My son was stopped last night for speeding and arrested for.13 DUI. They let him out $40 bail and he has arraignment tomorrow. We have little money, is he entitled to a public defender? Will the old DUI be held against him?
The probation department will analyze the household income where he lives to determine whether he qualifies for a public defender. Go to the court early to complete the process before his arraignment. If he does not qualify, the court will enter a 'not guilty' plea on his behalf and set a new date to give him time to hire a private attorney. Good luck.
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Your son may qualify for a court-appointed attorney if he meets certain income requirements. He should check-in with the Probation Department tomorrow and request an interview to see if he qualifies.
As for your second question, a court will consider your son's prior criminal record if your son seeks to resolve the matter without a trial or if he is found guilty following a trial. This is why it is so important for your son to have legal representation.
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There are income limitations and asset limitations in determining whether a person is entitled to a lawyer at public expense. If your son lives at home the Judge will also consider the income and assets of parents. If your son wants a lawyer at public expense the probation office has the right to require that tax returns be produced. I am assuming from your question that your son blew a .13 on the breath test at the police station. The old DUI will play a role in the new case. Because the old DUI is more than 10 years ago your son will be eligible for a first offender program (16 weeks outpatient once per week) as opposed to the standard second offender program (2 weeks in-patient at Tewksbury State Hospital with 26 weeks of aftercare once per week) and your son will be eligible for the first offense loss of license (45-90 days) as opposed to the standard second offense loss of license (2 years). When your son does get his license back he will be required to have an ignition interlock device installed in his car for 2 years. The installation of the device is about $150-$300 and there is a monthly fee of about $100 per month for the machine. Your son, if he is able, should hire a lawyer who is skilled in DUI cases. The Judge will give your son time to find and hire a lawyer; on the other hand, the sooner the case is settled in court the sooner your son will get his license back. Your son should do what he has to do to get the funds to get a lawyer. We do many cases such as your sons and we are very familiar with the Concord District Court and would be happy to meet with him and you.
Robert D. Lewin, Attorney
LEWIN & LEWIN, ATTORNEYS
Offices in Malden and Andover
Email: [email protected]
If indigent, yes,
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henry lebensbaum, esq.
300 Brickstone Square, Ste 201
Andover, ma 01810
420 Common Street, Ste 101
Lawrence, MA 01840
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He will need to fill out a detailed financial form to see if he qualifies for appointed counsel. The one from 13 years ago does count - HOWEVER there is a part of the law that give the Court the power to treat him like a first offender since the first one was more than 10 years ago. He definitely should have a lawyer. There is some more info on my website: www.concordmasslaw.com
First you ask if he qualifies for a Public Defendant. The two requirements to qualify for a public defender are 1) Can a person be sentenced to jail for the crime chrged. Even a 1st offense OUI (the actual MA term for drunk driving) allows the judge to sentence a defendant to jail time. The 2nd issue is financial qualification and that will be determined based upon your son's income and savings, if any, less his expenses. Regarding the previous OUI, even though it is 13 years old, it still counts as a 1st offense making this his 2nd. However, a defendant has a one-time opportunity to have a previous OUI over 10 years old overlooked for the purpose of sentencing. The RMV however, will not afford this same consideration and therefore, his license loss will still be in accord with a 2nd offense, regardless of how the court treat it.
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