Massachusetts Legal Developments Blog

Massachusetts Legal Developments Blog

The Burden of Proof in Criminal Trials

Innocent until proven guilty. This is a central tenant of our criminal law system. The state has the ultimate burden of proof when it comes to trying criminal defendants. Satisfying this burden of proof is not easy. In reality, the burden of proof involves two separate burdens, the burden of production and the burden of persuasion. A prosecutor (e.g., the attorney representing the state) must clear both of these hurdles in order to find a defendant guilty of a crime. 

The First Hurdle: The Burden of Production

The first hurdle that a prosecutor faces in reaching a criminal conviction is the burden of production. This burden requires that the prosecutor introduce a sufficient amount of evidence to suggest that the defendant may have committed the crime. This evidence may include testimony, documents, objects, or the like. Before the trial begins, the prosecutor must enumerate the crimes charged against the defendant and must detail the basis of facts the prosecutor intends to prove to support the criminal allegations. It is the role of the trial judge to determine whether the prosecutor has met this burden of production. If the prosecutor has not satisfied the burden of production, the trial judge will dismiss the case and the defendant will be acquitted.

The Second Hurdle: The Burden of Persuasion

The second hurdle that the prosecutor faces in reaching a conviction is the burden of persuasion. In short, this burden requires that the factfinder--usually a jury in a criminal proceeding--is persuaded that the defendant is guilty beyond a reasonable doubt based on the evidence offered. The jury will reach their decision after careful deliberations. If the jury is not persuaded by the evidence presented at trial, the defendant will be acquitted of the crime charged.

Production vs. Persuasion

One might ask how it is possible that a prosecutor can satisfy the burden of production without also satisfying the burden of persuasion? The answer to this question rests on the ability of the jury to weigh each piece of evidence differently than the judge. For example, the prosecutor may introduce eyewitness testimony that the defendant committed a burglary. Because the prosecutor has introduced some evidence of the alleged crime, the burden of production is satisfied. The jury, however, may not be persuaded by the evidence introduced. They may find that the eyewitness is not credible, or that the testimony of the witness is contradictory. Thus, the burden of production may be satisfied without persuading the jury that the defendant actually committed the crime.

Getting Help When You Face Criminal Charges.

If you have been charged with a crime in Massachusetts, it is critical that you speak with an experienced criminal defense lawyer right away. A skilled criminal defense attorney can help you understand your rights, provide sound legal advice, prepare you for trial, and defend you in court. Any delay in getting the help you need could damage your case and lead to long-term consequences. Contact Edward R. Molari, Attorney at Law, today for a confidential consultation.

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Earlier this month, the Massachusetts Supreme Judicial Court ruled unanimously that “upskirting,” the practice of secretly photographing under a woman’s skirt or dress, was not prohibited by state law. According to a story in The Boston Globe, the SJC found that a state law intended to prohibit “Peeping Tom” voyeurism of completely or partially undressed people did not apply to people who take pictures of people who are fully clothed.

The law in question prohibited secretly photographing a person who was “partially nude,” so the SJC did not feel it applied to upskirting. The decision came in a case involving a man who allegedly took photos under the dresses of women on Green Line trolleys. Trolley riders alerted MBTA Transit Police in August 2010 that a man appeared to be taking photographs of women, including one instance in which he appeared to be attempting to photograph a woman’s crotch area.

Transit Police set up a decoy operation the next day involving a female undercover officer wearing a skirt. Robertson allegedly took pictures of her, focusing on her crotch area, and he was arrested. The defendant was charged in 2011, and filed a motion to dismiss in 2012. That motion was denied by a Boston Municipal Court judge, and the SJC decision reversed that ruling.

The SJC decision drew criticism for allegedly parsing the language of the current statute in such a way that probably conflicted with the intent of the Legislature. Immediately following the SJC ruling, House Speaker Robert DeLeo strongly criticized the decision and vowed that the Legislature would look into ways to close the legal loophole that allowed upskirting to remain legal. He said that the SJC’s ruling was against “the spirit of the current law,” and that the state’s statutes need to be updated to “conform with today’s technology.”

The Legislature wasted no time in following through with DeLeo’s promise. Just a day after the SJC ruling, the House and Senate passed legislation making it a misdemeanor to “photograph, videotape, or electronically surveil” another person’s sexual or intimate parts without that person’s consent. The crime would be punishable by a maximum penalty of 2 ½ years in jail and a $5,000 fine. Governor Deval Patrick quickly signed the bill into law. Going forward, actions like that of the defendant in the SJC case would probably be banned under the new statute.

The upskirting law uses a reasonable person standard, declaring it illegal to take pictures of those parts of their body that such a person would believe would not be publicly visible. Distributing such pictures or images could lead to felony charges and prison time. In addition, the statute expands penalties for secretly taking photos and videos of “the sexual or other intimate parts of a child.”

If you have been charged with voyeurism or a similar crime, and you believe this charge to be in error, you should immediately seek out the assistance of an experienced criminal defense attorney. Contact Edward R. Molari, Attorney at Law, today for a confidential consultation.

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One of the fundamental principles of modern criminal procedure is that evidence acquired in violation of the law is not admissible in court, even if it is reliable in every other way. The so-called “exclusionary rule” is designed to prevent police and prosecutors from bending the rules in order to obtain a conviction, even in cases where all the evidence points to the guilt of the defendant.

In order to conduct a lawful, warrantless search of a suspect, a police officer must have reasonable suspicion that the search will produce evidence of a crime. If the officer conducts a search without reasonable suspicion, even if the search produces incriminating evidence, the fruits of that search will be inadmissible in court. Generally, if a suspect has a reasonable expectation of privacy and that expectation is infringed upon without reasonable suspicion, the Constitution has been violated.

The Fourth Amendment of the US Constitution protects against unlawful searches and seizures, while Article 14 of the Massachusetts Declaration of Rights provides for even stronger protections for residents of the Commonwealth. The exclusionary rule often comes up in drug arrests, in which officers find drugs on suspects and charge them with violating drug possession laws. Occasionally, in a twist on the usual scenario, the question arises as to whether one suspect has standing to challenge the search and seizure of another suspect.

That is the issue that the Massachusetts Court of Appeals had to address last week in Commonwealth v. Negron. The defendant was charged with distribution of a controlled substance after a police officer witnessed what looked like a hand-to-hand exchange between the defendant and an alleged buyer. The officer searched the alleged buyer, seized four bags of crack cocaine from his person, and arrested him for possession of a controlled substance with intent to distribute. Based on the drugs found on the alleged buyer, the defendant was arrested and charged with distribution.

The defendant asserted that he had standing to challenge the warrantless search of the alleged buyer, and moved to suppress the drugs found on him. Under federal and Massachusetts law, a defendant has standing to challenge the search and seizure of evidence when possession of that evidence is deemed to be an essential element of guilt. In Negron, the court analyzed the language of the statute and reasoned that possession is not an element of distribution.

Therefore, the defendant did not have standing to challenge the search and seizure of the alleged buyer. The court did not address the question of whether the defendant could suppress the evidence, since he did not have standing to challenge it in the first place. This decision, which appears to value statutory literalism over common sense, severely limits the rights of criminal defendants in the Commonwealth.

If you have been charged with a crime after what you feel was an unconstitutional search or seizure, you should immediately seek out the assistance of an experienced criminal defense attorney. Contact Edward R. Molari, Attorney at Law, today for a confidential consultation.

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Search and Seizure in the Digital Era: Warrantless Searches for Electronic Communication



As cell phones have become ubiquitous in our culture, the law has often struggled to catch up to these and other technological innovations. In particular, it has been unclear what steps law enforcement agencies need to take to gain access to cell phone records and information about customers held by cell phone companies. A recent ruling by the Massachusetts Supreme Judicial Court (SJC) states that local and state police will often need to acquire a warrant before attempting to track the cell phones of Massachusetts residents.

Whenever a cell phone user makes or receives a phone call, their location data is automatically generated and stored by the cell phone company. This data is known as cell site location information (CSLI), and can be used to track and reconstruct a person’s movements and location over time. Cell phone service providers often turn these records over to law enforcement without asking for a warrant, usually after receiving an administrative subpoena. Major cell phone companies turn over thousands of CSLI records every year.

Last month, in Commonwealth v. Augustine, the SJC found that the Commonwealth’s attempt to obtain two weeks’ worth of CSLI about the defendant without first getting a warrant violated the state constitution’s Article 14 warrant requirement. The SJC reasoned that "the tracking of [Augustine's] movements in the urban Boston area for two weeks was more than sufficient to intrude upon [his] expectation of privacy safeguarded" by the state’s Declaration of Rights. The fact that the CSLI technically belongs to the third-party cell phone companies does not negate the need for a warrant.

The holding in Augustine effectively means that, going forward, police will be required to acquire warrants for many situations in which they want to look at a suspect’s CSLI. The decision does allow for some warrantless searches of CSLI, but significantly narrows the scope of these searches. The defendant in Augustine was represented by the American Civil Liberties Union (ACLU) of Massachusetts. ACLU of Massachusetts legal director Matthew R. Segal had the following to say about his organization’s victory:

"Today's ruling is an enormous victory for privacy in the Commonwealth, and it means that Massachusetts is taking an important lead in dealing with the privacy implications of the digital age. Under this ruling, turning on a cell phone does not justify warrantless local and state surveillance of when, where and how you use it. The ACLU took this case because people carry their phones everywhere and use them constantly, so the government can learn much about who we are by finding out where we are while our phones are in use. We argued that this sensitive information deserves the protections of the state's warrant requirement, and the Court agreed."

This ruling entrenches the privacy rights of Massachusetts cell phone users. If you have been arrested after being the victim of an illegal, warrantless search, you should immediately seek out the assistance of an experienced criminal defense attorney. Contact Edward R. Molari, Attorney at Law, today for a confidential consultation.

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In 2010 the Massachusetts legislature passed (and the governor signed) the Criminal Offender Record Information (CORI) Reform Act. The statute went into effect on May 4, 2012. Among other provisions, the new law shortens the waiting period before one is eligible to seal certain felonies and misdemeanors and puts greater limits on criminal record information given to employers and others.

Massachusetts differs from many other states in that its laws do not provide for expungement of criminal records. Expungement effectively erases records of criminal convictions, arrests, and police reports as if they never existed. Sealing, on the other hand, simply keeps those records confidential on some level. In addition, the sealing process in Massachusetts only applies to court and probation records and does not affect the records of the police or other arresting agencies.

Criminal Records that Are Eligible to Be Sealed

The sealing process generally does not happen automatically, and only applies to certain types of court and probation records. The following types of records may be sealed:

1.    Certain convictions or admissions, after the obligatory waiting period.

2.    Cases that were dismissed without probation, or that resulted in a not guilty finding. These records may be eligible to be sealed immediately.

3.    A recorded offense that is no longer a crime.

A defendant or attorney should request the relevant criminal records before applying to have them sealed, just to make sure they are eligible for sealing. There are numerous specific crimes for which, if you are convicted, you are not eligible to have the records sealed or the process for doing so is much more arduous than usual.

Changes to Record Sealing After CORI Reform

The CORI reform law makes the following changes to the process of sealing court records after a waiting period:

1.    Lowers waiting period to seal felonies from 15 to 10 years.

2.    Lowers waiting period to seal misdemeanors from 10 to 5 years.

3.    The clock on the waiting period now begins to toll either on the day the defendant is released from custody, or (if there is no incarceration) on the date of disposition. Under the old law, the clock did not beginl until the end of all court supervision, including incarceration, parole, and probation.

4.    Any new criminal conviction causes the waiting period to start over again. A defendant cannot get his criminal record sealed until the obligatory waiting period has passed since any criminal conviction.

5.    To apply to have a criminal record sealed, the petitioner should submit a one-page petition (available online) to the Office of the Commissioner of Probation.

As always, anyone attempting to navigate the criminal justice system will want to find quality legal representation with expertise in criminal law. If you have a criminal record in Massachusetts and are interested in having it sealed, you should immediately seek out the assistance of an experienced criminal defense attorney. Contact Edward R. Molari, Attorney at Law, today for a confidential consultation.

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On August 2, 2012, Massachusetts Governor Deval Patrick signed into law an omnibus crime bill that had been passed by legislature. The bill consisted of many disparate crime-related provisions, including a new “three strikes” statute called Melissa’s Law. Within Melissa’s Law was an important provision that drug policy reformers had been advocating for years; namely, the law included a reduction in the size and time requirements for drug violations that take place within school zones.

School zone provisions essentially add on an extra sentence for drug crimes that occur within what the legislature designates as a school zone. The previous law set the boundary at a 1,000 feet radius of any school. Criminal defense attorneys and justice reform advocates pointed out for years that, in parts of Boston and other Massachusetts cities, it was nearly impossible to not be within 1,000 feet of a school at any given time. In addition, the law made no distinction between drug crimes that took place during school hours and those that did not. The statute effectively allowed prosecutors to charge a large percentage of drug offenders with school zone violations, thus increasing the Commonwealth’s plea bargaining power and the length of sentences.

The 2012 amendment to the school zone provision reduced the area of the zones from 1,000 feet to 300 feet from a school. The new statute’s restrictions encompass headstart facilities, elementary, vocational, and secondary schools. The law now also provides a time exception, by excluding drug crimes that take place between midnight and 5 a.m. from the school zone statute. Reform advocates believe these changes better capture the spirit of the original law, by focusing on keeping drugs away from places where children congregate, during the time of day when children are likely to be there.

Anyone caught possessing or selling illicit drugs (under other provisions of the Massachusetts Controlled Substances Act) between 5 a.m. and midnight,  and within 300 feet of a school or 100 feet of a public park, can be charged with violating the school zone provision. The new law actually increased the mandatory minimum sentence for anyone convicted of violating the school zone provision. The minimum sentence these drug offenders can expect is a two year jail term along with a $1,000 fine. Defendants cannot use lack of knowledge of school boundaries as a defense when they are charged with a school zone violation.

Under the new statute, an offender convicted of a school zone violation is generally eligible for parole after serving half of the maximum sentence (15 years) he could have received. However, offenders who utilized guns during their crimes, who supervised another felon, who sold drugs to minors, or who supervised minors in selling drugs, are not eligible for parole, as these are considered aggravating factors. A Supreme Judicial Court decision from late last year found that the new law applies retroactively, thus providing relief for some defendants and prisoners.

If you have been charged with violating Massachusetts drug laws, you should immediately seek out the assistance of an experienced criminal defense attorney. Contact Edward R. Molari, Attorney at Law, today for a confidential consultation.

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In the early 1980s, the Massachusetts legislature passed the commonwealth’s first mandatory minimum laws for drug offenses. These laws took discretion out of the hands of prosecutors and judges and created fixed sentences based on the specifics of the crime committed. The length of the sentence is usually based primarily on the weight of the drugs with which the defendant was caught. The mandatory minimum laws were a response to a perceived increase in drug abuse in Massachusetts, and also a belief that other types of crime (including violent crime) tended to follow drug crime.

Over the past 30 years or so, mandatory minimum laws for drug offenses have become increasingly controversial, both in Massachusetts and around the country. Low-level drug offenders have wasted away in prison, while the overall rates of drug addiction and drug crime have either risen or stayed the same. The legislature has gradually reformed the drug sentencing laws to make them somewhat less harsh. Most recently, on August 2, 2012, the governor signed the 2012 Massachusetts Drug Sentencing Reform Law, which reduced the mandatory minimum sentences that courts must impose on drug offenders.

The 2012 law covers a series of drug distribution and trafficking offenses, and lowers the minimum sentence that a judge must impose on someone convicted of these crimes. The Massachusetts Controlled Substances Act divides illicit drugs into five classes: Class A (including heroin, morphine, codeine, and ketamine), Class B (cocaine, crack, amphetamines, methadone, LSD, and PCP), Class C (peyote and mescaline), Class D (marijuana), and Class E (non-narcotic prescription drugs).

The reform law shortened mandatory sentences for drug offenses by up to one-third. For example, the minimum sentence for someone convicted of a second time of distribution of a Class A substance is now 3½ years instead of five years. The minimum sentence for trafficking 100 to 2,000 pounds of marijuana was reduced from three years to two years. And the mandatory minimum for trafficking 100 to 200 grams of certain Class B substances was changed from 10 years to eight years.

In addition, the law significantly reduces the minimum fines that the court must impose. While the changes only apply to those who are convicted after August 2, 2012, the reforms will also have an impact on drug offenders who were already in prison when the new law was signed. Convicted drug offenders are now eligible for earlier parole, work release, and earned good time. While the 2012 law and some of the other previous reforms are steps in the right direction, the ultimate goal of sentencing reform advocates is to eliminate mandatory minimums altogether. This would restore judges’ discretion to determine sentences in each specific case, and would bring back some basic fairness to the justice system.

If you have been charged with violating Massachusetts drug laws, or have been given an excessive mandatory minimum sentence, you should immediately seek out the assistance of an experienced criminal defense attorney. Contact Edward R. Molari, Attorney at Law, today for a confidential consultation.

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Appeals Court Justices Split on Issue of Notice in Suspended License Cases


Massachusetts traffic laws can often be exceedingly complex, confusing, and illogical. In particular, there is an assortment of laws related to driving without a license or with a suspended license, with each offense carrying a distinct sentence. The devil, as always, is in the details. One of the crimes in this category that carries a particularly harsh sentence is that of operating a motor vehicle with a driver’s license that was suspended for OUI. The maximum penalty for this offense is two-and-a-half years in jail (with at least 60 days served), and an additional one-year loss of license.

In order to establish that a defendant committed a crime, the Commonwealth must prove each element of the offense beyond a reasonable doubt. The elements of driving with a license suspended for OUI are as follows: (1) Operating a vehicle on a public way; (2) with license suspended or revoked; (3) due to having previously admitted to sufficient facts for a finding of guilty of OUI; and (4) with proper notice that said license had been suspended or revoked.

In a recent case before the Massachusetts Appeals Court, a criminal defendant appealed his conviction for operating with a license suspended for OUI, on the grounds that he was not given proper notice of the suspension, and therefore that the Commonwealth did not prove the fourth element of the crime. In a 2-1 decision, the Appeals Court found for the Commonwealth, upholding the conviction. However, the dissenting judge, Justice Agnes, used some interesting reasoning that, if it were to be adopted by a majority of judges, would be beneficial to criminal defendants and defense attorneys.

The only evidence the Commonwealth presented pertaining to the fourth element was a docket entry included in a trial exhibit, showing that the defendant admitted to sufficient facts in his previous OUI case, and that the sentence included a 60-day loss of license. However, as Justice Agnes pointed out, the docket entry did not say that the defendant received notice that his license was suspended and that the suspension was effective immediately.

The majority reasoned that the docket entry provided a basis to make a reasonable inference that the defendant had notice of the suspension. However, Justice Agnes countered that an inference is not enough to prove the element beyond a reasonable doubt, if there is no additional corroborating evidence. Also, there were facts in the case that actually undermined the inference in question. Specifically, the defendant’s license should have been confiscated when he was convicted of OUI, but it apparently was not, since he had it with him when he was later pulled over.

Justice Agnes wrapped up his dissent by asserting that a criminal defendant’s Due Process rights place the burden on the Commonwealth to prove each element beyond a reasonable doubt, and that, in this case, it did not meet that burden. While Justice Agnes is an outlier at this point, his dissent does provide a glimmer of hope for some criminal defendants and defense attorneys who handle traffic crimes.

If you have been charged with violating Massachusetts traffic laws, you should immediately seek out the assistance of an experienced criminal defense attorney. Contact Edward R. Molari, Attorney at Law, today for a confidential consultation.

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High Speed Chase Hightlights Inconsisten Suspended License Laws


An 18-year-old driver from Bridgewater allegedly led police on a high-speed chase in the early morning hours about three weeks ago. According to a story in the Taunton Daily Gazette, the driver is facing multiple criminal charges, and will likely face more as the case moves forward. He was originally clocked going 91 miles per hour down a city street, and refused to pull over when an officer tried to stop him.

The chase took the driver and police down several streets in Bridgewater and West Bridgewater. Police were finally able to stop the driver when they used spike strips to puncture the two front tires of his car. When he was finally apprehended, the driver told police that he had refused to pull over because he did not have a license. Episodes like this one, which happen more often than we would like to think, illuminate the complexity and inconsistency of certain traffic laws, and the failure of most drivers to understand them.

The Massachusetts criminal and traffic codes are full of outdated, incoherent laws and punishments. One example is the incongruity in punishment for unlicensed operation of a motor vehicle as opposed to operation of a motor vehicle with a suspended license. According to the newspaper story, the driver in the high-speed chase did not have a license. The statutory punishment for that crime is a fine between $100 and $1,000.

However, if the driver had been operating a vehicle with a suspended license, depending on the circumstances, he could have faced jail time, a steeper fine, and a further suspension of his license. On the extreme end of the spectrum we find the crime of operating a motor vehicle with license suspended for OUI. This is punishable by up to two and a half years in jail (at least 60 days of which must be served) and a one year additional loss of license.

Notice that, even if a driver is not operating under the influence at the time he is arrested for driving without a license, he still faces a very harsh penalty. In other words, a driver who had a license at one time (so presumably passed a driving test) and lost it is generally subject to harsher penalties than a driver who never had a license in the first place. This counterintuitive dynamic creates confusion and bad incentives among drivers. Since most drivers are not lawyers and do not have a sophisticated understanding of the traffic laws, they often rely on anecdotal accounts from friends and relatives to inform them about the laws.

A driver whose friend went to jail for two years for driving with a suspended license might be frightened to stop for the police, even if he is only operating without a license. But in the story above, the driver is now facing charges of unlicensed operation of a motor vehicle, failure to stop for police, reckless operation of a motor vehicle, speeding, marked lanes violation, failure to stop/yield, taking an improper turn and a one way traffic violation. And he could face even more, all to avoid (at most) a $1,000 fine.

If you have been charged with violating Massachusetts traffic laws, you should immediately seek out the assistance of an experienced criminal defense attorney. Contact Edward R. Molari, Attorney at Law, today for a confidential consultation.

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In 2012, Massachusetts voters approved a ballot initiative allowing the use of cannabis for medical purposes within the state. The language of the initiative, which passed with the support of 63 percent of Massachusetts voters, stipulated that the Department of Public Health would develop and publish regulations for the implementation and management of the new medical marijuana program.

The extensive regulations, entitled “Implementation of an Act for the Humanitarian Medical Use of Marijuana,” provide detailed guidance to physicians, patients, caregivers, dispensary agents, and dispensaries. Of particular interest for the general public may be the section that details the process for the registration of qualifying patients. Correctly following these rules could be the difference between ending up in court as a criminal defendant, and sitting at home as a law-abiding citizen with a serious illness.

According to the regulations, in order to obtain a medical marijuana registration card, a qualifying patient must provide the following information to the Department of Public Health:

1.    The qualifying patient’s full name, date of birth, address, telephone number, and email address if any, and a statement indicating his or her age and that his or her primary residence is in Massachusetts.

2.    Written certification for the qualifying patient from the qualifying patient’s certifying physician.

3.    Full name, address, and telephone number of the qualifying patient’s certifying physician.

4.    Full name, date of birth, and address of the qualifying patient’s personal caregivers, if any.

5.    A statement of whether the qualifying patient will be applying for a hardship cultivation registration.

6.    A copy of the qualifying patient’s Massachusetts driver’s license, government-issued identification card, or other verifiable identity document acceptable to the Department, except in the case of a qualifying patient under 18 years of age who does not have to comply with such requirement.

7.    A non-refundable registration fee. If the fee poses a verified financial hardship, the qualifying patient may request a waiver of the fee in a form and manner determined by the Department.

8.    Written acknowledgement of the limitations on his or her authorization to cultivate, possess, and use marijuana for medical purposes in the Commonwealth.

9.    An attestation that the registered qualifying patient will not engage in the diversion of marijuana and that the patient understands that protections conferred by the Act for possession of marijuana for medical use are applicable only within Massachusetts.

10.  Any other information required by the Department.

Once a qualifying patient is granted a registration card, the card will be valid for one year. In order to renew the card, the patient must once again provide all the information listed above. The registered patient must notify the Department within five days if any of the information from the application changes. A registered qualified patient must carry the registration card at all times while in possession of marijuana.

If you have been charged with violating Massachusetts drug laws, you should immediately seek out the assistance of an experienced criminal defense attorney. Contact Edward R. Molari, Attorney at Law, today for a confidential consultation.

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