KNOW YOUR RIGHTS: Overview of Your Rights and Responsibilities under Massachusetts Law

Transcription

1 KNOW YOUR RIGHTS: Overview of Your Rights and Responsibilities under Massachusetts Law For More Information, Please Contact: Vikas Dhar, Esq. Dhar Law LLP Two Atlantic Avenue, 4 th Floor Boston, Massachusetts Tel: Fax:

2 What to Do If the Police Come Knocking at Your Door Warrantless searches. The police may also search without a warrant whenever they have arrested a person. They may search his or her person and the immediate area where the arrest was made. Consent. If you object to their request to search, be sure to make it clear that you do not agree to any kind of search. They may also search when there is an emergency (for example, someone screaming for help inside your home) or when they are chasing you or someone else into your home (hot pursuit). If the police do not have a warrant, you may, but do not have to let them in, unless they demand to come in. Perhaps you can settle this matter at the door, if they do insist on coming in over your objections, then: If the police knock at your door and ask to come into your home, you do not have to let them in unless it is an emergency, they have a warrant that has been signed by a judge, or the officer is in pursuit of a suspect. Ask to see the warrant. If it is an arrest warrant, make sure that you look at the name on the warrant to be sure the police have the right person. If it is a search warrant, make sure it is for your specific address and check to see what specific items are listed on the warrant. The warrant gives the officer(s) the legal right to temporarily seize the listed property on the warrant. Ask to see identification or a police badge Let them in only after they demand to come in Remember the badge number and the names of the officers. Write it all down. The officers usually have business cards; feel free to ask them for one. 2

3 What to Do During Traffic Stops reason to believe you re armed, dangerous, or involved in criminal activity, the officer can frisk you. If the officer has probable cause (a reasonable basis to believe that you or your passengers are involved in criminal activity), then the officer can search your car. If during the stop the officer sees something in plain view, then the officer is allowed to inspect it and any other objects the officer comes across can be legally seized as well. Only get out of the car if asked. If an officer asks you to exit the vehicle, do so calmly and carefully, with no sudden movements. If the officer has reason to believe you re armed, he or she can pat down your outer clothing. If the officer finds something suspicious, he or she can reach in to grab the concealed object. When you first see the police car. Pull over quickly and safely, letting the officer know you understand and are complying. Use your signals and pull as far to the right shoulder as you can. Your goal is to calm down a potentially high strung officer and make it clear that you understand he or she is in control. Pulling over quickly allows you to review the scene to evaluate the truthfulness of the officer s allegation and look for potential defenses such as obstructed views. Talking to the police officer. Let the officer do most of the talking. Do not interrupt, do not be argumentative, and do not say anything that the officer can record and use against you. Be polite, but do not give the officer anything it s his or her job to prove your guilt. Right after you are stopped. Be polite, even if the officer is aggressive. Roll down your window, turn off the engine and place your hands on the steering wheel. If it is night time, turn on your interior light. Do not reach for documentation unless asked for. Don t give the officer an excuse to search your car. Be calm, don t make sudden or suspicious movements and do not reach for anything until the officers asks you to. If the officer has 3

4 What to Do If You re Pulled Over and Arrested for DUI 1. Find a safe place to pull over. One of the first things the officer does is make a mental note of how you pull over. 2. Don t make any sudden movements. 3. Be polite. If asked to step out of the vehicle, you must comply, otherwise you could be charged with resisting arrest. 4. Don t answer any potentially incriminating questions, and don t lie. You do have to give your name, license and registration to the police officer. But if the officer asks you if you ve been drinking, or how much, simply say, I m sorry, officer, but I ve been advised not to answer any questions. 5. Refuse a field sobriety test. Field sobriety tests are one of the most effective tools at the officer s disposal for collective evidence against you. They are completely subjective, so it is completely up to the officer whether you pass. 6. Refuse a hand-held breathalyzer. Roadside breathalyzers are notoriously unreliable, and there are countless ways to skew their results. 7. Take a chemical test at the police station. Many DUI lawyers advise people to take the breath tests because they re more unreliable, so their validity can be more effectively attacked in court. 8. Once released, write down everything that you can remember about the night. Include in your notes things like the following: What you were doing and where you were going How much you had to drink How long after you were arrested How the officer behaved, any instructions he gave you What you said to the officer Where you were pulled over When and if you were read your Miranda rights When you took the chemical test and how long it had been since you drank 9. Contact an attorney. 4

5 Likewise, since refusal to take the breath test cannot be introduced in court, most experienced OUI lawyers in this state advice against taking the chemical test. However, there is a penalty of a possible Driver s License consequence: if you refuse to take the breath test, you can lose your license for a minimum of 180 days. Massachusetts OUI Law DUI (Driving Under the Influence), OUI (Operating Under the Influence), and DWI (Driving While Intoxicated) are all terms used to describe drunk driving charges in the state of Massachusetts. Massachusetts has a per se law, meaning that it is illegal to drive with a blood alcohol level that is.08% or higher for drivers over the age of 21. For those under 21, the limit is.02%. If your breath or blood is tested and the result is.08% or above, you will be found guilty if and only if the judge or jury believes the test was conducted properly and the reading was accurate. An OUI / DUI / DWI conviction plea of guilty or admission to sufficient facts will be a permanent part of your driving record. It does not come off your record after 5 years; it never comes off your record. Moreover, a conviction, guilty plea or admission to sufficient facts plea is reports to the Massachusetts Registry of Motor Vehicles, which in turn, reports to the National Driver s License Registry. In almost all cases, an admission, guilty plea, or guilty verdict in a criminal case will cause a suspension to occur in the non-resident s home state. A not guilty or other non-oui outlook of the case will prevent such consequences. Non-judicial penalties will inevitably follow an admission to sufficient facts plea, guilty plea, or conviction. These can include increased insurance costs (or cancellation of coverage), inability to rent cars, job barriers, possible loss of profession credentials or certifications, etc. Massachusetts DUI or OUI arrests will usually include a request to take both roadside field sobriety tests and a breath test. Since a refusal to take the field sobriety tests cannot be introduced in court as an awareness of guilt, the wiser course is to refuse them. 5

6 Domestic Violence Economic: preventing you from getting a job or an education, not giving access to bank account and cash, or making household decisions. Available Resources Shelters Forms of Domestic Violence Physical: Slapping, choking, pulling hair, pushing, shoving, punching, kicking, or biting. Verbal: calling names, making racist remarks, intimidation, trivializing, criticizing, or belittling. Sexual: forced sexual activity, forcing to watch pornographic movies, making sexual jokes, or sexual coercion. Emotional: spreading lies, threatening to hurt you or your children, causing fear by threatening deportation, destroying property or things precious to you, isolating you from friends, relatives or community members. In a typical shelter, a few inmates live together, share chores and responsibilities like cooking and cleaning, and help each other through a difficult period. Most women are entitled to a stipend, which would include their food, their travel by public transportation and other miscellaneous expenses. A woman who has never worked before is encouraged to enhance her skills, take free English lessons, find jobs and become self-sufficient. Preventative Procedures Financially and socially support the work of the women s organizations Give space to discussions on domestic violence in public forums Create support groups Target education as a tool for generating awareness amongst children and youth Compulsory information dissemination through embassies Acknowledgement of domestic violence as a major problem in the civil society intelligentsia. 6

7 Order of Protection It is a court order that is designed to stop violent and harassing behavior and to protect an individual and their family from an abuser. Usually, an order will be granted for 1 or 2 years, unless there are really aggravating circumstances such as serious physical injury, use of a weapon, repeated violations of Orders, or prior convictions of abuse, then one can request the Order be granted for up to 5 years. Steps for obtaining an Order of Protection: Choose which court to file in, based on eligibility. Ask the court clerk for the appropriate forms that you need to file. Fill out the forms. If you need immediate protection through a temporary order, you need to tell the clerk or judge that information. Be specific in the details. Do not sign until you have shown it to the clerk. A judge will review your petition. The Order needs to be served. To be in effect, the abuser needs to know that it has been issued as well as when to appear for the full court hearing. The Hearing needs to occur. How Criminal Charges Affect Your Immigration Status Almost every application for an immigration benefit (such as an immigrant visa, nonimmigrant visa, adjustment of status, change of status, naturalization, etc.) requires you to disclose your criminal record, including any arrests, citations, charges, and convictions. In applying for many types of immigration benefits, you are required to be fingerprinted in order to determine any criminal history. Certain criminal convictions can lead to a denial of an application for an immigrant visa or a nonimmigrant visa, can make you inadmissible to the United States, and can cause an 7

8 application for adjustment of status, change of status or naturalization to be denied. Worse yet, certain criminal convictions can lead to being deported or denied admission to the United States, even if you already have a green card. To say the least, criminal convictions are treated very seriously in immigration law. Unfortunately, many people mistakenly believe that the seriousness of the criminal offense depends on the amount of time you spend in jail. That is not correct when it comes to immigration cases. Every person should be aware of the seriousness with which criminal charges are dealt with in immigration law. Immigration law defines what a criminal conviction is much broader than traditional criminal law. Often times, those with criminal lawyers are told that their matter has been taken care of and to not worry about it. That is not exactly true when it comes to immigration law. Some common misconceptions when it comes to criminal issues are: - If I didn t spend any time in jail, then it s not a problem for immigration law. - If I wasn t convicted in criminal court, then I don t need to disclose the arrest to immigration officials. - If it happened long ago, then there is no need to worry about it. If you have been arrested or charged with a criminal offense, you should: 1. Understand what a conviction is for immigration law purposes. A conviction is a formal judgment of guilt entered by a court where (i) a judge or jury has found the alien guilty or you have entered a plea of guilty or nolo contendere or have admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on your liberty to be imposed. Generally, there are two things that must happen before a criminal charge will be considered a conviction for immigration purposes. First, you must either be found guilty, or plead guilty, or plead no contest, or admit the facts of the crime. Second, the judge must order some form of punishment or penalty on you. Both of these elements must be present for there to be a conviction for immigration law purposes. This definition of conviction is much broader than what most people typically think of for a conviction. 2. Know the immigration consequences of the criminal charge before going to court. Many people go to court without knowing how the outcome of your case could affect your immigration status. Have your criminal defense attorney speak with one of the other side s attorneys before going to court and entering a plea so that you and your criminal defense attorney are aware of the consequences of pleading guilty to a certain crime. 3. Understand what you may plead to in a criminal court. Unfortunately, many immigrants agree to plead guilty on the advice of a criminal defense attorney. Pleading guilty, even if the guilty plea does not require the person to go jail and only requires the payment of a fine or the performance of community service is a conviction. Certain convictions can cause you to be deportable, even if no jail time was served. 4. Obtain a complete copy of your criminal record and any criminal charges before applying for any immigration benefits. Before applying for an immigration benefit, you should get a certified copy of any criminal charges. This is true even if you were found 8

9 not guilty of the criminal charge. We advise our clients to get a certified criminal record check from the County where the criminal charge was handled. On that criminal record check, there typically is a Case Number. With the Case Number, you can request from the Court a certified copy of the file. The most important thing to obtain is evidence of the outcome of the case (guilty? Not guilty?). If the Court indicates that the case no longer exists because of the amount of time that has passed, you should get the Court to provide a written statement explaining that so that you can then present this information to USCIS, if necessary. Many cases get denied for immigrants who filed on their own or with an inexperienced immigration attorney and who simply did not provide evidence of the criminal charge and its outcome. 5. Disclose this information to an immigration attorney before applying for an immigration benefit. Your immigration attorney needs to know about any criminal history before filing any applications. That way, your attorney can advise you of whether or not it is advisable to file the application at that time or if you should wait. In addition, the immigration attorney can determine before filing if you were convicted of the crime and whether you can be deported based on that crime. 9

10 Disclaimer: These materials have been prepared by Dhar Law, LLP for informational purposes only and are not legal advice. The material in this brochure is not intended to create, and receipt of it does not constitute, a lawyerclient relationship, and readers should not act upon it without seeking professional counsel. If you are interested in seeking representation by one of the Firm s attorneys, you should contact that attorney by telephone or and request a consultation. Only after such a consultation has taken place, the Firm has confirmed that no conflict of interests exists, and an engagement letter has been signed will you be considered a client of the Firm. Under the Rules of the Supreme Judicial Court of Massachusetts, the material in this brochure may be considered advertising. The content of this brochure contains general information and may not reflect current legal developments. Dhar Law LLP expressly disclaims all liability with respect to actions taken or not taken based on the contents of this brochure. Reproduction, distribution, republication, and/or retransmission of any material contained within this publication is prohibited unless prior written permission from Dhar Law LLP is obtained. For More Information, Please Contact: Vikas Dhar, Esq. Dhar Law LLP Two Atlantic Avenue, 4 th Floor Boston, Massachusetts Tel: Fax: