MA Supreme Judicial Court Bars Warrantless Searches of Vehicles Based on Marijuana Odor
Massachusetts Court Bars Warrantless Searches of Vehicles Based on Marijuana Odor In a pair of decisions issued on July 9, 2014, the Massachusetts Supreme Judicial Court refused to uphold warrantless searches of motor vehicles which the police had attempted to justify based upon officers’ detection of a smell of marijuana emanating from the vehicles. These decisions demonstrate the court’s adherence to the 2008 Massachusetts voters’ initiative which decriminalized the possession of one ounce or less of marijuana. In the first decision, the police argued that they had probable cause to search a vehicle based upon the officer’s perception of a “very strong” odor of unburnt marijuana coming from inside the vehicle. The court rejected this argument, finding that it was “dubious” that an officer could determine by smell alone that what he smelled was a criminal amount of marijuana – more than one ounce – necessary to provide probable cause to search. The court stated that it was not confident “that a human nose can discern reliably the presence of a criminal amount of marijuana, as distinct from an amount subject only to a civil fine.” In a previous case from 2011, the SJC had held that the odor of burnt marijuana could not reasonably provide suspicion of criminal activity and, in the present case, the court extended that ruling to unburnt marijuana. In the second case, the SJC rejected two reasons offered by the Commonwealth to justify a vehicle search based upon the odor of unburnt marijuana: (1) that the search was necessary to prevent the driver from smoking marijuana while driving and (2) that the search was authorized because possession of even less than one ounce of marijuana remains a criminal offense under federal law. In regard to the first argument, the SJC noted that the smell of unburnt marijuana did not suggest a likelihood that the driver would smoke marijuana and drive unless the police intervened to stop him. To the contrary, the court found that the fact that the smell was of unburnt marijuana more likely demonstrated that the driver was not smoking while driving. The SJC recognized that were it to accept the Commonwealth’s flawed argument, “it would necessarily follow that police could search any vehicle containing sealed bottles of alcohol, based upon a potential risk that the driver could open a bottle and begin drinking while driving.” The SJC also pointedly dismissed the Commonwealth’s argument that the search was justified to enforce a federal prohibition of possession of small amounts of marijuana. The court emphasized that “given the clear preference expressed in the 2008 initiative that police focus their attention elsewhere, Federal law does not supply an alternative basis for investigating possession of one ounce or less of marijuana.” These cases seem to curtail all possible police arguments that they may search a vehicle based upon an odor of marijuana, whether the smell is of a burnt or unburnt nature. Recognizing that possession of one ounce of marijuana or less is not a criminal
Read MoreUsing a Fake ID in Massachusetts – Not a Big Deal? Think Again!
Using a Fake ID is Illegal in Massachusetts Summer is upon us. It’s a great time of year to go to clubs and concerts. It’s tough being 19 or 20 years old though, when you’re left behind by your 21 year old friends as they head out to experience the Boston nightlife. The easy solution – a fake ID. The chances of getting caught seem slim, and they are easy and not too expensive to obtain. Using a fake ID is easy to justify because “everyone else has one” and even if your parents know, they don’t seem to get overly upset. It will also be useful to take back to college in September. Our advice: think again! There are serious criminal consequences in Massachusetts for offenses involving false identification cards, and police are very aggressive in detecting and prosecuting these offenses. It is against the law in Massachusetts to falsely make or alter a driver’s license or other forms of identification. This offense is a felony, with possible punishment of 5 years in prison. A felony conviction has serious permanent ramifications and can affect eligibility for financial aid as well as the right to vote or to possess a firearm. It is also a criminal offense to use or carry a false identification card. The simple act of using or carrying a fake ID can result in a misdemeanor conviction punishable by imprisonment of not more than three months and a fine of not more than $200. Now, let’s consider reality. Is it likely that a teenager will actually go to jail for using a false identification card? Of course not. However, he may be summoned to appear in court with the result that the charge will appear on his criminal record, with negative implications for future employment. The main consequence that should get the attention of any teenager is the impact on his driver’s license if caught using a fake ID. Even if a car was not involved in the offense, most police departments will report any arrests for false identification offenses to the Registry of Motor Vehicles. The Registry is required to suspend the driver’s license of any person convicted of making or altering a driver’s license for one year. If the charge is for using or carrying a false identification card, the Registry may suspend the driver’s license for 180 days, even if there is not a conviction. Offenses involving false identification cards are serious. Ask any teenager who has been through the process what it was like to be without a license for six months. Getting into a club for one night seems hardly worth the risk of serious criminal consequences and the inconvenience of being without transportation. If you have the unfortunate experience of being charged with a false identification offense, call a lawyer. There are things that can be done to avoid many of these consequences, but it is critical to intervene at the earliest possible stage. Written by Jeffrey Sankey For more
Read MoreSpecial Education Tip #1: Do Not Forget to Provide Notice of Unilateral Placement
As the school year comes to a close, perhaps you have decided to place your child in a private special education school program in September. Parents may be able to receive public funding for a private placement, but only if they can demonstrate that the District did not offer their child a free appropriate public education (FAPE). If you intend to seek reimbursement from your public school district for a unilateral placement – that is, a private school placement made without the consent of the District – you must provide timely notice of your intention to the District’s Director of Special Education or Superintendent. Under federal law, a parent must give notice either orally at the last team meeting prior to the placement, or in writing at least ten business days before enrollment. Pay attention: notice must be provided within 10 business days, not calendar days, so be sure to subtract weekends and holidays when calculating the time. A written notice – sent by certified mail – is almost always preferable so that there will be a record that the District received notification. The notice must include a brief statement explaining why the parents are rejecting the placement proposed by the District and a statement that the parents intend to seek reimbursement for the costs of the private placement. The key word is brief. You do not need to provide a detailed or lengthy explanation of your reasons. If you fail to provide the requisite notice to the District prior to your child’s placement, you will, with few exceptions, be barred from receiving reimbursement. This is an easy step to overlook with severe consequences, so make sure to set reminders to send timely notification. This is the first post in a new series of articles we have started where we will provide a special education tip each week. Please check back each week for more tips and answers to frequently asked questions related to special education law. If you have questions about notice requirements, unilateral placement or any other special education issues as you begin to plan for September, please contact us for further information and advice. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
Read MoreEmployers Must Accommodate Employees Unless it Presents an Undue Hardship
In our last article, we discussed the protections afforded to disabled individuals in the hiring process. As we mentioned, qualified individuals with disabilities are entitled to “reasonable accommodations” to allow them to perform the essential functions of their job. However, an employer is not required to provide an accommodation if it will cause an undue hardship for the employer. In general, employers must accommodate employees unless it presents an undue hardship. But what is an undue hardship? An undue hardship occurs when providing the requested accommodation will substantially interfere with the employer’s ability to carry out business. There are a variety of reasons why an employer may not be able to grant a request for an accommodation. Some of these reasons include: instances when granting such a request renders the employer unable to comply with federal or state laws, where health or safety would be compromised, when the job function cannot be performed by another employee, or where the expense is too great. Massachusetts law outlines several specific considerations for determining an undue hardship: 1. The overall size of the employer’s business with respect to the number of employees, the number and type of facilities, and the size of budget or available assets. 2. The type of the employer’s operation, including the composition and structure of the employee’s workforce. 3. The nature and cost of the accommodation needed. As the factors listed above indicate, there are several different items that must be weighed when determining whether an accommodation would pose an undue hardship. Notably, what may constitute an undue hardship to one employer may not be an undue hardship to another employer, so these determinations must be made on a case-by-case basis. In cases where providing an accommodation creates an undue hardship for an employer, the employer must consider alternative accommodations that would not impose an undue hardship. To this end, employers and employees must work together through an interactive process to determine what constitutes a reasonable accommodation and how to best implement such accommodation. If, after considering alternatives, an employer determines that it cannot reasonably accommodate an employee, the employer or employee may wish to consult legal counsel to ensure there are sound business reasons for denying the accommodation request. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
Read MoreSpecial Education Tip #5: Determine if Your Child is Eligible for Special Education Services
Determine if Your Child is Eligible for Special Education Services Many parents of students who require special education services have concerns about their child’s progress or particular learning needs beginning at a young age. While parents always know their child best, in order to receive special education services in Massachusetts through the public school system, a student must first be referred for an evaluation to determine if he is eligible to receive such services. To be eligible for services, a child must: Have a disability; Not be making effective progress in regular education due to the disability; and Require either specially designed instruction or a related service that is necessary to access the general education curriculum. The local school district where the child resides will make the determination as to whether a child meets these criteria and is therefore eligible to receive special education or related services. As mentioned above, the initial step in this process is the referral for an evaluation. Under Massachusetts and federal law, a parent or a person in a caregiving or professional position may refer a child for an initial evaluation to determine if a child is eligible for special education services. Once the school district receives this referral, the district must send a written notice to the parents requesting parental consent to conduct an evaluation, and also provide an opportunity for the child’s parents to discuss their concerns and share information with district personnel. If parental consent is not given, the district may obtain authorization from a hearing officer at the Bureau of Special Education Appeals (BSEA). After consent or authorization is obtained, the district must conduct the evaluation at no cost to the parent. Massachusetts special education law provides specific timelines for conducting this evaluation and reviewing the results with parents, which we will discuss in our next special education article. Our suggestion: if you have concerns about your child’s progress, request an evaluation. The findings of an evaluation may lead to entitlement to necessary services, or, at the very least, assure you that your child’s progress is satisfactory. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
Read MoreSpecial Education Tip # 4: Do You Need an Evaluation to Determine Your Child’s Progress?
Evaluations are Often Necessary to Determine Your Child’s Progress As the school year comes to an end, take the time to carefully review your child’s final report card and progress reports. Are you satisfied that your child made progress this year? How did he perform in relation to the goals set forth in his IEP? Under federal and state law, your child’s team must provide an educational program that is designed to allow her to make meaningful progress in accordance with her potential. Measuring “meaningful progress” is difficult and requires consideration of many factors. Grades and progress reports alone are insufficient indicators of progress, and parents should be wary if the team’s assessment of progress is based entirely on these subjective measures. In our view, objective measures and standardized tests are the best ways to assess a student’s performance and to determine whether he or she is demonstrating progress over time. If you have concerns about your child’s performance, we strongly recommend that you consider scheduling an evaluation to assess his progress. Evaluations can be requested through the school district or, if you have the financial means or insurance to cover the cost, you may wish to retain a private evaluator. Private evaluations can be costly but are generally more extensive and detailed than evaluations conducted within the district. These evaluations are critical not only to show your child’s progress but also to provide recommendations for services designed to improve your child’s performance. When considering whether to retain a private evaluator, be sure to inquire whether he or she is willing to present the findings of the evaluation at a team meeting or, if necessary, at a due process hearing. An evaluation by someone who is unwilling to present it is essentially worthless. If you have decided to arrange for an evaluation, be aware that this can be a lengthy process. The most experienced evaluators are often booked months in advance. Because of their expertise, they are often worth waiting for, but advance planning is critical. It is best to schedule evaluations when you first have concerns about your child’s performance so that you can obtain a timely assessment and helpful recommendations. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
Read MoreSpecial Education Tip # 3: Make a Record of Events
Team meetings can be fast-paced and confusing events that are often emotional, with many people offering varied opinions about your child’s progress. On the other hand, communications with teachers and administrators about your child occur more frequently than team meetings, but they are often short and informal and, sometimes, hard to remember. In both situations, important information is commonly shared about your child’s performance and his or her educational program which you may later wish that you had documented. Parents often make the mistake of not writing things down as they occur. When you attend a team meeting, don’t rely on the school minutes as an accurate version of events. Be sure that you take your own notes or, better yet, bring someone with you whose sole job is to write down what occurs. It is important to make a record of what each team member said about your child’s performance. Likewise, when you have discussions with teachers or administrators about your child, it is a good practice to document important information in writing. For example, if a teacher tells you that she is reducing your son’s homework because he is struggling with math, it is perfectly appropriate – and a good idea – to follow up by sending a polite email summarizing your conversation and asking to be kept informed about his progress. Remember, your emails and letters may be included in your child’s file. All correspondence should be based on facts and written in a cordial and unemotional style. Be sure to indicate the date on all correspondence. In addition to correspondence, some parents find it useful to keep a journal or diary concerning important educational events. We find that parents who keep good records are much better prepared and organized in answering our questions about their child’s program. In short, if it is important, write it down. Written records will serve you well if you ever need to document past events. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
Read MoreDisabled Persons Are Entitled To Protections In The Hiring Process
Searching for employment is a difficult process, and having a disability can sometimes make a job search even harder. In order to comply with the law and to provide disabled persons with the protections that they deserve, an employer must understand who is protected under federal and state discrimination laws, what it means to be qualified for a position, and what types of accommodations an employer may be legally required to provide. The federal government defines a person with a disability as: Any person who has a physical or mental impairment that substantially limits one or more major life activities, or who has a record of such impairment (a history of one or more major life activities being limited or an episodic but not currently manifesting impairment), or who is regarded as having such an impairment (a presumption that a person has an impairment, which may or may not be a mistaken belief). This means that, even if a prospective employee is not disabled, he or she is entitled to protection if the employer believes that he or she has a disability. This distinction often occurs in the context of a disease which does not impact the employee’s ability to work, but the employer nonetheless refuses to hire or treats an existing employee as disabled because of the employer’s misperception about the disease. Under these circumstances, the employee is entitled to protections under federal and state law. An impairment is considered to be disabling if it “limits a major life activity.” So, what is a major life activity? Both the federal government and Massachusetts identify several activities that fall within the definition, but neither present an exhaustive list. The Americans with Disabilities Act (ADA) recognizes that “major life activities” can be both physical activities and major bodily functions. These activities may include, but are not limited to: Caring for Oneself Performing Manual Tasks Walking Seeing Hearing Speaking Breathing Learning Working Functions of Bodily Systems or Neurological Functions Under federal and state law, an employer cannot refuse to hire a qualified person who falls within this definition of disability, so long as the person is capable of performing the essential functions of the job with or without “reasonable accommodations” We will discuss these terms in upcoming blog articles. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
Read MoreSpecial Education Tip # 6: Make Sure Your Child Receives an Evaluation within the Required Timeframe
Special Education Tip – Receiving a Timely Evaluation As a parent there may come a time when you are concerned about your child’s performance in school, and you may suspect that your child requires special education services to make progress. If this is the case, you will want to request that your school district conduct an initial evaluation to determine if your child is eligible to receive special education and related services. Once you have requested an initial evaluation, there are specific timelines imposed under both federal and state law that outline when the school district must conduct such an evaluation and convene a team meeting to discuss the results. The laws setting out these timelines can be confusing with some differences between Massachusetts law and Federal requirements set out by the IDEA. Massachusetts law provides stricter timelines than the Federal IDEA when it comes to the period of time a school district has to conduct an evaluation. In Massachusetts, evaluations must be completed within 30 school working days after the receipt of a parent’s written consent to an initial evaluation, or a re-evaluation. In addition, the district must convene a Team meeting to review the evaluation results, determine whether the student requires special education, and, if required, must develop an IEP within 45 school working days after receiving consent for an evaluation. If requested by the parents, the district must also provide a summary of the findings of the evaluation 2 days prior to the team meeting. In essence, this means that once a parent requests an evaluation, the school district has 30 school days to complete the evaluation and 45 school days to complete the entire process, including convening a team meeting to discuss the results and develop an IEP, if necessary. It is important to note that the law uses the term “school days” rather than “days” or “calendar days” which means that only days that school is in session are counted. “School working days” does not include weekends, holidays and other breaks from school. By way of example, if you were to request and provide consent for an evaluation of your child on September 2, 2014, the district would be required to complete the evaluation by October 15, 2014. This counts 30 school days, including a day off for Columbus Day, and not counting weekend days. Under this same example, the school district would have until November 5, 2014 to conduct a Team meeting and draft an IEP (if one was required) as this date falls 45 school days from the date of consent for the evaluation. If you are concerned that your school district is not complying with the timelines for an evaluation required under Massachusetts law, please contact an attorney in our office for further information and assistance – we are here to help. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
Read MoreSpecial Education Tip #2: Does Your Child Need Extended Year Services?
School is about to end. What if my child still needs services? Some children who receive special education services under the Individuals with Disabilities Education Act (IDEA) may be eligible for services beyond the normal school year. These services are commonly referred to as extended school year, or ESY, services. Although these services are typically delivered during summer vacation, as that is the longest break your child has from school, ESY services are not limited to the summer and can be provided during other breaks from school or as an extension of the normal school day. Under the IDEA, extended school year services include special education and related services that are provided to a student with a disability beyond the normal school year, in accordance with a child’s IEP and, importantly, at no cost to the parents of the child. ESY programs should offer services that are consistent with a child’s IEP goals and objectives addressed throughout the school year; however they don’t necessarily have to be the same services delivered at the same frequency as provided during the regular school year. Decisions about a student’s eligibility for ESY services and the type of service(s) needed will be made by your child’s IEP team. This determination can be made at an initial eligibility meeting, an annual review meeting, or even at an IEP meeting convened for the express purpose of considering the need for ESY services. As a parent, you are a member of the IEP team, and you or any other team member can request an IEP team meeting to consider your child’s need for ESY services. In Massachusetts, the team must consider whether or not a child receiving special education services needs an extended year program at least once annually and must record its determination in the IEP. In terms of timing – the Team must consider the need for ESY services prior to the end of the regular school year or the beginning of the school break. If you are concerned about a lack of ESY services, make sure you address your concerns with your child’s IEP team before the end of the school year. If you have further questions about ESY services, please contact us for more information. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
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