Massachusetts Legal Developments Blog

Massachusetts Legal Developments Blog

BB Guns Not Considered Firearms

BB guns have become increasingly popular in the commission of crimes. This is largely due to the fact that many BB guns resemble real guns and are easier to obtain. This trend may continue to grow as a result of a recent Massachusetts Supreme Judicial Court decision which held that a BB gun is not considered a firearm.

Firearms and BB Guns

In the case of Commonwealth v. Garrett, the defendant was convicted of armed robbery with a firearm while masked. The defendant had committed robberies of various stores while using a BB gun. He appealed the conviction, arguing that a BB gun was not a firearm and the Supreme Judicial court agreed. This was important because there is less serious punishment due to the ruling that the defendant was not carrying a firearm.

The court noted that the armed robbery statute did not contain a definition of firearm. As a result of this, the court examined all of the laws related to firearms and determined that regulation of BB guns has been entirely different than that of firearms. For example, Massachusetts has a separate law aimed mainly at addressing the issue of minors misusing BB guns.

Additionally, the court discussed the law prohibiting an individual from possessing a firearm near a school. The statute specifically defines firearm, which the court, in a previous decision, held included BB guns, even though they were not expressly mentioned. The court noted that the Legislature did not include such a definition for the sentencing enhancement statute related to armed robbery. Therefore, there was no intent to bring BB guns within the firearm definition for the offense of armed robbery.

The Massachusetts Gun Control Act of 1998 did not mention BB guns and discussed airguns only once, in relation to a requirement to report injuries. This was also an indication to the court that the Legislature intended regulation of firearms and BB guns to be separate from each other. Finally, the court reasoned that treating BB guns like firearms would produce unintended results, such as:

  • Only licensed dealers would be able to sell BB guns;

  • The purchase of a BB gun would require a mandatory background check; and

  • All BB guns would need to have serial identification numbers on them.

The result of this ruling is that it will be left to the Legislature to enact a law that specifically brings BB guns within the definition of firearms. The court’s explanation of its ruling was, in essence, that the Legislature has not indicated an intention that BB guns and firearms be treated the same. However, with how similar some BB guns look to real guns and the increased use of them in connection with criminal activity, it is likely that this issue will be addressed by the Legislature.

Criminal Defense

If you have been accused of violating a law related to firearms, you face the potential for serious consequences. As a result, it is important to speak with an experienced attorney as soon as possible. To schedule a free consultation with Boston criminal defense attorney Edward R. Molari, call our office at 617-942-1532. We look forward to hearing from you.

Intent to Distribute Drugs


Individuals who are caught with illegal drugs may be accused of possession with intent to distribute. If convicted of this offense, the individual faces penalties more severe than if he or she were convicted for mere possession. As a result, determining the reason an individual possessed illegal drugs is critical when drug possession is alleged.

What is Intent to Distribute?

Under Massachusetts law, distribution is simply defined as delivering a controlled substance. The definition specifically excludes the acts of administering or dispensing. A controlled substance is a drug or substance that is contained within the schedule or class list as defined by Massachusetts law. Drugs are placed into different classes in order to determine how severe the punishments associated with them are.

It is important to note that there is not a threshold amount of drugs that a person must have before they are guilty of possession with intent to distribute. However, possessing very large quantities does give an indication that the possession is not merely for personal use. As a result, the quantity of drugs possessed is a factor to be considered, along with several others, including, but not limited to:

  • How the drugs are packaged

  • The number of individual packages; or

  • The presence of small bags, twist ties, a scale, or other materials that indicate the drugs will be individually packaged.

Proving intent to distribute can be difficult because the person accused of the offense may not have done anything other than have drugs with them when stopped by the police.


There are five classes of drugs, ranging from Class E to Class A. Intent to distribute a drug in Class E is punishable by a jail sentence of up to nine months and/or a fine of between $250 and $2,500. An example of a Class E drug is a compound with limited quantities of codeine. The most severely punished drugs are found in Class A, which, for example, includes heroin. The punishment for intent to distribute includes up to two and a half years in jail, up to ten years in state prison, and/or a fine of between $1,000 and $10,000.

It is worth discussing marijuana because of its unique treatment in Massachusetts. Possession of one ounce or less of marijuana is no longer considered a criminal offense. Instead, a person over 18 years of age who is caught with such a quantity only has to pay a $100 fine. However, if an individual has more than one ounce, the offense is more serious, particularly if he or she is charged with possession with intent to distribute. Marijuana is considered a Class D substance, so near the bottom of the drug classes. But, possession with intent to distribute still carries serious penalties, including a jail sentence of up to two years and/or a fine of not less than $500, up to a maximum of $5,000.

Defend Your Rights

All drug possession charges are serious and should be met with the aid of an experienced attorney. To schedule a free case evaluation with Boston criminal defense attorney Edward R. Molari, call our office today at 617-942-1532.

Operating Under the Influence

If we were asked what a crime is, most of us would probably say something like burglary or battery. But, another offense is also considered a crime and carries with it very serious consequences: Operating a motor vehicle under the influence (OUI). Individuals arrested for OUI face stiff costs and significant penalties.

Basics of OUI

Under Massachusetts law, it is illegal for an individual to operate a motor vehicle with a blood alcohol concentration (BAC) of 0.08% or higher. In addition, it is against the law to drive while under the influence of intoxicating liquor, marijuana, or other narcotic drugs. It is important to keep in mind that, even if an individual is below the legal limit to drive, it is always best to use a designated driver or other form of transportation. For an individual under the age of 21, the maximum BAC level is 0.02%, which is considered a zero-tolerance level. For commercial drivers, the maximum level is 0.04%.

An individual convicted of OUI will be assessed a fine of not less than $500, up to $5,000. Additionally, the individual may face a jail sentence of up to two and a half years.  It is within the court’s discretion to decide whether the sentence can be served on weekends, evenings, or holidays. For example, the judge can allow a person to work during the weekday and serve his or her jail sentence on the weekend.

In addition to the above punishments, an individual may also have his or her driver’s license suspended for one year. However, an ignition interlock device (IID) is not required for a first offense in Massachusetts. An IID is a mechanism attached to a vehicle to prevent the car from starting if the person exhales into it and the breath-alcohol concentration analyzed is too high.

Importantly, Massachusetts is an implied consent state, which means a refusal to submit to a chemical test will result in a fine and automatic license suspension (for a first offense, this period is 180 days). In other words, by driving, an individual has indicated that he or she will submit to a test if requested to take one by a police officer.

According to Massachusetts law, an OUI that results in the serious bodily injury of another person is punishable by a fine up to $5,000 and a jail term of not less than six months, with a maximum of two and a half years. Alternatively, a convicted individual can be sentenced to a state prison term of not less than two and a half years, up to ten years, with the same $5,000 maximum fine. Serious bodily injury is an injury that causes the chance of death to be substantial. Alternatively, it also occurs if the injury causes total disability or for a bodily function to be lost for a substantial period of time.

Protecting Your Rights

If you have been arrested for suspicion of OUI, you still have a right to defend yourself. For more information, contact Boston criminal defense attorney Edward R. Molari today. To schedule a free consultation, call our office at 617-942-1532.


Marshfield Bank Hack Highlights Cybercrime Enforcement

The growth of Internet-based commerce and banking has created a new type of criminal activity, often referred to as “cybercrime.” These crimes are often financially motivated and involve property and theft offenses, but can also involve harassment, conspiring to commit crimes with others, offenses related to child pornography, sex offenses, and others. As these crimes have become more prevalent in recent years, enforcement efforts have increased, often resulting in excessive or unsubstantiated allegations against people who are innocent of any wrongdoing.

A recent incident in the Boston suburb of Marshfield, Massachusetts highlights the way that cybercrime can affect a community and the significant efforts undertaken by law enforcement to combat it. According to a report published at, Rockland Trust Bank, which holds the town’s bank account, realized that there was $30,000 missing from the account and alerted the town. Reports indicate that bank officials and law enforcement are unclear as to how the incident happened, but that it may have been the result of a phishing scam in which an individual with access to the account was tricked into providing login credentials

Cybercrime Can Result in Significant Legal Penalties

As computer-related crimes become more and more prevalent, law enforcement will develop new techniques to monitor and catch people attempting to perpetrate them. Unfortunately, this type of enforcement effort can also ensnare people who are innocent of any wrongdoing but happened to simply click the wrong link at the wrong time or engaged in a hypothetical conversation in a forum.

These types of crimes have the potential to result in serious legal penalties, many of which can affect a person for years. For this reason, it is extremely important for anyone accused of a crime related to the use of a computer or the Internet to retain an experienced criminal defense attorney immediately. Some of the consequences associated with a conviction could include the following:

  • Probation

  • Fines

  • Mandatory registration as a sex offender

  • Jail time

Fortunately for people who are accused of these kinds of crimes, there are several defenses that could potentially be raised. The exact defenses that are available in your case, if any, will depend largely on the specific circumstances of your case. For this reason, it is critical to meet with an attorney as soon as possible to ensure that your case is brought to the best outcome possible.

Contact a Boston Criminal Defense Attorney Today

People who have been accused of financially-motivated crimes involving the Internet should retain an experienced criminal defense attorney immediately. A conviction could have a significant impact on the quality of your life and may even result in the loss of your freedom. Boston criminal defense lawyer Edward R. Molari is committed to protecting the legal rights of people accused of a variety of crimes, including DUI, violent crimes, property and theft offenses, and crimes involving weapons. To schedule a consultation with Mr. Molari, call our office today at 617-942-1532.

Traffic Offenses can Lead to Serious Legal Problems

Many people who are issued traffic citations are unsure of whether they need to retain an attorney who practices in the area of criminal defense. After all, most traffic tickets are civil infractions rather than criminal violations, meaning that the potential penalties that a court may impose are much less severe. It is important for motorists to understand, however, that even minor traffic tickets can have serious financial repercussions, and accumulating several of them can even jeopardize your right to drive. In addition, more serious violations such as Operating Under the Influence can result in a jail sentence. For this reason, it is extremely important for anyone that has been accused of a traffic violation to talk to an attorney as soon as possible about the options.

An Attorney can Help

It may be very tempting for anyone who has received a traffic citation to simply pay the fine by mail and move on with his or her life. Unfortunately, doing so is an admission of guilt, which may result in many unintended consequences down the road. Massachusetts uses a Safe Driver Insurance Plan (SDIP) in which drivers who accumulate points pay higher insurance premiums than those that demonstrate safe driving by not accumulating points. An attorney can often negotiate a traffic offense in such a way as to keep points from being added to your license.

One of the most common ways that traffic offenses can result in more significant legal problems is when people simply fail to pay a fine by the required date (which we have already determined is not the best course of action) or if they fail to show up to a required court date. When this occurs, a court may issue a warrant for their arrest due to their failure to appear. As a result, they may be facing arrest if they are pulled over or if law enforcement happens to process their name during an encounter for any other reason. Arrest is never a pleasant experience and can often result in significant problems at school or at work. Fortunately, when you retain an attorney to represent you regarding a traffic citation, your attorney will ensure that all deadlines are met. In addition, your lawyer can often obtain leeway with the court in terms of getting you more time to pay any fines or engage in any tasks that may be relevant to the disposition of your case.

Contact a Boston Criminal Defense Lawyer

The best way of avoiding having relatively minor traffic offenses turning into serious legal problems is to call an attorney immediately after you receive a citation. By doing so, you can rest assured that your traffic offense case will be handled in a timely manner and with as little long-term consequence as possible. Boston criminal defense attorney Edward R. Molari is committed to helping people who are accused of traffic offenses bring their case the most favorable resolution possible. To schedule a free consultation with Mr. Molari, call our office today at 617-942-1532.


Massachusetts Appeals Court Determines that Pen is Not a Deadly Weapon

“Deadly” and “Dangerous” not Synonymous for the Purposes of the ACCA

One of the most important functions of a criminal defense attorney is to reduce the sentence that his or her client is facing as much as possible, preferably down to none. When considering sentencing, a significant issue that often arises is statutory enhancement based on prior convictions. Earlier this month, a Massachusetts Appeals Court decided a Commonwealth v. Rezendes, in which it considered the definition of the term “deadly weapon” as it is used in the Massachusetts Armed Criminal Career Act (ACCA). The ACCA subjects individuals who are convicted of certain offenses to enhanced penalties based on various levels. The enhanced penalties are as follows:

  • Level 1 – An enhancement of not less than 3 years but not more than 15 years

  • Level 2 – An enhancement of not less than 10 years but not more than 15 years

  • Level 3 – An enhancement of not less than 15 years but not more than 20 years

For an offense to be qualifying under the ACCA, It must be a crime of violence punishable by more than one year in prison or, if committed by a juvenile, involve the use or possession of a deadly weapon and be punishable by more than one year if it had been committed by an adult, or involve:

  • The use of force, attempted use of force, or threat of the use of force or a deadly weapon against another person;

  • Burglary, extortion, arson, or kidnapping;

  • The use of explosives;

  • Conduct that presents a serious risk of physical injury to another.

At issue on appeal in Rezendes was whether a juvenile offense involving an assault with a pen could be considered an offense involving a deadly weapon. The Commonwealth argues that deadly and dangerous should be given the same meaning, but the court disagreed. Using long-accepted rules of statutory construction, the court determined that, when given their plain meaning, the word “deadly” had a narrower meaning than the word “dangerous.” Furthermore, under a recent United States Supreme Court decision interpreting the federal ACCA, allowing a court to inquire into the manner in which a prior offense was committed in order to determine whether a weapon was being used in a way as to render it “deadly” would invalidate the law on constitutional grounds.

For these reasons, the court invalidated the defendant’s sentencing enhancement and explicitly held that a pen is not a deadly weapon for the purposes of the Massachusetts ACCA. Rezendes will be resentenced as an armed career criminal with two predicate violent crimes rather than three, likely resulting in a significant reduction in his sentence.

Contact a Boston Criminal Defense Attorney Today to Schedule a Free Consultation

Anyone facing a criminal case in Massachusetts should contact an attorney as soon as possible. As this case illustrates, prior convictions can have a significant impact on any later criminal matter that may arise at a later time. To schedule a free case evaluation with Boston criminal defense attorney Edward R. Molari, call our office today at 617-942-1532.

Pulled Over for Suspicion of Marijuana Possession?


The way in which law enforcement officers interact with the public has been the source of a significant amount of debate in recent years, and there is a voluminous body of case law expounding what exactly the 4th Amendment’s prohibition on unreasonable search and seizure actually means. These issues play a large role any matter related to criminal defense and can often have an impact on the outcome of a case.

In order for law enforcement to legally detain a person, an officer must have reasonable suspicion that a crime is occurring or has recently occurred. This standard is somewhere below probable cause, but must be based on specific and articulable facts. So, strictly by the letter of the law, a person should be free to walk away from a police officer at any time unless the officer can point to a specific reason that he or she believes a crime has been committed.

The 4th Amendment Applies to Traffic Stops

A traffic stop is undoubtedly a “seizure” for the purposes of 4th Amendment law. As a result, police need to have reasonable suspicion in order to conduct a legal traffic stop. Generally, this is not difficult to establish, due to the myriad moving and non-moving violations that can apply to driving a vehicle in Massachusetts. According to a recent decision issued by the Supreme Judicial Court of Massachusetts, however, believing that a person in a vehicle may be in possession of marijuana is no longer sufficient to justify such a traffic stop. The court based its decision on the fact that since 2008, possession of less than an ounce of marijuana is considered civil offense rather than a crime. In the opinion, the court pointed out that allowing law enforcement to continue to stop vehicles because officers believe an occupant possesses marijuana does not achieve the objectives of the law, one of which is to refocus police activity on more serious offenses.

This decision, coupled with previous decisions that the odor of marijuana does not justify a police officer in ordering occupants from a car or searching a vehicle without a warrant makes clear that the Massachusetts courts are extending significant 4th Amendment protections to individuals who are suspected of marijuana use.

Contact a Boston Criminal Defense Attorney Today for a Free Consultation

People who have been stopped by the police for minor traffic violations and subsequently arrested may be able to challenge the initial stop or the way in which any search that occurred was conducted. In many instances, a legal challenge to a search conducted by law enforcement can result in the evidence gathered being excluded from any proceedings against you, which in turn can result in a case being dropped or dismissed. For this reason, it is extremely important for anyone accused of a crime to discuss his or her options with an experienced criminal defense attorney as soon as possible. To schedule a free consultation with Boston criminal defense lawyer Edward R. Molari, call our office today at 617-942-1532.



What are Examples of Aggravating Factors in a Boston OUI Case?

Driving under the influence of drugs or alcohol is a serious criminal offense in Massachusetts. The Commonwealth’s OUI law authorizes serious penalties even for first-time offenders, including probation, fines, the installation of an ignition interlock device, and even jail time. In cases where there exist aggravating factors, however, the penalties can be significantly increased.

Aggravating factors are circumstances that, when they exist, the law recognizes as making an offense particularly serious. The offense remains the same as it would be without the presence of aggravating factors, but the penalties that are available are often significantly increased. The following are some examples of common aggravating circumstances in a case involving drunk or drugged driving.

Driving with a child in the car

Massachusetts’ so-called “Melanie’s Law,” passed in 2005, created new offenses related to drunk driving. One of these related to drunk driving with a child 14 years of age or younger in the car. Under the law, a person caught driving drunk with a child 14 or under in the car can be accused of two separate offenses: OUI, and child endangerment OUI. People who are convicted of a 1st first-time violation of this law can be sentenced to between 90 and 2 and a half years of imprisonment  and a fine of from $1,000 to $5,000.

Causing serious bodily injury

Another way in which a “simple” OUI case can become significantly more serious is if a drunk driver is involved in an accident that causes serious bodily injury. Depending on the circumstances, MGL c. 90 s. 24L authorizes up to 10 years in jail, fines of up to $5,000, and a mandatory 2-year loss of your driver’s license.

These are just two of the more serious kinds of aggravating factors that may enhance the potential legal penalties associated with a Massachusetts DUI case. Other include excessive speeding, driving with a license that has been suspended or revoked, fleeing from law enforcement, prior DUI convictions, operating a commercial vehicle while intoxicated, being under 21, driving drunk in a school zone, and causing property damage. When these factors are present, it is extremely important for OUI defendants to retain legal counsel. It is important to be aware of the fact that judges have significant discretion in terms of determining a sentence, so do not assume that you will receive the minimum sentence simply because it is a first-time offense. An attorney can often help ensure that your case is resolved as favorably as possible, so it is important to retain a lawyer as soon as possible after you are accused of drunk driving.

Contact a Boston Criminal Defense Lawyer Today to Schedule a Free Case Evaluation

An OUI conviction can have a significant impact on your quality of life, particularly if there were certain aggravating factors present. In many instances, serious drunk driving cases can involve significant legal consequences, potentially including mandatory incarceration in a correctional facility. People accused of offenses involving drunk driving should always retain legal counsel in order to ensure that their legal rights are protected. To schedule a free consultation with Boston criminal defense attorney Edward R. Molari, call our office today at 617-942-1532.


What are the Potential Benefits of Sealing a Criminal Record in Massachusetts?

Many people who live healthy and productive lives have made mistakes or had momentary lapses in judgment that have led to the existence of a criminal record. In some cases, this record may be the result of a youthful prank in high school or college or perhaps having “one too many” at the office holiday party. In other cases, a false or wrongful arrest creates a record that may still be accessible even in the absence of a conviction. Whatever the reason, the existence of a blemish on a person’s criminal record is generally viewable by the public, including potential employers, landlords, friends, family, or even romantic partners.

Massachusetts law allows a criminal record to be sealed in certain cases, meaning that it is no longer accessible by the general public. There are many benefits to having your record sealed, including the following:

  • Obtaining employment – A background check is standard operating procedure for many employers these days. The existence of a criminal record certainly cannot make a potential candidate for a position seem more attractive to employers and, in some cases, may result in automatic disqualification from consideration. Sealing a criminal record will prevent a potential employer from seeing the record and also allows applicants to deny the existence of a record.

  • Being approved for an apartment – Many landlords ask whether applicants have ever been convicted or pled guilty to a crime or conduct a background check on all applicants. In some cases, the fact that a potential tenant has a criminal record may make a landlord hesitant to rent an apartment to him or her. Fortunately, record sealing can help avoid this situation.

  • Getting a loan – Some lenders may use the existence of a criminal record as a factor in making approval or interest rate determinations when a person applies for a loan. By having your record sealed, you can be sure that you are maximizing your chances of approval and that you receive the best rate available in light of your situation.

  • Personal well-being – The existence of a criminal record can often be a source of embarrassment and generally does not reflect the image that a person would like to present to others. When a criminal record is accessible to the public, anyone with access to the courthouse or even an internet connection can often obtain it.

Contact A Massachusetts Criminal Defense Attorney To Discuss Your Situation Today

Boston criminal defense attorney Edward R. Molari is committed to helping his clients resolve their cases as quickly and with the best outcome possible. In many cases, Mr. Molari can help people who are being affected by the existence of a criminal record seal that record and move on with their lives. The law regarding record sealing is often complicated, so anyone considering trying to have their record sealed should discuss their situation with an experienced Massachusetts criminal defense attorney. To schedule a free consultation with Mr. Molari, call our office today at 617-942-1532.


Expect Increased DUI Enforcement this Upcoming Labor Day Weekend

Labor Day is one of the most popular and celebrated holidays in the United States. As a traditional end-of-summer holiday, Labor Day celebrations often involve barbecues, pools, and family and friends. The consumption of alcohol is often also an integral part of many Labor Day celebrations. Local and state law enforcement authorities are aware of this fact and often increase patrols and other enforcement efforts in order to dissuade people from drunk driving and to catch those who drive impaired. These enforcement periods can often result in overzealous policing and can often result in false arrests, so it is important for anyone accused of operating a motor vehicle while under the influence of alcohol over the holiday weekend to contact an attorney.

Avoiding a Labor Day OUI in Boston

Fortunately for party-goers and others who choose to imbibe over the holiday weekend, there are many things that people can do to avoid getting an OUI. Of course, the simplest way to avoid getting an OUI is simply to not drive a vehicle at all. The reality is, however, that once a person is under the influence of alcohol, his or her judgment may be impaired to the point where he or she is unable to make the prudent decision to not drive. As a result, it is important for people who plan on drinking to plan ahead to make sure they can get to where they are going without needing to driving a vehicle. Some of the more effective ways to avoid getting behind the wheel of a car after drinking over Labor Day weekend include the following:

  • Save the number of a taxi cab company in your phone or write it down somewhere where you will have access to it;

  • Designate a sober driver who you can be sure will not drink;

  • Plan ahead to take public transportation to and from your party;

  • Do not drive your car to your destination; and

  • Plan on spending the night elsewhere so you do not need to get back home.

An Oui Conviction Can Have Serious Consequences

The legal and social consequences associated with being convicted of drunk driving in Massachusetts can be extremely serious. The court may impose a sentence that can include probation, fines, mandatory counseling or education, the installation of an ignition interlock device, community service, a drug and alcohol evaluation, and even jail time. In addition, the fact that a criminal conviction is part of the public record means that it could have a significant impact on your reputation with the community. Any criminal conviction for an offense that involves the use of alcohol or drugs can raise suspicions about a substance abuse problem, an issue that could affect your ability to get a job or the way that others feel about associating with you socially.

Contact A Massachusetts Criminal Defense Attorney Today To Schedule A Free Consultation

Since 2009, Boston criminal defense lawyer Edward R. Molari has been representing the legal rights of people accused of OUI and other criminal offenses. To schedule a free case evaluation with Mr. Molari, call our office today at 617-942-1532.