65-25 Level 2 Re-Take

Question 1

In cases of domestic violence and charging assault or assault and battery on family and household member, do you use 265 s 13A or 265 s 13M? What is meant by “family and household member”?

Answer 1

You charge 13A. “Family and household member” means the victim is or was:
* related by blood or marriage; or
* living with the offender in the same household.

Question 2

In cases of domestic violence and charging assault or assault and battery on an intimate partner, do you use 265 s 13A or 265 s 13M? And what is meant by intimate partner?

Answer 2

You charge 13M. An intimate partner means the victim:
* is or was married to the offender; or
* had a child in common with the offender, regardless of whether they were ever married or lived together; or
* is or was involved in a substantive dating or engagement relationship

Question 3

Sale or possession of fireworks
148 s 39

Answer 3

The suspect:
Sold, offered, or kept for sale; or
had in his possession; or
caused to explode;

Fireworks- provided they were not for a legally exempt purpose.

Right of arrest
For sales-related activity: (M) warrantless arrest in presence

Possession or causing to explode: Confiscate the fireworks and do a complaint

Question 4

Know the right of arrest

Threat to commit a crime
275 s 2

Answer 4

Communicated intent to injure; Injury would be crime; V in fear that S had intention/ability to carry out threat

Right of arrest: Complaint only

Question 5

Distribution!!

Someone is selling, or intending to sell, marijuana (any amount). What is your strongest action?

Answer 5

Arrest for the misdemeanor.

Question 6

Natural intercourse

Answer 6

The insertion, no matter how slight, of the penis into the vagina.

Question 7

This does not include per se weapons

What is a “dangerous use” weapon?

Answer 7

A normal item which becomes a weapon when used in a dangerous fashion.

Question 8

Notice this does not involve force or threat of bodily harm (like rape).

STATUTORY RAPE
265 S 23

Under 16 can’t consent to sexual intercourse

Answer 8

ELEMENTS
The suspect unlawfully;

Engaged in natural or unnatural sexual intercourse with the victim;

**Who was under 16 years of age at the time of the offense.

RIGHT OF ARREST Felony

NOTE
Child under 16 makes consent irrelevant. Those under 16 are not sufficiently mature to understand fully the physical, mental, and emotional consequences of sexual intercourse.

Question 9

**Know body parts. Know <14 can’t consent to any sexual touching

Indecent Assault and Battery on child under 14 years old
265 s 13B

Answer 9

Elements
* The child was not yet 14 years old at the time of the offense;
* The S committed an A&B which was indecent.

Right of arrest Felony

Important: A child under age 14 is presumed incapable of consenting to any sexual touching.

Remember the three body parts: female breasts, buttocks, or genitals.

Question 10

What is a shod foot?

Answer 10

A shod foot is a foot wearing a shoe; it is capable of being a Dangerous Weapon if capable of causing greater harm than an unshod foot.

Question 11

What is the right of arrest for assault and battery?

Answer 11

(M) Breach of peace, in presence

Question 12

A suspect picks up a knife and threatens to stab the victim. What crime is this? Misdemeanor or felony?

Answer 12

It is assault by means dangerous weapon, to wit knife. It is a felony

Question 13

For a typical firearm arrest, you will charge:

Answer 13

269 s 10 (a) Poss of FA w/o a license (felony)
269 s 10 (h) Poss of ammo w/o FID card (misdemeanor)
269 s 10 (n) Poss of loaded firearm

Question 14

Stalking and criminal harassment are identical charges, except stalking involves a………

Answer 14

threat.

Question 15

What lies at the heart of any and all civil rights violation?

Answer 15

The suspect’s bias motivation

Question 16

Know ROA and body parts

Indecent Exposure 272 s 53

ELEMENTS
Intentional. The suspect intentionally;
Expose genitals. Exposed his or her genitals to one or more persons; and
Cause offense. At least one person was offended by the exposure.

Answer 16

**Right of Arrest Warrantless arrest in presence in public. Complaint, in private.
**
Notes

The indecent exposure does not have to occur in a public place. Public breastfeeding is not indecent exposure.

Indecent exposure is limited to exposure of the genitalia and not to exposure of the genital area, pubic hair, buttocks, or female breasts.

Question 17

No ROA, except if interfering w/arrest of another

Resisting Arrest 268 S 32B

Answer 17

Elements
Prevent or attempt. The suspect knowingly prevented or attempted to prevent;
Police officer. A police officer in the regular course of his assigned duties,
who was in uniform or, if out of uniform, who properly identified himself by displaying his credentials;
Arrest. From effecting an arrest of:
The actor; or
Another person;
Force, threat, risk of injury. By using the police officer or another person:
Physical force or the threat of physical force; or
Any other means that creates a substantial risk of bodily injury.

Right of arrest Because an arrest is being made, officers continue to do so. If it is a person interfering with the arrest of another, officers may arrest for an obvious breach of the peace.

Question 18

Armed robbery

Answer 18

Weapon. The suspect was armed with a dangerous weapon when he;
Force or fear. By force or fear;

Theft from person. Took money or property from the victim or the victim’s immediate control.

Right of arrest: Felony

Question 19

MGL Chapter 265

Answer 19

Crimes against the person

Question 20

MGL Chapter 94C

Answer 20

Drug and narcotic crimes

Question 21

Definition of assault

Answer 21

The suspect intended to commit a battery, which involved touching the victim in a harmful or unpermitted way; took some overt action; and came reasonably close to committing a battery (a swing and a miss)
OR
The suspect intentionally engaged; in menacing conduct; that caused the victim to fear an imminent battery.

Remember…Verbal threat alone is insufficient. A verbal threat to do harm becomes an assault when accompanied by some outward gesture.

Question 22

This is an add-on charge

Furnishing false name or social security number to law enforcement officer
268 s 34A

Remember, there is no right of arrest for this. Why?

Answer 22

This is an additional (Misdemeanor) charge. There is no statutory right of arrest (the S is already under arrest).

Question 23

Statutory right of arrest for A+B on a pregnant woman

Answer 23

Felony

Question 24

Statutory right of arrest for A+B resulting in serious bodily injury

Answer 24

Felony

Question 25

Statutory right of arrest for A+B with a hypodermic needle

Answer 25

Felony

Question 26

Statutory right of arrest for A+B on a child under 14 years old

Answer 26

Felony

Question 27

What is the right of arrest for unlawful possession of ammunition?

Answer 27

It is a misdemeanor arrestable on probable cause.

Question 28

The rights of arrest for larceny

Answer 28

If the suspect steals property valued in excess of $250: Warrantless arrest on PC (misdemeanor)

If the value of property stolen was valued at over $1200, or a firearm, or trade secret, then it’s a felony.

If the suspect steals property valued at $250 or less: Warrantless arrest in presence (Misdemeanor). Otherwise, complaint.

Any time a police officer witnesses a theft, warrantless statutory arrest powers apply (misdemeanor, in presence).

NOTES
If victim is 60 or older, or disabled, and if value of property is over $250 Felony

If victim is 60 or older and value of property is $250 or less Misdemeanor

Question 29

Fraudulently Procuring Food or Accommodations for Credit 140 s 12

Answer 29

2 Types

Type 1: Procuring from a Hotel or Motel
Without paying, the suspect obtained food, entertainment, or accommodations from a hotel, motel, or other lodging house;
With the intent to cheat or defraud the owner (unless, at the time, the suspect had an express agreement for credit)

Type 2: Procuring from a Restaurant
Without paying, the suspect obtained food and/or beverage from a “common victualer” ( a licensed restaurant);
With the intent to cheat or defraud the owner.

Right of arrest: Misdemeanor arrestable as a breach of peace, in presence. Otherwise, complaint.

Question 30

Examples of privacy precautions

Answer 30

Examples include a fence, walls, locked gates, or doors.

Question 31

Trespass after Notice 266 s 120

Answer 31

Elements
Without right. The suspect entered or remained without right;
Property of another. On or in the dwelling, building, boat, improved or enclosed land, wharf, or school bus of another;
Notice. Even though a person with lawful control had forbidden the suspect’s presence:
Directly; or
With a posted notice; or
Through a 209A, s 3 and 4, or 208 s 34B court order (order to vacate marital home).

Right of arrest: Misdemeanor arrestable in presence.

Question 32

Affray
277 s 39

Answer 32

Elements

1. That the defendant fought with one or more other persons;
2. That the fighting took place in a public place; and
3. That at least one person who was lawfully present in the
   public place was put in fear as a result of the fighting that occurred.

Right of arrest (M) breach of peace, in presence

Question 33

B&E Daytime (this also covers entering without breaking at nighttime)
266 s 18

Answer 33

ELEMENTS (Scheft 31-14)
Entry Method. The suspect:
Enters without breaking in the nighttime; OR Breaks and enters in the daytime.
Building, vessel, vehicle.
Intent. With the intent to commit a felony;
No Fear. No person lawfully inside is “put in fear.”

ROA Felony

Question 34

Examples of sufficient resistance for resisting arrest

Answer 34

1. Physically struggling with the police.
2. Stiffening or flailing arms to prevent cuffing.
3. Stiffening body to prevent placement in cruiser.
4. Using force “in opposition” to officers

Question 35

Burglary

266 s 15

Answer 35

ELEMENTS
B&E. The suspect:
Breaks and enters with intent to commit a felony; OR
Enters with intent to commit a felony and then breaks into;
Dwelling. A dwelling house;
Night. In the nighttime; and
No weapon or assault.
The suspect:
Is not armed with a dangerous weapon while in the house; AND
Does not assault a lawful occupant.

Right of arrest Felony

Question 36

Know ROA…be able to identify examples of it

Interfering with a Police Officer
Common Law Crime

Elements

Knowledge. The suspect knew, or should have known, the officer was engaged in the lawful performance of duty; and

Obstruction. Physically obstructed or threatened violence against the officer;

Intent. With the intent of obstructing or hindering the officer in the performance of duty.

Right of arrest

(M) Breach of peace, in presence

Answer 36

NOTES

This charge requires physical obstruction or threats of violence

Physical obstruction includes:

**Refusing to move

**Verbally interrupting in a loud and persistent manner

**Videotaping is not interfering unless it’s done in a manner that physically hinders police.

**A suspect’s refusal to identify himself is not interfering.

Question 37

ROA’s and know the idea of suspect’s actions being motivated by bias

Interference with Civil Rights
265 S 37

Answer 37

Elements
Force or threat. The suspect willfully used force or the threat of force;
Attempt or interfere. To attempt or actually interfere with; or intimidate; or oppress;
Motivated by bias. Because of bias toward the victim’s actual or perceived race, religion, ethnicity, nationality, handicap, gender, sexual orientation, gender identity, or other identifiable characteristic;
Exercise of legal right. The exercise by the victim of a right secured by the Constitution or laws of the United States or Massachusetts.

Right of arrest

If bodily injury results: Felony

If no bodily injury: Arrest for breach of peace in presence. Otherwise, complaint.

Question 38

Unlawful Possession of a Firearm/Rifle/Shotgun outside of Home or Business
269 s 10 (a)

Answer 38

The defendant:
knowingly possessed (outside home or business), or had under his control in a motor vehicle, a firearm (barrel < 16 in);
doesn’t have a valid license to possess the firearm outside of his home or office;
does not qualify for one of the statutory exemptions from the licensing requirements.

Right of arrest Felony

Question 39

Large capacity for firearm and rifle

Answer 39

More than 10 rounds

Question 40

Large capacity for shotgun

Answer 40

More than 5 rounds

Question 41

Assault and battery by means dangerous weapon
265 s 15A

Answer 41

** Commits an assault and battery
** By intentionally and unjustifiably touching another person; OR
** Intentionally commits a wanton and reckless act that causes physical injury; or
**an intentional, harmful touching.
**Through the instrumentality of a dangerous weapon (“by means of a Dangerous weapon”).