Former Chief Keeps Pension Despite Domestic A&B Convictions

The Waltham Retirement Board recently voted unanimously to grant retirement benefits to former Waltham Police Chief Thomas LaCroix, despite his convictions for two counts of domestic assault & battery involving his wife Andrea. Under the Massachusetts Retirement Law, if a public employee in Massachusetts is convicted of an offense involving violation of the laws applicable to his office or position, he is not entitled to receive a disability retirement.

In the LaCroix case, the law which requires pension forfeiture, G.L. c. 32,§ 15(4), was construed narrowly. The basis cited for the narrow application of the law was the Massachusetts Appeals Court’s decision in Durkin v. Boston Retirement Board, wherein Durkin was intoxicated and fired his department-issued service weapon at another Boston Police Officer. Durkin was convicted of assault and battery by means of a dangerous weapon. The rationale for denying Durkin is pension was that “a police officer’s assault and battery on another person by means of discharging a service weapon in a crowded residential area for no legitimate purpose involves the violation of the laws applicable to the police officer’s position.”  In former Chief LaCroix case, no weapon was involved.

The Retirement Board determined that there was no nexus between LaCroix’s off-duty crime and his position as Chief of Police. This case illustrates the principle that a conviction of violation of any statute, ordinance or by-law by a police officer will not and should not automatically result in a pension forfeiture. Instead, a distinction must be drawn between those violations of law by a police officer that result in forfeiture and those that do not.

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Combined Insurance Disability Policies

I have been contacted by a Boston attorney that is litigating some claims against this insurer for the disability policies it has sold to many police officers in Massachusetts.  It appears that the sales pitch promised much more in benefits than they deliver should you be injured on duty and try to make a claim.  If you have purchased one of these policies from this company, please email me at and I will pass on your information to the attorney to assess your claim.

Let me know if you have any questions.

John J. McMaster


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Assault & Battery is a Lesser included Offense of Rape

Recently in an unpublished opinion the Appeals court ruled that Assault & Battery is a lesser included offense of Rape in COMMONWEALTH vs. PERDITE SCOTT MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

The court in ruling stated “The defendant, Perdite Scott, was convicted of rape (second offense), assault with intent to rape, and assault and battery. On appeal, he argues that (1) the jury instructions failed to convey the essential elements of the charges against him; (2) the trial judge failed to give a specific unanimity instruction, and the convictions on the lesser charges are potentially duplicative of the rape conviction;

Duplicative convictions. As the issue of duplicative convictions was not raised at trial, we review this issue to determine whether there has been a substantial risk of miscarriage of justice. More particularly, we evaluate the evidence, and the instructions, to determine the risk that the defendant may have been convicted of cognate offenses based on a single act. See Commonwealth v. Berrios, 71 Mass. App. Ct. 750, 754-755 (2008). Convictions of multiple cognate offenses not based on separate and distinct acts violate double jeopardy principles. See Commonwealth v. Vick, 454 Mass. 418, 431 (2009).

Assault and battery is a lesser included offense of rape, see Commonwealth v. Richmond, 379 Mass. 557, 562 (1980); Berrios, supra at 753, but we conclude that there was ample evidence of separate acts, particularly the smacking and choking of the victim prior to the rape, and adequate argument by the Commonwealth regarding those separate acts, to avoid a substantial risk of a miscarriage of justice.

As for the assault with intent to rape, the Commonwealth argues only that it is not a lesser included offense. As we have previously held that it is, albeit without parsing the elements of the two crimes, we conclude that this conviction must be vacated. See Commonwealth v. Kruah, 47 Mass. App. Ct. 341, 347 (1999) (‘[t]he crime of assault with intent to rape is a lesser included offense of rape’); Commonwealth v. Westbrook, 58 Mass. App. Ct. 692, 700 (2003) (‘[b]y finding the defendant guilty of the lesser included offense of assault with intent to rape, it is clear that the jury did not believe that the defendant had penetrated the victim’)”

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SJC Rules “CWOF” is Not a Conviction For License Suspension Purposes

Recently, in PAUL J. SOUZA vs. REGISTRAR OF MOTOR VEHICLES & another 462 Mass. 227 (2012) the SJC ruled that a driver who had a prior 1997 “Continued without a Finding” or “CWOF” was not sufficient for the purposes of suspending the drivers license as a second offense when he arrested again in 2010 and refused the breath test. The ruling exposed a flaw in “Melanies law” that the state legislature has already begun to craft a remedy to.

In deciding, the court stated “1. Background. The facts are undisputed. In 1997, the plaintiff was arrested for operating a motor vehicle while under the influence of intoxicating liquor (OUI), a violation of G. L. c. 90, § 24 (1) (a) (1). He admitted to sufficient facts for a finding of guilty; he did not plead guilty. His case was continued without a finding and later dismissed after he had successfully completed the terms of his probation, including assignment to an alcohol education program. The plaintiff was arrested again for OUI on January 14, 2010. He refused to submit to a breathalyzer test. Thereafter, the registrar of motor vehicles (registrar) suspended the plaintiff’s driver’s license for three years on account of his refusal to take the test. Pursuant to G. L. c. 90, § 24 (1) (f) (1) (§ 24 [1] [f] [1]), the registrar is required to suspend an arrested driver’s license for three years for refusal to submit to a breathalyzer test if the driver has been previously “convicted” of an OUI offense. If the driver has not been previously convicted, the license suspension period is 180 days. Id.

The plaintiff’s RMV Lawyer appealed from the registrar’s decision to the board of appeal on motor vehicle liability policies and bonds (board), arguing that his license should only have been suspended for 180 days because he had never previously pleaded guilty to or been found guilty of OUI. Therefore, he claimed, he had not previously been “convicted” of OUI.

The issue of statutory interpretation raised in this case — how “convicted” should be defined in § 24 (1) (f) (1), as appearing in St. 2005, c. 122, § 9 (known as “Melanie’s Law“) — does not involve any gaps in the statute that the board or the registrar (collectively, board) needs to flesh out in order to give the statute meaning. Moreover, the board’s specialized knowledge relating to motor vehicles and driving rules does not give it any special competence to determine what the Legislature meant by “convicted,” a term that is unrelated to these subjects. Because the interpretive question here is purely a legal one, and because “[t]he duty of statutory interpretation rests ultimately with the courts,” we review the board’s interpretation de novo. Boston Hous. Auth. v. National Conference of Firemen & Oilers, Local 3, 458 Mass. 155, 164 (2010),

3. Discussion. Section 24 (1) (f) (1) provides in relevant part:

“Whoever operates a motor vehicle upon any way or in any place to which the public has right to access . . . shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor . . . . If the person arrested refuses to submit to such test or analysis . . . no such test or analysis shall be made and he shall have his license or right to operate suspended in accordance with this paragraph for a period of 180 days; provided, however, that any person who is under the age of 21 years or who has been previously convicted of a violation under this section, [various other sections of c. 90], or a like violation by a court of any other jurisdiction shall have his license or right to operate suspended forthwith for a period of 3 years for such refusal . . .” (emphasis added).

In order to determine who has been “previously convicted of a violation,” we first must look to G. L. c. 90, § 24 (1) (d) (§ 24 [1] [d]), which defines the term “convicted” for purposes of all the subsections of § 24 (1). The pertinent part of § 24 (1) (d) reads:

“For the purposes of subdivision (1) of this section [i.e., § 24 (1)], a person shall be deemed to have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by a court of competent jurisdiction,*231 whether or not he was placed on probation without sentence or under a suspended sentence or the case was placed on file . . . .”

“A fundamental tenet of statutory interpretation is that statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result.” Sullivan v. Brookline, 435 Mass. 353, 360 (2001). By its terms, the definition of “convicted” in § 24 (1) (d) — and derivatively, the meaning of “convicted of” in § 24 (1) (f) (1) — confines itself to a guilty plea, a plea of nolo contendere, a finding of guilty, or a judgment of guilty. The definition makes no mention of an admission to sufficient facts; an assignment to an alcohol education, treatment, or rehabilitation program (program assignment); or a continuance without a finding (CWOF). Evaluated in connection with the plain words of the statutory definition, the plaintiff’s 1997 disposition, namely, the admission to sufficient facts followed by a CWOF and a program assignment, does not qualify him as someone who has been previously “convicted of” OUI.

The board’s main argument, articulated in several slightly different ways, comes down to the same fundamental premise: that “convicted” in § 24 (1) (f) (1) must be interpreted not solely according to its plain meaning, but in light of the remedial purpose of Melanie’s Law, namely, “to increase penalties for drunk drivers in the Commonwealth.” St. 2005, c. 122, preamble. In light of this purpose and prior decisions of this court, it argues, the plaintiff’s 1997 admission to sufficient facts should be considered the equivalent of a guilty plea and therefore the registrar properly treated the plaintiff as previously having been “convicted of” OUI.

We have several concerns with this purpose-centered argument. Melanie’s Law amended § 24 (1) (f) (1) by increasing the periods of license suspension for refusal to submit to a breathalyzer test, but it did not amend the definition of “convicted” in § 24 (1) (d). Accordingly, it is inappropriate to look to Melanie’s Law as the source of justification for reading this term in a more expansive manner than applied before Melanie’s Law was enacted. Even if we were to consider the purpose of Melanie’s Law, we are not at liberty to construe the statute in a manner that might advance its purpose but contravenes the actual language chosen by the Legislature. See Franklin v. Wyllie, 443 Mass. 187, 196 (2005) (although town’s proposed interpretation of G. L. c. 61A, § 14, would further statutory purpose, court adopted interpretation advanced by defendant purchasers because “the result is constrained by the actual language of the statute”).

If the Legislature, in enacting Melanie’s Law, had wanted to include an admission to sufficient facts in the definition of “convicted,” it could have done so explicitly by amending § 24 (1) (d). Alternatively, if the Legislature had wanted to ensure that an admission to sufficient facts, like a guilty plea, would serve as a basis for imposing longer periods of license suspension on account of refusing a breathalyzer test, it could have amended § 24 (1) (f) (1) to provide that license suspension penalties would be heightened for drivers who previously had been convicted of OUI or admitted to sufficient facts for a finding of guilty. In this regard, it is significant that the Legislature used these phrases in other subsections and paragraphs of § 24. “[W]here the Legislature has employed specific language in one paragraph, but not in another, the language should not be implied where it is not present.” Commonwealth v. Galvin, 388 Mass. 326, 330 (1983), quoting Beeler v. Downey, 387 Mass. 609, 616 (1982). See G. L. c. 90, § 24 (1) (a) (1), second and third pars. (“There shall be an assessment . . . against a person who is convicted of, is placed on probation for, or is granted a continuance without a finding for or otherwise pleads guilty to or admits to a finding of sufficient facts [of OUI] . . .” [emphasis added]); G. L. c. 90, § 24 (2) (a), second par. (same). [FN4] Cf. G. L. c. 90, § 24 (1) (c) (2) (license revocation period as consequence of conviction extended where “such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program” [emphasis added]).

Moreover, if we accept the board’s argument that the definition of “convicted” in § 24 (1) (d) implicitly includes admissions to sufficient facts, then this latter term becomes superfluous in § 24 (1) (a) (1) and § 24 (2) (a). An interpretation of a statute should not fail to give effect to any of its terms or render them “inoperative or superfluous.” Connors v. Annino, 460 Mass. 790, 796 (2011), quoting Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 601 (2010). In sum, under established rules of statutory construction, it would be improper to read admissions to sufficient facts into the definition of “convicted” in § 24 (1) (d) or § 24 (1) (f) (1).

The board’s argument that any interpretation other than the one it advances would fail to effectuate the goal of Melanie’s Law, in relation to § 24 (1) (f) (1), or would lead to an absurd result, is inaccurate. While our interpretation of § 24 (1) (f) (1) here does not increase the length of license suspension for the plaintiff in the particular circumstances of his case, the interpretation does nothing to interfere with the Melanie’s Law enhancement of many penalties for drunk drivers, including increasing the maximum penalty under § 24 (1) (f) (1), as amended through St. 2003, c. 28, § 5, for failure to take a breathalyzer test from a suspension of eighteen months to a lifetime suspension (St. 2005, c. 122, § 9); and increasing the length of time that drivers whose licenses are suspended for OUI convictions or program assignments under a separate provision, G. L. c. 90, § 24 (1) (c), must wait before applying for a hardship license (St. 2005, c. 122, §§ 4, 5).

While the board may not approve of this result as a matter of policy, it is not absurd. We have recognized that an admission to sufficient facts and an associated continuance without a finding constitute “a procedure which often serves the best interests of both the Commonwealth and the defendant. The benefit to a defendant is obvious: he may be able to avoid a trial and ‘earn’ a dismissal of the indictment or complaint, thereby avoiding the consequences of having a criminal conviction on his record. These advantages would be especially appealing to a first offender or a defendant whose job security or family situation might be threatened by a conviction.” Commonwealth v. Duquette, 386 Mass. 834, 843 (1982). Thus, it is not unreasonable for an admission to sufficient facts, followed by a continuance without a finding and eventual dismissal, to carry different (and more favorable) consequences than a plea or finding of guilty on the same charge.

In arguing for the opposite result, the board points to a number of this court’s decisions treating an admission to sufficient facts as the equivalent of a guilty plea. We disagree that those decisions control in the context of this case. Those cases presented in a light very different from this case, namely, what procedural protections should be afforded to a defendant who admits to sufficient facts to warrant a guilty finding in a criminal case rather than pleads guilty. See, e.g., Commonwealth v. Greene, 400 Mass. 144, 145-146 (1987) (stating in dicta that knowing and voluntary admission to sufficient facts, like guilty plea, could be treated as waiver of nonjurisdictional defects for purposes of determining appeal rights); Commonwealth v. Duquette, 386 Mass. at 841-842 (requiring colloquy to assess understanding and voluntariness when defendant admits to sufficient facts rather than pleading guilty at final stage of District Court proceeding). See also Commonwealth v. Villalobos, 437 Mass. 797, 800 (2002), and cases cited (warnings of potential immigration consequences under G. L. c. 278, § 29D, must be given to noncitizen defendants who admit to sufficient facts, although statute only applies on its face to guilty or nolo contendere pleas); G. L. c. 278, § 18, second par. (“If a defendant . . . attempts to enter a plea or statement consisting of an admission of facts sufficient for finding of guilt, or some similar statement, such admission shall be deemed a tender of a plea of guilty for purposes of the procedures set forth in this section” [emphasis added]). As these cases and the cited statute illustrate, an admission to sufficient facts may entitle a criminal *235 defendant to protections such as a colloquy to ensure that his admission is voluntary and intelligent or warnings about potential immigration consequences. But the cases provide no guidance concerning whether the board is entitled to treat an admission to sufficient facts in a prior criminal case as a conviction for purposes of an administrative driver’s license suspension.

4. Conclusion. For the reasons stated, we conclude that the Legislature did not intend an admission to sufficient facts to be treated as a conviction pursuant to G. L. c. 90, § 24 (1) (f) (1). Accordingly, the registrar was not authorized pursuant to that statute to suspend the plaintiff’s driver’s license for more than 180 days on account of his refusal to take a breathalyzer test, because the plaintiff had not previously been convicted of a violation of G. L. c. 90, § 24.

Judgment reversed.”

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Appeals Court Rules on Lesser Included Offense

Recently the Appeals court decided COMMONWEALTH vs. HERIBITO FIGUEROA MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 COMMONWEALTH OF MASSACHUSETTS APPEALS COURT. The unpublished decision stated that the defendant’s conviction of unlawful possession of ammunition is duplicative of his conviction of possession of a loaded firearm.

Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.

The court in ruling stated “the defendant raises various claims of error on appeal from his convictions on charges of violation of an abuse prevention order, G. L. c. 209A, § 7; discharge of a firearm within 500 feet of a building, G. L. c. 269, § 12E; unlawful possession of a loaded firearm, G. L. c. 269, § 10(n); unlawful possession of a firearm, G. L. c. 269, § 10(a); and unlawful possession of ammunition, G. L. c. 269, § 10(h). We address each in turn. 2. Duplicative conviction. The Commonwealth correctly concedes that the defendant’s conviction of unlawful possession of ammunition is duplicative of his conviction of possession of a loaded firearm. See Commonwealth v. Johnson, 461 Mass. 44, 51-53 (2011). The conviction on the charge of unlawful possession of ammunition is accordingly vacated, and the charge is dismissed.”


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SJC Decides Double Jeopardy Case

Recently the SJC ruled on whether a defendant charged with summary contempt procedings was barred from Being charged by the principles of “double jeapardy” in ADMILSON VIZCAINO vs. COMMONWEALTH 462 Mass. 266 (2012).
The court in ruling that double jeopardy did not apply stated “Both the double jeopardy clause of the Fifth Amendment to the United States Constitution and Massachusetts statutory and common law prohibit the government from twice placing a person in jeopardy for the same criminal offense. Benton v. Maryland, 395 U.S. 784, 793-796 (1969). Lydon v. Commonwealth, 381 Mass. 356, 366, cert. denied, 449 U.S. 1065 (1980). G. L. c. 263, §§ 7, 8, 8A. The prohibition applies to (1) subsequent prosecution for the same offense after acquittal, (2) subsequent prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Commonwealth v. Love, 452 Mass. 498, 502 (2008). In this case, we are concerned with the prohibition against subsequent prosecution for the same offense after conviction. The defendant argues that because he was convicted of summary contempt at the May 12 proceeding, his subsequent indictment for nonsummary criminal contempt cannot stand under double jeopardy principles. He thereby asks us to decide that double jeopardy applies to summary contempt proceedings, an issue that has been left open by the United States Supreme Court. See United States v. Dixon, 509 U.S. 688, 697 n.1 (1993). Assuming, but not deciding, that the defendant was placed in jeopardy, we conclude that the defendant was not convicted of summary contempt, and therefore jeopardy never terminated. See Commonwealth v. Jarvis, 68 Mass. App. Ct. 538, 541 (2007), citing Sattazahn v. Pennsylvania, 537 U.S. 101, 106 (2003) (“where jeopardy attaches and has not terminated, considerations of double jeopardy are not implicated”). See also Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 309 (1984). Although the judge orally announced a judgment of summary contempt, she did not take the essential steps of entering the judgment on the court’s docket and providing the defendant a “summary opportunity” to adduce evidence or argument before adjudication. As a result of these omissions, the contempt prosecution by operation of law became a rule 44 nonsummary contempt prosecution. See Reporters’ Notes to rule 44, supra at 1740. The jeopardy, if any, was continuing. Cf. Justices of Boston Mun. Court v. Lydon, supra (former two-tiered trial system in Massachusetts as continuing jeopardy). The defendant’s double jeopardy argument therefore fails, and his petition must be denied.

The judge did not enter a written judgment of criminal contempt, a prerequisite to summary contempt under rule 43 (a) (2) and (b). See Commonwealth v. Segal, 401 Mass. 95, 99-100 (1987). Thus, her actions did not constitute a conviction of summary contempt under rule 43. Rather, by combined operation of rules 43 and 44, the proceeding became nonsummary under rule 44. See Reporters’ Notes to rule 43, supra at 1735 (rule “disallows summary disposition of contempts when the judgment of contempt is not entered contemporaneously with the commission of the contempt”). See also Reporters’ Notes to rule 44, supra (“Contempts that are not or cannot be tried summarily . . . must be tried under the provisions of [r]ule 44” [emphasis added]). Although the judge stated that it was her “judgment” and “find[ing]” that the defendant had committed a summary contempt by twice refusing to provide testimony in her presence, her failure to enter judgment committed her to proceeding under rule 44. For a judge to convict a defendant of summary contempt, she must enter a contemporaneous judgment of contempt on the record, signed by her, containing “a recital of those facts upon which the adjudication of guilt is based.” Mass. R. Crim. P. 43 (b). Where these requirements are not met, the only option is to proceed by complaint or indictment pursuant to rule 44.

The judge also did not provide the defendant a “summary opportunity” to adduce evidence or argument relevant to guilt or punishment before she made the statements at issue on May 12. Although the judge heard argument from the attorneys about the law applicable to contempt proceedings, as to argument relevant to guilt or punishment the judge stated, “It’s not time to have that hearing yet.” The judge did not hear argument relevant to guilt or punishment until May 28, well after the defendant claims to have been convicted. By waiting, the judge committed herself to a rule 44 proceeding. See Commonwealth v. Segal, supra at 99-100.

Our prior cases support this result. In Commonwealth v. Segal, supra, we reversed a judgment of summary contempt on grounds that included a lack of a signed judgment entered on the record and a failure to provide a “summary opportunity” to be heard. The judge in this case presumably was aware of this precedent but nevertheless declined to fulfil the rule 43 requirements.

We also note that under Mass. R. Crim. P. 28, 378 Mass. 898 (1979), a criminal judgment must be read in open court and entered on the court’s docket, and the defendant must thereafter be notified of his right to appeal. Here, the judge complied with the first requirement of rule 28 but not the other two. Accordingly, there was no criminal “judgment” and the defendant was not convicted of summary contempt.

The defendant argues that the judge exercised the deferred sentencing option of rule 43 (b) and therefore must have found him guilty of summary contempt because there otherwise would be no conviction on which to sentence him. The defendant points to certain statements of the judge and the prosecutor at the May 28 hearing, which indicate they believed the defendant already had been adjudged guilty of summary contempt on May 12. According to the defendant, these statements establish that he was convicted of summary contempt on May 12.

The defendant looks for support in Commonwealth v. Love, 452 Mass. 498, 504-505 (2008). There, the question was whether a District Court proceeding at which a judge erroneously had heard evidence for purposes of both a trial and a motion to suppress was a trial to which jeopardy attached. Id. at 498-499. We concluded that it was. Id. at 499. Witnesses had been sworn and provided testimony, the hallmark of a proceeding to which jeopardy attaches. Id. at 504. We further stated that our conclusion was “buttressed by the behavior of all concerned, including the judge and counsel, that was consistent with the conduct of a trial.” Id.

The short answer to the defendant’s argument is that the Love case does not stand for the broad proposition that the behavior of the parties determines how to characterize a proceeding. Rather, under our double jeopardy precedents we must look beyond labels affixed by the trial judge or the parties, to the substance of the proceeding. See Commonwealth v. Gonzalez, 437 Mass. 276, 282 (2002), cert. denied, 538 U.S. 962 (2003); Adams v. Commonwealth, 415 Mass. 360, 361-363 (1993); Commonwealth v. DeFuria, 400 Mass. 485, 487-489 (1987). Here, the judge did not exercise the deferred sentencing option on May 12 because she did not enter a contemporaneous judgment of contempt or provide the defendant a summary opportunity to be heard. [FN14] In any event, the judge’s apparent belief that she had exercised this option should be taken with a “grain of salt,” as the judge had expressed “considerable uncertainty” throughout the proceedings as to the proper procedure. Where, as here, the *278 hallmarks of a conviction of summary contempt are absent, the judge’s actions speak for themselves. In failing to meet the requirements of rule 43 (a), the judge removed the option of employing summary punishment.

We conclude that the judge’s actions from May 12 to May 28 were consistent with the initiation, by operation of law, of a nonsummary contempt proceeding pursuant to rule 44. See Reporters’ Notes to rule 44, supra at 1740. Cf. Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 309 (1984). As stated, a contempt may be classified as nonsummary either by choice of the judge or by operation of the rules of criminal procedure. Here, the judge may have believed she was proceeding by choice, but in reality her failure to adhere to rule 43 (a) and (b) foreclosed her ability to employ the summary contempt procedure. In substance, the proceeding was not a conviction of summary contempt but, rather, the initiation of a nonsummary contempt proceeding.

Our decision today gives effect to long-standing principles counselling restraint by judges in their use of the summary contempt procedure. See, e.g., Offutt v. United States, 348 U.S. 11, 13 (1954); Sussman v. Commonwealth, 374 Mass. 692, 695-699 (1978). In the case at bar, the judge may originally have intended to punish the defendant summarily but thought better of it on reflection. Our rules encourage such reflection.

We hold that, in the circumstances of this case, assuming, but not deciding, that the judge’s comments on May 12 caused jeopardy to attach, the defendant was not “convicted” of summary contempt and therefore jeopardy did not terminate. There is no double jeopardy bar to nonsummary prosecution of the defendant for criminal contempt. The case is remanded to the county court for entry of a judgment denying the defendant’s petition.

So ordered.”

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Time to Check Your Auto Insurance

Many people renew their auto insurance around the first of the year. This may be a good time to review your auto coverage to protect yourself and your family should you be injured on or off duty. Given the frequency in which officers are injured in auto related accidents, you need adequate insurance to protect yourself and your family.

PIP (Person Injury Protection) – This is part 2 on your auto policy and allows for up to $8,000 in medical payments and lost wages. Although this is a fairly standard item on most policies, some people do not realize until it’s too late that they have a deductible for this coverage. The most notable problem arises with persons who have purchased insurance online from Progressive. When purchasing insurance through the website, the consumer is asked if he/she has health insurance. To those answering “yes”, the software would apply a deductible to some or all of the $8,000 in benefits with a savings of about $15 per year. This deductible can cost you thousands of dollars if you get into an accident at a slight savings. Given how the website handles the health insurance question, very few people realize the trap they have fallen into and only discover the problem after an accident. It is unclear if Progressive has changed its website software to correct this problem. Everyone should check their policies to be sure you have the maximum coverage whether you have Progressive or some other insurer.

Uninsured Motorist – This is part 3 of your policy. This allows you to collect benefits on your own policy should you (1) be injured in an auto accident (2) another party is at fault and (3) the other party is considered uninsured. An auto is uninsured if the insurance has lapsed, the car is driven by an unauthorized user (use without authority or larceny of a motor vehicle), or it was a hit-and-run accident (unidentified auto). This coverage allows you to collect up to the stated limits on part 3 of your policy if you meet the above criteria. It applies whether you were the driver of a car when you were injured, a passenger or a pedestrian (such as on a road job, traffic stop or accident scene). You do not have to be in your own vehicle for this coverage to apply. It can be used when you suffer an injury while a driver or passenger in another vehicle, such as a cruiser. Making a claim on this part will not raise your premiums. I would recommend at least $100,000/$300,000 limits and think $250,000/$500,000 is even better.

Underinsured Motorist – This is part 12 of your policy. This offers nearly identical coverage as Uninsured Motorist. The difference is that the vehicle which caused your injury is identified, but it does not have sufficient insurance to cover the value of your injury. In this case, you subtract the policy limits of the car that injured you from your policy limits, and can make a claim on the difference. For instance, if the car that injured you had the minimum of $20,000 in insurance and your part 12 underinsured was $100,000, you can make a claim against the other car for the $20,000 and against your own insurer for $80,000 ($100,00 – $20,000). Given the economy, many people have bare minimum insurance and this coverage is important to compensate you should your injury be serious.

Medical Payments – This is part 6. Many people skip Medical Payments (MedPay) coverage with the feeling that their health insurance will cover any medical bills. Although that may be correct, MedPay is still very valuable. Most people do not know that if your health insurance pays medical bills for an injury and you make a claim against the person who injured you, they have the right to get back the money they paid out towards your medical care. This is an especially difficult lesson to learn when the injury is serious and there is not enough auto insurance to compensate you. You could get little or nothing after your health insurer steps in line in front of you. MedPay does not have to be paid back. It can lessen or eliminate any lien by the health insurer by paying your medical bills ahead of the insurer. The coverage is sold in increments of $5,000 and is very cheap. Please consider purchasing at least $10,000 of MedPay insurance.

If your policy is not up for renewal right now, it is still a good time to review your coverage. If you find your coverage needs upgrading and it is affordable, your agent or company can make the changes mid-policy period and pro rate the cost. This coverage will protect yourself and your family should you be injured by an uninsured or underinsured driver. Don’t count on the other driver having enough insurance to compensate you; count on yourself to be protected.

Attorney John J. McMaster

Posted in Auto Insurance, General, Insurance, John J. McMaster, Medical Payments, Personal Injury, Underinsured, Uninsured | Tagged , , , , , , , | Leave a comment