THEY’RE NOT COMPLYING: NOW WHAT?

There are a few options available to force a party to comply with a court order in Massachusetts. First, you should reach out to the opposing party – either through your attorney or on your own – and determine why they are not in compliance with the Massachusetts Family Court’s order. In some instances this contact may force them into quick compliance, and will also give you insight into why the other party has delayed his or her compliance with the Court’s order. Often times, however, the other party will not so easily fall into compliance and further, more drastic measures must be taken.

If the initial communication with the non-compliant party does little to get said party into compliance, the grieved party may be forced to retain counsel to draft and proceed with a Complaint for Contempt. A Complaint for Contempt in Massachusetts is used when a party is not in compliance with a court’s clear order. It is the only tool available to bring the non-compliant party before the court and to force the non-compliant party to explain why they are not in compliance with the Massachusetts Family Court order. A draft of the Complaint for Contempt, along with a strongly-worded letter, should be sent to the non-compliant party prior to the filing of the Massachusetts Complaint for Contempt. The letter should indicate that the non-compliant party has 10-days to bring himself into compliance, or alternatively, to reach out to the opposing party with his/her game-plan moving forward. The non-compliant party should be warned that failure to respond to the letter within the short deadline will force the grieved party file the Complaint for Contempt. The letter should also inform the non-compliant party that the grieved party will not only seek full compliance with the Massachusetts Family Court Order, but that the moving party will also seek reimbursement for missed work, as well as Attorney’s fees.

CONTEMPT HEARING: BURDEN FALLS UPON THEE

Unlike other Massachusetts’ contempt hearings, in the Massachusetts Family and Probate Court, the burden of proving that the defendant is in Contempt falls upon the defendant. Pursuant to Massachusetts’ statutory language, the defendant has the initial burden of showing – through a preponderance of the evidence – that the defendant is not in violation of the court order, or alternatively, that the defendant has not complied with the court order, but has done so because he does not have the ability to comply.

Sadly, many courts will still place the initial burden upon the plaintiff to show the defendant has the ability to comply with the court order; however, the statute placing the burden upon the non-compliant is clear and unambiguous.

If the court finds that the defendant is in contempt of court for failure to abide by the court’s order, there are many remedies available to the court. The Massachusetts Family and Probate Judge has the authority to incarcerate the defendant until the defendant becomes compliant with the court order, the judge may also give the defendant a short amount of time to become compliant, and to set a short review date to closely follow the defendant’s road to full compliance with the court order. However, the judge may not – under any lawful circumstance – modify the underlying court order in a contempt proceeding. If the defendant wants to change the terms of the previous court order, the defendant must file a Complaint for Modification.

Finally, contempt proceedings are often times quite confrontational. Emotions run high, and with the possibility of incarceration, the stakes are extremely important to all involved. Both parties should be well-prepared, and should explain their cases clearly and concisely. Any outside evidence that you may have to prove your case should be brought before the court, and presented to the other side prior to the hearing. Massachusetts Family Court orders are meant to be followed, not ignored or otherwise disregarded.

Attorney Anthony Rao has handled thousands of contempt proceedings before the Massachusetts Family and Probate Court. He has successfully enforced thousands of Massachusetts orders and judgments, and is agreeable to numerous types of retainer agreements to better fit his client’s resources . He may be reached at anthony@lawrao.com, or at 617-953-0836.

Clerk Magistrate Hearing: Hitting the Bull’s Eye When Not Looking

After receiving a Massachusetts’ driving citation, a driver is left with two choices.  First, the recipient of a Massachusetts driving ticket may simply pay the ticket.  This is the most common approach.  However, one must understand that paying the ticket itself may not be the only cost involved in obtaining the driving ticket.  In fact, most driving tickets in Massachusetts, such as speeding tickets, negligent operation, and marked-lane violation tickets, may very well be considered surchargeable events, and as such, a driver may be paying for this one alleged violation for years to come.

Further, upon paying the Massachusetts driving ticket, the driver is admitting that the driver in fact committed the act that the Massachusetts police officer has cited the driver for.  You will not have the opportunity to be heard. You are assumed to have violated the Massachusetts driving laws, and you will be considered a risk driver.  Accordingly, your Massachusetts’ driver’s insurance will most likely increase, and it will increase substantially.

The second choice a ticket recipient has is to fight the driving ticket.  In this instance, the driver completes the back of the citation, sends the citation to the appropriate venue, and a clerk-magistrate hearing will be scheduled.  The clerk-magistrate hearing is an opportunity for the driver to request an unbiased party to review the facts of the alleged incident, and determine if the Massachusetts police officer was justified in issuing the citation.  More often than not, the clerk-magistrate will side with the Massachusetts police officer, as the issuance of the ticket itself is evidence that the driver did violate the Massachusetts’ driving laws.  However, a well-prepared driver can present an excellent case that may sway the clerk-magistrate to find the driver “not responsible” and to dismiss the ticket from the driver’s record.

A well-prepared driver will bring pictures, provide testimony, and present witnesses to testify at the clerk-magistrate’s hearing.  Also, the driver will need to have a working-knowledge of the actual offense the driver was cited with.  This is critical, and will allow the driver to craft his argument and create his defense as to why he did not violate the driving regulation as asserted by the Massachusetts police officer.  This will provide an excellent opportunity to not only see the bull’s eye, but to also hit it squarely.

Finally, if the driver is unsuccessful at the Clerk-Magistrate’s hearing, she still has another bite left at the surcharge apple:  The Massachusetts’ Civil Motor Vehicle Infraction De Novo Hearing.

The De Novo Hearing: And the Judge’s Gavel Fell

If a driver is unsuccessful in appealing his citation before the Clerk-Magistrate, he may appeal the Clerk’s decision to a District Court judge.  The District Court judge will hear all evidence and testimony “de novo”, meaning the judge will not take into account the Clerk’s decision, and will look at all of the evidence and will hear all of the testimony without any deference to the clerk’s decision.  These hearings take on a much more formal dressing than the Clerk’s hearing, and a driver should almost always retain counsel to assist with the de novo hearing process.

The Massachusetts’ Civil Motor Vehicle Infraction De Novo hearing looks and feels like a “mini-trial.”  The Massachusetts police officer will take the stand and will testify as to her observations in regards to driver’s alleged violation of Massachusetts’ driver’s law.  The driver will have an opportunity to cross-exam the police officer, and to present a case of her own.  The driver may call witnesses, present evidence such as pictures, and video, and the driver may take the stand and testify on her own behalf.  Further, the driver is allowed to make a summation as to why she should not be held responsible for the alleged violations.

At the completion of the de novo hearing, the judge may only make two findings: “responsible” or “not responsible.”  The judge may not continue the case, or dismiss the citations.  The driver may appeal the judge’s decision; however, success on such an appeal is extremely slim.

It is strongly recommended that if a Massachusetts’ driver is going to fight a Massachusetts’ driving ticket, he should obtain an attorney immediately to make certain he has the best opportunity to avoid paying the ticket, and the surcharges that almost certainly will follow.

Attorney Anthony Rao has been successful in numerous Civil Motor Vehicle Infraction De Novo hearings here in Massachusetts, and may be retained on a flat-fee basis.  He may be reached at 617-953-0836, or at anthony@lawrao.com

]]> http://www.lawrao.com/blog/civil-motor-vehicle-infraction-de-novo-hearings-one-more-bite-at-the-surcharge-apple/feed/ 0 http://www.lawrao.com/blog/massachusetts-first-offense-oui-the-first-cut-is-the-deepest/ http://www.lawrao.com/blog/massachusetts-first-offense-oui-the-first-cut-is-the-deepest/#comments Fri, 01 Mar 2013 18:41:09 +0000 raoblogger http://www.lawrao.com/blog/?p=58 Massachusetts Drunk Driving Laws:  The $10,000.00 Drink

There is a misconception that one must be drunk to be arrested and convicted of drunk driving in Massachusetts.  Unfortunately, this could not be further from the sobering truth.  One drink may be enough to not only have the driver arrested, but also convicted of drunk driving.  So then, what exactly is the standard police officers, judges, and juries use when determining when an individual has been “drunk driving” under Massachusetts law?

.08: The Commonwealth’s 8 Ball

In Massachusetts, the prosecution is allowed to choose between two different “roads” when proving an individual was driving under the influence of alcohol.  The first, and often time, the easiest path for a finding of guilt, is the .08 approach.  This is used when a defendant has submitted to a breathalyzer test, and has blown a .08 or higher.  In this instance, the Commonwealth need only prove that the defendant took the breath-test, and the defendant blew a .08 or higher.  That is all.  Of course, there are numerous factors that may make the results of the breath-test questionable, even inadmissible at trial; however, if the test is allowed to be used as evidence against the defendant, the defendant will have a long and arduous road ahead of him to prove his innocence.

Impairment: Look Back on the Days When My Life Was a Haze

If an alleged drunk driver does not take the breathalyzer test in Massachusetts, the Commonwealth is left to approach the case with the “Impairment” theory.  Meaning, the Commonwealth will be forced to prove – with circumstantial evidence -  that the defendant’s ability to drive was impaired by the influence of alcohol and/or drugs.  In this instance, the Commonwealth’s case is immediately more difficult, and it is because of this reason that Massachusetts will harshly punish any alleged drunk driver for refusing to take the breath-test.  For a first offender, the minute she refuses the breath-test, the Massachusetts Registry of Motor Vehicles will automatically suspend her driver’s license for 180 days.  There is no exception to this rule.

Although the thought of losing one’s license for 180 days is a daunting one, the defendant has set himself up for a higher chance of success if and when the matter is brought to trial.  Indeed, without the breath-test, the Commonwealth is forced to rely on witnesses that may not exist (and may not be very good), and police officers that may have seriously fumbled the investigation.  As a Massachusetts Criminal Defense attorney, I would advise any client to never submit to the breath-test unless you are 100% confident you will blow below the .08.

It is important to understand that the Commonwealth is never put in a position where they must show that the driver was actually drunk.  Rather, the Commonwealth need only show that the driver was impaired due to alcohol, and this impairment affected the driver’s driving.  That is all.  There are many instances where the driver can be alert, not slurring his words, and for all intents and purposes acting in a manner that does not necessarily evince that the driver was under the influence of copious amounts of alcohol.  Nevertheless, this flimsy evidence may still be enough for a judge or jury to find that the driver was impaired by alcohol, and therefore guilty of operating under the influence in Massachusetts.

Plea or Fight: He’s Throwing Several Punches and He’s Blocking Most of Mine

At arraignment for a first-offense drunk-driving charge in Massachusetts, a defendant must make a decision.  After looking at the entirety of the evidence against him, does the defendant believe he has a fighter’s chance of obtaining a not guilty verdict.  If so, the defendant can plea not guilty at the arraignment, put his gloves on, and get ready for a fight.

If, however, the defendant decides to plea no contest to the charges, then the defendant will be entitled to what is called a “24D Disposition.”  In this instance, the defendant will be on track to obtain a hardship license within a few weeks, be enrolled in alcohol classes, and be placed on probation for 1 year, which includes a substantial amount of fines.

While most first-time alleged offenders are eager to put this matter behind them, and take a plea, if the case is a “winnable” one, then the defendant must take a long, hard look at the totality of the circumstances – including the potential of obtaining a second-offense at any point in his lifetime – before making such a decision.

For any second-time drunk driving offender in Massachusetts, there are three distinct and separate parts to the entire ordeal. There is the event itself, the court proceedings, and the aftermath.  All of these three separate parts effect the defendant differently.  The defendant will be better prepared to deal with each of these events if he is  fully aware of what  each part consists of and how to better cope with each phase.

First, there is the entirety of the events up and until the first court appearance.  This includes the months, days and nights that lead up to the second offense itself.  Of course, this also includes the second offense itself.  The memories from that night might be very vivid for most, and for others, well, there may be no memory of the event at all.  Blackout, anyone? Anyone?

Second, is the entirety of the court process itself, from your first court appearance (the arraignment), through to the verdict or plea deal.  This process, at least for the majority of clients, is the most difficult.  The criminal justice system is complicated.  There is language used that is dense and hard to understand (even for some attorneys, hopefully not yours).  There are numerous delays, continuances, and the entire process seems unfair and skewed.  This perception is not incorrect and is not uncommon.

Further, during the entire court process the client has anger and resentment.  This anger and resentment is aimed at numerous targets:  the police; the judge; the prosecutor; the client’s own attorney; and inevitably,  the client himself.  Each of these separate targets becomes a part of the process, for better or worse.  It is common for a defendant to blame external factors, especially in the beginning of any court proceeding.  However, once the process has taken its course, and the defendant has come to terms with the events that brought him before the court, the defendant usually and correctly, takes responsibility for the events of that fateful day that brought him fully and completely into the criminal justice system.

Third, after the court process is complete and the OUI Second Offender has been found guilty or has plead guilty to OUI 2nd, the “rehabilitative” phase of the Second Offenders process begins.  There are three distinct and separate parts of the “rehabilitative” process:  (1) Probation; (2) Aftercare; and (3) the 2-week In-patient Rehab Program, better known as the DUIL Program, or as “hell” by some more disgruntle former clients.

PROBATION STATION (First and Last Stop) 

Every defendant’s case is different.  Some defendant’s have simple facts.  There was no car accident.  There were no injuries.  No one was hurt, there was no breathalyzer tests, and there were no witnesses, besides the police officer, to the alleged “dangerous” driving.  Other cases have more egregious facts, and these cases may be treated quite differently.  However, for the sake of brevity,  we will discuss only the most simple of cases.

Under Massachusetts Law, almost every defendant will receive the following set of terms for probation:  (1) Monthly check-ins with probation, either through writing, or by the defendant’s actual appearance; (2) Monthly probation fees of approximately $90.00 per month; (3) participation in an accredited “After-Care” Program within the Commonwealth of Massachusetts; and (4) 2 Week In-Patient Rehabilitation Program, better known as DUIL.  The length of the probation term for a Second Offender is 2 years from the date of the disposition of your case.  In other words, if you were found guilty of OUI Second and sentenced on July 14, 2012, your probation term would end on July 14, 2014.

AFTER-CARE BEWARE

The “After-Care” Program varies from each separate organization allowed to have an “After-Care” Program within the Commonwealth.  The defendant should pick a program that is close and convenient for the defendant.  On average, the “After-Care” programs generally last approximately 20-weeks.  The defendant is required to attend weekly group meetings that last for approximately one-hour and-a-half.  These meetings substantively discuss issues relating to alcohol, alcohol-education, and issues dealing with living a sober and healthy lifestyle.  Upon completion of the initial 20-week, week-to-week meetings, the defendant is required to do an exit interview with the “After-Care” Program, as well as attend once-a-month meetings for 6 months subsequent to the completion of the initial weekly group meetings and exit interview.

Finally, in regards to the “After-Care” Program, the defendant is also required to attend and complete 40 Alcoholic or Narcotic Anonymous classes before the completion of the initial 20-week “After-Care” Classes.  Once all of this is complete, the defendant is no longer required to attend any further “After-Care” Classes or AA/NA meetings, and is complete with this portion of his probation.

I AM GOING TO HELL IN A BUCKET, BUT AT LEAST I AM ENJOYING THE RIDE (On Second thought, not so much):  DUIL 

Over the years of my practice, out of all of the questions and concerns that Second Offenders raise during the initial consultation, there is no subject that is brought up by prospective clients more than DUIL.  The 2-week In-Patient program located in Tewskbury, Massachusetts, strikes the most fear in the heart of two-time OUI offenders.  But what is DUIL, exactly?  And what should a Second Offender expect? Besides the flames of hell, let’s try to explain.  (I kid, I kid).

The Beginning. The DUIL program has strict restrictions as to what clients can and cannot bring.  I will not draft an exhaustive list as to what a client cannot bring, but I will list the most important.  This information has changed over the years, and it is important to make certain to review the packet that the DUIL program will send a client approximately 2 to 4 weeks before their assigned check-in date.

DUIL clients cannot take any sort of electronic device such as Ipods, Ipads, cell phones, radios, etc.  Further, there is no smoking on the premises, and clients cannot take cigarettes, lighters, matches, etc.  Clients are also precluded from taking any items with them that contain alcohol, such as certain hair products, and facial cleansers.

The substance of DUIL.  Check-in day is a difficult day for the client, and the client’s family.  The client will feel like a pseudo-prisoner, and for good reason.  For all intents and purposes, the client’s liberty and freedom has been taken from them.  They cannot go and do as they please.  They cannot watch tv when they want to.  They cannot use or have access to their cell phones.  They cannot sleep in their own beds.

Clients are required to have a family member or friend drive them to DUIL.  The driver must wait for the client to successfully check-in to the DUIL Program.  The check-in process itself can take up to 3 hours, and it is strongly advised that the client notify the driver of this before the driver accepts this responsibility.  The reason for this is simple.  There are approximately 55 to 60 DUIL clients that must be processed.  Clients must submit to breath tests, complete voluminous paperwork, make payment, meet with nurses, meet with staff, etc.  In fact, it is one of the longest and hardest days the client will have at DUIL.

An important note: it is not entirely uncommon for individuals to be refused entry to DUIL at check-in.  There are two types of reasons for someone not to succeed at check-in:  (1) Medical discharge; or (2) non-medical discharge.  An individual may be medically discharged if they are having issues with blood pressure, or other medical issues that are non-related to drug or alcohol use.  The second, and more serious discharge for individuals on probation, relates to individuals who may be under the influence of drugs or alcohol, or have been caught attempting to bring contraband into DUIL.  These clients may likely face substantial punitive measures from their probation officers, including but not limited to violation of probation and an imposition of a prison term. (At least at DUIL you can wear what you want!)

Clients are assigned to a room.  You may or may not have a roommate depending  upon the number of clients at DUIL during your 2-week term.  There is a daily schedule that is rigorous.  As part of the daily routine, clients are required to wake-up every morning at 6:30am.  Breakfast is served daily at 7:30am.  The remainder of the day is filled with classes, group therapy, recreational time, chore time, AA meetings, and bed time at approximately 10:30pm.  There is no reading, no talking, and no lights allowed after 10:30pm.  Lunch is served daily at 12:30pm, and dinner is served promptly everyday at 5:30pm.

Clients should understand that after the first week, DUIL becomes somewhat enjoyable.  Clients have reported that they connect with other clients.  Group therapy allows for bonding as clients share their stories, their struggles, and the issues that have brought them to DUIL.  While many clients have equated DUIL to hell, many other clients have come out of DUIL stronger, wiser, and “cleansed.”

CHRIST YOU KNOW IT AIN’T EASY

As a criminal defense attorney that has handled numerous OUI Second-Offense cases, I have personally seen the trauma, and intense stress that my clients have been under.  Many alleged offenders are innocent as a matter of law, and they may never have to face the issues that await them if found guilty of this crime.  However, I offer this information to those of you who may find yourself in a situation that while not enviable, is what it is.  One must focus on the future, and only the things they can change, and part of changing is understanding the rode that is in front of you.

The DOR has been given vast powers under Massachusetts General Laws Chapter 119A.  The DOR can suspend an individuals driver’s license, levy their bank accounts, intercept tax refunds, garnish wages, suspend an individual’s passport, and put liens on a person’s real property.  I have been a personal witness to all such actions.  However, with each of these powers, comes internal regulations and policies.  Most attorneys and lay-persons do not understand how these enforcement powers work, and most importantly, how they can be stopped.  As a former DOR attorney, I know that each of these actions can be delayed, and in most instances, completely side-stepped by one simple method: being proactive!

To know the DOR is to love it! Well, maybe not.  But one must not be intimidated by the agency, or its vast powers.  When an individual, who has a child support order, is having difficulty in not paying their child support obligation – even for one week – that individual should immediately contact the DOR.  Most people will contact the 1-800 number that is provided by the DOR on its website.  This, however, is a horrible decision, that will most certainly cause more delay, more stress, and be almost completely unproductive.  So who should a person contact when they are facing the possibility of the falling behind on their child support, or even worse, losing their driver’s license?  The answer is short and sweet – your DOR case worker.

Every custodial and non-custodial parent has an assigned case worker at the DOR.  This case worker is assigned by the last the name of the non-custodial parent.  The case worker is the “manager” and direct-contact for your case.  They are in charge of all of the enforcement powers used on your case.  The DOR case worker has almost complete authority in determining whether or not your license will be suspended, if you may have your license reinstated, and their willingness to work with you is a critical part in solving the DOR puzzle.  How do I contact my DOR case worker?

The DOR case worker is located in a DOR Regional Office.  For example, if you have a child support order out of Essex County, your case worker would be located in the Northern Regional Office.  This office has a direct number.  Call the direct number and ask to speak to your case worker. The case worker will ALWAYS work with you – not against you.  They are not in the business of making money; they do not work on commissions; they do not get bonus points for taking away your license.  They are their to help, and they are their to assist in collecting child support on behalf of your child.  They do not find joy in ruining someone’s life, although you may certainly feel like they do.  Indeed, the vast majority of DOR workers and staff are reasonable individuals that are simply using their best efforts to make certain the children of the Commonwealth are supported by their parents.  They are not a debt collection agency – they are not nasty and mean.   Reach out to your case worker – and explain your situation – they will listen and do their best to help you – most of the time.

Retaining the services of an attorney with first-hand knowledge of the DOR – and an attorney who is advocating on your behalf – is very useful.  For example, if you do manage to contact your case worker at the DOR, the DOR case worker will record – from their own memory – notes from your conversation.  All of these notes are printed and placed into your file.  Subsequently, when your case is brought before the court for a contempt action (for failure to pay support, where you may face the possibility of jail time up to 179 days) the DOR attorney may very will use these notes to indicate to the judge what you have previously asserted to the DOR.  This is why having an attorney who understands the child support laws of Massachusetts, and what should and should not be admitted to the DOR,  is crucial in achieving a great outcome for all parties involved – including your children!

Finally, I have seen so many cases where the non-custodial parent did not have the financial means to pay a high child support order, and that individual simply ignored the order entirely.  And when I say ignore, I mean did not make any payments.  This, by far, is the worst thing to do, and will almost guarantee a jail sentence! If you cannot afford your Massachusetts Child Support Order, retain an experienced Child Support  Attorney to file for a modification to have your child support order lowered.  But even more importantly, pay something every week — even if it’s $20.00.  This will not only show your good faith effort to your DOR case worker, but will also be evidence in a future contempt case that you are making some sort of effort.  An individual who has paid something every week will certainly appear to be more credible and honorable than a person who has done nothing.  So do something!

I am here to help you navigate this maze, and to make certain your rights and your children’s rights are protected!

There are certain factors to consider when thinking about changing your Massachusetts Child Support order.  Here are the steps everyone should take when considering a request to change their current child support order in Massachusetts:

(1) Before pursuing litigation — Use the Massachusetts Child Support Guidelines to estimate what your current child support order should be.

All too often people assume that their child support payment is too high or too low.  They run into court and ask for a change.   However, the parties have not completed an updated Child Support Guidelines Worksheet, and are entirely unprepared to make their request.  In fact, the parties generally have no idea what their child support order should be, other than it should be changed.  This is a huge mistake.  Decisions made on emotion and intangible factors are not going to assist one in making sure their best interests are met.

The Massachusetts Child Support Guideline Worksheet is relatively easy to complete, and will give any party a very good idea of what to expect at a court hearing.  Speak to an experienced child support attorney at the Rao Law Offices to assist as you as you prepare to modify your current child support order.

(2) Determine what has changed since the most recent order.

One cannot go back into Court and ask for a change in child support just because they want an increase or a decrease.   Under Massachusetts law,  one may only seek a modification of their current child support order if there has been a significant change in circumstance.  For example, if the non-custodial parent has been laid-off from work since the order entered, this would be a viable reason to go into court and ask for a reduction in child support.  Also, the custodial parent could go back into court and ask for an increase if the custodial parent’s income has substantially decreased.  There are many reasons as to why one’s current child support order should change.  Contact Attorney Rao today at 617-953-0836 to discuss your options.

Finally, there is one exception to the “change in circumstance” standard.  Under Massachusetts Child Support Law, one is entitled to go back into court every three years to have their child support reviewed by the court.  Therefore, even if there has been no “change in circumstance” the child support order may still be changed if the order is three-years or older.

(3) Determine if the Last Court Order Was a “Judgment” or a “Temporary Order”

In most instances, your last court order is going to be a Judgment.  This means that the initial matter (whether it be a Divorce, Modification, or a Support Complaint) has been finalized.  In this instance, you would need to file a “Complaint for Modification.”  In order to file a new “Complaint” one must file the Complaint and have the Complaint served by a Constable or Sheriff.

However, in some instances, a Temporary Order will still exist in your case.  In this instance, you may already have an upcoming court hearing to address all of the underlying issues in your case.  Further, there are certain circumstances where the Court never entered a “Judgment” in your case, but for whatever reason, did not order a review.  In this instance, you can simply draft a “Motion.”  This does require service by a Constable or Sheriff.  Rather, you must send the Motion via certified mail to the other party.

(4) Be Proactive — You are not entitled to a Retroactive Modification

One must be proactive in their pursuit for a modification of their current child support.  I have handled hundreds of child support cases where the non-custodial parent had been laid-off for years, but failed to go into court and ask for a reduction in child support.  The end result is the non-custodial parent owes thousands and thousands of dollars in back child support without the ability to pay.  The lesson here is an easy one: you cannot sit back and wait for the “system” to come to you.  You must take action as soon as your situation changes.  You must be proactive.  Under Massachusetts Law, one is not entitled to a retroactive modification.

If you are thinking about a modification of your current child support contact an attorney at Rao Law Offices at 617-953-0836.

For example, on April 22, 2011, a young girl lost of her life due to the alleged drunk-driving of her friend. And of course, there has never been a year where more State Troopers were hit and injured by the actions of alleged drunk drivers.  So the questions remains, what if you are pulled over after having a drink?  What do you do?  Do you take the Field Sobriety Tests?

Under the Massachusetts Declaration of Rights, Article 12, all citizens of the Commonwealth have the right to refuse a police officer’s request to submit to Field Sobriety Tests.  Further, said refusal is inadmissible at trial.  However, if you refuse to submit to the Field Sobriety Tests you will almost certainly be placed under arrest and charged with Operating Under the Influence.  So the question remains, what are the pros and cons of submitting to a field sobriety test?

In the first instance, we should all be acutely aware that when someone is pulled over after a drink or two there is nothing more nerve-racking.  Our reactions will not be the same.  Our decision-making ability might be altered, and quite frankly, we may not do things the way we would normally do.  The very first thing one must do is gain their composure and make sound and logical decisions.  Take a deep breath, and quickly obtain your driver’s license and registration — even before the police officer approaches the vehicle.   Indeed, your goal at this point would be to minimize your engagement with the officer, as everything the officer sees, smells, and hears will be used against you.

Secondly, in almost every circumstance, if you have had more than two drinks over a short amount of time, it would be advisable to not take the field sobriety tests.   The following articulates the reasons as to why this is a sound idea:

(1) Everything observed will be used against you.  When you submit to field sobriety tests every mis-step, every stuttered letter, and everything you say or do not say will be used against you at trial.  Why help the Commonwealth build their case against you?

(2) Your chances of passing the tests after having a drink or two are slim.  Sober people do not pass all of the sobriety tests.  You are nervous.  It could be dark.  The road could be slanted or skewed.  There is traffic passing you.  There are people watching you.  Even sober people – who have had nothing to drink – do not pass field sobriety tests.  Therefore, do not submit to the tests because you think you are going to pass.  Indeed, if I am asked to take a field sobriety test, I will not do it.  If a police officer is asking you to take a field sobriety test he is already inclined to arrest you and charge you with OUI.

(3) You have no obligation to submit to the Field Sobriety Tests — But the police do not need to tell you this.  When someone is asked to step out of their motor vehicle by a police officer, many scary things will be running through your head.  Indeed, your livelihood, your family’s well-being could all be on the line.  The police officer WILL intimidate you.  The police officer will make you feel that you have no choice but to take the filed sobriety tests.  However, what he does not have to tell you — and trust me, he won’t tell you — is that YOU DO NOT HAVE TO TAKE FIELD SOBRIETY TESTS.  You have a Constitutional Right not to incriminate yourself.  Use your rights!

(4) No evidence, no case.  The burden of proof in a criminal case falls squarely on the shoulders of the Commonwealth.  You never have to prove a thing.  You do not need to prove that you were not drinking.  Rather, the Commonwealth must prove that you were operating your motor vehicle while under the influence of alcohol.  How does the Commonwealth prove that you were drunk?  They do this by observations of police officers and witnesses.  They do this by watching you submit to field sobriety tests, and they do this by the breath test results.  If you do not submit to the field sobriety tests, and you do not take the breath test, the only thing the Commonwealth will have in their case-in-chief is the observations made by any witnesses that may have observed your driving, and the testimony of the police officer who pulled you over.  While there are never any guarantees, the Commonwealth would be hard-pressed to prove BEYOND A REASONABLE DOUBT that you were driving under the influence with such little evidence.  Play the game, they want to win, don’t give them the cards to do so.

There are two controlling statutes that govern Massachusetts Child Support:  Massachusetts General Laws Chapter 228, Section 28 (for the children of married parties), and Massachusetts General Laws Chapter 209C, Section 9 (for children born out of wedlock).  Both statutes — while not identical in language — are identical in all respects with what the statutes require.  Indeed, it is violative of both federal and state law to treat children born out of wedlock differently than children born of marriage.  These two statutes set clear parameters as to the how long child support should run.  However, the statutes alone are not the only essential read to understand the Massachusetts Child Support laws.

The Massachusetts Child Support Guidelines, revised and updated in 2009, are a must read for anyone who is involved in a child support case.   A substantive document with explicit rules on child support in Massachusetts, the Child Support Guidelines give guidance to practioners and litigants on all aspects of child support in Massachusetts.   For example, the Guidelines give the judges of the Probate and Family Court guidance on how to appropriate income from a secondary job, or income from a parent who is working overtime.  Further, the guidelines give guidance to the Family Court on how to handle unreported income, or attribution of income if a parent is underemployed.  The Guidelines are full of substance, and are an essential read for anyone dealing with the frustrating issue of child support.

The Guidelines, however, do not explicitly deal with the issue of termination of child support.  Rather, the legislature left this to statutes.  Massachusetts has three different categories, or three different age brackets with respect to child support.  The first, and most obvious, is any child who is under the age of 18.  The simple rule here is that barring some sort of unusual circumstance, any child under the age of 18 is entitled to receive child support.  There is no need to look into the circumstance of the child, what the child is doing, or what the circumstances are of the custodial parent.

The second bracket is a child who has obtained the age of 18, but has not yet obtained the age of 21.  This bracket is an interesting one.  Under Massachusetts law, a child between the age of 18 and 20 is entitled to receive child support in two circumstances.  The first, and most obvious, would be the traditional situation where the child is enrolled in college.  In this instance, the custodial parent would be eligible to receive child support for the support and maintenance of the child while the child is enrolled in post-secondary education.

There is an important aside to the traditional circumstance where the child moves off to college that should be addressed.  A child who lives away for college — a common occurrence even in a saturated college environment such as Massachusetts  – is still dependent upon his/her parents.  Indeed, the custodial parent must still maintain a room for the child when the child returns to home during breaks and summer vacation.  Accordingly, a child living in dormitories for 9 months out of the year is still entitled to child support payments, and will be until said child is graduated from college or has reached the age of 21.

The third and final age bracket is 21 up to the age of 23.  This bracket only applies to children that are enrolled in a post-secondary education program.  This bracket is similar to age bracket two above, however, it does not include children that are not enrolled in college.  Accordingly, a child that is 21 years-of-age or older in Massachusetts — and is not in college — is emancipated and not eligible for child support, even if the child lives at home is for all intents and purposes is dependent upon the custodial parent for support.

Moreover, a child that is 23 years-old and is on the “7 year” college plan (See the movie “Animal House ” for a better understanding of the “7 year college plan), and accordingly, has not yet graduated from college is nonetheless ineligible to receive child support payments.  In other words, once a child reaches 23 years-of-age in Massachusetts, regardless of their education situation, or their dependency upon their parents for support and maintenance, the custodial parent is no longer entitled to child support payments from the non-custodial parents.

Finally, while these so-called “brackets” are explicitly outlined in the Massachusetts Child Support Guidelines, there is one exception to the termination of child support upon a child reaching the age of 23.  In Massachusetts, the Supreme Judicial Court has concluded in the case Feinberg v. Diamant, that adult children past the age of 23 are nonetheless entitled to support from their parents if the child of said order is dependent upon his parents for maintenance and support.  Therefore, if a child is over the age of 23, yet suffers from a condition (mental or physical) that renders said child dependent upon his parents, the non-custodial parent will be required to pay child support to the custodial parent.

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