We often forget as citizens of Massachusetts and the United States that we have a constitutional right, both state and federal, to be free from unlawful searches. In other words, there must be probable cause to believe that a crime has, is, or will be committed in order to legally effectuate a search. More particularly, our laws absolutely prohibit searches of a person’s home or residence without a properly based and substantiated search warrant.
Recently, our Supreme Judicial Court declared that a college campus dormitory room which was searched without a warrant and with the use of coercive tactics by the campus police was illegal. This decision finally stems the tide of cases which for one reason or another once seemed to uphold similar searches on the basis of consent of the student or occupant.
Speaking to the issue, the court said “If either the officer’s request or the occupant’s response is so ambiguous that we are unable to discern whether the occupant voluntarily consented to the search, our inquiry will be over and the entry must be deemed unlawful”.
The important point to make is that neither the campus police nor anyone acting on their behalf has a right to search a college dormitory room without a warrant and definitely not without the permission of the student or occupant.
Ianello & Brittain P.C. located in Western Massachusetts, with offices in Springfield, represent you in personal injury and criminal cases.
Thursday, December 9, 2010
Wednesday, November 24, 2010
Injured by Fall on Snow and Ice? Property Owner can now be found negligent for failure to remove the snow.
Massachusetts followed a rule that for years prevented an injured person from recovering against the property owner as a result of a slip and fall on ice and snow. The reason why that happened is because Massachusetts did not allow a person who was injured, no matter how seriously, to sue the owner of the property if the snow and ice accumulated naturally. There was no duty to shovel or clear the snow and there was no duty to sand or salt the ice. There essentially was no negligence in failing to do so.
Finally, Massachusetts following the majority of other states with respect to snow and ice cases returned to the “reasonably safe standard”. The property owner whether a homeowner, government entity, or commercial property owner is now held to the ordinary standard of negligence when it comes to snow and ice. The property owner must now keep his property in a reasonably safe condition and take precautions which are reasonable to prevent injuries to those persons who are lawfully upon the property.
Now it can be argued that if a property owner fails to shovel his walk and remove the snow; sand and salt the ice, he will be considered negligent and will be held responsible for personal injuries to any third party lawfully on his property. This would include sidewalks, driveways, parking lots, walkways and ramps.
The change in the law also provides for retroactive application. That means that any person who was injured as a result of a slip and fall on a natural accumulation of ice and snow within the last three years may now have a case. So, if you or anyone you know has been injured and has been told that you did not have a legal case that could be pursued under the old law, you may now have to take a second look. Call Ianello & Brittain right away at 413-731-3131.
Finally, Massachusetts following the majority of other states with respect to snow and ice cases returned to the “reasonably safe standard”. The property owner whether a homeowner, government entity, or commercial property owner is now held to the ordinary standard of negligence when it comes to snow and ice. The property owner must now keep his property in a reasonably safe condition and take precautions which are reasonable to prevent injuries to those persons who are lawfully upon the property.
Now it can be argued that if a property owner fails to shovel his walk and remove the snow; sand and salt the ice, he will be considered negligent and will be held responsible for personal injuries to any third party lawfully on his property. This would include sidewalks, driveways, parking lots, walkways and ramps.
The change in the law also provides for retroactive application. That means that any person who was injured as a result of a slip and fall on a natural accumulation of ice and snow within the last three years may now have a case. So, if you or anyone you know has been injured and has been told that you did not have a legal case that could be pursued under the old law, you may now have to take a second look. Call Ianello & Brittain right away at 413-731-3131.
Motorcycle Collision Results in Severe Personal Injury
The negligence of the operator of a van caused a head-on collision with a motorcycle operator who sustained not only a fracture to his left wrist, but also second degree burns to eight percent of his body. These injuries can be devastating and must be properly documented with photographs and medical records, including nurses’ notes and medication charts. Motorcycle injuries often are permanent. At Ianello & Brittain those injured as a result of motorcycle collisions are given specialized treatment to assure that all of the evidence is properly preserved and analyzed so that liability or fault is established at the outset.
Friday, October 29, 2010
Operating Under the Influence – OUI, DUI and DWI - Sobriety Checkpoints
You know about sobriety checkpoints from my previous articles on OUI, DUI and DWI. There will be a sobriety checkpoint this Friday, October 29th somewhere in Hampden County, which usually means one of two locations. The state usually has about a ten person quota as long as you have been drinking, you will likely be arrested. You will be treated just like a criminal, arrested and brought to jail. The most popular location and where the roadblock will likely be set up is on West Columbus Avenue in Springfield heading south in the hospitality center parking lot located between State and Union Streets. The other location could be Memorial Avenue in West Springfield with set up in the main gate entrance to the Big E. You do not have to be drunk to be arrested. Having had an alcoholic beverage which can be detected is enough.
Routinely a police cruiser will be parked on the right hand side of the road just prior to the roadblock. Although there should be signs indicating that you are approaching a sobriety checkpoint, they are not often very well illuminated. Remember to use your judgment and remember to exercise your Constitutional right not to submit to any type of testing which would violate your Fifth Amendment privilege against self-incrimination. You will need a criminal attorney to defend and win your case. If charged call Ianello & Brittain right away, so that we can advise you of the criminal penalties upon conviction of an OUI, DUI or DWI charge. Insist upon speaking with an attorney before answering any questions or performing any tests.
We can be reached in an emergency by calling our office, Ianello & Brittain P.C. at (413)731-3131 and pressing 8 on your phone key pad.
October 29, 2010
Routinely a police cruiser will be parked on the right hand side of the road just prior to the roadblock. Although there should be signs indicating that you are approaching a sobriety checkpoint, they are not often very well illuminated. Remember to use your judgment and remember to exercise your Constitutional right not to submit to any type of testing which would violate your Fifth Amendment privilege against self-incrimination. You will need a criminal attorney to defend and win your case. If charged call Ianello & Brittain right away, so that we can advise you of the criminal penalties upon conviction of an OUI, DUI or DWI charge. Insist upon speaking with an attorney before answering any questions or performing any tests.
We can be reached in an emergency by calling our office, Ianello & Brittain P.C. at (413)731-3131 and pressing 8 on your phone key pad.
October 29, 2010
Tuesday, October 12, 2010
New Texting Law in Massachusetts
Massachusetts just passed a “Safe Driving Law” with civil and criminal penalties effective September 30, 2010 covering the use of mobile phones and mobile electronic devices. Although the law was drafted to provide civil and criminal penalties for texting the law covers many other areas including a prohibition against the use of mobile devices by junior operators.
JUNIOR OPERATORS
Junior operators are barred from using a cell phone or operating any mobile device while driving a motor vehicle. The first violation calls for a $100 civil penalty or fine, a 60-day license suspension and the completion of a training course at the operator’s expense. For the second offense, a $250 fine will be assessed as well as a 180-day license suspension. The third or subsequent violation will trigger a $500 fine and a one year license suspension. Remember all license suspensions require payment of a re-instatement fee once the penalty period expires. There is no provision for a hardship license either for school or work.
PUBLIC TRANSPORT MOTOR VEHICLE OPERATORS
Adult operators of buses, vans and taxis among others are barred from using a mobile phone and each offense will produce a $500 fine. For those offenders over the age of 18, who improperly use a mobile phone (one hand must be on the steering wheel at all times) will be assessed for the first offense $35, the second offense in twelve months is a $75 and the third or subsequent offense in twelve months is a $150.
SENDING OR RECEIVING TEXT MESSAGES
Any operator who sends or receives text messages, emails or instant messaging while driving, will be assessed a $100 fine for the first offense, $250 fine for the second offense and a $500 fine third offense.
All of the above violations are considered civil and therefore will not incur any insurance surcharge which can form the basis of any additional suspension periods under the general guidelines of the Registrar of Motor Vehicles. The new law with reference to general motor vehicle suspensions for surchargeable events has been changed from the five surchargeable incidents in a three year period to three surchargeable incidents within a two year period. In other words, since some of the above violations call for their own suspensions, it will not also be considered or included in order to suspend a person’s license for any additional period of time in the event that he has also violated the regular guidelines as well. Criminal charges such as negligent operation will be sought against anyone using a device and who causes an accident or injury.
NEGLIGENT OPERATION AND INJURY FROM MOBILE PHONE USE
A. JUNIOR OPERATORS
A first offense is 180-day suspension and a second offense within three years is a one year suspension. Both require $500 reinstatement fees.
B. ADULT OPERATORS
For the first offense a 60-day suspension will apply and a second or subsequent offense within three years results in a one year suspension. A $500 reinstatement fee applies as well.
Since this offense is a criminal offense an insurance surcharge will apply as well. That means that in addition to the specific suspension period provided herein, if the surcharge triggers an additional suspension under the general guidelines of the Registrar, an additional suspension period will apply.
ELDER DRIVERS
There is also a provision for elder drivers who must now renew their drivers license in person if they are 75 years of age or older. They must now take and pass a vision test or provide an appropriate screening certificate from an appropriate healthcare provider to complete the renewal process.
Posted October 12, 2010
JUNIOR OPERATORS
Junior operators are barred from using a cell phone or operating any mobile device while driving a motor vehicle. The first violation calls for a $100 civil penalty or fine, a 60-day license suspension and the completion of a training course at the operator’s expense. For the second offense, a $250 fine will be assessed as well as a 180-day license suspension. The third or subsequent violation will trigger a $500 fine and a one year license suspension. Remember all license suspensions require payment of a re-instatement fee once the penalty period expires. There is no provision for a hardship license either for school or work.
PUBLIC TRANSPORT MOTOR VEHICLE OPERATORS
Adult operators of buses, vans and taxis among others are barred from using a mobile phone and each offense will produce a $500 fine. For those offenders over the age of 18, who improperly use a mobile phone (one hand must be on the steering wheel at all times) will be assessed for the first offense $35, the second offense in twelve months is a $75 and the third or subsequent offense in twelve months is a $150.
SENDING OR RECEIVING TEXT MESSAGES
Any operator who sends or receives text messages, emails or instant messaging while driving, will be assessed a $100 fine for the first offense, $250 fine for the second offense and a $500 fine third offense.
All of the above violations are considered civil and therefore will not incur any insurance surcharge which can form the basis of any additional suspension periods under the general guidelines of the Registrar of Motor Vehicles. The new law with reference to general motor vehicle suspensions for surchargeable events has been changed from the five surchargeable incidents in a three year period to three surchargeable incidents within a two year period. In other words, since some of the above violations call for their own suspensions, it will not also be considered or included in order to suspend a person’s license for any additional period of time in the event that he has also violated the regular guidelines as well. Criminal charges such as negligent operation will be sought against anyone using a device and who causes an accident or injury.
NEGLIGENT OPERATION AND INJURY FROM MOBILE PHONE USE
A. JUNIOR OPERATORS
A first offense is 180-day suspension and a second offense within three years is a one year suspension. Both require $500 reinstatement fees.
B. ADULT OPERATORS
For the first offense a 60-day suspension will apply and a second or subsequent offense within three years results in a one year suspension. A $500 reinstatement fee applies as well.
Since this offense is a criminal offense an insurance surcharge will apply as well. That means that in addition to the specific suspension period provided herein, if the surcharge triggers an additional suspension under the general guidelines of the Registrar, an additional suspension period will apply.
ELDER DRIVERS
There is also a provision for elder drivers who must now renew their drivers license in person if they are 75 years of age or older. They must now take and pass a vision test or provide an appropriate screening certificate from an appropriate healthcare provider to complete the renewal process.
Posted October 12, 2010
Friday, September 24, 2010
Violation of Abuse Prevention Orders (September 24, 2010)
A district court jury recently convicted a defendant for violation of an abuse prevention order by calling the victim and threatening her.
The courts in these matters usually hear from the victim and issue a restraining order which is intended to protect the victim. The terms of the order can be crafted by the judge to prevent the defendant from contacting the victim. The terms of an abuse prevention order usually contain no abuse and to stay away from the victim’s work and home. The courts sometimes issue an order of no abuse and allow the parties to remain in the same household when they do not want to be separated.
The courts usually enter these orders ex parte without notice to the defendant. The period between the issuance of the court order and the time that the defendant is notified can create a problem.
In the case of Commonwealth v. Melton, 77 Mass. App. Ct. 552, the defendant contacted the victim; the victim informed the defendant that she went to court and received a restraining order and that the defendant would be served with that order in due course. After this conversation took place the defendant knowing that there was a restraining order in effect but before he was served, contacted the victim again using threatening language. A jury convicted the defendant, even though he had not been formally served with the court order.
The judges and police departments take these matters very seriously and the temptation to contact a victim when there is a restraining order outstanding even though strong should be avoided.
The courts in these matters usually hear from the victim and issue a restraining order which is intended to protect the victim. The terms of the order can be crafted by the judge to prevent the defendant from contacting the victim. The terms of an abuse prevention order usually contain no abuse and to stay away from the victim’s work and home. The courts sometimes issue an order of no abuse and allow the parties to remain in the same household when they do not want to be separated.
The courts usually enter these orders ex parte without notice to the defendant. The period between the issuance of the court order and the time that the defendant is notified can create a problem.
In the case of Commonwealth v. Melton, 77 Mass. App. Ct. 552, the defendant contacted the victim; the victim informed the defendant that she went to court and received a restraining order and that the defendant would be served with that order in due course. After this conversation took place the defendant knowing that there was a restraining order in effect but before he was served, contacted the victim again using threatening language. A jury convicted the defendant, even though he had not been formally served with the court order.
The judges and police departments take these matters very seriously and the temptation to contact a victim when there is a restraining order outstanding even though strong should be avoided.
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