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Can a served sentence be changed after pleading guilty ?

Newburyport, MA |

A person has complied with sentencing. ( A guilty plea on a DWI with part of the sentence being that if he should not repeat the offense within ten years he shall be not charged with a second offense but a first,)
He is charged with a second offense twenty years later.
Does this mean the court told him the wrong information at the first offense and in fact void the agreement that he made at the time of the first offense.
Does Melanies Law violate prior sentencing agreements ? ( MA )

Attorney Answers 5

Posted

He would be eligible for a Cahill disposition where although its a second offense, the probation is that of a first offense. Speak with an OUI lawyer to review the case and the previous conviction.
Best of luck

John Seed
Krefetz & Seed
244 Brighton Ave suite 105
Allston, MA 02134
617.254.8000

www.johnseedlaw.com

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Posted

This would have to have been noted on the plea agreement, and if you can get a copy, then you may be able to enforce it. Depending upon which area of the state you live in (depending upon the DA's office and their policy), your attorney may be able to have this modified down to a first because of the length of time it has been since the first, and depending upon the circumstances (was there an accident? was anyone injured? who was in the vehicle with you?) even without referral to that first. Talk with an attorney as soon as possible.

Providing users with information is not intended to create an attorney/client relationship. However, if in reading my response, you are interested in retaining me to represent you, please do not hesitate to contact me.

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Posted

i do not understand. The terms of the docket control any potential actions.



henry lebensbaum esq 300 Brickstone Sq Ste 201 andover, ma -- attorneylebensbaum@verizon.net (978) 749-3606.
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Criminal Law (all misdemeanor & felonies in District and Superior Courts), Drunk Driving and Drug arrests, Sex Offenses, SORB, Crimes involving Violence or Theft, Domestic (Divorce, Child Custody, Alimony and Child Support) and Family Law (Modification, Contempts & Paternity), Juvenile Law, Domestic Violence and Restraining Orders, Business Law, Personal Injury claims, Probate Law (Guardianships, Conservatorships & Estate Administration) and Legal Malpractice. For these and other areas, contact me. NOTE: This preceding message DOES NOT create an attorney-client relationship. It is not a protected or confidential communication. The statements made herein are not to be interpreted as representations or warranties of any kind. No reliance should be placed on the statements made herein. It is recommended that the recipient(s) should undertake their own research to reach their own opinion. The writer does not accept professional responsibility on this matter. TO CREATE an attorney-client relationship REQUIRES a signed retainer/fee agreement along with a retainer fee that must be received by my office.

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Posted

From the way your question reads what it looks like is that when he plead guilty on the DUI 20 years ago. Most likely his attorney or the court told him that if he repeats the same offense after 10 years that it would be a 1st offense DUI. This statement would have been correct at the time he was told. However, in 2002 the state law changed allowing for lifetime look back on charging of subsequent offenses on DUI. See the below link for more information. However, he still maybe able to receive a Cahill disposition, which would essentially be a 1st offense sentence. See the below link for Cahill disposition information.

David Newton, Esq.
www.thenewtonlawfirm.com
978-995-2014

This is not intended as legal advice and does not create an attorney-client relationship.

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Posted

You ask several questions; let us take them one at a time and I have some questions. You state: "with part of the sentence being that if he should not repeat the offense within ten years he shall not be charged with a second offense but a first". Where is that written? Are you saying someone told him that? Who told him? Are you saying the Judge said that? I am willing to wager that if you look at the Court papers from that case from 20 years ago you will NOT see anywhere what you are saying the Court told him. If I am wrong and the Judge wrote what you say I will buy you a steak dinner. Melanies Law does not violate any prior sentencing agreements. In 2002 when the law changed EVERYONE was put on notice that as of 2002 if you had a prior DUI - no matter how old it was and no matter what anyone may have said about prior offenses - that prior DUI would count. The law changed in 2002 and everyone is bound by that change in the law. So even though the person may be eligible for a first offense disposition under section 24D of the DUI law the person will be bound by the other requirements of Melanies Law - including the 2 year requirement of the ignition interlock device, which I suspect is what the person is really complaining about. On the date of the new alleged offense - which I assume was recent and clearly after 2002 - the person was on notice that a new DUI arrest would be treated as a second offense no matter what anybody said to him 20 years ago. Lifetime means lifetime. I don't mean to sound brutish; but the law is very clear in this regard. So in order to avoid the ignition interlock requirement the person will have to win the case.

Robert D. Lewin, Attorney

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3 comments

Terri D. Leary

Terri D. Leary

Posted

I respectfully disagree that this is the only way to avoid the 2nd offense punishments. Often, in my experience, based on the passage of time, the circumstances of the new case, and the advocacy skills of the defense attorney, the case is handled as a first offense, with all available dispositions.

Robert D Lewin

Robert D Lewin

Posted

As I said above the person may very well receive a 24D disoposition with the typical 45 day loss of license and the first offender program. The statute specifically authorizes that and it happens every day. BUT, when you get to the RMV, (assuming the RMV has the first ofense in their driver history) the RMV will impose the second offense ignition interlock device requirement. The RMV is required to follow a 24D court disposition (if the prior offense is more than 10 years old and if there has been no previous hybrid disposition) but you cannot avoid the ignition interlock requirement. If a lawyer tells a client who has a prior offense that is more than ten years old that if he gets a 24D first offense disposition in the new case with a 45 day loss of license that the will not be subject to an ignition interlock device then the client is being misadvised. The only way to avoid the ignition interlock device is if the RMV does not have the first offense in their driver history.

Terri D. Leary

Terri D. Leary

Posted

I apologize: you are correct.

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