Heated arguments that escalate even slightly can turn into threats, scuffles, fistfights, beatings and other violence that can result in assault and battery charges. If you are found guilty of assault and battery in Massachusetts, the penalties are up to 2½ years incarceration and a fine of up to $1,000. In addition, you would then have a criminal record, which often has a detrimental impact on your ability to land a job, rent an apartment, or qualify for a security clearance. Other possible consequences include supervised probation and mandated anger management programs. Considering these circumstances, if you have been arrested and charged with assault and battery, you need a skilled, experienced, criminal defense lawyer who is an expert in these matters – the sooner, the better. Any person who tries to contest charges like this without a good lawyer is taking a huge risk. As with any criminal legal situation, it is always wise to not make any statements to the police until you have spoken with your attorney.
Some of the most common places for fights that lead to assault charges are places where alcohol is served, such as bars, parking lots where tailgating takes place at public sporting events, college frat parties, and dance clubs. Assault & battery does not have to result in a person being hurt or injured physically, but rather it can merely be the threat or intent to hurt someone – by throwing a rock or bottle, pointing a gun or knife, or even just yelling at them. In many cases, the biggest determinant in who gets to file assault and battery charges is which party calls the police first. Unlike what popular opinion might suggest, it is not that common in such cases for the police to arrive at a scene where one party is standing and the other party has been knocked out cold. In fact, the person who calls the police – the “victim” – might have been the actual aggressor and the other party might have been acting in self-defense.
With assault and battery charges, there are numerous variables that determine how the legal system treats you and the penalty that will be imposed if you are found guilty. For example, some of the conditions that will induce harsher treatment by the District Attorney or Assistant District Attorney include: domestic violence assaults, assault with a dangerous weapon, assault of a public official or police officer, aggravated assaults, assault with intent to rob, maim or murder; or assault of a minor under 14. Another important factor is whether you have been charged with a misdemeanor or a felony. Assault with a deadly weapon – which can include a handgun or rifle, knife, brick, or many other objects – generally merits a felony charge.
Legal defenses against assault and battery charges are contingent on the exact facts of the case, but a skilled attorney can often find flaws with the prosecution’s case as well. Approaches can include filing motions to suppress evidence, assertions of self-defense, and plea bargaining to get the charges reduced to a misdemeanor or to receive probation and anger-management counseling rather than jail time.
If you have been charged with assault in Western Massachusetts (Hampshire, Hampden, Berkshire, and Franklin Counties) – or even if you think someone is considering filing charges against you – contact us for a free, no-obligation consultation and evaluation. We will look at the facts in your case and give you our honest assessment of probable outcomes. If we decide to move forward together, we will strive in every way to defend your rights – to get your charges reduced or the case dismissed.
At the Law Offices of Sean J. Cleary, located in Amherst, MA, we have over 15 years of experience handling assault and battery cases in Western Massachusetts in front of all the area’s District and Superior Courts. Our office has the personal touch, with me personally handling or supervising every case. If you are incarcerated in jail or prison, we will go there to meet with you.
Tuesday, July 20, 2010
Tuesday, July 6, 2010
Operating Under the Influence Criminal Defense
The Commonwealth of Massachusetts takes drunk driving or drinking while driving very seriously. Severe penalties are levied to multiple offenders. If you have been pulled over and arrested for Operating Under the Influence (OUI) that is a grave matter and you definitely need a good criminal defense attorney in your corner.
OUI law is highly complex. There is a confusing array of penalties for first time and subsequent offenses for operating a motor vehicle under the influence of alcohol. Numerous factors come into play when defending a drunk driving charge. Such factors can include: whether an accident was involved and whether there was any injury to whomever was involved.
You can be picked up and placed under arrest for a OUI while operating any type of vehicle: cars, motorcycles, and trucks. You can even be arrested for OUI for driving drunk in a boat. You might have attracted an officer’s attention by driving erratically, caught at a roadblock or a sobriety checkpoint. You might also have had an open alcohol container in the vehicle, which is a separate type of infraction.
With an OUI arrest there are administrative penalties and legal consequences. These include actions the Massachusetts Registry of Motor Vehicles (RMV) will take against you and criminal penalties such as fines, community service, and prison time. At the RMV hearing with the Massachusetts Executive Office of Transportation, the defendant bears the burden of proving their innocence. OUI laws are state-specific, and Massachusetts OUI laws are stringent. Like other states, Massachusetts has a “zero-tolerance” policy, imposing severe penalties to those under the drinking minimum age of 21 who are caught driving under the influence. The legal alchohol limit for minors is a blood alchohol level at or above 0.02%.
Massachusetts’ “per se” law dictates that a blood or breath alcohol level (BAL – or BAC, for blood alcohol content) over 0.08% is proof of intoxication and grounds for arrest. But even without the breathalyzer tests, any patrolman can positively determine that you are unable to safely operate a motor vehicle based on your behavior or performance on the sobriety exam even if you pass the breath test.
Melanie's Law imposes especially serious penalties and license suspensions on repeat OUI offenders. An OUI conviction remains on your record for life.
Refusal to take a breath test and/or a field sobriety test at the scene can not be used in court as evidence of guilt, so it might be a wise course not to take them – but such a refusal automatically results in a mandatory 180-day suspension of your driver's license in a first offense case. A second-offense refusal results in a three year suspension. If you fail the breath test, your license will be suspended for 30 days. In either case, the arresting officer will confiscate your license on the spot. If you fail a breath test (Draeger Alcotest) at the police station, however, that fact WILL be used in court.
Regardless of how much research you do into OUI law, it is vital to retain a criminal defense lawyer to represent you if you want to get the best deal possible given your circumstances. The web is a wondrous source of information, but a skilled attorney’s training and experience are irreplaceable. Vigorous representation by an experienced drunk driving lawyer dramatically increases your chances of avoiding a conviction, or of obtaining a favorable deal with the district attorney’s office. Juries acquit OUI defendants in about half the cases, so the situation need not be seen as hopeless. Furthermore, the earliest possible intervention improves your odds of preserving helpful evidence, obtaining fresh witness testimony, and preparing for the DA's case against you. This is not a decision to postpone or delay. You should consult with a qualified attorney as soon as possible. Your lawyer will take you through the entire process, from arraignment to pre-trial conference, through motions, hearings, trial (if necessary), and sentencing (if there’s a guilty verdict). We can even assist you with probation, parole, and supervised release programs if you require it.
At the Law Offices of Sean J. Cleary, we have over 15 years of experience in Western Massachusetts dealing with drunk-driving charges and have tried countless OUI cases for first-time and repeat offenders. A former court-appointed public defender, long-time private criminal defense lawyer, and past President of the Hampshire County Bar Association, I will personally handle or supervise your case and will strive to obtain an innocent verdict or get the charges reduced or dropped. Whether or not you think you want to fight your charge in court, call us to set up a free, no-obligation consultation at our office in Amherst, Mass. If you are incarcerated in jail or prison, we will come to the facility to meet with you.
We accept MasterCard and Visa for payment of Drunk Driving criminal defense charges.
OUI law is highly complex. There is a confusing array of penalties for first time and subsequent offenses for operating a motor vehicle under the influence of alcohol. Numerous factors come into play when defending a drunk driving charge. Such factors can include: whether an accident was involved and whether there was any injury to whomever was involved.
You can be picked up and placed under arrest for a OUI while operating any type of vehicle: cars, motorcycles, and trucks. You can even be arrested for OUI for driving drunk in a boat. You might have attracted an officer’s attention by driving erratically, caught at a roadblock or a sobriety checkpoint. You might also have had an open alcohol container in the vehicle, which is a separate type of infraction.
With an OUI arrest there are administrative penalties and legal consequences. These include actions the Massachusetts Registry of Motor Vehicles (RMV) will take against you and criminal penalties such as fines, community service, and prison time. At the RMV hearing with the Massachusetts Executive Office of Transportation, the defendant bears the burden of proving their innocence. OUI laws are state-specific, and Massachusetts OUI laws are stringent. Like other states, Massachusetts has a “zero-tolerance” policy, imposing severe penalties to those under the drinking minimum age of 21 who are caught driving under the influence. The legal alchohol limit for minors is a blood alchohol level at or above 0.02%.
Massachusetts’ “per se” law dictates that a blood or breath alcohol level (BAL – or BAC, for blood alcohol content) over 0.08% is proof of intoxication and grounds for arrest. But even without the breathalyzer tests, any patrolman can positively determine that you are unable to safely operate a motor vehicle based on your behavior or performance on the sobriety exam even if you pass the breath test.
Melanie's Law imposes especially serious penalties and license suspensions on repeat OUI offenders. An OUI conviction remains on your record for life.
Refusal to take a breath test and/or a field sobriety test at the scene can not be used in court as evidence of guilt, so it might be a wise course not to take them – but such a refusal automatically results in a mandatory 180-day suspension of your driver's license in a first offense case. A second-offense refusal results in a three year suspension. If you fail the breath test, your license will be suspended for 30 days. In either case, the arresting officer will confiscate your license on the spot. If you fail a breath test (Draeger Alcotest) at the police station, however, that fact WILL be used in court.
Regardless of how much research you do into OUI law, it is vital to retain a criminal defense lawyer to represent you if you want to get the best deal possible given your circumstances. The web is a wondrous source of information, but a skilled attorney’s training and experience are irreplaceable. Vigorous representation by an experienced drunk driving lawyer dramatically increases your chances of avoiding a conviction, or of obtaining a favorable deal with the district attorney’s office. Juries acquit OUI defendants in about half the cases, so the situation need not be seen as hopeless. Furthermore, the earliest possible intervention improves your odds of preserving helpful evidence, obtaining fresh witness testimony, and preparing for the DA's case against you. This is not a decision to postpone or delay. You should consult with a qualified attorney as soon as possible. Your lawyer will take you through the entire process, from arraignment to pre-trial conference, through motions, hearings, trial (if necessary), and sentencing (if there’s a guilty verdict). We can even assist you with probation, parole, and supervised release programs if you require it.
At the Law Offices of Sean J. Cleary, we have over 15 years of experience in Western Massachusetts dealing with drunk-driving charges and have tried countless OUI cases for first-time and repeat offenders. A former court-appointed public defender, long-time private criminal defense lawyer, and past President of the Hampshire County Bar Association, I will personally handle or supervise your case and will strive to obtain an innocent verdict or get the charges reduced or dropped. Whether or not you think you want to fight your charge in court, call us to set up a free, no-obligation consultation at our office in Amherst, Mass. If you are incarcerated in jail or prison, we will come to the facility to meet with you.
We accept MasterCard and Visa for payment of Drunk Driving criminal defense charges.
Thursday, July 1, 2010
Wrongful Death Claims
An untimely death is always a tragic matter for relatives and friends of the deceased. It becomes a "wrongful death" when someone dies as a result of another person (or company) participating in negligence or wrongful actions. If wrongdoing or negligence by a person, a company, or an organization results in the death of a loved one, a wrongful death claim can be pressed by the survivors. Nothing can take the place of a family member, but at least financial compensation exists as a judicial remedy to help those who depended on the deceased person for monetary or emotional support. A wrongful death suit is brought on behalf of the actual victim by a relative or a representative of the victim’s estate. Virtually every state allows relatives to bring lawsuits based on wrongful death, but there are limitations on who can file such a claim. In Massachusetts, the relatives who can bring such a suit are usually limited to immediate family members such as spouses or children.
Wrongful death claims can be based on a broad range of misconduct including reckless or careless behavior (such as negligent driving resulting in a car accident), or even deliberate, intentional acts (such as murder). Medical malpractice, slips and falls, construction injuries, or defective products are also grounds for such claims. Or if a property owner has failed to properly safeguard against accidents or catastrophe – such as not restricting access to a swimming pool, for example, into which a child falls and drowns – that could be the basis for a lawsuit. Wrongful death situations can include a workplace, sports field, car, airplane, or even out in the woods during hunting season. In short, wrongful death incidents can happen almost anywhere.
These claims are civil suits, with monetary damages awarded rather than placing the guilty party in jail. The "burden of proof" differs significantly in civil vs. criminal cases, and so the outcomes can be different as well. In criminal trials, the well-known standard of proof required for conviction is "beyond a reasonable doubt", which is much more stringent than the standard for civil trials, which is "clear and convincing evidence". This might not sound like much of a distinction, but in a court of law it makes all the difference in the world. Also, in a civil case, a defendant cannot refuse to testify on the basis of their Fifth Amendment protections against self-incrimination. This can make it much easier for a plaintiff to prove their case, as a defendant will be subject to criminal sanction for perjury if they lie under oath, and they will not be granted the "presumption of innocence" if they refuse to answer questions from the plaintiff. The jury will be able to take their refusal to answer into consideration when they are deciding the verdict of the case, unlike in a criminal trial.
A murder defendant, for instance, can be acquitted of criminal charges but still found guilty in wrongful death suits. O.J. Simpson is perhaps the best known example of this phenomenon. He was found innocent of the murder of his wife and Ron Goldman in a criminal trial, but found "responsible" for their deaths in a civil lawsut afterwards. Interestingly enough, it was fallout from the consequences of the civil judgement in this case against Simpson that apparently lead to the circumstances whereby he committed additional crimes, for which he has now been convicted and sent to prison.
The trauma of a wrongful death can be devastating to the survivors, and the law allows for a variety of compensation payments. Wrongful death suits can incur both “economic” and “non-economic damages” to compensate the family. Economic (financial) damages covers the loss of present and future income and medical expenses associated with the death while non-economic recompense is for the loss of the victim’s love and companionship. The determination of damages is based on complex calculations including the medical costs incurred by the victim and the price of burial outlays (“actual losses”), and the deceased’s projected earnings potential – which is contingent on both their current salary or business profits plus the number of years remaining until the victim’s expected retirement.
As with other types of civil lawsuits, a statute of limitations applies within which a suit must be filed, or the opportunity to do so is lost forever. In Massachusetts, the time limit is three years, and it is extremely important, if you have any notion of filing suit, to begin the process by consulting with a qualified attorney as soon as possible after the event resulting in the victim’s death.
Wrongful death claims are complicated and delicate matters, and each is unique, and so it is important to work with a trained and experienced lawyer when thinking of filing such a suit. At the Law Offices of Sean J. Cleary in Amherst, MA, we have over 15 years experience pursuing wrongful death claims in Western Massachusetts. We diligently strive to exact the compensation and justice our clients deserve. If you believe you potentially have a wrongful death claim to pursue, please contact us today to set up a free, no-obligation introductory consultation so we can discuss the particulars of your case.
As with all our personal injury cases, our policy for wrongful death claims is to proceed on a “no recovery, no fee” basis, at absolutely no out-of-pocket cost to you. We get paid only if we are successful recovering damages, and our contingency rates are modest and customary.
Please feel free to contact us for a free, no obligation consultation regarding your personal injury case. info@sclearylaw.comThis e-mail address is being protected from spambots. You need JavaScript enabled to view it or (413) 549-7600.
Wrongful death claims can be based on a broad range of misconduct including reckless or careless behavior (such as negligent driving resulting in a car accident), or even deliberate, intentional acts (such as murder). Medical malpractice, slips and falls, construction injuries, or defective products are also grounds for such claims. Or if a property owner has failed to properly safeguard against accidents or catastrophe – such as not restricting access to a swimming pool, for example, into which a child falls and drowns – that could be the basis for a lawsuit. Wrongful death situations can include a workplace, sports field, car, airplane, or even out in the woods during hunting season. In short, wrongful death incidents can happen almost anywhere.
These claims are civil suits, with monetary damages awarded rather than placing the guilty party in jail. The "burden of proof" differs significantly in civil vs. criminal cases, and so the outcomes can be different as well. In criminal trials, the well-known standard of proof required for conviction is "beyond a reasonable doubt", which is much more stringent than the standard for civil trials, which is "clear and convincing evidence". This might not sound like much of a distinction, but in a court of law it makes all the difference in the world. Also, in a civil case, a defendant cannot refuse to testify on the basis of their Fifth Amendment protections against self-incrimination. This can make it much easier for a plaintiff to prove their case, as a defendant will be subject to criminal sanction for perjury if they lie under oath, and they will not be granted the "presumption of innocence" if they refuse to answer questions from the plaintiff. The jury will be able to take their refusal to answer into consideration when they are deciding the verdict of the case, unlike in a criminal trial.
A murder defendant, for instance, can be acquitted of criminal charges but still found guilty in wrongful death suits. O.J. Simpson is perhaps the best known example of this phenomenon. He was found innocent of the murder of his wife and Ron Goldman in a criminal trial, but found "responsible" for their deaths in a civil lawsut afterwards. Interestingly enough, it was fallout from the consequences of the civil judgement in this case against Simpson that apparently lead to the circumstances whereby he committed additional crimes, for which he has now been convicted and sent to prison.
The trauma of a wrongful death can be devastating to the survivors, and the law allows for a variety of compensation payments. Wrongful death suits can incur both “economic” and “non-economic damages” to compensate the family. Economic (financial) damages covers the loss of present and future income and medical expenses associated with the death while non-economic recompense is for the loss of the victim’s love and companionship. The determination of damages is based on complex calculations including the medical costs incurred by the victim and the price of burial outlays (“actual losses”), and the deceased’s projected earnings potential – which is contingent on both their current salary or business profits plus the number of years remaining until the victim’s expected retirement.
As with other types of civil lawsuits, a statute of limitations applies within which a suit must be filed, or the opportunity to do so is lost forever. In Massachusetts, the time limit is three years, and it is extremely important, if you have any notion of filing suit, to begin the process by consulting with a qualified attorney as soon as possible after the event resulting in the victim’s death.
Wrongful death claims are complicated and delicate matters, and each is unique, and so it is important to work with a trained and experienced lawyer when thinking of filing such a suit. At the Law Offices of Sean J. Cleary in Amherst, MA, we have over 15 years experience pursuing wrongful death claims in Western Massachusetts. We diligently strive to exact the compensation and justice our clients deserve. If you believe you potentially have a wrongful death claim to pursue, please contact us today to set up a free, no-obligation introductory consultation so we can discuss the particulars of your case.
As with all our personal injury cases, our policy for wrongful death claims is to proceed on a “no recovery, no fee” basis, at absolutely no out-of-pocket cost to you. We get paid only if we are successful recovering damages, and our contingency rates are modest and customary.
Please feel free to contact us for a free, no obligation consultation regarding your personal injury case. info@sclearylaw.comThis e-mail address is being protected from spambots. You need JavaScript enabled to view it or (413) 549-7600.
How to Select a Lawyer
Lets face it, no one really wants to hire a lawyer. Why? For one thing needing a lawyer usually means something bad, (or at least unpleasant), is going on in your life. Moreover, most people believe that lawyers are expensive and only looking out for themselves. I believe it doesn’t have to be that way. Besides, no matter how much you may dislike lawyers there are times in life when you will definitely need one. So the question isn’t really whether you want a lawyer, but how to go about choosing the right lawyer for you.
I believe that by visiting my website you may have already found the right lawyer for you. Why? Because I truly care about my clients and I have great judgment, which are two of the most important things a lawyer can bring to your case.
Simply stated, my approach is to listen carefully to your concerns. After I have listened, I assess your situation using the experience I have accumulated over the years, as well as my judgment (which is something that you really can't learn—you either have good judgment or you don’t). Next, I take as much time as needed to explain the available options and the pros and cons of each and to answer each and every question that you may have. I take this time because I believe that a fully informed client is my best client. Once I have answered all of your questions we get to work as a team doing everything we can to bring about the desired outcome. Why am I so confident? Because of the successful outcomes I have achieved time after time and because of the positive feedback I have received from so many of my clients.
So how do you select a lawyer? Recommendations from trusted sources are probably the most useful. Additionally, most lawyers offer a free consultation (at least most personal injury lawyers do). You should take advantage of these free consultations and try to meet with two or three different lawyers before choosing one that is right for you. Listen to what each lawyer has to say. Have a list of questions and get all of them answered. Always discuss what fee the lawyer says he or she will charge. Get a copy of the proposed fee agreement. Then end the meeting without signing up. A good lawyer will not pressure you to sign up at the first meeting. After you have visited several lawyers you will probably have a feeling for which one you felt most comfortable with. At this point you should have enough information to make a decision.
With regard to contingent fee agreements, my experience has been that many lawyers working on a contingency basis overcharge their clients. For example, I know lawyers who increase the fee for filing a lawsuit, or because the case requires mediation, arbitration, trial and/or appeal. I’ve also seen lawyers who charge an “administrative fee” (in addition to the contingency fee!), for doing routine tasks such as getting your medical bills or lost wages paid. I believe you should never have to pay extra fees - period! In my view these are things your lawyer should be doing as part of your personal injury case and any lawyer who would charge extra for them is really just lining his or her own pockets.
Please feel free to contact me for a free, no obligation consultation regarding your personal injury case. info@sclearylaw.comThis e-mail address is being protected from spambots. You need JavaScript enabled to view it or (413) 549-7600.
I believe that by visiting my website you may have already found the right lawyer for you. Why? Because I truly care about my clients and I have great judgment, which are two of the most important things a lawyer can bring to your case.
Simply stated, my approach is to listen carefully to your concerns. After I have listened, I assess your situation using the experience I have accumulated over the years, as well as my judgment (which is something that you really can't learn—you either have good judgment or you don’t). Next, I take as much time as needed to explain the available options and the pros and cons of each and to answer each and every question that you may have. I take this time because I believe that a fully informed client is my best client. Once I have answered all of your questions we get to work as a team doing everything we can to bring about the desired outcome. Why am I so confident? Because of the successful outcomes I have achieved time after time and because of the positive feedback I have received from so many of my clients.
So how do you select a lawyer? Recommendations from trusted sources are probably the most useful. Additionally, most lawyers offer a free consultation (at least most personal injury lawyers do). You should take advantage of these free consultations and try to meet with two or three different lawyers before choosing one that is right for you. Listen to what each lawyer has to say. Have a list of questions and get all of them answered. Always discuss what fee the lawyer says he or she will charge. Get a copy of the proposed fee agreement. Then end the meeting without signing up. A good lawyer will not pressure you to sign up at the first meeting. After you have visited several lawyers you will probably have a feeling for which one you felt most comfortable with. At this point you should have enough information to make a decision.
With regard to contingent fee agreements, my experience has been that many lawyers working on a contingency basis overcharge their clients. For example, I know lawyers who increase the fee for filing a lawsuit, or because the case requires mediation, arbitration, trial and/or appeal. I’ve also seen lawyers who charge an “administrative fee” (in addition to the contingency fee!), for doing routine tasks such as getting your medical bills or lost wages paid. I believe you should never have to pay extra fees - period! In my view these are things your lawyer should be doing as part of your personal injury case and any lawyer who would charge extra for them is really just lining his or her own pockets.
Please feel free to contact me for a free, no obligation consultation regarding your personal injury case. info@sclearylaw.comThis e-mail address is being protected from spambots. You need JavaScript enabled to view it or (413) 549-7600.
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