Last week was supposed to be easier for me due to school vacation week but it seemed that I had a busier than normal week.  Thursday was very productive day and thought it would be a good illustration of what a sole practitioner does.

I got up around 5am which is normal and took my two Bernese Mountain Dogs to Borderland State park.  The walk is a nice way to start the day and allows me to think through what I need to do and a plan.  I figured out some strategies for cases and organization.  I got back to my house and answered a few emails from the day before and dictated some letters and memo's for one of my assistants.  I did the normal stuff to get ready and felt a little jealous of my wife - who is a school art teacher and son as they are on vacation. 

 I left my home around 8 am and went to Wareham District Court which ended up being being easy as I received some discovery , lobbied the case with the Judge and prepared a ptc and trial form and set the case for trial on a A&B with Dangerous weapon charge which I thing we have a strong case.  I am did note in my file an interesting evidence issue that can be disposition of the case and need to do a good legal memo.  I got out of court early and was able to go to a nursing home in Bedford to meet with two separate clients dealing with guardianship cases in Probate Court.  I was also able to speak to staff and review the client's medical charts. 

 Melanie's law has added a lot regarding license loss.  Hardship license is only granted at the reasonable discretion of the registry.  There must be no evidence driving once the license has been suspended or revoked.  The applicant must have a documented and legitimate hardship. The applicant must provide a letter from his employer including the work hours and need for hardship license.  If self employed you must provide proof of self employment such as business certificate , tax forms and so forth.  You may get a 7 day a week 12 hour license or Cinderella license and you must enroll in the 24 D program.  Your case must be resolved.

I have handled a lot of high conflict custody case.  I have represented children , been a guardian ad litem, represented Mother and Fathers as well as grandparents, family members, foster parents, friends of the family and friends of the children.  Custody cases are hard on everyone involved.

It is never easy for the family , attorneys and judges.  Sometimes, the parties are not looking at what is actually in the children best interest or one party is using custody to threaten the other side or as a tactic.  Everyone needs to realize that custody battles are hard for the children.

Most of the time  there is a lot of different issues involved in custody.  A component is to be able to present your case in a way that is convincing to the court.  The age of a child is a big factor.  If you have unbiased witnesses and records, it can be very helpful.  Teachers, therapist and doctors are very good sources.  Best friends and grandparents can be helpful but are generally not as helpful.  Remember you have to present to the court what is in a child's best interest.

In MA it is not a crime to drink and drive.  It is a crime to operate under the influence- that is that alcohol impairs your ability to drive.  With Melanie's law the punishment for OUI has significantly worsened.   You should never drive impaired for a variety of safety as well as legal reasons.  OUI are treated more seriously than nearly any other type of crime.

 If Homer lived in MA, his driving after drinking would not be a cartoon.  The police are now looking for impaired drivers and once they smell alcohol on your breath it is extremely likely that you will be arrested.  The police are not like Chief Wiggums.  They are trained in how to conduct field sobriety tests.  There is a manual and classes that the officers take.  You choose to  take or not taking these tests.  If you choose not to take the tests, your refusal can not be used against you in court.  In addition, the test have issues if they are not in a well lit area, on an even surface, if the ground should not be slippery and other reasons.   The officer is supposed to ask if there is any reason why you can not do the test.  Reasons can include physical conditions, obesity and other reasons.  Some people just do not do well on many of these coordination tests.  Homer, if he was smart, would most likely not do these tests based on his overall lack of coordination.  In addition, his weight may make the tests not possible to complete.  Most people have a variety of reason why they do not do well on the test including being nervous of having a police man deciding whether to arrest you or not based on how well you do.  Most eyes tests (HGN) and Portable Breath Tests( PBT) can not be used against you in trial.   There are a lot of defenses to the tests that can be introduced at trial.

 Breath Tests are much harder to decide whether t take or not and  can be harder to defend.  MA is now a per se state for BT of .08 or above.  The state has hoops to jump through and is not always able to actually get the test results in for a variety of reason.  A big issue is whether you should take the breath test or not.  The state has to provide you a written explanation of what happens to your license if you take the test or not.  A big factor is whether you know you will pass or fail the exam and whether this is your first or subsequent OUI.  In MA now there is a lifetime look back and the penalties for first and subsequent offenses are high.

Everyone needs to protect themselves in case of the worst.  People need a Will to not only provide instructions for financial reasons but also to nominate a guardian for minor children.  Without a will the state court chooses who will be the guardian of the children without your input.  In addition, the state has certain ways that assets will be divided without your input.

You also need a durable power to attorney so that in case you are not incapacitated or not competent someone who you choose will be able to deal with financial and other decisions making on your behalf.  You should also have a health care proxy( and directive similar to a living will while not legal binding will provide the health care proxy guidance).  The health care proxy will allow a person to trust to make health care decisions for you.  You also need a release for a doctor and medical staff to speak to your spouse , children and others.

Other possibilities may be a homestead if you do not have one. a review of who benefits on your life insurance and retirement accounts, trust and other plans.  You want to examine tax consequences, nursing home issues and other factors on your on rather than have a relative litigate these issues in court - making it expensive and time consuming.

I represented a lot of people going through legal troubles.  I am providing some examples of  work I did last week.

 In Attleboro District Court, I had an OUI( drunk driving) case on Thursday that the Court allowed a probable cause motion to dismiss on the OUI and the Commonwealth agreed to dismiss the Oper. neglig. upon $200 Court Costs.  My client was pleased to have the case dismissed, no record and without  having to go to  trial.

 

The holidays have a lot of great things for many people but are also the worst and most stressful times for many.  I have found that my practice has a lot of people dealing with stressors and either voluntarily or not being in legal situations.  Many items people decide to get a divorce after the holidays or have the need to file bankruptcy due to the financial stressors.  In addition, there are a great deal of criminal behavior, DCF involvement and other that take place. 

Other times people are not in as much trouble as reaching resolutions for the new year such as having wills or durable power of attorneys or getting a guardianship.  This time of year it is important to recognize that many people are in the same situation as you may be.

The recession is supposed to be close to over but it does not appear to be that way for many hard working men and woman.  Circumstances including caring for the sick and elderly, unemployment and underemployment, divorce, health and many other reason are leaving people no cushion.  A lot of people are walking a financial tight rope with credit card companies seeming to try and tip people off the tight rope.   Credit card companies are raising interest rates with enhanced penalties before the modest legislation take effect. 

 Credit card companies are aggressive calling people at home and work.  One of ways to stop the phone calls immediately and wipe out credit card and other unsecured debt is by filing a chapter 7 bankruptcy.  This type of bankruptcy may allow you to exempt certain property including real estate with a proper homestead retirement and other assets.   

There are a lot of misconceptions about criminal records in MA.  There is for all practical purposes no expunging of records in MA.  CWOF, not guilty, dismissals and the like do continue to appear on your CORI and CARI.  There are different levels of people who can have access to your records and  who will be able to see both the adult and juvenile record.  How you resolve a case impacts issues related to employment, housing, firearms, immigration, schooling and a hots of other issues.  You need to realize this when focusing on resolving a case now.  

 There are different ways to seal your adult and juvenile records in different circumstance.  They can potentially be done through the commissioner of probation who has strict requirements to satisfy and the courts.  If considering sealing your record make sure that you get a copy of your record before seeking to have it sealed.  Some out of state employers will require to see you record if if sealed.  In addition, sealing your record can hurt in terms of immigration purposes.  However, sealing your record may significantly help with some employment, housing and other issues.  If your record is sealed most people accessing your record will see that you have no record.  You should consult an attorney before taking any of these steps. 

Comparing the law and the cartoon family the Simpson's may help animate different areas.  To start with we should look at Bart Simpson.  Looking at Bart and his behavior could easily lead issues at school.  If Bart was charged with a crime there needs to be looking at the school for possible suspensions and expulsions.  There are issues that need to be addressed that there is no fundamental right to education under MA Law.  When a student is exploited pursuant to MGL c 71 37H and H1/2 no public school in the commonwealth is required to educate him/her.  Children as young as age 10 have been permanently expelled from school under the state's zero tolerance.  The power to expel children from school is delegated to principals, superintendents and school committees.  That would be Principal Skinner and Superintendent Chalmer.

There are lots of issues with Bart.  There should be a determination of whether he has an IEP or any type of special education or whether he should have one.  There is significantly more protections for a child with an IEP.  A parent should request an evaluation if there appears to be possible issues with him that might make an IEP necessary.  Requesting an IEP can help a lot with due process issues for Bart.  Getting his school records is a necessary step.  An IEP or special education does not necessarily deal with a students intelligence- there can be a need on issues unrelated to school work such as ADHD, and sometimes behavioral and emotional issues. Given all of Bart's issues in school in the past -there would appear to be a high probability that he would qualify for special education that may lessen the impact of any school discipline.