Frequently Asked Questions, FAQs

• Should I talk to the police?
• Should I consent to a search by the police?
• Should I take the Breathalyzer?
• What unexpected problems can my criminal conviction cause?
• What is a CORI?
• I have serious drug charges. Can I avoid jail?

You should not rely on this website as legal advice. It is intended to educate you about the complexity of legal issues. Aspects of your case may make it different. If you have a specific legal issue you should consult with an attorney. Additionally laws and their interpretations change.

Should I talk to the police? Should I consent to a search by the police?

The Fifth Amendment protects you from incriminating yourself by your own words. In most cases if you talk to the police or others, you waive your Fifth Amendment right to remain silent and not incriminate yourself. Unless there is a valid legal reason to suppress those statements, the prosecutor will have the ability to use your statements against you at trial.

The Fourth Amendment protects you from unreasonable searches. The police may ask to search you, your car, or your home. Without a search warrant, you do not have to and should not let them. This is your constitutional right. If you agree to be searched, it is a consented-to search. Anything the police find in a consented-to search probably can be used against you as well.

Miranda Warnings advise you of your right to remain silent, not incriminate yourself, and your right to an attorney. The police must give you a Miranda Warning when you are arrested, in custody, or when probable cause exists to arrest you.

If you are not under arrest or in custody, the police do not have to warn you about incriminating yourself and your right to counsel. The police only have to read you your Miranda Warning after you are arrested or if they have probable cause. Statements you make before you are arrested and before you are read your Miranda Warning can be used against you in a trial. While you still have the right to remain silent and not incriminate yourself, the police do not have to tell you this. The police may lead you to believe that talking to them and allowing them to search you, your home, or your car is in your best interest. However, talking to the police and consenting to a search is almost never in your best interest, when you may be charged with a crime.

The statements you make to anyone else, like witnesses and neighbors, can be used against you in a trial. It is important to consult with your lawyer before you make any statements to anyone about a crime or even an accident.

There are very few cases in which a person will benefit from talking to the police, whether they are a person police are interested in questioning, contemplating charging with a crime, or merely a person of interest. It is always a good idea to consult with a lawyer before talking to police or consenting to any search.

Talking to the police or consenting to any search is almost never in your best interest, even if you are innocent. If you talk to the police about a crime or consent to a search, whether you were guilty or innocent, you may need to try to keep the statements and evidence out of your trial. You may have helped the Commonwealth to prosecute and convict you.

Be polite. Do Not be rude. Do Not be surly. Do Not be sarcastic. Just tell the police firmly that you do not want to talk to them right now, you do not want them to look in your possessions/car/home, you want to speak to a lawyer, and if anything changes you will let them know.

You should not rely on this as legal advice. There may be unique aspects of your case that would make its treatment in court different. The laws and how they are interpreted change all the time.

Return to top of page.

Should I take the Breathalyzer test when the police ask me to?

Massachusetts has adopted a per se law, where you can be convicted if the test records a .08 or higher breath alcohol level. If you take the test and .08 or higher is recorded, winning a trial is likely to be difficult. The test could potentially be excluded or suppressed in certain circumstance such as if the test was not administered correctly or if there was no legally valid basis to pull you over.

If are over 21 and refuse the breath test at the police station and have never been convicted or placed in a driver alcohol rehabilitation program previously, the loss of license is for 180 days, just for refusing the test. If you have been convicted or assigned to a program once previously, the loss of license is for 3 years. If you have been convicted or assigned to a treatment program twice previously, you could lose your license for 5 years. Your driver's license can even be revoked permanently, just for refusing to submit to the breath test. The penalties for refusal for those under 18 and 21 are more severe.

Obviously, each individual and their case are unique. You should not rely on this to decide if you should submit to the Breathalyzer, when asked to by police. By having severe consequences of lengthy loss of license for not taking the Breathalyzer when asked, Melanie's Law is designed to get people to submit to testing. There are many ways to suppress or invalidate these test results at trial through a motion to suppress or exclude the test results. Some police departments may ask you to submit to a PBT or Portable Breath Test at the scene. These tests are prone to error.

If you think you would not pass because of your consumption of alcohol and you have never been convicted or assigned to a program before, follow your instincts. If you refuse, you can still be convicted. But the Commonwealth will not have the evidence of your breath test to use against you at trial. If you need your license and can deal with and afford the costs associated with an admission, you can get your license back and be driving again more quickly through a plea, for a first offense.

You also can post bail immediately after booking then go to a local hospital to ask for a blood level to be drawn in order to refute the breath test results. You should do this as quickly as practical, in order to get a reading that can be accurately interpolated to the blood alcohol level at the time when you were driving. There are some drawbacks to this. For example, it too could show you were over the limit. It can be difficult to get the blood test ordered promptly when you present at a medical facility. It is your right to have a blood test.

In addition you have the right to call someone to post your bail. Failure to allow you to post bail can be used to get a case dismissed because you were denied the ability to obtain your own evidence of your innocence. The blood test would be at your own expense.

You should not rely on this as legal advice. There may be unique aspects of your case that would make its treatment in court different. The laws and how they are interpreted change all the time.

Return to top of page.

What unexpected problems can my criminal conviction cause?

Consequences for criminal convictions are not always clear from reading the statute alone. In Massachusetts, you loose your driver's license if you have a drug conviction. For simple possession, the loss of license is usually one year. For possession with intent to distribute drugs, your license will be suspended far longer. You may be eligible for a work license, but maybe not until half the period of suspension has passed. You need to know these collateral consequences before you submit a plea. After accepting a plea, it is too late.

Even a civil restraining order issued against an individual will have collateral consequences. You may not be able to work with children or the elderly, even as a volunteer. Even though the standard for obtaining restraining orders is much lower than for criminal convictions, restraining orders can have dire consequences. It is advisable to seek representation and oppose the issuance of the order at a hearing.

If a restraining order is issued against you and you have an FID (gun permit), you usually have to surrender any firearms while the restraining order is in effect. For criminal charges, this is not so clear. A judge may order you to surrender your FID and right to firearms at your arraignment. You also can lose your right to own guns as a result of an admission or conviction for a crime, even relatively minor conduct, like reckless operation of a motor vehicle or disorderly conduct. Again this will not be stated in the statute you are charged with violating.

Immigration is not a practice area that Attorney Megowen lists, but he has represented many clients who are not citizens of the US. Not being a US citizen must always be considered when you are charged with a crime. Even a CWOF (Continuance without a Finding) can cause a non-citizen to face immigration consequences of deportation, denial of naturalization, or denial of entry into the United States.

Sex Offender registration is outside of Attorney Megowen's areas of practice, but he has represented people facing sex offense charges. Even relatively minor ones like open and gross lewdness and indecent exposure could potentially trigger Sex Offender registration requirements. Charges like indecent assault and battery can sometimes be resolved in ways so you do not have to register as a sex offender. Even conduct as innocent as “answering a call of nature”, a “wardrobe malfunction”, or a playful slap on the buttocks given to a non-consenting recipient could present the very real prospect of having to register with the Sex Offender Registration Board. Registering as a sex offender is to be avoided at all costs. It brings its own set of collateral effects on jobs, housing, and even where you can walk or drive.

You should not rely on this as legal advice. There may be unique aspects of your case that would make its treatment in court different. The laws and how they are interpreted change all the time.

Return to top of page.

What is a CORI? Why is it important?

CORI (Criminal Offense Record Information) is provided to your attorney before an arraignment. A CORI includes criminal convictions and open charges. Arguments for the imposition of cash bail by the prosecutor are often based on information contained in your CORI.

You have a right to see your CORI. Your attorney should provide you with a copy, so you can see if it contains inaccurate information about prior charges and defaults.

Your attorney should also be provided with the CORI for any civilian (non-police) witnesses in your case as well, but should not share the details of those individual's CORI with you. A witness' CORI may lead to information that can be used to lessen (impeach) their credibility.

Potential employers and other organizations can obtain your CORI with your consent, but are only entitled to information about crimes you have been convicted of and open charges. You may even be denied the ability to volunteer at schools or attend field trips with your child as a result of your CORI. As a result of recent reforms, older convictions are not generally provided to employers and cannot be used to deny most employment. Older convictions include misdemeanors for which 5 years has passed and felony convictions for which more than 10 years has passed since the termination date for the case and any sentence or probation imposed. This time period is generally from the end of any confinement, probation, or parole period.

Potential employers should not be able get information about crimes for which you were not convicted. This includes admissions for which you were not convicted like CWOF's (continued without a finding) and pretrial probation. Most employers cannot obtain information regarding juvenile matters.

Generally employers only get information about convictions and open charges. However, there are exceptions. If you work for a government agency, with the disabled, children, or the elderly your employer may be able to get a more information about you. These types of employers may see any arraignments you have had, even those where you were found not guilty. They may also see juvenile offenses as well.

CARI (Court Activity Record Information) is provided to defendants, district attorneys, and sometimes crime victims. A CARI includes convictions, open charges, and any time you were arraigned in court even if you were found not guilty. It contains both convictions and other dispositions. This includes charges you were found not guilty for, a record of any defaults where you failed to attend scheduled court dates and your juvenile record including any non-delinquency matters like Child in Need of Services and Care and Protection Petitions. This CORI also includes a record of all civil restraining orders entered by Massachusetts courts against you, even if they are no longer active.

It is extremely important that you and your attorney discuss your CORI, because it will be used in court for any bail or dangerousness determination and sentencing.

You should not rely on this as legal advice. There may be unique aspects of your case that would make its treatment in court different.

Return to top of page.

I have serious drug charges. Can I stay out of jail?

Massachusetts was one of the first states to employ probation as an alternative to jail following a conviction. By being on probation, instead of going to jail, the positive aspects of people's lives are not interrupted. They can remain employed and living with their family while undergoing rehabilitation.

In Massachusetts a CWOF, continuation without finding, is allowed for all charges that do not specifically forbid it in their statute. A CWOF does not count as a conviction, unless it is revoked and a guilty is imposed. A CWOF is granted at the judge's discretion and usually only after an individual has admitted under oath that there are sufficient facts to support a guilty finding. Some judges ask the defendant to admit that they are guilty. The court then continues the matter for a period of time and places the individual on probation. If an individual violates the terms of their probation the court may, but will not always, revoke that CWOF and impose a guilty.

In some unusual cases it may be possible to obtain pretrial probation, or a general continuance. In this case, with the consent of the judge and the district attorney, the individual charged with a crime will not have to make admissions. MGL c. 111E allows diversion for drug offenses as well.

It is possible to transfer probation supervision from one court to another, even one in another state. This enables a person to move or return to another state, thereby not having to come to Massachusetts to be supervised. While this is usually possible, it is allowed at the discretion of the court or by interstate compact. However, violations of probation are adjudicated in the court and the state your charges were originally brought in.

Drug Court is probation plus more specialized and rigorous supervision with drug testing, treatment, counseling, and often weekly drug court sessions. Drug problems are common in the district court. Relapses are common as well. In drug court a person may be detained in jail briefly, then returned to probation and allowed to retain their CWOF. Not all Massachusetts courts have Drug Courts.

OCC, Office of Community Corrections, is available in many but not all Massachusetts courts. Like Drug Court, OCC dispositions include restrictive conditions like curfews and gps bracelets. If you are not employed, you may have to attend OCC four or five days a week for several months. OCC features education, community service, drug, job and other counseling. It can help a motivated individual avoid incarceration and minimize interruption of their job and family life.

Attorney Megowen is experienced in probation advocacy and hearings. He has represented many individuals who have been able to complete the terms of their probations and avoid conviction and incarceration. He is an effective advocate and can get clients the best options when they have serious drug and alcohol problems.

You should not rely on this as legal advice. There may be unique aspects of your case that would make its treatment in court different. The laws and how they are interpreted change all the time.

Return to top of page.

For a free initial consultation, email us or call us at 978-825-9988 or 978-369-2795 (after hours).