Warrants and Arrests in Massachusetts Courts: Boston Criminal Defense Lawyer

Arrests, Arraignments and Clerk’s Hearings: Massachusetts Rules

Notice to Appear by Mail vs. Arrest

Massachusetts State and local police criminal investigations in Massachusetts ultimately include a police decision whether to charge a person with a criminal offense in a Massachusetts District Court or Boston Municipal Court, or a Massachusetts Superior Court. When the decision is to begin a criminal case in Boston or Massachusetts generally, police choose one of three methods of beginning a Massachusetts criminal case. You can either (1) be arrested, (2) sent a notice to appear for arraignment or (3) sent a notice to appear for a Massachusetts clerk’s hearing.

Here is what you can expect in a little more detail.

Notice by Mail: If you are not arrested, the Massachusetts Trial Court will mail you a notice to appear either to a clerk magistrate’s hearing or a notice to appear for arraignment. It is important to attend your clerk magistrate’s hearing because it is an opportunity to keep your criminal case permanently private.

Massachusetts criminal laws require an opportunity for you to have a clerk magistrate’s hearing for most misdemeanors. Massachusetts criminal laws make clerk magistrate’s hearings the option of the accusing police department for all felonies and a few specific misdemeanors.

Again, for most Massachusetts misdemeanors, clerk magistrate’s hearings are your mandatory right. Most Massachusetts misdemeanors require that the police officer begin your case with a notice to appear for a clerk magistrate’s hearing.

Common exceptions are domestic violence accusations, including 209A restraining oder violations, and drunk driving offenses in which you are stopped by police (“OUI”). In these cases, the police may either arrest you or begin your case with a notice to appear either for arraignment or for a Massachusetts clerk magistrate’s hearing. A police officer also may arrest you for a misdeamor that the officer witnessed first hand.

For Massachusetts motor vehicle offenses, the procedure is a little different. Your Uniform Motor Vehicle Citation, or “ticket,” is also your ticket to a clerk magistrate’s hearing. Here, however, it is your responsibility to deliver the citation to the local district court within FOUR DAYS of receiving the ticket for a criminal motor vehicle offense such as leaving the scene of an accident or reckless operation of a motor vehicle. For an explanation of this process, please see our page HERE.

Clerk’s hearings can also be available for complaints of felonies in the district or municipal court. A police officer may, if she chooses, apply for a clerk’s hearing of a felony application for a criminal complaint. If the officer chooses to notify you this way rather than arrest you, the court must hold a clerk magistrate’s hearing before a felony criminal complaint can begin against you.

(In the Massachusetts Superior Court, the procedure can be different.  These cases may also begin in the district court and later be transferred to the Superior Court. They may also begin with a Grand Jury indictment directly in the Superior Court.  We discuss the indictment process here.)

Civilians, people who are not police officers, may also ask the court to charge you with a crime. You will not be arrested cases where civilians apply for criminal complaints. Instead, you will receive a notice to appear for a clerk’s hearing in a Massachusetts district court if the court accepts the civilian application for a criminal complaint.

Arrest: If you are arrested, you must be brought to court for an arraignment within 24 hours (weekends excluded). A police officer can arrest you only under three limited circumstances. Arrests can occur for any felony charges. Arrests can also occur if a police officer witnesses an alleged misdemeanor involving a “breach of the peace” or certain driving or domestic violence offenses. Finally, a police officer can also arrest you if there is an arrest warrant.

You may not be arrested for any other misdemeanor offense. In felony cases, a police officer can also choose not to arrest you and instead to give you notice to appear for a clerk’s hearing in a felony accusation.  The officer can also elect to skip the clerk magistrate hearing and schedule your case for an arraignment.  The court will send you a notice by mail to appear in either case. For the difference between a felony and a misdemeanor in Massachusetts, see our explanation here.

Again, a police officer cannot arrest you for a misdemeanor that the officer did not witness firsthand, with a few exceptions.  The most common exceptions are some driving offenses and domestic violence offenses. You can be arrested for drunk driving, (“OUI” or Operating Under the Influence in Massachusetts) and for reckless operation where there was serious bodily injury, for example.  Also, certain specific criminal laws in Massachusetts allow arrests for misdemeanor offenses committed outside of the officer’s presence. Massachusetts General Laws allows a police officer to arrest you for several domestic violence misdemeanors committed outside of the officer’s presence or for offenses involving a 209A abuse prevention order violation, more commonly known as a restraining order violation.

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