Defense Counsel Q & A

Here at Brad Bailey Law, potential clients regularly contact us with questions and/or concerns about legal problems they or a loved one are facing and whether they need the help of an experienced lawyer. Legal issues, particularly those pertaining to criminal charges, are never simple, and there is no substitute for meeting with an experienced criminal defense attorney and discussing all the facts and circumstances of your particular situation. That said, here are a few of the most recent inquiries we received, and our answers:

Hiring a Criminal Defense Lawyer:
Failure to Appear:
Your Criminal Record:
Motor Vehicle Crimes & Appeals:
Drug Crimes:
Property Crimes:
Sex Crimes:

Hiring a Criminal Defense Lawyer:

A: The answer is a resounding yes… if that reputation is the product of particularized knowledge and skill honed by experience, and not just a matter of good marketing. No one can guarantee a result in a criminal defense case, but an attorney with extensive experience in the criminal defense field, like Brad Bailey, will undoubtedly be in a better position to negotiate with prosecutors than an attorney who is inexperienced or doesn’t focus exclusively on criminal defense practice. This is because an experienced criminal defense attorney should know the law, know procedure, know the Court, and ultimately know when to bargain and when to press forward for trial. If that’s true of the attorney you are considering hiring, then the prosecutor is likely to recognize his or her credibility, and to give due weight to his or her negotiations/arguments, as will the judge. Also, the reality is the better known your lawyer is, the better the possibility of him or her negotiating a more favorable disposition for you. This is because an intimidating (i.e., accomplished/successful) reputation can be worked to your advantage, especially with younger prosecutors who may not yet have confidence to "take on" your lawyer in earnest. It is also because there can be an instant credibility that comes with reputation and renown that judges do recognize and, in certain instances, will give deference to.

Don’t be afraid to ask your prospective attorney about his or her experience, and whether they’ve dealt with the particular prosecutor or judge before; they should have no problem discussing it with you if their reputation has been earned, and has not been bought with marketing dollars. Moreover, former state and federal prosecutors, like Brad Bailey, often receive accommodations and considerations, especially if dealing with their former Office, that can wind up being quite helpful to your case and cause.

I had a lawyer who represented me on two (directly related) legal matters. I felt his representation was mediocre at best. There is a third piece to my legal matter that I need representation for, but I'm not sure I want to continue on with my current attorney. He has been unresponsive since the second matter was resolved, but I'm afraid to move on given that he's familiar with the whole case.

A: Your attorney works for you. It is reasonable to expect your attorney to be responsive, accessible, and available to handle the matter(s) for which you hired him or her. This should have been spelled out in the fee agreement or engagement letter you both (hopefully) signed. If your attorney is not living up to that agreement, or failing to respond to you in a timely and substantive fashion, it is more than “safe” to look for another attorney – it’s the smart thing to do.

A: Yes, you should consult with an experienced criminal defense lawyer, like Brad Bailey, as soon as possible.
Larceny over $250 by a single scheme means that you are being charged with a crime that was supposedly committed over a period of time (between 2 dates), and the DA will be trying to prove that you took property that belonged to someone else, with the intent of permanently depriving the owner of the property. Under these charges, the DA will also be trying to prove the value of the property exceeded $250. By a single scheme means that the DA will try to prove that during that period of time when the theft(s) supposedly occurred, you had a single, ongoing intent to steal, and even though time may have elapsed between the acts of theft, they were not separately motivated, but were part of one general scheme or plan to steal.
The penalties are generally imprisonment in state prison for up to 5 years, or a fine of up to $25,000 and imprisonment in jail for up to 2 years. However, there are numerous fact-based factors in the related statute that can result in far longer sentences, depending on the circumstances. It’s important to discuss all the facts and circumstances of your case with an experienced criminal defense attorney, like Brad Bailey, so you know what you are facing and can develop a good strategy to defend your case.

I had just been fired from my job; and my boss did not give me any explanation (I was an "at will" employee). I know there were some concerns about fraud happening at my job, but nothing to do with me. Now a detective keeps calling me, but won't give me any information about the case. I can only assume it relates to the fraud suspicions, but can't be sure. The detective is very persistent about me coming in that day, and keeps asking me over and over again when I am free and to come down to the station, including weekends. Should I go? Do I need an attorney?

A: I advise you not to answer any of the Detective's questions without a lawyer present. In fact, you should consult with, and retain, an experienced criminal defense lawyer like Brad Bailey before you speak with him at all. Your lawyer can contact the detective first to “size up" the situation, along with your potential jeopardy/exposure. A weekend call from a detective, with a request for a same-day interview, is unusual. In my experience, it is indicative either that the related investigation has heated up and/or that the recipient of the request for an interview is already a target.

Fraud is a broad concept and innocent acts can easily be twisted into evidence of intent or consciousness of guilt. My experience with fraud (and most other criminal) cases is that clients much more easily talk themselves into target/defendant status than out of it. You should hire an experienced attorney to do your talking for you.

This is my first offense. What are my best options? Should I just ask for leniency or fight the validity of the ticket? My ticket was issued by a veteran officer using both LIDAR and estimation.

A: You can definitely hire an attorney to represent you.

Presuming your violation is merely a civil infraction (and didn’t involve your arrest or an application for criminal complaint issuing), you still may have an uphill battle in challenging your ticket. Speeding is a general intent violation, meaning you don’t knowingly have to violate the speed limit for the Magistrate to rule against you – it’s enough that you were caught speeding.

However, depending on the circumstances, you may be able to get the ticket dismissed or the fine reduced. An experienced attorney, like the lawyers at Brad Bailey Law, can review the specific facts of your case with you ahead of the hearing and help determine your best strategy for a favorable result.

He had broken into a house while was under the influence of benzodiazepines, but passed out while still in the house and was arrested. He named some people as accomplices in the crime. Now they are supposed to meet with a magistrate, but the robber has passed away….

A: It sounds as though these named accomplices have received summonses to appear at a Clerk-Magistrate Hearing, also known as a Clerk's Hearing or Show Cause Hearing, which is a process by which the Court decides whether or not they should be formally charged with a crime. The legal standard of proof at a Clerk-Magistrate Hearing is probable cause. This is a low standard of proof, requiring only that the Clerk finds that the evidence presented would permit a reasonable person to conclude a crime has been committed. (This doesn't mean they would be found guilty of a crime - that requires proof beyond a reasonable doubt - it just means there is enough evidence to believe a crime may have occurred.) The normal rules of evidence applicable at trial are suspended at a show cause hearing, so the deceased statements – which may be the subject of a hearsay challenge at a trial – may be considered by the Clerk in determining probable cause. If the Clerk finds probable cause, a complaint will issue, formally charging the so-called accomplices with a crime, and they will be referred to the District Court for arraignment.

It is important to have an experienced lawyer like Brad Bailey at a Clerk-Magistrate Hearing, especially given the low standard of proof. The Clerk-Magistrate Hearing is the last chance to avoid criminal charges issuing. Having an experienced criminal defense lawyer represent you at the Clerk-Magistrate hearing gives you the best opportunity to refute the complainant's claims and to present the merits of your own case to the Clerk regarding why you shouldn't be charged with a crime. If the Clerk finds probable cause, you will be charged and will have a criminal record.

I suggest you encourage these “accomplices” to speak to an experienced criminal defense attorney like Brad Bailey before they go before the magistrate.

Failure to Appear:

A: If you fail to appear for your next court date, trial or otherwise, a bench warrant will almost certainly be issued. This means the police have the Court’s authorization to arrest you and bring you before the Court. The warrant allows the police to arrest you wherever you may be found, whether in your house, driving your car, or walking down the street.
The prosecution will also almost certainly ask that, at best your bail be increased, and at worst – and far more likely if trial is in fact your next date, that your conditions of release be revoked and that you be held pending trial.
I advise you not to miss any scheduled court dates, especially trial. No doubt, going to trial with your freedom potentially on the line is scary, but you will only make your life more difficult if you fail to appear before the Court as directed. Consult with your criminal defense attorney, prepare for trial, and show up. If you don’t have an attorney, get one fast!

A: First and foremost, I advise you not to abscond regardless of the Court’s decision – because it is evident that you are not permitted to travel abroad without permission, it would be a clear violation of your probation, and you would be looking at time in federal prison. Moreover, because you alerted the Government and the Court to your desire to travel abroad by what I assume was a motion for a modification of your conditions of release/probation, if the Court denies your motion it is entirely possible, if not likely, that the Government may ask for, and the Court may order, you to surrender your passports as a further condition of your continued probation.
I strongly urge you to wait for the Court’s ruling and continue to abide by the conditions of your probation. If the ruling is unfavorable, you should consult with an experienced federal defense attorney like me about the possibility of filing a motion for reconsideration and/or appealing the decision.

A: An outstanding bench warrant means the police have the Court’s authorization to arrest you and bring you before the Court. The warrant allows the police to arrest you wherever you may be found, whether in your house, driving you car, or walking down the street. Now, this doesn’t mean that it’s likely that a SWAT team will be breaking down your door – based on the circumstances you describe, it seems highly unlikely that a “no-knock” warrant would be involved – but, it does mean they could come knocking at your door, and arrest you there.
An outstanding warrant is not something to take lightly. It is in your best interest to consult an experienced criminal defense lawyer as soon as possible. Ideally, your attorney can arrange for your self-surrender at the local police station, in his or her company, and under circumstances that give you the best opportunity to get the warrant removed, and hopefully, your freedom restored as quickly as possible.
The longer you delay, the more difficult it will likely be to secure your release on favorable conditions. I urge you to contact an experienced MA licensed criminal defense lawyer, like the ones at Brad Bailey Law, immediately.

Your Criminal Record:

A: CWOFs are not considered convictions. Generally, if you receive a CWOF and successfully complete the requisite probationary period, your case is dismissed and the CWOF will not show up on your CORI for most employers, who typically have Standard Access to CORI. However, certain employers have what is called Required 1 Access to CORI or Required 2 Access to CORI. Required 1 Access employers, such as hospitals, banks, security system installers, etc., would not see a dismissed CWOF on your CORI. On the other hand, Required 2 Access employers, such as assisted living facilities, nursing homes, programs for children, etc. will see non-conviction information, including your CWOF. (There are also Required 3 & 4 Access to CORI employers, who also have access to CWOF information on a CORI.) It seems likely that your prospective employer may be a Required 2 Access employer. If that’s the case, they will have access to your CWOF.
This doesn’t necessarily mean they will rescind your job offer. However, if you are interested in having your record sealed, you are eligible to petition the court to do so. Please note that even if your record is successfully sealed, certain parties, such as law enforcement, will still have access to the sealed information. However, for most inquiring parties, your sealed record will be unavailable and kept confidential.
You should strongly consider contacting an experienced criminal defense lawyer like those at my firm for a consultation to discuss the specific facts of your matter, and the possibility of sealing your record.

Q:A year and half ago I got an OUI and received a CWOF. I just got a great job as a high school sports coach, but have to have a CORI check. I requested my own CORI and my CWOF showed up. Will my employer be able to see it, too?

A: Generally, public and private schools in Massachusetts have what is known as “Required 2” level of access, which means they will have access to any non-convictions on your CORI. Since a CWOF constitutes a non-conviction, the school will be able to see the CWOF on your record.
That said, Required 2 level access does NOT provide access to any SEALED records of non-conviction. Records of non-convictions can be sealed by a judge, however it is discretionary.

If you are worried about your record hampering your employment chances now, or in the future, your best bet would be to hire an experienced attorney who could file the necessary motions with the court and argue it aggressively on your behalf.

Be aware that it can take almost a month for your case to be heard (depending on the court) and it can take a few weeks after that, if the judge agreed to seal your record, for the Commission of Probation’s Office to update your CORI. The sooner you hire an attorney like the ones at Brad Bailey Law, the sooner you can get this process started.

I have been a law abiding citizen ever since, including Military service with an honorable discharge. I am now 28 years old, work full time, and am enrolled in an online college, attempting to obtain my degree. Is there any way I can get this removed from my record, or at least seal the case forever?

A: Your best bet would be to have your record sealed. In Massachusetts, your criminal record is part of your “CORI” which stands for the Criminal Offender Record Information. Assuming you have had no subsequent misdemeanor or felony convictions, and assuming that you were neither detained nor incarcerated as a result of your guilty plea, Massachusetts law (G.L. c. 276 s. 100A) allows for non-discretionary sealing of your CORI for the charge you described, starting on October 13, 2015. If, however, you were incarcerated after your conviction, your record would not be subject to sealing until 10 years from the date of your release. If you have any questions about whether you are eligible for sealing, or if you need assistance filing the paperwork with the appropriate state agencies, you should contact our office.

A: The law governing MA LTCs specifically covers situations, i.e. criminal histories, like yours when denying an LTC. Specifically, take a look at Mass. General Laws chapter 140 section 131(d)(i)(e): ttps://malegislature.gov/Laws/GeneralLaws/PartI/TitleXX/Chapter140/Section131.

Also, the police chief has a great deal of discretion in determining whether or not to issue you an LTC – it may be based on this aspect of the law, on other factors regarding your suitability for an LTC, or any combination thereof.

That said, you have 90 days from the police chief’s denial to file an appeal with the District Court if you still want to pursue an LTC. I suggest you consult with an experienced attorney, like Brad Bailey, who handles LTC denial appeals to see if the facts and circumstances of your situation make such an appeal feasible, and that you do so well in advance of the 90 day deadline.

She got pulled over by a local cop who said let her call me. I picked her up and drove car home without thinking about it further. Now she has a court date this Friday. Do we need a lawyer?

A: It is in your daughter’s best interest to retain an experienced criminal defense attorney who can try to negotiate a resolution of the case prior to arraignment. Even though it may seem like a minor infraction, it is a misdemeanor and if your daughter is arraigned, she will have, at a minimum, a probation central file number assigned to her which will follow her forever regardless of the ultimate outcome of the case.

It’s worth it to hire a lawyer, like the ones at my firm, to advocate on her behalf for a pre-arraignment resolution of the case.

I have an appeal before the Appellate Board to get a hardship license in a couple of weeks. I have a breathalyzer refusal and a DUI that I received a CWOF on. I am a full-time nanny and need the hardship license for my employment I've been quoted $1000 by some lawyers... Is this typical?

A: That is a typical price quote for this type of matter. You will undoubtedly find attorneys that charge more and attorneys who will quote you a lower price to get your business. The important thing is to find an attorney with experience handling these matters before the Board, and one that you are comfortable with. I encourage you to shop around until you find an attorney that meets both these criteria. However, don’t wait until the last minute to retain your attorney; your attorney will need time to put together a memorandum to submit to the Board and prepare to argue it, neither of which should be rushed if you want your best chance at success.

I just got a hardship license in MA after getting a CWOF for my first DUI. Am I allowed to leave the state to drive to GA as long I adhere to the time restrictions?

A: Hardship licenses are granted for purposes of allowing a person to get to work, school, medical appointments or other necessary destinations where public transportation is otherwise unavailable and the denial of a limited license would constitute an actual hardship. The law states that, “The registrar, at his discretion, may issue such license under such terms and conditions as he may prescribe…” Without knowing the specific terms and conditions of your hardship license and your purpose for going to GA I can’t say for certain that it would violate the terms of your hardship license, but it seems likely. Your best bet is to contact your assigned probation officer and discuss the matter with him or her.
If your PO says you can’t drive, and a plane, train or bus won’t get you where you NEED to go, you can always consult with a lawyer to explore having the terms and conditions of your hardship license modified.

I failed to renew my registration and was ticketed by a state trooper. I have to clear some excise tax payments before I can renew, which I was informed can take up the 48 hours to clear. Unfortunately, I need to drive short distances to get to and from work…

A: Yes, you can be ticketed multiple times, and the fine for each subsequent offense can be up to $1,000. You are right to be hesitant to drive again before your car is properly registered; it’s against the law, and could end up being very costly for you. Get the excise tax issues resolved and your car registered; in the meantime, find yourself a ride to work.

I tried to get my drivers license back in 2012, and had a hearing at the Board of Appeals. The BOA upheld the RMV’s decision to keep my license suspension in effect. Are there any other avenues for me to try to get my drivers license suspension rescinded? I need to drive to support my family. I have been without my drivers license since 2003. Any recommendations would be greatly appreciated.

A: You have the right to appeal an adverse decision by the Board of Appeals to the Superior Court. However, you would have needed to file a notice of appeal with the Superior Court within 30 days of receiving the Board of Appeals’ decision. Based on your statement, it seems that did not happen. In cases where the Board denies reinstatement, it is not uncommon for the Board to include in their decision a date on or after which you should reapply. If they did so, then that would be your target date to have a new application submitted.
It’s unclear if you applied just for full reinstatement in 2012, and/or if you also sought a hardship license. Given your need to drive to support your family, a hardship license is definitely something you should consider pursuing.
RMV and Board of Appeal hearings can be far more complicated than you might expect, and it’s in your best interest to be represented by counsel who knows the applicable laws, procedures, and pertinent issues. I suggest you consult an attorney like me who has experience with motor vehicle homicide license suspensions and reinstatements to go over all the details of your case and to determine the best time and manner to proceed with a further application for reinstatement and/or a hardship license, and any necessary appeals.

A: Yes, you will owe a reinstatement fee if your license is suspended by DOR. License suspension is an administrative remedy DOR is authorized to use to collect past due child support. In some cases, DOR is willing to work out a payment plan with you so that you can get your license reinstated. The RMV advises that the reinstatement process for suspensions due to non-payment of child support obligations is handled entirely by DOR, so you should contact them directly.

Drug Crimes:

A: If these are state charges, Massachusetts General Laws chapter 94C section 33 deals with false prescriptions and/or obtaining controlled substances by means of forgery, fraud or deception. If this is indeed the statute your wife is charged under, if convicted she faces up to 4 years in prison (or up to 2 1/2 years in a house of correction) and/or a fine of up to $20,000 for each count.

Your wife should consult with an experienced criminal defense attorney like me as soon as possible.

I got convicted, sentenced, did my time, and then got out on probation. I tried to have my probation transferred to a different state, but I was told no. I left anyway over twenty years ago. What do I need to do to get this corrected?

A: It's unfortunate you were told you could not get your probation transferred to another state. It's neither a right nor a guarantee but it can be done, except in certain sex offense cases where the proposed transfer- state is refusing to take-on probation transfers for registered sex offenders. Even though you left 20 yrs ago, there is no statute of limitations on your violation since all the time you have spent away from Massachusetts is excluded. You are likely the subject of an active warrant and each day you remain in violation of your terms of probation, you risk being arrested. I suggest you consult with an experienced attorney like me, immediately.

Property Crimes:

I signed a paper telling me that I am no longer allowed in any Target store across the U.S. What would the consequences be if I stepped into one 20 miles away? My name and picture are on file.

A: What you describe sounds like a textbook case of trespassing on private property. In Massachusetts, you could be arrested and subject to a $100 fine and/or up to 30 days in jail. The governing law is Mass. General Laws ch. 266 section 120. Don’t press your luck – find somewhere else to do your shopping.

A: The charge of larceny under $250 is governed by the Massachusetts General Laws chapter 266 section 30. Even if the facts of your case are as seemingly straightforward as you state, if convicted you could be looking at up to a year in jail. There are other aggravating factors – for example, if the bike belonged to someone 60+ years old, that could increase the possible penalties up to 2 1/2 years in jail and/or a fine of up to $1,000.
As you can see, this is not an insignificant charge. Jail time is a possibility. Your best bet is to hire an experienced criminal defense attorney, like the ones at Brad Bailey Law, to represent you. While nothing is guaranteed, a good attorney will assess your specific case and determine a course of action that, for example, could include negotiating with the DA for pretrial probation or a continued without a finding disposition. I urge you to contact a licensed MA criminal defense attorney and schedule a consultation as soon as possible.

A: There is no requirement that anyone has to speak with the police, ever. If you don't want to, you don't have to. If you don't want to, it is always a good policy and practice to decline politely, but, again, the choice to do so is entirely yours. Sometimes a police officer will try to trick you by saying you have to. This simply is not true. Requests for identification are a bit more complicated, but it's also true there is no requirement you provide ID when asked, either - however, failure to do so may well arouse their suspicion and result in more attempted questioning. But in terms of law enforcement knocking on your door and asking to talk, or calling you on the phone and asking you to come down to the station to "answer some questions," you have an absolute right to say no.

If you are contacted by police in these circumstances, your best move is to politely decline to speak to them, and to immediately contact an experienced criminal defense lawyer.

The moment you are contacted about a criminal case by law enforcement, you should assume you are under investigation and/or pending possible arrest. Your first call should be to an experienced criminal defense lawyer. You should not hesitate to make that call - time is often of the essence. In some instances, your hiring of a lawyer and him/her speaking with law enforcement can slow the process down. In others, it can result in allegations being shown to be based on misunderstandings, lies, hidden agendas, or false information; or being placed in context, re-examined, discounted and/or reversed, with charges avoided altogether. It also presents an opportunity for an experienced criminal defense attorney to negotiate your voluntary surrender at a time and place closer to your convenience, which will invariably result in a lower bail being set or no bail being necessary at all, if and when you are arrested. Moreover, it allows you to square away the critical issue of representation prior to the turmoil, panic and confusion that usually comes with an arrest, and gives your attorney a head-start in terms of game-planning and strategizing a winning defense. It also gives your family and/or loved ones the opportunity to get to know and trust the person in whose hands they will be placing many of their hopes, concerns, fears, as well as your very future. More than any of that, it allows you to take control of the situation and change the balance of power.

When you enter in a change of plea to “guilty” (distribution charges - mandatory minimum sentence of 5 years), do you get taken into custody immediately?; Or do you come back for sentencing? Is self-surrender a possibility?

A: In federal court, a defendant who has pled guilty to distributing narcotics will, except in limited circumstances, be incarcerated pending sentence. Those limited circumstances must include a recommendation by the prosecution that the defendant will not be incarcerated when sentenced and a finding by the judge that the defendant is not likely to flee or pose a danger while awaiting sentence. In other words, anyone pleading guilty to narcotics distribution charges in federal court, especially those facing mandatory minimum prison terms, should expect to be locked-up while waiting to be sentenced.

Sex Crimes:

I attended a party that I saw advertised on a swingers website.
I was not arrested, but they took a photo of my ID and said I would be summoned to court for a potential “sex for fee” charge. I was unaware that the girls were being offered money to be there. I thought the $60 “donation” was intended to cover expenses for the hotel room, etc.

A: Sex for a fee is a crime under Massachusetts law, and even assuming everyone was an of age consenting adult, carries with it the potential for anywhere from 1 year in jail and/or a $500 fine up to 2 1/2 years in jail and/or up to a $5,000 fine., depending on the facts and circumstances. Whether you think the potential charge is fair or not is irrelevant at this point. If you are charged, the validity of the charge based on the facts and circumstances may well come into play, but at this point, you need to protect yourself and consult with and hire an experienced criminal defense attorney like me as soon as possible so that in the event you are summonsed in for a probable cause/clerk’s hearing, you are well prepared, represented, and have your best shot at keeping a criminal complaint from issuing in the first place.