Monday, February 25, 2008

Those pesky 1:28 opinions

Mass. Lawyers Weekly reports the following change in the treatment of Massachusetts Appeals Court decisions decided pursuant to Rule 1:28:

"The Appeals Court announced today that an unpublished opinion issued pursuant to Rule 1:28 may be cited for its persuasive value but not as binding precedent."

Friday, February 22, 2008

Criminal Penalties for Drag Racing

Beginning Tuesday, February 26, drag racing in Massachusetts will be a criminal offense for most drivers, rather than a civil motor vehicle infraction, under revised MGL c.90, s.17B. Currently, penalties are a $100-500 fine and 30-day license suspension for a first offense, and a $200-1000 fine and 60-day suspension for a subsequent offense. Under the new law, penalties are more serious. Even a first offense carries the possibility of up to 2 1/2 years in jail or a fine of up to $1,000, in addition to license suspension.

Oddly, the new provisions do not apply to those with a junior operator's license or learner's permit. Previously, the penalties had been much harsher for these newer drivers than for experienced drivers, but when the legislature amended the law, they did not amend the paragraphs dealing with new drivers. As a result, drag racing remains a civil infraction for drivers with a junior operator's license or learner's permit. These newer drivers continue to face high fines, long suspensions and license reinstatement fees, but no possibility of jail time.

Thursday, February 21, 2008

New Indigency Standards

The US Department of Health and Human Services issued new Federal Poverty Guidelines in the January 23, 2008 Federal Register, which will affect the determination of indigency in Massachusetts courts.

One definition of indigency under MGL c.261, s.27A is "a person whose income, after taxes, is one hundred and twenty-five per cent or less of the current poverty threshold...", and so the Supreme Judicial Court has put a helpful memo on their site which provides a table of 125% of the current poverty threshold by family size. This is linked from Affidavit of Indigency and Related Documents, which also includes requisite forms "used to request waiver, substitution or payment of court fees and court costs by the Commonwealth."

Wednesday, February 20, 2008

New Auto Insurance Rates

For many years, Massachusetts has operated under regulations that set prices for automobile insurance in the state. Beginning this week, consumers will renew policies under new "managed competition" regulations, 211 CMR 79, for policies effective on or after April 1, 2008. Under the new scheme, insurers can set their own rates (although they will still need to be approved by the Division of Insurance).

This means that consumers may want to shop around for the best rate. The Division of Insurance has a new website, InsureMass, that helps people do just that. The site "shows consumers the range of prices and discounts they may qualify for and tells them how to contact insurance companies and agents directly for quotes. Consumers can easily generate a list of sample premiums by providing their zip code, number of years licensed, the type of vehicle they drive, their driving records and coverage levels." "You will be asked 6 basic questions in order to gather facts that all insurers consider when calculating automobile insurance rates. The tool will use this information to produce a list of sample premiums from each company."

More information on the new automobile insurance rules is available at Mass. Law About Automobile Insurance.

Thursday, February 14, 2008

Public Library of Law

FastCase, an online subscription database, has just launched the Public Library of Law, which they claim is the "largest free law library in the world." Through an interface that looks eerily like Google, you can search all US Supreme Court cases, Federal Circuit Court cases back to 1950, and state court cases back to 1997. Outstanding! They also claim to offer access to statutes and regulations, but the links for Massachusetts are actually to the General Court's site for the statutes, and to our site for regulations and court rules.

The service requires free registration and is clearly a marketing opportunity for FastCase, their paid service, but the coverage for cases is excellent and the interface easy to use.

In addition, Massachusetts cases from 1939-date are available online for no charge at

Tuesday, February 12, 2008

Source for Government Info

We have a chat service through which we can direct you to information about Massachusetts law, but we are delighted to point you to a complementary service for Federal and state government information: Government Information Online (GIO). According to their site, "Through Government Information Online (GIO) you can ask government information librarians who are experts at finding information from government agencies of all levels (local, state, regional, national international) on almost any subject from aardvarks to zygomycosis."

So if you have a question about Massachusetts law, ask us! And if you have a question from another jurisdiction, or about sources of government information other than law, ask GovtInfo.

Monday, February 11, 2008

Rape, Intoxication and Consent

In two cases decided last Friday, the Supreme Judicial Court clarified requirements for proof in rape cases in which lack of consent due to intoxication is an issue.

In Comm. v. Blache, the court ruled that jury instructions should clearly explain the following two requirements:
  1. that the intoxication rendered the complainant incapable of consent. Jury instructions must make clear that "for the Commonwealth to meet its burden of proof on the complainant's nonconsent by establishing that she was incapable of consenting, the Commonwealth must show not simply that she lacked sobriety or was intoxicated, but that as a result of the alcohol and drugs she consumed, the complainant's physical or mental condition was so impaired that she could not consent."
  2. that the defendant "knew or reasonably should have known that the complainant's condition rendered her incapable of consenting." This second element is a new requirement, and the court ruled that "we will not give the new rule retroactive effect, but apply it solely to trials occurring after the issuance of the rescript in this case."
In Comm. v. Urban the court held that "The instruction in this case, like the instruction in Blache, failed to clarify that an extreme degree of intoxication is required before the incapacity rule will apply...The risk is too great that they may have interpreted it to mean that a finding of intoxication of any degree, like a finding of unconsciousness, for example, vitiates consent as a matter of law."

More information and links to laws and other cases can be found at Mass. Law About Rape and Sexual Assault.

Tuesday, February 05, 2008

W-2 Problems

We've been receiving questions this week on the provision of W-2 forms by employers.

According to the IRS, employers must send W-2 forms to their employees by January 31.

If you do not receive the form by February 15, or if the form you received is incorrect and the employer will not correct it, the IRS advises: "contact the IRS at (800) 829-1040. An IRS representative can initiate a Form W-2 (PDF) complaint. Form 4598, Form W-2 or 1099 Not Received or Incorrect, will be sent to the employer and a copy will be sent to you along with Form 4852 (PDF), Substitute for Form W-2, Wage and Tax Statement, or Form 1099-R, Distributions from Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc. The copy that the employer receives will advise him or her of the employer's responsibilities to provide a correct Form W-2 (PDF) and of the penalties for failure to do so. "

Monday, February 04, 2008

CORI Reform

Last month, Governor Deval Patrick introduced legislation, H4476, designed to limit the use of Criminal Offender Record Information (CORI) in certain circumstances. Under current law, a person can request their criminal record be sealed after fifteen years for a felony conviction or ten years for misdemeanors. The new law would prohibit sealing of sex offenses, but would allow sealing of a felony record after ten years, and a misdemeanor after five. "To further improve employment prospects, the bill directs the CHSB not to provide CORI-certified employers access to records that are eligible for sealing under the new timelines" but criminal justice agencies would continue to be given full access to sealed records.

In his press release, “CORI was never intended to turn every offense into a life sentence,” said Governor Patrick. “All but a handful of people incarcerated are eventually released, and they need to get back to work. These reforms require decision-makers to make an individual determination about whether an applicant is rehabilitated, rather than excluding ex-offenders categorically. If we want to reduce crime and help people re-integrate successfully, this is a smarter approach.”

The Massachusetts Bar Association supports the proposal, which has been referred to the Joint Committee on the Judiciary.

Much more information on CORI is available at our Mass. Law About Criminal Records.

Friday, February 01, 2008

Proposals to Decriminalize Marijuana

There is some movement in Massachusetts toward decriminalization of possession of small amounts of marijuana. In 2007, a ballot initiative proposed by the Committee for Sensible Marijuana Policy collected 80,372 signatures, considerably more than the 66,593 required to submit the measure to the legislature for debate. The legislature now has until early May to act on the measure. If they fail to do so, "another 11,099 voter signatures must be gathered by June 18 for the proposal to make the November ballot," according to the Boston Herald. The initiative provides that a person in possession of less than one ounce of marijuana would be subject to "civil penalty of one hundred dollars and forfeiture of the marihuana, but not to any other form of criminal or civil punishment or disqualification."

There are also two bills pending in the legislature, S1121 and S1011, which propose fines, rather than jail time, for possession of less than an ounce of marijuana.

According to the Massachusetts Cannabis Reform Coalition, "on Tuesday, March 4th, on or after 1 pm (Room TBA), the Judiciary Committee will be taking testimony on both the State Initiative and our Decrim Legislation."