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CRIMINAL LAW UPDATE

2004 LEGISLATIVE UPDATE

TO: All Assistant District Attorneys and Investigators
All Assistant Attorneys General and Investigators

FROM: Michael Fabbri, Assistant District Attorney, Middlesex County
Sean Kealy, Legal Counsel, Joint Legislative Committee on Criminal Justice

Date: January 2005
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1. Chapter 24 of the Acts of 2004. AN ACT RELATIVE TO MOTORCYCLE HELMETS (effective April 12, 2004). This act amended G.L. c. 90, § 7 so as to permit motorcyclists over 18 years old participating in an official parade to ride without a helmet.

2. Chapter 65, Section 27, of the Acts of 2004. AN ACT RELATIVE TO THE POWER OF ARREST BY PROBATION OFFICERS (effective April 5, 2004). This section amended G.L. c. 279, § 3 so as to give probation officers the authority to arrest any probationer -- whether on pretrial conditions or on probation following a conviction – who has violated the conditions of release. Previously, a probation officer had the authority to arrest violators on post-conviction probation.

3. Chapter 66 of the Acts of 2004. AN ACT RELATIVE TO SEXUALLY DANGEROUS PERSONS (effective July 6, 2004). This act amended G.L. c. 123A, the Sexually Dangerous Persons law, to allow the Commonwealth to file an SDP commitment petition on any person having a prior sex offense “regardless of the reason for the current incarceration, confinement or commitment.” Prior to this change, the Commonwealth could only petition if the defendant were serving a sentence for an enumerated sex offense. Other technical changes were also made in the law.

4. Chapter 117 of the Acts of 2004. AN ACT RELATIVE TO DAMAGE TO TOMBS AND GRAVES (effective August 26, 2004). This act amended G.L. c. 272, § 73, pertaining to the willful damage to tombs and graves, so as to include damage to any “veteran’s flag holder that commemorates a particular war, conflict or period of service.” The crime as amended remains a felony punishable by imprisonment or a fine.

5. Chapter 149, Section 200, of the Acts of 2004. AN ACT RELATIVE TO THE FISCAL YEAR 2005 BUDGET FOR THE COMMONWEALTH (effective September 23, 2004). This section amended G.L. c. 218, § 35A, pertaining to show cause hearings in district court, so as to require that a show cause hearing be held where the complaint involves a felony offense, where it is filed by a law enforcement officer and the officer requests a hearing. The new law also provides that a clerk may allow a hearing involving a felony complaint if the applicant is a citizen. The practice with regard to misdemeanor complaints remains the same.
Other outside budget sections make the following changes elsewhere in the General Laws: Section 141 amends the definition of “owner” under G.L. c. 90, § 1 to include “the commonwealth of and its political subdivisions”; Section 142 adds a new law (G.L. c. 90, § 19K) prohibiting snow plow hitching mechanisms with protruding mechanisms from remaining on private vehicles between May 15 and October 15; and Section 213 adds operating after suspension offenses to the list of crimes under G.L. c. 277, § 70C that the prosecution may request be processed as civil infractions.

6. Chapter 150 of the Acts of 2004. AN ACT RELATIVE TO FIREARMS LICENSING (effective September 28, 2004). This act amends G.L. c. 140, §§ 121, etc., pertaining to firearms licensing, so as to extend the federal assault weapons ban, require that gun licenses be issued in a size and shape consistent with drivers’ licenses, that gun licenses be issued for six years, that a 90 day grace period apply to license renewals, and that a firearm licensing review board be established to review license requests by persons who have certain misdemeanor convictions more than five years old who would otherwise be disqualified from being licensed. This act also amended G.L. c. 268, § 18C, the home invasion statute, so as to clarify the sentencing provisions of that statute.

7. Chapter 170 of the Acts of 2004. AN ACT RELATIVE TO THE USE OF STUN GUNS BY LAW ENFORCEMENT OFFICERS (effective July 15, 2004). This act amended G.L. c. 140, § 131J, pertaining to so-called stun guns, so as to permit the limited use of certain stun guns by trained and authorized police in certain limited circumstances in the apprehension and detention of criminals and prisoners. Additionally, this new law requires that the secretary of public safety develop uniform data collection protocol regarding the use of these devices, which data will be annually evaluated and disseminated to various public agencies.

8. Chapter 189 of the Acts of 2004. AN ACT RELATIVE TO A STUDY ON THE EFFECTS OF OXYCONTIN (effective July 1, 2004). This act provides for the establishment of a special commission to study the impact and effects on youth of the abuse of Oxycontin and other prescription and illicit drugs (including cocaine, heroin, GHB, and MDMA) be established. The commission shall submit a report, including legislative recommendations, if any, to the General Court on or before April 1, 2005.

9. Chapter 225 of the Acts of 2004. AN ACT RELATIVE TO IMMIGRATION WARNINGS DURING GUILTY PLEAS (effective October 27, 2004). This act amended G.L. c. 278, § 29D, pertaining to so-called immigration warnings in guilty pleas, so as to provide that the required warnings now be given in all cases where a defendant admits to sufficient facts, i.e., for continuances without a finding, and not just enters a plea of guilty as under present practice.

10. Chapter 270 of the Acts of 2004. AN ACT RELATIVE TO CROSSWALK SAFETY (effective November 7, 2004). This act amended G.L. c. 89, § 11, pertaining to pedestrian safety in crosswalks, so as to increase the fine to $200, extend the zone of safety from five to ten feet from the center line when the pedestrian is approaching from the opposite side of the driver, and to require local or state police to investigate all pedestrian injuries in crosswalks caused by motorists.

11. Chapter 304 of the Acts of 2004. AN ACT RELATIVE TO FIRE SAFETY IN THE COMMONWEALTH (effective November 17, 2004). This act regulates several aspects of fire safety in businesses such as night clubs and bars. Section 6 of the statute adds four new sections to G.L. c. 148. The new section 34A states that any owner, occupant, lessee or other person having control or supervision of any assembly use group building, as defined by the state building code, and who causes or permits a dangerous condition to exist on the premises at anytime shall be punished by a fine of not more than $5,000 or by imprisonment in the house of correction for not more than 2 1/2 years, or both. This law defines “dangerous condition” as: (1) any blocked or impeded ingress or egress; (2) the failure to maintain or the shutting off of any fire protection or fire warning system required by law; (3) the storage of any flammable or explosive without a properly issued permit in quantities in excess of allowable limits of any permit to store; (4) the use of any firework or pyrotechnic device, as defined by the board of fire prevention regulations, without a properly issued permit; or (5) exceeding the occupancy limit established by the local building inspector pursuant to G.L. c. 143. A conviction for a second or subsequent violation is punishable by a fine of not more than $25,000 or by imprisonment in the state prison for not more than 5 years or in a house of correction for not more than 2 1/2 years, or both such fine and imprisonment.
The new § 34B states that a person who wantonly or recklessly violates the state building code or state fire code and thereby causes serious bodily injury or death to any person shall be punished by a fine of not more than $25,000 or by imprisonment in the state prison for not more than 5 years or in a house of correction for not more than 2 1/2 years, or both. For purposes of this section, "serious bodily injury" shall mean bodily injury which results in a permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death.

12. Chapter 319 of the Acts of 2004. AN ACT RELATIVE TO THE PENALTIES FOR KILLING, MAIMING OR POISONING AN ANIMAL (effective November 17, 2004). This act strengthened the laws prohibiting cruelty to animals in a number of significant ways. First, it provides a mechanism whereby investigators acting pursuant to a so-called 51A report may report suspected animal abuse to a regional animal rescue league or to a local animal control authority. Second, it increases the fines and penalties imposes under G.L. c. 266, § 112 (pertaining to malicious killing or injury to animals) and G.L. c. 272, § 77 (pertaining to cruelty to animals in general).

13. Chapter 330 of the Acts of 2004. AN ACT RELATIVE TO THE USE OF SAFETY HELMETS FOR PERSONS 16 YEARS OF AGE AND UNDER. (Effective November 25, 2004). This act amended G.L. c. 85, §11B by increasing the age through which a child must wear a bike helmet from twelve years to sixteen years. The statutes also adds a new Section 11B 1/2 which provides that helmets must also be worn by children using “in line skates, a skate board, a scooter or other manually-propelled wheeled vehicle or riding as a passenger on any such manually-propelled vehicle.”

14. Chapter 395 of the Acts of 2004. AN ACT PROHIBITING CERTAIN PRODUCTIONS IN A MOVIE THEATER (effective February 14, 2005). This act amended G.L. c. 272 by adding a new Section 104 making it a crime (misdemeanor) to secretly “photograph, videotape or electronically surveil another person who is nude or partially nude” in any place that person would have a reasonable expectation of privacy. The offense becomes a felony if the perpetrator disseminates any resulting photograph or videotape.

This new law also amended G.L. c. 266, §143 et. seq. (relative to unauthorized reproduction of sound recordings) by making it a crime (misdemeanor for first offense, felony for a subsequent offense) to operate an audiovisual recording device while in a movie theater with the intent to unlawfully and without consent record a motion picture.

15. Chapter 396 of the Acts of 2004. AN ACT RELATIVE TO THE OPERATION OF MOTORIZED SCOOTERS (effective November 18, 2005). This act amended G.L. c. 90 by adding “motorized scooters” to the definitions set forth in Section 1, essentially making any 2 or 3 wheeled motorized vehicle (except motorized bicycles and wheelchairs) subject to Chapter 90. The new law also adds a new Section 1D which requires that anyone operating a motorized vehicle shall, among other things, possess a license or learner’s permit, wear a helmet, and not operate with any passenger.

16. Chapter 410 of the Acts of 2004. AN ACT RELATIVE TO THE CIVIL COMMITMENT PROCESS FOR PERSONS WITH MENTAL ILLNESS (effective March 1, 2005). This act amends the civil commitment process for dangerous persons in G.L. c. 123. Chapter 123 §7 currently requires that a commitment hearing be held within 4 days of the filing of the petition. This act changes that requirement to 5 days. It also amends §12 (under that same chapter), which deals with the emergency restraint of dangerous persons, reducing the number of days that a medical official may restrain a person whom they believe likely to cause serious harm from 4 days to 3 days.

17. Chapter 434 of the Acts of 2004. AN ACT RELATIVE TO THE REPORTING OF ABUSE OF ELDERS (effective December 22, 2004). This act amends G.L. c. 19A, which requires certain officials and persons to report suspected abuse of the elderly to the Department of Elder Affairs, by making directors of councils on aging, or an outreach worker employed by any such council, mandatory reporters.

18. Chapter 444 of the Acts of 2004. AN ACT RELATIVE TO COMPENSATION FOR CERTAIN ERRONEOUS FELONY CONVICTIONS (effective December 20, 2004). This act creates a new chapter of the General Laws, c. 258D, to allow for the compensation of certain persons who have been erroneously convicted of a felony. The people eligible for compensation are: (i) those that have been granted a full pardon pursuant to Section 152 of Chapter 127, if the governor expressly states in writing his belief in the individual's innocence; or (ii) those who have been granted judicial relief by a state court of competent jurisdiction, on grounds which tend to establish the innocence of the individual. To recover damages an individual must establish, by clear and convincing evidence, that:-
(i) he is a member of the class of persons defined identified above; (ii) he was convicted, (or adjudicated as a youthful offender) of an offense classified as a felony; (iii) he did not plead guilty to the offense charged, or to any lesser included offense, unless such guilty plea was withdrawn, vacated or nullified by operation of law on a basis other than a claimed deficiency in the plea warnings required by Section 29D of Chapter 278; (iv) he was sentenced to incarceration for not less than one year in state prison or a house of correction as a result of the conviction and has served all or any part of such sentence; (v) he was incarcerated solely on the basis of the conviction for the offense that is the subject of the claim; (vi) he did not commit the crimes or crime charged in the indictment or complaint or any other felony arising out of or reasonably connected to the facts supporting the indictment or complaint, or any lesser included felony; and (vii) to the extent that he is guilty of conduct that would have justified a conviction of any lesser included misdemeanor arising out of or reasonably connected to facts supporting the indictment or complaint, that he has served the maximum sentence he would have received for such lesser included misdemeanor and not less than one additional year in a prison. A claimant may not be compensated, however, if he was also serving a concurrent sentence for the conviction of another crime. The total liability of the Commonwealth for any judgment entered under this chapter shall not exceed $500,000.

19. Chapter 464 of the Acts of 2004. AN ACT FURTHER PREVENTING INSURANCE FRAUD IN THE COMMONWEALTH (effective January 3, 2005). This bill makes several changes relevant to G.L. chs. 6; 23P1/2; 89; 95; 112 §§23M; 175; and 266 in the following ways:
• creates a new crime penalizing insurance “fraud running”, i.e., the act of procuring or attempting to procure a client for an attorney or health care professional for the purposes of defrauding insurers, by imprisonment in the state prison for not more than 5 years, by imprisonment in a house of correction for not less than 6 months— 2 ½ years, or by a fine of $1,000-$4,000.
• permits medical licensing boards to have access to criminal offender records information of any person who is the subject of an investigation by such board;
• authorizes the Board of Allied Health Professionals to inspect and regulate the practice settings of its physical therapy licensees;
• prohibits physical therapy and chiropractic licensees whose license has been suspended for more than one year, or revoked or cancelled for professional misconduct, from having an ownership interest in a facility where chiropractic or physical therapy services is performed;
• prohibits the performance of chiropractic except in a licensed chiropractic facility;
• authorizes the licensing, inspection and regulation of chiropractic facilities, except for chiropractors who are sole proprietors;
• requires the medical licensing boards to review industry-wide data for evidence of over-treatment or fraud by providers, investigate indications of over-treatment or fraud, and pursue disciplinary proceedings against licensees involved in over-treatment or fraud;
• requires insurers to pay an assessment of ten cents per policy to cover enforcement costs for the medical licensing boards under the new program, while prohibiting companies from passing those costs on to the policy holders; and
• Immunizes insurers against liability for providing information that forms the basis of any investigation of over-treatment or fraud.

20. Chapter 501 of the Acts of 2004. AN ACT RELATIVE TO CRIMES AGAINST ELDERS AND PERSONS WITH DISABILITIES (effective April 9, 2005). . This act amends G.L. c. 111 §72K; and c. 265 §§13H, 13K to increase the civil and criminal penalties for abusing, mistreating, or neglecting elders and disabled persons. Specifically, it makes a person who commits or causes another to commit abuse, mistreatment, or neglect of a resident of a long term care facility (such as a nursing home) or a patient receiving home health services liable for a civil fine of between $5,000 and $50,000 depending on the type of bodily injury. A caretaker who wantonly or recklessly commits or causes another to commit abuse, mistreatment, or neglect can be punished for up to 3 years in state prison, 2 ½ years in a house of correction, and/or a fine of not more than $5,000.
This act amends Section 13H of Chapter 265, by adding a new paragraph that penalizes an indecent assault and battery on an elder or person with a disability with imprisonment in prison for not more than 10 years, or in the house of correction for not more than 2 1/2 years. A second or subsequent offense shall be punished by imprisonment in the state prison for not more than 20 years. A prosecution commenced under this paragraph shall not be placed on file nor continued without a finding.
This act also amends Section 13K of said Chapter 265, by defining the words “mistreatment” as “the use of medications or treatments, isolation, or physical or chemical restraints which harms or creates a substantial likelihood of harm;” and the word “neglect” as “the failure to provide treatment or services necessary to maintain health and safety and which either harms or creates a substantial likelihood of harm;” and redefines “person with a disability” as “a person with a permanent or long-term physical or mental impairment that prevents or restricts the individual's ability to provide for his or her own care or protection.” Finally, G.L. c. 265 § 13K is amended by adding two new paragraphs:
(a 1/2) Whoever commits an assault and battery upon an elder or person with a disability shall be punished by imprisonment in the state prison for not more than 3 years or by imprisonment in a house of correction for not more than 2 1/2 years, or by a fine of not more than $1,000, or both such fine and imprisonment.
(d 1/2) Whoever, being a caretaker of an elder or person with a disability, wantonly or recklessly commits or permits another to commit abuse, neglect or mistreatment upon such elder or person with a disability, shall be punished by imprisonment in the state prison for not more than 3 years, or imprisonment in the house of correction for not more than 2 1/2 years, or by a fine of not more than $5,000, or by both such fine and imprisonment.
Finally, this legislation repeals G.L. c. 265 § 38 (abuse of patients in long-term care facilities) which penalized any person who knowingly and willfully abuses, mistreats, or neglects a patient or resident of a long-term care facility with imprisonment in a house of correction for not more than 2 years or by a fine of up to $5,000 or both such fine and imprisonment.
NOTE: Views or opinions expressed in this memorandum do not necessarily represent or reflect the views or opinions of the District Attorney for Middlesex County. We gratefully acknowledge the assistance of Donna Greska of the Middlesex County District Attorney's Office in the production of this publication. We also note that the bulk of the material contained herein is derived from the official opinions of the weekly SJC and Appeals Court and from the main website for the General Court of the Commonwealth of Massachusetts.
 
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