Decriminalization of Marijuana Possession

Marijuana is not “legal” in Massachusetts.

In 2008 a ballot initiative was passed by voters that decriminalized the possession of small amounts of marijuana. While this does not mean that possessing a small amount of marijuana within the state of Massachusetts is legal, it does mean that possession cases that involve ounce or less of marijuana are not a criminal offense and are not reported to one’s criminal record. However, those that are found in possession of 1 ounce of marijuana or less will still face a civil infraction and be forced to pay a $100 fine.

What Marijuana Possession is Still Criminal in Massachusetts?

  • If you are under 21 it is still a crime to have marijuana.
  • If you have more than an ounce, that is a criminal charge.
  • If you sell marijuana, that’s a criminal distribution charge.

 

Possession of More than 1 Ounce.

If you are convicted of a first offense for possession of more than one ounce of marijuana, and if you have no other convictions on your record, you are entitled to probation (no jail time). Further, if you successfully complete probation for this offense, your record will automatically be sealed (except from law enforcement).

Second or subsequent offense:

  • Up to 6 months in jail;
  • $500 fine;
  • 1 year license loss (mandatory).

 

Operating a Motor Vehicle Under the Influence of Marijuana.

If you are proven Guilty of operating a motor vehicle while under the influence of marijuana, you will fact the same penalties as someone convicted of driving while under the influence of alcohol.

 

Possession with Intent to Distribute.

No matter how much marijuana you possess, possessing it with the intent to distribute it is a serious crime.

Often this is charged and proven based on the presence of so-called “indicia” of intent to distribute.  These include the presence of scales, plastic baggies for packaging, cash,  records of sales, and multiple cell phones.  Of course, the more marijuana you possess, the greater the likelihood you will be charged with possession with intent.

Distribution of Marijuana.

You can be found guilty of Distribution of marijuana even if no money changes hands.  Sharing a joint, or a bag, can result in a charge of distribution.

Marijuana in a School Zone.

Even if school is not in session, possession in a school zone with the intent to distribute is a mandatory jail sentence for anyone 18 or older.

Child Pornography

Possession and Dissemination.

Possession of Child Pornography is described as knowingly possessing and/or purchasing an image of a child engaged in sexual conduct.

In order to prove you guilty, the Commonwealth must prove, beyond a reasonable doubt, that:

  • First, you knowingly purchased or possessed images of a child under the age of 18 engaged in sexual conduct;
  • Second, the image of the person under the age of 18 is actually (or by simulation) engaged in any act of sexual conduct or contact as described in M.G.L. Ch. 272, §29C;
  • Third, you knew or should have known that the child in the image was under the age of 18; and
  • Fourth, that you knew of the nature and/or content of the images,

Proof that the image(s) contained nudity is not sufficient for a conviction; rather, the person must be engaged in one of the activities specified in M.G.L. Ch. 272, §29C.

Dissemination of Child Pornography requires proof of the same elements described above, plus that you provided the images to someone else, and you did it with lascivious intent.

Lascivious intent is defined as “a state of mind in which the sexual gratification or arousal of any person is an objective.”  Examples given in the statute as of proof of lascivious intent are:

  • whether the circumstances include sexual behavior, sexual relations, infamous conduct of a lustful or obscene nature, deviation from accepted customs and manners, or sexually oriented displays;
  • whether the focal point of a visual depiction is the child’s genitalia, pubic area, or breast area of a female child;
  • whether the setting or pose of a visual depiction is generally associated with sexual activity;
  • whether the child is depicted in an unnatural pose or inappropriate attire, considering the child’s age;
  • whether the depiction denotes sexual suggestiveness or a willingness to engage in sexual activity;
  • whether the depiction is of a child engaging in or being engaged in sexual conduct, including, but not limited to, sexual intercourse, unnatural sexual intercourse, bestiality, masturbation, sado-masochistic behavior, or lewd exhibition of the genitals.

A “child” is anyone under the age of 18.

 

Conspiracy

Criminal Conspiracy.

Criminal conspiracy is an agreement by two or more persons to commit an unlawful act or to commit an act via unlawful means. Conspiracy is often charged as part of a drug case alleging a distribution network.

If you are charged with conspiracy, you are innocent until proven guilty. In order to prove you guilty, the Commonwealth must prove, beyond a reasonable doubt, that:

1) you joined in an agreement or plan with one or more other persons;
2) that the purpose of the agreement was to do something unlawful, or to do something by unlawful means; and
3) that you joined the agreement knowing about the unlawful plan and intended to help carry it out.

Easier to prove in Massachusetts than in some other states.

In Massachusetts, it is not required to prove that you took some step( s) towards carrying out the conspiracy. This makes convictions much easier to obtain.

In addition it is not always possible to prove a conspiracy by direct evidence, so prosecutors often rely on circumstantial to seek convictions. While some states also require an overt act in furtherance of the conspiracy to be proved, meaning the prosecutor must show that the defendant also took some step towards carrying out the conspiracy, Massachusetts court have long discredited this approach.

In most cases, conspiracy is charged in addition to another offense, normally the subsequent crime committed as part of the conspiracy. Under Massachusetts law, even if a defendant is acquitted for the subsequent offense, the defendant can be found guilty of conspiracy or vice versa.

Penalties for conspiracy.

The penalties for conspiracy can be severe, depending on the offense the defendant conspired to commit. If the defendant conspired to commit a felony that is punishable by life in prison, the punishment for the conspiracy offense could be up to 20 years in jail in addition to a $10,000 fine. If the defendant conspired to commit an offense that was punishable by ten years or more, then the defendant could be placed in jail for up to ten years and fined up to $10,000. For all other conspiracies to commit felonies punishable for less than ten years in prison, the defendant could be held in jail for five years and charged a fine of $5,000. Finally, if a defendant is found guilty of conspiracy to commit a crime that is not a felony, the defendant could still be given a sentence of up to 2 ½ years in jail and a fine of $2,000.

These penalties are in addition to any sentence for the crime that was the purpose of the conspiracy, such as distribution of drugs or fraud.

Distribution and Possession With Intent to Distribute

Distribution of a controlled substance and possession with intent to distribute a controlled substance are treated as essentially the same crime in Massachusetts.

A conviction of either for a class A, B, or C substance is a felony.  Conviction for a class D or E substance, as a first offense, is a misdemeanor, but the consequences can still be severe.
 

Distribution of a Controlled Substance.

 
Distribution of a controlled substance is exactly as the words indicate. In order to be charged, the police must have probable cause to believe that you actually took place in a transaction in which you gave another person an illegal substance.

The amount of the drug is not an element of the crime. It could, and often is, very little.  It is not necessary that any money be exchanged, either.  Simply handing a bag, joint, pill, or any other form of a controlled substance to another person is a crime.

This is a serious offense, and it will be vigorously prosecuted by the Government.
 

Possession of a Controlled Substance With Intent to Distribute.

 
The crime of Possession of Drugs with Intent to Distribute is a serious offense in Massachusetts. If you are convicted, the possibility of jail time is very high.

Massachusetts drug laws do not state a specific amount or quantity of illegal drugs or controlled substances that a person must be found with in order to be charged with the crime of Possession With Intent To Distribute. A person can be charged with this crime even if very uncertain or vague circumstances surrounded the arrest. Police will often charge a person with this serious offense if they find even the slightest evidence, or “indicia”, that you intended to distribute (or sell) the substance involved. These include the presence of scales, plastic baggies for packaging, cash, multiple marijuana plants, records of sales, and multiple cell phones.

Of course, the more of a substance you possess, the greater the likelihood you will be charged with possession with intent, but even a small amount of a substance can lead to a possession with intent charge in the presence of other “indicia.”
 

Proof of Possession with Intent to Distribute.

 
In order to convict you of Possession with Intent, the government must prove beyond a reasonable doubt:

First, that you intentionally or knowingly possessed the particular controlled substance charged; and
Second, that you intended to distribute, dispense, or manufacture the controlled substance.

“Possession”.

Possession means that the defendant either had actual possession of the substance on his body, or that he exercised control over the substance and had ready access to it. Possession can be actual or it can be “constructive”. “Constructive possession” means that you have control over something even though it is not in your hands, on your body, or right next to you. You might have constructive possession over something that is in the trunk of a car you own, or buried in your back yard.

Proving intent.

A person’s intent is his or her purpose or objective. Determining what is in someone’s mind is sometimes very difficult, but jurors are told that they should examine the defendant’s actions and words, and all of the surrounding circumstances, to help them determine what the defendant’s intent was at that time.

Jurors are also instructed that m as a general rule, it is reasonable to infer that a person ordinarily
intends the natural and probable consequences of any acts that he does voluntarily or deliberately.

A jury does not have to find that the defendant knew that he was breaking the law, but it is necessary that they find he intended the act to occur which constitutes the offense.

Penalties for Possession with Intent to Distribute.

Depending on the drug involved and which class of controlled substance the drug belongs to, defendants charged with repeat offenses could face severe penalties including minimum-mandatory sentences and lengthy state prison sentences.

Because there are a variety of drugs that are considered controlled substances, there is no “one” punishment or penalty that attaches to this crime. Instead, the penalties differ depending on the particular drug that was involved, and the class of controlled substances that the drug belonged to. Most often, Possession With Intent To Distribute usually involves either heroin, cocaine or marijuana.

Possession Of Heroin With Intent to Distribute.

Heroin is a Class A controlled substance Penalties are governed by Massachusetts General Laws Chapter 94C Section 32. The punishment following a first conviction of this offense ranges from 2 ½ years in a House of Correction/County Jail, to as much as ten years in state prison. In addition to incarceration, there is also a fine of anywhere from $1,000 to $10,000 that a judge can impose. A second conviction carries a mandatory minimum prison sentence of 5 years to a maximum of 15 years.

Possession of Cocaine With Intent to Distribute.

Cocaine is a Class B controlled substance. Penalties are governed by Massachusetts General Laws Chapter 94C Section 32A. The punishment following a first conviction of this offense includes 2 ½ years in a House of Correction/County Jail, together with a fine ranging from $1,000 to $10,000. Penalties following a second (or subsequent) conviction carry a 3 year mandatory minimum sentence to state prison, with a possible maximum sentence of 10 years. In addition to incarceration, a judge can impose a fine ranging anywhere from a minimum of $2,500 to a maximum $25,000.

Possession of Marijuana With Intent to Distribute.

Marijuana is a Class D controlled substance. If an individual is arrested for possessing marijuana and police or prosecutors believe that the defendant intended to distribute it, they will be charged with Possession with Intent despite the decriminalization of possession of less than one ounce of marijuana.

The punishment following a first conviction of this offense includes a 2 year sentence to a House of Correction/County Jail and/or a fine of $500 fine. Penalties following a second (or subsequent) conviction carry a minimum sentence of 1 year up to a maximum of 2 ½ years in a House of Correction/County Jail. A second conviction also carries a minimum fine of $1,000, up to a maximum of $10,000 dollars.

Penalties for Possession of Intent To Distribute Other Drugs.

The following are minimum penalties for each class of Controlled Substance:

  • Class A substance: First (1st) Offense: 2 ½ years in a House of Correction/County Jail; Second (2nd) Offense: Mandatory minimum of 5 years in a state prison.
  • Class B substance: First (1st) Offense: 2 ½ years in a House of Correction/County Jail; Second (2nd) Offense: Mandatory minimum of 3 years in a state prison.
  • Class C substance: First (1st) Offense: 2 ½ years in a House of Correction/County Jail; Second (2nd) Offense: Mandatory minimum of 2 years in a state prison.
  • Class D substance: First (1st) Offense: 2 ½ years in a House of Correction/County Jail; Second (2nd) Offense: Mandatory minimum of 2 years in a House of Correction/County Jail.

Note: For a conviction in any class of drugs, if the arrest occurred within a school zone, a mandatory minimum sentence of 2 years’ incarceration follows a first offense.

Credit Card Fraud

Credit Card Fraud comes in many forms, from paying for goods (in person, over the internet, or via mail) with a stolen card, to opening a new account in a credit card holder’s name, to accessing money in a compromised account, among others.

Skimming and carding are two other more sophisticated forms of credit card fraud:

  • skimming is when devices at automated teller machines steal credit card information while cards are being used legitimately by cardholders;
  • carding is when a stolen card is used to buy a small item online to see whether or not the card has already been reported stolen before using the card to purchase more expensive items.

In Massachusetts, other criminal acts related to credit cards include:

  • Knowingly making false statements in order to obtain a credit card;
  • Stealing a credit card with the intent to use or sell the card;
  • Receiving a credit card that the defendant knows has been lost or stolen and keeping the credit card with the intent to sell or use the card;
  • Selling or buying a credit card without being authorized to do so;
  • Keeping and using a credit card that was mistakenly delivered to the wrong address or person;
  • Making a fake credit card;
  • Using someone else’s credit card without the owner’s permission;
  • Committing any of these acts in order to obtain money, goods or services with a value of more than $250 is a felony.

Identity Theft.

Another common type of credit card fraud crime is known as identity theft.  The fraud is accomplished by using the victim’s Social Security number and birthdate, for example, to apply for credit cards under their name.

Forgery, Uttering, Counterfeiting

Uttering is when a counterfeit item is knowingly sold or offered to someone else, but the person selling the item did not actually create the false item. Examples of this are forging university diplomas, or using a fake ID.

In Massachusetts Uttering is a very serious offense. In an uttering case, the prosecution needs to prove that the defendant intended to injure or defraud and utters a false or altered record or instrument. Usually these charges spawn from checks that don’t clear. The most common victims in these cases are banks.
Even though it may seem like a harmless and minor offense, the potential penalties are serious. If a defendant is convicted of uttering, the defendant can face up to 10 years in state prison or not more than 2 years in jail.
In many of uttering cases, the defendant never had the intent to defraud anyone. With the economy the way it is, many people have fell prey to scams. The potential penalties for uttering charges are serious so it is important that you have an experience defense attorney on your side. Attorney Bonavita has prosecuted and defended many uttering cases. Criminal Defense Attorney Bonavita will create an aggressive defensive strategy for your uttering case.

See Uttering Above.
Counterfeiting is when items such as coins, currency, postage, military papers, government securities, computer software, CDs and other items are produced and sold that are known to be worth less than those that are genuine. It is illegal to sell counterfeit items as the real thing. Counterfeiting is a felony and carries a punishment of up to 12 years in prison and/or a fine up to $250,000.
Intentionally falsifying, counterfeiting or altering a document in order to defraud or injure another party is considered forgery. Documents of legal significance that are often forged include checks, cashier’s checks, traveler’s checks, deeds, wills, promissory notes and credit cards. Ruled by Massachusetts law CHAPTER 267 a conviction for forgery has a maximum sentence of 10 years in state prison.

Check fraud can take many forms, including:

Writing, passing and uttering bad checks
Check kiting
Counterfeiting or forgery
Fake check scams
In some cases, check fraud is associated with other crimes such as embezzlement and identity theft. Law enforcement may aggressively prosecute these crimes, seeking the maximum penalties if you are convicted. Under Section 31 the courts may also, upon conviction, order compensation to the prosecutor and to the officer who has secured and kept the evidence of the crime, not exceeding their actual expenses, with a reasonable allowance for their time and trouble.

Identity Theft

In Massachusetts, it is identity theft (also called identity fraud) to obtain or use other people’s personal identifying information without their permission to purchase goods or services or obtain credit.
Identity theft involves stealing a person’s identifying information and using the information to access the victim’s financial accounts or establish new credit accounts. In the process of impersonating the victim, the thief can ruin the victim’s credit and run up huge bills. Identity thieves obtain personal information online, from public records, and by stealing mail, trash, and wallets.

For general information on the crime of identity theft, see The Crime of Identity Theft.

PROTECTING YOURSELF

Identity thieves target millions of Americans every year. The Federal Trade Commission’s website (www.ftc.gov) has information on how to protect yourself from identity theft (see Protecting Your Identity) and what to do if you are victimized (see Repairing Identity Theft).
Under Massachusetts’s laws, a defendant commits the crime of identity fraud by:

posing as another person and using the person’s personal identifying information to obtain goods, services, credit, or anything else of value, or
obtaining a person’s personal identifying information for the purpose of posing as another person or helping someone else pose as another person.
Personal identifying information includes a person’s name, address, social security number, bank account number, driver’s license number, or credit card number.

In order to be convicted of identity theft, the defendant must act with the intent to defraud (to obtain money or anything else of value by deception) and without the victim’s permission. The crime is committed as soon as the personal identifying information is taken or obtained with an intention to use it without permission. (Mass. Gen. Laws ch. 266, § 37E.)

For example, a child who uses a parent’s credit card number to buy something with permission has not committed identity fraud. However, a sales clerk who copies a customer’s credit card number intending to use it later has committed identity fraud, even if the clerk never used the number.

Punishment

In Massachusetts, identity theft is punishable by up to two years and six months in county jail, a fine of up to $5,000, or both. The court may also order the defendant to pay restitution to the victim for any costs incurred by the victim as a result of the crime, including the cost of repairing the victim’s credit. (Mass. Gen. Laws ch. 266, § 37E.)

Insurance Fraud

Insurance Fraud Laws & Charges
Insurance fraud is making a false claim on an insurance policy of some kind for financial gain. One type is where consumers may misrepresent information to collect money and benefits to which they are not entitled from the insurer, such as in auto insurance or health insurance. Another type is where insurers defraud their customers by denying the benefits to which they are entitled.

There are many types of insurance fraud, but all types may be divided into hard or soft fraud.

Hard Fraud

This is where someone takes a specific action to defraud. For example, some people may fake a car accident to collect insurance benefits. Or the person might fake a break in to their home so that they can collect on their homeowner’s policy. Or, someone may send false bills to Medicare to receive money from the insurance company. This sort of fraud gets a lot of media attention, as it is quite easy to see and detect. Hard fraud will often involve criminal acts and the intent to steal millions of dollars from insurance firms.

Soft Fraud

Soft fraud is more ambiguous and harder to see. It often occurs when a person tells small ‘white lies,’ such as adding to an insurance claim by saying they are too sick to work. This allows them to receive worker’s comp.

Worker’s comp is the most common type of soft fraud, and it costs insurance firms a lot of money. This is one of the reasons that health insurance premiums continue to rise.

About Insurance Fraud Laws in Massachusetts

To be convicted in this state, the prosecutor must show that you presented a statement of claim or loss to an insurance company; the statement was false in its content; you knew the statement was not true; and that you intended to deceive the insurer.

Sentences for Insurance Fraud in Massachusetts

According to Massachusetts state law, submitting a fraudulent insurance claim can be punished by up to to five years in state prison, or up to 2.5 years in a house of corrections

Statistics for Insurance Fraud

More than $345 million was ordered in restitution by fraud bureaus in the US in 2010.

Almost 5000 convictions were obtained for insurance fraud in 2010.

Motor Vehicle Insurance Fraud
Presenting or submitting a fraudulent insurance claim to a motor vehicle insurance company is a crime punishable with imprisonment for up to 5 years in State Prison, or to the House of Corrections for not less than 6 months and up to 2.5 years.

In order to be convicted of the crime of Fraudulent Claims for Motor Vehicle Insurance Policies, the prosecutor must prove, beyond a reasonable doubt:

That the defendant either presented or aided in presenting to an insurance company a notice, statement, or proof of loss in connection with a support of a claim under a motor vehicle insurance policy;
That the false statement was significant to the claim;
That the defendant knew that the statement was false; and
That the defendant intended to injure, defraud or deceive the motor vehicle insurance company.
Massachusetts General Laws Chapter 266, Section 111B, which proscribes the criminal offense of Fraudulent Claims for Motor Vehicle Insurance Policies, covers misrepresentations made in connection with claims under a motor vehicle, theft, or comprehensive insurance policy; whereas the Massachusetts criminal statute for Fraudulent Insurance Claims, General Laws Chapter 266, Section 111A, covers fraudulent claims for all types of insurance.

Operating While License Suspended for OUI

Operating with a Suspended License from OUI (OAS for OUI)

Operating with a Suspended License from Operating Under the Influence

In Massachusetts, under MGL c. 90 s. 23, operating with a license that is suspended due to an OUI charge carries a minimum mandatory jail sentence of 60 days, up to the following potential penalties:

2 1/2 years in jail
1 year license loss (mandatory)
$1,000 fine (minimum) up to $10,000 fine
If you are charged with this offense, it is very important that we review your case as soon as possible. We have represented clients who have been improperly charged under this statute, and as a result we were able to convince the prosecutors to drop the charge. A review of your full criminal record, and more importantly your RMV driving record, is critical. The reason for your underlying license suspension must be the statutory suspension from the court. That means that if, at the time you were charged with this new offense of operating with a suspended license for OUI, your license was suspended for refusal the breath test, failing the breath test, or any other administrative RMV suspension, you cannot be convicted under this statute, and the charge should be amended to simple operating with a suspended license. This is very significant, as it takes a mandatory jail sentence off the table.

Operating Under the Influence with a Suspended License for Operating Under the Influence

If you are charged with OUI while your license was suspended for a prior OUI charge, you face a mandatory minimum 1 year jail sentence up to the following potential penalties:
2 1/2 years in jail
$2,500 fine (minimum) up to $10,000 fine
1 year license loss (mandatory)
In order to be convicted under this paragraph, the prosecution must prove that your license was suspended specifically for the prior OUI, and not for some other offense from the court or an administrative suspension from the RMV. Further, the prosecution must prove that you were under the influence of alcohol or drugs, and overcome all of the obstacles they face in OUI cases.

Unlicensed Operation

Operating Without Being Licensed

While driving can be fun, it is also a highly regulated through statutes in the Commonwealth. Operating without a proper license is a criminal offense in the Commonwealth of Massachusetts. According to Gordon v. Bedard the purpose of the statute was to make roads safer and assure that those operating on the roadways are qualified to do so. Gordon v. Bedard, 265 Mass. 408 (1929). If you operate without a license you are considered to act negligently and are a potential danger to the public safety.

If you have operated a vehicle without being licensed or unknowingly let your license expire and have been charged with this offense the Law Office of Paul M. King, P.C. is here to help.

Who can be charged with this offense?
To be guilty of this offense, the individual must operate a motor vehicle on a road which is dedicated to public use, as a highway, private roads under statutory authority, or park road. Basically this means any operation of a motor vehicle by someone unlicensed, no matter where it takes place in the Commonwealth, can result in a charge of this crime. An owner of a vehicle who allows an unlicensed driver to operate their vehicle can also be held liable under this statute. Le Blanc v. Pierce Motor Co., made it clear that it does not matter whether or not the owner actually knows if the individual is unlicensed. Le Blanc v. Pierce Motor Co., 370 Mass. 535 (1940) The government does not have to show that the offender “knowingly” committed this offense.

The simple fact that you cannot produce your license upon being stopped does not give the government enough ammo to charge you with this offense. Usually the government will look into the Registry of Motor Vehicle records prior to making a charge.

Exceptions to this crime
There are 7 exceptions:

Those who are licensed in other states and have been given a temporary license in the Commonwealth;
This generally includes students who are attending a school within the Commonwealth and those who are simply passing through from another state.
Person’s with valid Commonwealth learner’s permits;
Person licensed in another state and is accompanying a member of the armed forces who is licensed in Massachusetts;
Members of the armed forces who are on active duty and have a license elsewhere;
Members of the armed forces returning from active duty, who are licensed in a foreign country (must be within 45 days of his/her return);
Non-resident who is licensed in the state where the vehicle is registered (for no more than 30 consecutive days);
If you remain in the Commonwealth for more than 30 days without a Massachusetts license you can be charged under this offense.
Individuals who are licensed in states that will provide reciprocity to Massachusetts’ citizens (not for more than 30 days annually, unless he/she has a valid place of business in Massachusetts and is Massachusetts liability insurance rules are met).
The fate of those who operate without a license
There is little defense for unknowingly allowing your license to expire. The offense is criminal in nature and those who choose to operate without a license could face fines of $500 up to $1000 and/or potential jail time of up to 10 days.

The Importance Of Fighting This Charge
Being found guilty of unlicensed operation can have a number of negative consequences. Besides the potential of jail and a fine, a guilty finding for this offense can result in a loss of license, insurance surcharge, and points towards becoming a habitual traffic offender with the potential or a long loss of license. If you are cited for this offense, appeal the citation, contact a Middlesex County Operating Without Being Licensed Attorney, and make your case to a clerk magistrate before you are arraigned. If you have already been arraigned, contact an attorney immediately.