Massachusetts Domestic Violence Arrest FAQs: The Six-Hour Hold, Bail, and No Contact Orders

Going home depends on two things, the six-hour rule and the conditions the bail commissioner or a judge imposes. Under G.L. c. 276, § 42A a person eighteen or older arrested for an act constituting abuse cannot be released on bail sooner than six hours after the arrest, unless a judge orders the release in open court. The conditions of release must include restrictions on travel, association, or place of abode that prevent contact with the alleged victim. An arrested person who shares a home with the alleged victim ordinarily must go somewhere else after release.

The bail commissioner or a judge may impose conditions to ensure both the defendant’s appearance in court and the safety of the alleged victim, any other individual, or the community. G.L. c. 276, § 42A requires that those conditions include reasonable restrictions on the defendant’s travel, association, or place of abode that prevent contact with the person abused. In practice, the bail commissioner or a judge imposes a stay away no contact order and often orders the defendant not to return to a shared residence. The statute also requires the bail commissioner or a judge to review the defendant’s record and the police reports first.

An officer can arrest a person without a warrant. In some domestic violence situations, the officer must arrest the person. G.L. c. 209A, § 6(7) requires an officer to arrest a person the officer witnesses or has probable cause to believe has violated a vacate, restraining, or no contact order. The same section also covers situations in which no such order is in force. In those situations, arrest is the preferred response where the officer has probable cause to believe that the person committed a felony, a misdemeanor involving abuse, or an assault and battery under G.L. c. 265, § 13A.

The police book the arrested person. The six-hour period under G.L. c. 276, § 42A then begins. A bail commissioner is usually a court clerk who appears at the police station, hears a preliminary set of facts, and sets bail and conditions of release. A judge sitting in open court can order release on bail sooner. The arrested person must see a judge on the next business day for arraignment and review of the original bail and release orders. The arraignment is in the district court or the Boston Municipal Court, where the judge also addresses any request by the Commonwealth for a dangerousness hearing under G.L. c. 276, § 58A. The judge ordinarily imposes a stay away no contact order as a condition of release at arraignment.

A person eighteen or older arrested for an act constituting abuse is held at least six hours under G.L. c. 276, § 42A, unless a judge sitting in open court orders release on bail sooner. After six hours the bail commissioner or a judge can set bail with conditions and release the person. The Commonwealth can move for a dangerousness hearing under G.L. c. 276, § 58A. The judge can then hold the person until the hearing and can order detention after the hearing.

G.L. c. 276, § 42A imposes the six-hour hold. The six-hour hold applies to a person who has attained the age of eighteen and is arrested for an act constituting abuse, for violating a protective order, or for a violation of G.L. c. 265, § 13M or § 15D. The statute provides that such a person “shall not be admitted to bail sooner than 6 hours after arrest, except by a judge in open court.” Counsel can ask a judge in open court to order release on bail before the six hours have run.

The judge orders no contact as a condition of release at arraignment, most often under G.L. c. 276, § 58. Before arraignment the bail commissioner or a judge can impose the same restriction under G.L. c. 276, § 42A, which requires conditions that prevent contact with the alleged victim. The order binds the defendant alone and stays in force until a judge changes it. The firm’s page on no contact orders in Massachusetts criminal cases covers modifying the condition and what the Commonwealth does after a violation.

No. Once the police arrest a person or apply for a complaint, the case belongs to the Commonwealth. The district attorney decides whether to go forward or to dismiss. An alleged victim who asks the prosecutor to drop the case has no power to end it. A spouse may invoke the marital privilege under G.L. c. 233, § 20 and decline to testify. The Commonwealth may then try to prove the case with the 911 call, body camera video, photographs, and the officers’ observations, subject to the hearsay rules and the Confrontation Clause.

Not while a no contact order is in effect. The judge ordinarily orders the defendant to stay away from and have no contact with the alleged victim as a condition of release under G.L. c. 276, § 58. The order bars calls, texts, messages through friends or relatives, and social media contact. Contact that the alleged victim starts does not excuse the defendant, who must end the contact. A violation can lead to revocation of release and detention under G.L. c. 276, § 58B. The defendant asks the judge to change the order by motion.

Not without permission when the judge ordered the defendant to stay away from the home. The defendant asks the judge, through counsel, for a one-time visit to collect clothing, medication, work tools, and documents. The judge may allow the visit with a police escort at a set time. The police department arranges the escort. A defendant who goes to the home without permission violates the condition of release and can be arrested and held. A defendant who is also the subject of a 209A restraining order needs the same permission from the judge who issued that order.

Often, yes, at least while the case is pending. A judge may order the defendant to surrender firearms and firearms licenses as a condition of release under G.L. c. 276, § 58. A 209A restraining order issued against the defendant requires immediate surrender of all guns, ammunition, and licenses to the police. G.L. c. 209A, § 3B. The police chief who issued the license to carry may suspend it after the arrest. A conviction of assault and battery on a family or household member under G.L. c. 265, § 13M bars the defendant from possessing a firearm under federal law. 18 U.S.C. § 922(g)(9).

The arraignment creates an entry on the defendant’s criminal offender record information. The entry remains after a dismissal until the record is sealed. A person whose case ended in a dismissal or a not guilty finding may ask a judge to seal the record under G.L. c. 276, § 100C. The judge may seal the record on a finding that substantial justice would best be served by sealing. A person whose case was dismissed can file that petition at any time after the dismissal. Most employers and landlords cannot see a sealed record. The police and the courts can still see it.