Massachusetts Bail Violations Attorney
General Information About Bail
Under Massachusetts criminal law, a person charged with a crime has a general right to be released on bail. When a defendant is initially arrested on new criminal charges, he or she will make an initial appearance in court for an arraignment. At arraignment, the Court will formally notify the defendant of the charge(s), often call for a plea of not guilty, ensure the defendant has legal representation, and lastly, decide the issue of bail.
The primary purpose of bail in Massachusetts is to assure the defendant’s future appearance before the court, as directed, such as for pretrial conferences, pretrial hearings, motions hearings, and trial.
For superior court petitions go to the Superior Court Bail Petitions’ page.
Types of Bail
Under Massachusetts criminal law and criminal procedure, there are two types of bail:
- conditions and
There is a presumption of personal recognizance, or release of a defendant based on his or her promise to appear in court in the future.
If personal recognizance is not sufficient to ensure the defendant’s future appearance, the court may impose conditions that include, but not limited to:
- staying away from and having no contact with a person or place;
- abiding by a restraining order;
- refraining from the use of drugs and/or alcohol;
- undergoing random drug/alcohol screens;
- maintaining employment;
- participating in some form of counseling or treatment;
- home confinement;
- GPS monitoring; or a curfew.
Bail conditions are set by the court at the time of arraignment and continue to remain in place during the pendency of the case unless the defendant obtains permission from the court to modify the terms and conditions of bail.
Cash bail requires the defendant to pay a sum of money to the court to secure his or her release on bail. This money may be paid in either actual U.S. Currency or certified bank check, depending on the Court where the bail is being posted.
Cash bail may be paid directly to the Criminal Clerk’s Office when a defendant is in the courthouse for a scheduled appearance, or it may be paid to a Clerk-Magistrate at the jail where the defendant is being held.
The time and manner of paying cash bail to a Clerk-Magistrate varies by county within the Commonwealth, and often the confinement facility and/or court where the defendant’s charges are pending.
Before seeking to post cash bail with a Clerk-Magistrate, it is advised that you perform some research into factors by contacting to the jail or court for specific bail posting instructions.
The Massachsuetts Bail Warning
At arraignment, even is cash bail or specific bail conditions are not imposed, the Court will often provide the defendant with a bail warning advising him that if he is charged with a new offense while his case is pending, he could be held in jail for up to 90 days, or longer if good cause is shown.
The bail warning is required before a Court may revoke a defendant’s bail for being charged with a new offense. Sometimes the Court or Clerk forgets to provide the bail warning. Therefore, it is advisable to check the docket to determine if there is a written record of the bail warning while preparing for a possible bail revocation hearing.
A bail violation may occur if the defendant is either charged with a new offense while on bail, or if one or more conditions of bail set by the Court at arraignment have not been followed.
If either of these circumstances occur, the prosecution has the discretion of filing Commonwealth’s Motion to Revoke Bail in accordance with Massachusetts General Laws, Chapter 276, Section 58. This motion is filed with the Court and served on the defendant and his attorney. The motion outlines the basis or reason for the prosecution seeking to violation and revoke a defendant’s bail. Once filed, the Court will address this motion at a bail revocation hearing.
Bail Revocation Hearing
At a bail revocation hearing, both the prosecution and defense may present evidence and argument to the Court for an against their respective positions: the Commonwealth seeking to establish a bail violation and persuade the Court to revoke the defendant’s bail and the Defense seeking to either show that a violation did not occur, or if there was a violation, that revocation is not warranted.
Bail revocation hearings are civil in nature. The legal standard involves a two-step process. First, the Court must determine if there is probable cause to believe that the defendant has committed a new crime during the period of his release and/or violated a specific term and condition of his release. If the Court finds probable cause for a violation, it must also assess whether the revocation of the defendant’s bail is necessary to assure the safety of a particular person or the community.
Punishment for Bail Violations
If, after a hearing, the Court denies the prosecution’s motion to revoke bail, the Court may revisit bail by either reimposing the previously set cash and/or conditions, or modifying the cash amount and/or conditions.
If the Court allows the motion to revoke bail, the defendant will be taken into custody and ordered to be detained without bail for a period of ninety (90) days. Once the bail revocation period expires, the Court must revisit the defendant’s bail by either resetting bail at the original terms and conditions or modifying them.
General Information About Probation
Probation in Massachusetts is a type of criminal sentence following the resolution of a criminal case that involves supervision of a defendant by the probation department.
The primary goals of probation include rehabilitation of the defendants and protection of the public. While on probation, the defendant or probationer may be required to comply with certain conditions imposed by the court. These include, but are not limited to:
- not being charged with a new offense,
- checking in with an assigned probation officer as directed,
- attending counseling,
- performing community service,
- and the payment of fines, costs and restitution.
If an individual is accused of failing to comply with one or more of his conditions, the probation department may, at its discretion, file a notification of probation violation with the court.
Types of Probation
In the Massachusetts criminal justice system, there are two types of probation:
- administrative and
Those serving a term of administrative probation fall under the authority of the Probation Department, but are not required to check in by phone, in person or otherwise. These probationers are those without any special conditions of probation.
However, because they are still on probation, they face a potential probation violation if charged with a new offense or upon failure to pay probation fees and/or assessed costs, fines, and/or restitution.
Those serving a term of supervised probation are accountable to an assigned probation officer with whom they must periodically check in by phone, email, or in person.
Persons subject to supervised probation can face a potential violator for a wider variety of reasons than those on administrative probation.
Examples here include new criminal charges and failure to meet financial obligations to the court, as well as failing to check in or maintain contact with a probation officer and failing to satisfy any special condition of probation, which may include participating in drug testing, abstaining from drug and/or alcohol use, attendance of counseling or other classes, abiding by no contact and/or no trespass orders, and more.
Conditions of Probation
In Massachusetts, there exist two types of probation conditions:
- general and
General conditions include payment of probation fees, reporting to a probation officer as directed, not leaving the Commonwealth without permission, paying assessed victim-witness fees (in certain cases), and not committing any new offense(s).
Special conditions of probation vary on a case-by-case basis and must be ordered by the court. Special conditions may include:
- a curfew,
- seeking or maintaining employment,
- enrolling in school,
- payment of restitution to victims (in certain cases),
- abiding by stay away or no contact orders,
- undergoing drug screens,
- attendance of counseling or substance abuse treatment,
- participation in classes,
- driving restrictions,
- restrictions on the ownership or possession or firearms and ammunition,
- sex offense registration,
- requirement to wear a GPS monitoring device,
- and more.
Special conditions are tailored to each defendant and criminal case. Once imposed, special conditions can only be modified with permission of the court. A probationer’s failure to comply with either a general or special condition may lead to a probation violation.
When a probationer is alleged to have violated the terms of probation, he or she must appear in Massachusetts criminal court. The probationer’s first court appearance is designed to answer on an alleged probation violation and is called the initial probation violation hearing.
Once before the court, the probationer is provided with written notice of the alleged violation. This document sets forth the factual reason(s) for the alleged violation(s). The issue of bail is also addressed. At this juncture, the court may order the probationer detained pending the outcome of a final probation violation hearing or it may release the probationer on bail. The probationer has the right to a final probation violation hearing within seven (7) days of receiving notice, but this period may be extended for cause.
Final Probation Violation Hearing
At a final probation violation hearing, the probationer may either admit violation or proceed to a full hearing. By admitting the probation violation, the probationer must waive his right to a hearing.
To do so, he must acknowledge both in writing and in open court:
- (1) voluntarily and knowingly gives up the right to a hearing before a judge to determine if he violated the terms and conditions of probation;
- (2) received written notice of the probation violation(s);
- (3) gives up a right to an evidentiary hearing;
- (4) understands that both the admission to a probation violation and waiver of the hearing are free and voluntary acts that are not the result of force, threats or intimidation, or any promise or assurance as to the disposition;
- (5) may not withdraw the waiver and admission once accepted by the court; and
- (6) is not under the influence of alcohol, drugs, medications, other substances, and does not have a mental or physical condition that might impair their ability to fully understand these legal rights.
As stated above, the probationer also has the right to context the violation by proceeding to an evidentiary hearing.
At a hearing, the Probation Department has the burden of proving by a preponderance of the evidence, or more likely than not, that the probationer violated the term(s) and condition(s) of probation.
The probationer has the rights to legal counsel, to present witnesses and evidence on his own behalf, and to confront and cross-examine witnesses presented against him. The parties are then given a chance to present final argument for or against a finding of a violation.
After all the evidence and arguments are presented, the court will make a final determination.
If the court concludes there is no violation, the probationer will be released. Alternatively, if the court determines the probation to be in violation, either after hearing or based on the probationer’s admission, it will impose a sentence or punishment after soliciting recommendations from the parties.
Determining an Appropriate Punishment
With regarding to determining an appropriate punishment, the probationer may offer materials for the court’s consideration. To determine punishment for the violation, the court will consider the recommendation of the probation officer, basis for the alleged violation, severity of charges and sentence imposed in the underlying case, the probationer’s criminal record, and any mitigating or extenuating circumstances offered by the probationer.
Punishment for Probation Violations
The punishment for a probation violation is limited by the sentence originally imposed in the underlying case.
For example, if the probationer is serving a suspended sentence and is found to be in violation of probation, the court must impose the full term of the suspended jail sentence.
If the probationer is solely serving a term of straight probation, the court may impose a jail sentence that is equal to or less than the maximum allowable punishment for the underlying crime that caused the defendant to be placed on probation.
This could even result in no further jail or term of incarceration. These rules also apply where a probationer was convicted and sentenced to multiple offenses. So long as at least on charge resulted in a sentence of straight probation, the probationer may argue for a punishment of no jail.
To get experience legal defense, call to schedule a free consultation with the Bail and Probation Massachusetts Criminal Lawyers of the Law Office of John L. Calcagni III.