10 Most Important Actions When Served with a 209A Restraining Order

Posted on August 23rd, 2006, by Dmitry Lev

1. DO calm down. This is more important than it sounds. Wait one hour before doing anything else.

2. DO NOT contact the person who took out the order in any manner whatsoever. This includes text messages, e-mails, sending flowers, or contact through third persons. It is tempting to ask “Why did you do it??” but this is a dangerous temptation.

3. DO read the order carefully to see which provisions are checked. Is there a “No Contact” provision? Is there a “Stay Away” provision? Note the addresses of the stay-away locations. Are there provisions regarding children?

4. DO note the date and location of the next scheduled hearing. This will be indicated on page 2 of the 209A Order. If you cannot read the writing, call the Clerk’s Office for the court listed at the top of the 209A Order.

5. DO contact family and friends to arrange for a place to stay at least until the next hearing date, which should be in about 10 days.

6. DO NOT return to the residence to retreive personal belongings if the order specifies your residence as a stay-away location. Doing so would be a violation of the order, which is a serious crime.

7. DO NOT disconnect utilities or telephone lines even if the rental lease or the house is in your name. Doing so may negatively impact your chances of getting the order dismissed later. If the other person has no legal claim to the residence from which you were ordered to stay away, you may be able to force them to leave via an eviction proceeding.

8. DO NOT go near the other person’s workplace, school, or any other place where they may be spending time even if it is a public place.

9. DO contact an attorney. The attorney can help you to retreive your belongings by communicating with the police on your behalf. The attorney will also advise you of your rights and what options may be available. If you and the other person work or go to school at the same place, the attorney will have the order modified to allow you access to these places without placing you in violation. The attorney will also advise you whether there is a good chance of getting the order dismissed (removed) and what procedures will be involved.

10. DO try to distract yourself and keep yourself occupied with other things. The next few weeks will be especially tough. It is important to surround yourself with supportive people, family, and friends so that the nightmare of the 209A order seems less daunting.

Most importantly, ABIDE BY THE ORDER. Doing so will give you the best chances of successfully presenting your case in court in order to get the order removed.

Attorney Dmitry Lev assists persons accused of committing crimes in Massachusetts. In addition, Attorney Lev counsels and represents defendants in domestic abuse (209A Restraining Order) matters and violations of these orders. Law Offices of D. Lev may be reached at (617) 556-9990 for a free consultation regarding a specific matter.

209A — a four letter word?

Posted on August 17th, 2006, by Dmitry Lev

209A is in fact a four letter word in Massachusetts, and this is so because of the nasty implications a 209A order has on the person against whom one is issued. For those unaware, 209A is the common name for the Massachusetts species of domestic restraining orders, and it refers to the number of the chapter of the Massachusetts General Laws entitled “Abuse Prevention” that governs issuance and outlines the proceedings and procedures for these orders. See the full text of the 209A law. The purpose of the law was to prevent the rising incidents of domestic violence and to give victims of domestic violence a much needed tool to protect themselves with the help of the court.

Sounds great, in theory. In reality, the much needed tool became an all too easy to use weapon. Judges routinely ignore the narrow definition of abuse, as it is defined in the law:
(a) attempting to cause or causing physical harm;
(b) placing another in fear of imminent serious physical harm;
(c) causing another to engage involuntarily in sexual relations by force, threat or duress.

Moreover, the law provides that these orders can only be granted where there is a blood, marriage, dating, or co-habitation relationship. Ex spouses, ex fiancees, ex boyfriends/girlfriends are included as well. To set the nomenclature straight, and for the sake of this discussion: Plaintiff is the person asking the court for the order, Defendant is the person against whom the order is issued.

All too often, a vindictive ex spouse fabricates or greatly exaggerates a seemingly benign incident in an attempt to get a 209A order issued in their favor. A state employed Victim Witness Advocate is then appointed to essentially coach the “victim” on what to say in front of the judge. “Fear” appears to be the magic word, and even if “imminent serious physical harm” (note that those are actually four separate elements) is not obvious or not present at all, the orders are liberally granted nonetheless.

The order itself has SIXTEEN sub-parts, some are mandates and others are various prohibitions, and the judge can check the box next to the provisions that apply to a particular order. Discussing all sixteen parts is best left for another day. The most commonly used parts are:

* Not to abuse the Plaintiff by causing the three instances of abuse listed above.

* Not to contact the Plaintiff and stay away a certain distance from the Plaintiff. E-mail is contact. Sending flowers is contact. All are violations, and therefore criminal offenses.

* Leave and stay away from residence of Plaintiff. It does not matter that the Defendant lives there as well or that the Defendant has no other place to stay. It further does not matter if the Defendant owns the property or if the lease is in the Defendant’s name alone.

* Surrender all guns and licenses.

And of course, each order bears in large letters “VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE punishable by imprisonment or fine or both.”

In this lawyer’s opinion, judges must be constantly reminded of the requirements of the law, and that things like mere annoyance, excessive phone calls, emails, or unannounced visits are generally not adequate grounds for issuing a 209A order, as unpleasant as those actions may be. The “victim” may have a whole range of other criminal and civil recourse against the alleged offender, but 209A orders sought to patch up someone’s love life or to “calm things down” between ex lovers are nothing short of blatant abuse of the law.

The extent to which a 209A order can negatively impact and nearly ruin a person’s life, at least with the way the law is currently handled in Massachusetts, is enough to accept 209A as a true four letter word.

Attorney Dmitry Lev assists persons accused of committing crimes in Massachusetts. In addition, Attorney Lev counsels and represents defendants in domestic abuse (209A Restraining Order) matters and violations of these orders.  Law Offices of D. Lev may be reached at (617) 556-9990 for a free consultation regarding a specific matter.

Do you have a criminal record?

Posted on August 11th, 2006, by Dmitry Lev

In Massachusetts criminal records are maintained by the Criminal History Systems Board and their term of art for the record itself is CORI — Criminal Offender Record Information. Unlike other states, where old convictions may be permanently expunged from records after a certain period of time, Massachusetts convictions remain on file permanently. The law provides for a process to seal the records of convictions if 10 years have gone by since a misdemeanor conviction or 15 years since a conviction for most felonies, and there are no other convictions of any kind and in any state during that time period. Traffic violations with fines of less than $50 do not count as convictions. Massachusetts General Laws Chapter 276 Section 100A is the applicable law.

Section 100C of the same Chapter provides for sealing of records in cases where charges have been dropped by the prosecution or dismissed by the court. The court will order the records sealed if “substantial justice will be served.” This does not appear to be an easy test to meet, as illustrated in Commonwealth v. Doe, 420 Mass. 142 (1995), where potential effects on employment prospects of an MBA graduate were insufficient reason to seal the records in a case where charges were dropped. “Substantial justice,” according to the Supreme Judicial Court, apparently means “the value of sealing to the defendant [must] clearly outweigh [] the Constitutionally-based value of the record remaining open to society.”

As background checks are becoming the norm of the day and affect everything from employment to dating, it is important to know the contents of one’s CORI record. Much like a credit report, the CORI record may contain (usually unpleasant) surprises or even mistakes. Citizens are able to view their CORI record for a fee of $25 that may be waived for those who cannot afford it. See the form and instructions for requesting one’s CORI record.

The CORI record should not be confused with the Massachusetts Warrant Management System (WMS) record, as WMS will also contain warrants issued before any charges were filed, including cases that may have never been prosecuted. The WMS record is only accessible to law enforcement and the courts.

What if I get in trouble again while on bail?

Posted on August 10th, 2006, by Dmitry Lev

A common question asked by many clients. For the sake of simplicity, let us call the court of the first proceeding that initially set bail “The First Court” and the court where the subsequent arrest was arraigned “The Second Court.”

In short, the second court may revoke the bail set by the first court and the defendant may be held in custody without bail for up to 60 days or until the first proceeding is resolved. The second court only has the power to revoke bail. It may not modify it or add conditions of release. To quote the law that gives the second court this power, a defendant who is arrested while on release pending the adjudication of a prior charge may be held for a period not to exceed sixty days upon a showing of probable cause for the new arrest and a finding, in the judge’s discretion, that “the release of said prisoner will seriously endanger any person or the community.” The governing law is Massachusetts General Laws Chapter 276, Section 58.

It is very important for the defendant to hold the government to the probable cause standard via a full probable cause hearing with witnesses, and not to allow the Commonwealth to proceed via proffer (ie relying on police reports alone).

In making the determination on bail revocation, the second court will consider the following factors:

  • nature of the offenses
  • conviction record
  • whether threats of force or violence was involved
  • whether there are pending appeals or sentences
  • defendant’s mental condition
  • potential for illegal drug distribution or present drug dependency

The potential for a second arrest while on bail is greatest in 209A Order cases where violations of the restraining order, intentional or not, are frequent occurrences and usually concern the same parties. Those served with a 209A Order while on bail in a pending Assault and Battery proceeding stemming from the same incident must be especially careful: the police are aware of the 209A Order and the “victim” is likely aware of how just about any allegation of a 209A violation could get the defendant arrested and held up to sixty days.

Attorney Dmitry Lev assists persons accused of committing crimes in Massachusetts. In addition, Attorney Lev counsels and represents defendants in domestic abuse (209A Restraining Order) matters and violations of these orders.  Law Offices of D. Lev may be reached at (617) 556-9990 for a free consultation regarding a specific matter.