Fight Boston Restraining Orders - Criminal Defense Attorney Topazio
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Restraining Orders

Boston Restraining Orders – Massachusetts Criminal Defense Attorney

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Defense Against Restraining Orders and Violations

The following summary applies only to restraining orders sought or granted in District Court, pursuant to G.L. c. 209A and G.L. c. 258E.

Domestic Violence Restraining Orders: MGL c. 209A

In Massachusetts, most restraining orders sought for protection are governed by Massachusetts General Laws chapter 209A. Under G.L. c. 209A a “family or household member” who claims to have suffered abuse can apply to the appropriate District Court for a restraining order to protect her against the actions of an alleged abuser. If the alleged victim is neither a family member nor household member of the alleged abuser, the alleged victim must apply to the Superior Court for injunctive relief.

A restraining order gives the recipient enormous power over you. Contact Boston criminal defense attorney Steven J. Topazio to protect your rights.

Harassment Prevention Orders: MGL c. 258E

A new law was passed by the Massachusetts Legislature on February 9, 2010, providing more options for persons that are being harassed to obtain a restraining order. The new law, Chapter 258E of the General Laws, provides the ability for the Superior Courts, Boston Municipal Court, District Courts, and Juvenile Court to issue Harassment Prevention Orders.

The definition of abuse under Chapter 209A and harassment under Chapter 258E is different, therefore a party that may not meet the standard to have an order enter under Chapter 209A, may now able to get an order under Chapter 258E.  Although the proceedings under Chapter 258E are civil in nature, a violation of the order is criminal, the same as under Chapter 209A.  A violation of an order under Chapter 258E can result in a fine of not more than $5,000.00, imprisonment in a House of Correction for up to 2 1/2 years, or both.

If one is being harassed, which is defined as “(i) 3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property; or (ii) an act that: (A) by force, threat or duress causes another to involuntarily engage in sexual relations; or (B) constitutes a violation of section 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or 43A of chapter 265 or section 3 of chapter 272″, one can now apply to the court for a harassment prevention, regardless of the presence of any family relationship.

Contact Boston Criminal Defense Attorney Steven J. Topazio if you need protection from stalking, harassment or abuse.

What is a Restraining Order?

In Massachusetts, a restraining order is a civil court order signed by a judge that helps people when confronted with various types of abuse. An alleged victim seeking relief pursuant to G.L. c. 209A or G.L. c. 258E is initiating civil, not criminal, proceedings, against the alleged abuser. This is true, even if the alleged abuse is also being prosecuted criminally. A violation of a valid restraining order however, is a criminal offense. As in most civil proceedings, the party initiating the process, the alleged victim, is referred to as the plaintiff and the responding party, the alleged abuser, is referred to as the defendant.

Once the plaintiff (person requesting restraining order) files a restraining order and it is issued and properly served on the defendant (alleged abuser), the abuse or harassment should stop because any violation of the civil restraining order is a criminal violation subjecting the abuser to arrest and possible detention and incarceration.

Ex-Parte Hearing for a Temporary Order

Most plaintiffs who need the court’s protection will appear in court by themselves to seek a restraining order because they are in imminent fear of harm. The practice in Massachusetts is to allow the plaintiff to testify before a judge without notice to the defendant in what is known as an ex parte hearing. The purpose is to immediately issue a restraining order.

At the ex parte hearing, the plaintiff files an affidavit outlining the alleged abuse for the court. The court reads the affidavit and hears only from the plaintiff or her lawyer, but not the defendant, at this time. Not only is the defendant not present, he is not notified of the ex-parte hearing, cannot contest what is being told to the court at that time. He or she can only challenge the plaintiff’s version of the facts at the hearing for the permanent order which usually occurs ten days after the issuance of the temporary order. If the judge finds that the plaintiff has demonstrated, by a preponderance of the evidence (i.e., more likely than not) that the existence of a substantial likelihood of immediate danger of abuse will occur to the plaintiff, then the court will issue a temporary ten-day restraining against the defendant.

Restraining Orders Are Issued to Prevent the Restrained Person From:

  •      *     Annoying, harassing, striking, following, or disturbing the peace of the protected person(s).
  •      *     Having direct or indirect, personal, telephonic, electronic, or written contact with the protected person(s).
  •      *     Coming within 100 feet of the protected person(s) – place of work, residence, or school.

Hearing for a “Permanent” Order

Hearings for permanent restraining orders are held only after notice to the defendant. This is the defendant’s first opportunity to oppose the plaintiff’s application for a year-long restraining order. The defendant will be allowed to offer testimony and to cross-examine the plaintiff. Both parties may call supporting witnesses to testify.

The hearing is a civil proceeding that is conducted in an informal manner where the rules of evidence are not strictly enforced. The defendant is under no obligation to attend this hearing but if the plaintiff appears and he does not, the permanent order usually always issues. If the plaintiff does not appear before the court to request that the restraining order be extended, the temporary order will expire by close of business that day. If the defendant attends the hearing however he is under no obligation to testify as anything that he might say could be used against him.

Most restraining orders are supported by affidavits which allege physical harm which could result in criminal charges being filed against the defendant. If criminal charges have been filed or could be filed against the defendant, then it is advisable that the defendant invoke his 5th Amendment Right not to testify so as to avoid incriminating himself. Any statements that he makes in court could be used against him by the assistant district attorney in the later criminal proceeding. The better practice is for the defendant to be represented by an attorney who can speak for him.

The attorney can speak on the defendant’s behalf and can examine the plaintiff and the affidavit that the plaintiff submitted in support of her application. During effective cross-examination, a criminal defense attorney can elicit facts from the plaintiff that may prove useful later at trial and might make the difference between success or failure in a subsequent criminal proceeding.

To protect your rights, contact Boston Criminal Defense Attorney Steven J. Topazio for a free consultation.

Restraining Order Violations

Once a restraining order has been issued by the court, whether temporary or permanent, and any condition is violated, the violation is treated as a criminal matter that could result in serious consequences, including jail time. A violation of a 209A or 258E order may result in incarceration of up to 2 1/2 years in the house of correction as well as a $5,000.00 dollar fine.

What Are Your Rights?

The defendant (person receiving notice of the Restraining Order) can be found to have violated a restraining order; he must be officially given notice (served) with a copy of the restraining order. Being served a Restraining Order means formal copies of the Order have been personally delivered to the defendant, usually by the local police. If the defendant is served with a copy of the temporary order, then this is his opportunity to respond to the allegations made by the Plaintiff.

The defendant will have 10 days before the hearing for the permanent order is scheduled with the Court. A hearing is needed for a judge to determine whether to extend the temporary restraining order by making it permanent or to vacate it. Arriving at the hearing early, prepared and with your attorney will ensure the best possible outcome for your case.

Once a restraining order has been issued, it is important that the person listed upon the order understands and complies with all of the order’s terms. A restraining order can require a defendant to:

  •      *     Refrain from abusing the plaintiff
  •      *     Refrain from contacting the plaintiff, either directly or indirectly
  •      *     Move from a shared residence
  •      *     Stay away from the plaintiff’s residence and/or workplace
  •      *     Stay away from the plaintiff’s person
  •      *     Temporarily relinquish custody of minor children
  •      *     Surrender to the police any weapon
  •      *     Pay temporary financial support to the plaintiff and/or minor children.

Appeal of the Issuance Of a 209A Restraining Order

  • The only way to challenge the issuance of a 209A restraining order is by petitioning a single justice of the Supreme
  • Judicial Court for relief pursuant to G.L. c. 211, §3.

An Attorney Makes All the Difference

If someone is seeking a restraining order against you, you should strongly consider retaining an experienced criminal defense lawyer to represent you at the hearing.

While a restraining order is a civil order, it will appear on your CORI (criminal record). A restraining order gives the recipient enormous power over you; the complainant need only telephone the police to report having seen or spoken with her to have you arrested – which if true, of course, is a crime. Moreover, if you have already been arrested because the complainant accused you of domestic assault and battery or some other crime, the hearing on the restraining order may be your lawyer’s only chance to cross-examine the complainant. Such an opportunity may prove critical to your defense. Although you do not need to have an attorney to file a restraining order or defend against a restraining order, representing yourself is a risk and puts you at a huge disadvantage.

Comprehensive Investigation and Case-Building

Being prepared with an attorney from the start is the smartest and most cost-effective way to handle your restraining order. Boston criminal defense attorney Steven J. Topazio will ensure that all of the proper documents have been filed, knows how to handle the judge’s questions, and will not be caught off-guard by any unusual circumstances. Call his Boston law office at or email him to schedule a free consultation.

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RECENT CASE DECISIONS

December 23, 2013
Milford District Court
Docket # 1366CR0307
Restraining Order MGL c209A
Domestic Violence
The client, a 25-year old Army Veteran who recently returned from Afghanistan, was served with an application for a restraining order after getting into a verbal argument with his wife who alleged he threatened her and damaged furniture and walls in the marital home, hired Boston Restraining Order Attorney Steven J. Topazio to represent him. Attorney Topazio learned that his client lost his job after returning from a tour in Afghanistan and was under great financial pressure of losing his home. Attorney Topazio documented that the collateral consequences of serving in the United States Army contributed to the irretrievable breakdown of his client’s marriage. Attorney Topazio advised his client to file for divorce and to schedule temporary motions in the probate court requesting among other things, that the parties be prohibited from imposing any restraint on the personal liberty of the other, provided that neither party intends that any alleged violation of such a provision shall be treated as a criminal matter. Attorney Topazio had the wife served with divorce papers on the date of the hearing on the extension of the restraining order at the Milford District Court. Attorney Topazio argued that the Probate Court should supersede the 209A restraining order in the Milford District Court, so that any violation would be a civil infraction instead of a criminal violation. Today, Attorney Topazio convinced the Milford District Court to continue the restraining order for three months instead of one year, so as to give the parties time to appear in the Probate and Family Court.
Result: Restraining Order extended for three months.

July 24, 2013
Quincy District Court
Docket # 2013RO0306
Restraining Order M.G.L c.209A
Domestic Violence
The client, a 45 year old professional, was arrested for assault with a dangerous weapon on his wife who immediately obtained a restraining order against him, hired Boston Domestic Violence Attorney Steven J. Topazio to defend him. Attorney Topazio learned that the restraining order indicated that the defendant was ordered pursuant to Section #3 to immediately leave and say away from the plaintiff’s residence. In the company of Quincy Police, in an attempt to pick up his belongings, the client went to his residence in Quincy MA pursuant to Section #10 of said restraining order, to pick up his personal belongings but was not able to gain entrance to said premises as he learned that the plaintiff no longer resided at that location. Attorney Topazio discovered that the mail had not been picked up for several weeks and that a letter from the United States Post Office was discovered in the mail confirming the plaintiff received a Change-of-Address notification. Attorney Topazio filed a motion modifying the terms of the restraining order with the court. Today, Attorney Topazio argued that his client has been in full compliance with all conditions of the Restraining Order since its issuance and that he cannot afford to pay the rent on two different apartments and requested that the restraining order be modified so as to allow his client to move back into his home, and the court agreed.
Result:Restraining Order modified.

June 20, 2013
Cambridge District Court
Docket # 1252RO0150
Domestic Abuse Prevention Order
Restraining Order M.G.L. c. 209A
The client, a 39 year old scholar from China, received an application for a Restraining Order from a roommate and retained counsel but was unsuccessful at the extension hearing and the Restraining Order issued for one year. The client discharged her former attorney and hired Boston Restraining Order Attorney Steven J. Topazio to represent her. Boston Restraining Order Attorney Topazio met with his client and developed a strategy on how to represent his client on the one year anniversary of the restraining order. Attorney Topazio focused on the issue that the initial restraining order may have been issued improperly as not meeting the requirements of what a family or household member is as defined in section one of chapter two hundred and nine A (209A). The client lived in a second floor apartment and her roommate lived on a third floor apartment. According to statute, a family or household member “are or were residing together in the same household”. Attorney Topazio argued that his client was not a household member and the court lacked jurisdiction to issue the initial order. Despite the legal argument, Boston Restraining Order Attorney Steven J. Topazio convinced the court to deny the extension of the Restraining Order.
Result:Restraining Order vacated.

June 10, 2013
Ipswich District Court
Docket # 1040CR0012
Abuse Prevention Order MGL c.209A
Domestic Violence
Restraining Order
The client, a 20 year old, had a confrontation with his aunt in 2010 following the death of his grandmother (and aunt’s mother) was unsuccessful in stopping the issuance of a restraining order. When the client was unsuccessful again in trying to stop an extension of the restraining order after the initial term, he hired Boston Restraining Order Attorney Steven J. Topazio to represent him. Attorney Topazio discovered that his client’s father (aunt’s brother) was fighting with the aunt over the family’s estate. In preparation for the extension hearing, Attorney Topazio obtained the estate filings and discovered that a petition to partition was also filed in the land court, which indicated that the aunt and client’s father inherited the estate home. A Petition to Partition is a legal device filed in court to divide ownership of real estate. If the petition to partition is granted, the property will either be physically divided or sold with the proceeds distributed equally. Today, Attorney Topazio argued against the extension of the restraining order as well as the issuance of a permanent restraining order. Attorney Topazio told the judge that the aunt was using the restraining order as leverage in the petition to partition case, by abusing her nephew so as to negotiate a bigger inheritance share for herself from the client’s father. Although the restraining order was extended, the court denied a permanent order and acknowledged Attorney Topazio’s argument that the need for a restraining order should end once the family’s estate was settled.
Result: Permanent Restraining Order denied.

December 20, 2012
BMC Dorchester District Court
Docket # 1207RO1537
Domestic Abuse Prevention Order
Restraining Order M.G.L. c. 209A
The client, a 34 year old father of three children, received an application for a Restraining Order from the mother of one of his children, hired Boston Criminal Lawyer Steven J. Topazio to defend him. The client had been unsuccessful in the past when he appeared in court without counsel. Boston Criminal Defense Attorney Topazio met with his client and developed a chronology of events leading up to the RO filed against his client. Massachusetts Criminal Lawyer Topazio established a pattern of events that led to the conclusion that the RO filed against his client was in retaliation for court filings his client made against the petitioner. Today, after a full hearing in court, Boston Criminal Attorney Steven J. Topazio convinced the court to deny the extension of the Restraining Order.
Result:Restraining Order vacated.

September 10, 2012
Peabody District Court
Docket # 1286 RO 0258; 1286 RO 0257
Domestic Relations
Abuse Prevention Order, M.G.L. c. 209A
Harassment Prevention Order M.G.L. c. 258E
The client, a 52 year old mother of one, broke up with her boyfriend of one year, received an Abuse Prevention Order from her ex-boyfriend and a Harassment Prevention Order from the new girlfriend, hired Boston Criminal Defense Lawyer Steven J. Topazio to represent her. Harassment is defined as 3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property. The definition of abuse under Chapter 209A and harassment under Chapter 258E is different. Abuse for purposes of a 209A Order is the occurrence of one or more of the following acts between family or household members: (a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; (c) causing another to engage involuntarily in sexual relations by force, threat or duress. Massachusetts Criminal Attorney Topazio contested both orders. Today on the hearing of the permanent orders, Massachusetts Criminal Defense Lawyer Topazio established that the petitioners did not meet their burden to issue both the 209A and 258E restraining orders, and the Court Agreed.
Result:Restraining Orders Vacated.

April 05, 2012
Waltham District Court
Docket # 1251 RO 63
False Allegations
Hearing on Permanent Restraining Order
Restraining Order MGL c. 209A
The Client, a 39 year-old, who was separated from her husband, contacted Criminal Defense Attorney Steven J. Topazio after being served with a temporary restraining order from her estranged husband. The restraining order alleged that the Client assaulted her husband in his place of employment, slapping him in the face because he wouldn’t sign her application for a green card. The husband claimed he didn’t want to engage in any illegal acts. The husband further alleged that he was threatened by his wife by claiming she said she would get an attorney who would give him trouble. Attorney Topazio entered his appearance and continued the hearing on the permanent order so as to prepare his defense. Attorney Topazio obtained his client’s employment records which showed that she was working on the day of the alleged incident. Attorney Topazio further obtained a copy of his client’s valid “green card” or United States of America Permanent Resident card so as to challenge the husband’s credibility at time of the court hearing. Attorney Topazio further discovered that his Client called the police on her husband after he left her for another woman, several months prior to this incident. Attorney Topazio obtained that police report which indicated that the husband threatened his wife with physical harm and told her to leave the country and to move back to Mexico when she asked for a divorce. Today, after a full hearing, Attorney Topazio convinced the court to vacate the temporary restraining order against his Client arguing that the husband had fabricated the claims against his Client so as to get leverage in the pending divorce.
Result: Restraining Order Vacated.

March 20, 2012
Fitchburg District Court
Docket # 1116CR1998; 1116CR1723
False Allegations
Attempted Murder M.G.L. c. 265 § 16
A&B M.G.L. c. 265 § 13A(a)
Violate Abuse Prevention Order M.G.L. c. 209A § 7
Aggravated A&B c. 265 § 13A(b)
Witness Intimidation M.G.L. c. 268 § 13B
Malicious Damage to Motor Vehicle M.G.L. c. 266 § 28(a)
The client, an 18 year old High School student, was arrested on domestic violence charges involving his girlfriend with whom he lived, hired Attorney Topazio to represent him. Shortly after the first case, the client got into another altercation with his girlfriend after which she applied for a restraining order. After this event, the girlfriend alleged that there was an incident between the parties wherein she alleged that the client violated the restraining order by trying to strangle her where she lost consciousness, and as a result the client was arrested on attempted murder charges. In preparation of the case, Attorney Topazio obtained cell phone records between the parties suggesting no attack occurred and that the girlfriend was making false allegations. Attorney Topazio spoke with witnesses to prepare his defense. Attorney Topazio also identified alibi witnesses which called into question the veracity of the girlfriend’s allegations that she was attacked when she claimed she was attacked. During the several months of pre-trial preparation, Attorney Topazio discovered prior incidents of false allegations made by the girlfriend against former boyfriends which resulted in criminal complaints being dismissed. Attorney Topazio obtained copies of these complaints in an attempt to show a pattern of making false allegations. Today, despite the Commonwealth’s request for yet another continuance on the scheduled probable cause hearing, Attorney Topazio was successful in getting the Court to deny the Commonwealth’s request and persuaded the Court to dismiss all charges for want of prosecution.
Result: All charges dismissed.

December 08, 2011
West Roxbury District Court
Docket # 1106RO0742
Application for Abuse Prevention Order, MGL c. 209A
The client, a 25 year old, received an application for issuance of a permanent abuse prevention order from her mother who called police alleging that her daughter/client threatened to punch her mother’s teeth in, hired Attorney Topazio to represent her. Attorney Topazio continued the hearing date on the issue of whether a permanent order should issue so as to prepare a defense and to investigate his client’s case. Attorney Topazio discovered that his client’s father had died one month prior to the alleged incident and that the client’s mother, who was divorced from the decedent, had been attempting to manipulate the client so as to come into control of the decedent’s estate. Attorney Topazio obtained documentation supporting his client’s position that the mother was retaliating against the client by seeking a restraining order because the client stood up to her mother. Today, Attorney Topazio argued that despite the alleged threatening comments made by his client to her mother that the parties remained together for the remainder of the day without fear and without further incident. Attorney Topazio argued that the petitioner only applied for a restraining order after a second argument so to retaliate against her daughter who called the mother a “money grubbing B****” because the daughter refused to allow the mother to pilfer her father’s estate. Attorney Topazio was successful in persuading the court to deny the restraining order by establishing that the petitioner was not in fear of imminent bodily harm.
Result:Request for issuance of Permanent Restraining Order denied.

October 07, 2011
Cambridge District Court
Docket No: 1110RO0512
Harassment Prevention Order c 258E
The Client, a 29 year old graduate student, received a notice for a hearing on a complaint for issuance of an Harassment Prevention Order, hired Attorney Topazio. In order to establish grounds to issue an Harassment Order, a party must prove that 3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property. The client and the petitioner lived in different apartments of a three family building. When a dispute arose between the two of them regarding the client alleging the petitioner stole property from the client, their relationship quickly deteriorated. The client went to the petitioner’s place of employment on two occasions in an attempt to confront the petitioner. On a third occasion, the petitioner claimed the Client followed him in his vehicle so as to harass him. In an attempt to create a cooling off period, Attorney Topazio continued the initial hearing when he learned the Client filed a notice to quit with her landlord and would move out of the building where both parties lived by the end of the month. In requesting the continuance, Attorney Topazio pointed out to the Court that the tension between the parties might end if his client no longer would be in a situation to see the petitioner, thereby rendering the petitioner’s request for a Harassment Order moot, and the Court agreed. Today, the complaint against the Client was dismissed and no order issued.
Result: Case dismissed

May 18, 2011
Suffolk Probate Court
Application for Restraining Order
Application for Restraining Order M.G.L. c. 209A
The defendant, who had been married for only seven months, received notice of an Abuse Prevention Order filed against him by his wife, hired Attorney Topazio. Attorney Topazio obtained a copy of the supporting affidavit which supported the Temporary Restraining Order and learned that the complainant was placed in fear from several incidents of alleged physical abuse attributed to the defendant. The hearing to issue a restraining order is a civil proceeding that is conducted in an informal manner where the rules of evidence are not strictly enforced. The defendant is under no obligation to attend this hearing but if the plaintiff appears and he does not, the permanent order usually always issues. If the defendant attends the hearing however he is under no obligation to testify as anything that he might say could be used against him. Most restraining orders are supported by affidavits which allege physical harm which could result in criminal charges being filed against the defendant, as was the case here. If criminal charges have been filed or could be filed against the defendant, then it is advisable that the defendant invoke his 5th Amendment Right not to testify so as to avoid incriminating himself.
To avoid the possibility of criminal charges being issued against his client, Attorney Topazio contacted opposing counsel and negotiated a resolution of the conflict whereby he suggested that if both parties would enter into counseling in an attempt to repair their marriage, and that the no contact portion of the restraining order is dropped, his client would agree to the issuance of the restraining order but only for a period of time less than one year. Hearings for permanent restraining orders are generally for a year-long period. At the hearing, Attorney Topazio was effective in persuading the court to order a no abuse order only for a period of five (5) months, despite opposing counsel’s request that the no abuse order be issued for one (1) year.
Result: Restraining Order issued for five months for no abuse only, no contact provision vacated. >

March 28, 2011
Brockton Probate Court
PL11RO074AB
Abuse Prevention Order, M.G.L. c. 209A
Enforce foreign Judgment
Full faith and credit clause, Article 4, s. 1, of the US Constitution
The defendant, a resident of Red Wing, Minnesota, was served with a copy of the restraining order on March 2, 2011, after his girlfriend left the state with their infant child and came to Massachusetts, hired Attorney Topazio to represent him. Attorney Topazio continued the return date on the temporary restraining order because his client had filed a paternity action in Minnesota, requesting, among other things, custody of his minor child. Attorney Topazio was aware that Minnesota was the proper jurisdiction within the contemplation of the Uniform Child Custody Jurisdiction and Enforcement Act to enter an order regarding the custody, care, and control of the parties’ minor child. The continuance allowed Minnesota to enter an order adjudicating the defendant the father of the minor child and granted him temporary sole legal and sole physical custody. Attorney Topazio next filed an emergency order in the Probate Court requesting the court to enforce the foreign judgment and advanced the hearing on the temporary restraining order. Today, after a full hearing, Attorney Topazio convinced the court not to extend the Restraining Order against his client and caused the Massachusetts Probate court to enforce the foreign judgment, arguing that the Full faith and credit clause, Article 4, s. 1, of the United States Constitution provides, in part, that “[f]ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” Attorney Topazio pointed out that the Full faith and credit requires that Massachusetts give to the judgment of the Minnesota court the same finality that it would receive in Minnesota, and the Massachusetts court agreed. As a result, the Probate court further ordered that the mother return the child to the father who was allowed to leave Massachusetts and to return to Minnesota with his child.
Result: Temporary Restraining Order vacated and foreign judgment enforced. Mother ordered to return infant child to the father, and both father and child were allowed to return to Minnesota.

August 19, 2010
Milford District Court
1066CR0676; 1066CR0687; 1066CR0853
Abuse Prevention Order, Violate, M.G.L. c. 209A § 7
Threat to Commit Crime, M.G.L. c. 275 § 2
Intimidate a Witness, M.G.L. c. 268 § 13B
Stalking in violation of Restraining Order, M.G.L. c. 265 § 43(b)
The defendant, who was a recovering addict, suffered a drug relapse after he lost his job of several years; experienced the trauma of his substance abuse counselor dying two weeks prior to his arrest, then relapsed when his girlfriend left him with their infant daughter and obtained a restraining order against him. During the drug relapse, the defendant was arrested for violating the restraining order after threatening to kill his girlfriend. The defendant hired Attorney Topazio to represent him. Due to the strength of the Commonwealth’s cases, on June 17, 2010 the defendant plead guilty to dockets 1066CR0676 alleging, among other things, a violation of an abuse prevention order in violation of ch. 209A § 7 and 1066CR0687 alleging, among other things, a violation of an abuse prevention order in violation of ch. 209A § 7. Following the defendant’s plea, the Commonwealth brought an additional charge against him alleging stalking in violation of G.L. c. 265, §43(b), a violation of which carries a mandatory minimum term of imprisonment of one year. “To establish the crime of stalking in violation of G.L. c. 265, §43(a), the Commonwealth must prove that the defendant ‘(1) willfully and maliciously engage[d] in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarm[ed] or annoy[ed] that person and would cause a reasonable person to suffer substantial emotional distress, and (2) [made] a threat with the intent to place the person in imminent fear of death or bodily injury.’ To establish the aggravated form of stalking at issue in this case, §43(b) (stalking in violation of court order), the Commonwealth must prove both a pattern of conduct constituting stalking under §43(a) and that the conduct violated (in this case) a 209A order that was in effect.” Attorney Topazio filed a Motion to Dismiss the charge and submitted a memorandum of law in which Attorney Topazio alleged that his client cannot be tried on the new charge due to double jeopardy grounds. The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offense to be twice put in jeopardy in life or limb. The constitutional prohibition of double jeopardy has been held to consist of three separate guarantees: (1) “It protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense.” Attorney Topazio argued that to establish the aggravated form of stalking, §43(b) (stalking in violation of court order), the Commonwealth must prove both a pattern of conduct constituting stalking under §43(a) and that the conduct violated (in this case) a 209A order that was in effect. Attorney Topazio pointed out to the Court that the Commonwealth, however, is relying on the same conduct previously the subject of his client’s convictions of violating the 209A order under dockets 1066CR0676 and 1066CR0687, and could not be tried on the aggravated offense because it violates the Double Jeopardy Clause. Today Attorney Topazio convinced the court to allow his motion to dismiss the complaint against his client.
Result: Case dismissed by the court finding that a prosecution violated the Double Jeopardy Clause.

June 17, 2010
Milford District Court
1066CR0676; 1066CR0687; 1066CR0853
Abuse Prevention Order, Violate, M.G.L. c. 209A § 7
Threat to Commit Crime, M.G.L. c. 275 § 2
Intimidate a Witness, M.G.L. c. 268 § 13B
Stalking in violation of Restraining Order, M.G.L. c. 265 § 43(b)
The defendant, who was a recovering addict, suffered a drug relapse after he lost his job of several years; experienced the trauma of his substance abuse counselor dying two weeks prior to his arrest, then relapsed when his girlfriend left him with their infant daughter and obtained a restraining order against him. During the drug relapse, the defendant was arrested for violating the restraining order after threatening to kill his girlfriend. The defendant hired Attorney Topazio to represent him. Due to the strength of the Commonwealth’s cases, on June 17, 2010 the defendant plead guilty to dockets 1066CR0676 alleging, among other things, a violation of an abuse prevention order in violation of ch. 209A § 7 and 1066CR0687 alleging, among other things, a violation of an abuse prevention order in violation of ch. 209A § 7. Following the defendant’s plea, the Commonwealth brought an additional charge against him alleging stalking in violation of G.L. c. 265, §43(b), a violation of which carries a mandatory minimum term of imprisonment of one year. “To establish the crime of stalking in violation of G.L. c. 265, §43(a), the Commonwealth must prove that the defendant ‘(1) willfully and maliciously engage[d] in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarm[ed] or annoy[ed] that person and would cause a reasonable person to suffer substantial emotional distress, and (2) [made] a threat with the intent to place the person in imminent fear of death or bodily injury.’ To establish the aggravated form of stalking at issue in this case, §43(b) (stalking in violation of court order), the Commonwealth must prove both a pattern of conduct constituting stalking under §43(a) and that the conduct violated (in this case) a 209A order that was in effect.” Attorney Topazio filed a Motion to Dismiss the charge and submitted a memorandum of law in which Attorney Topazio alleged that his client cannot be tried on the new charge due to double jeopardy grounds. The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offense to be twice put in jeopardy in life or limb. The constitutional prohibition of double jeopardy has been held to consist of three separate guarantees: (1) “It protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense.” Attorney Topazio argued that to establish the aggravated form of stalking, §43(b) (stalking in violation of court order), the Commonwealth must prove both a pattern of conduct constituting stalking under §43(a) and that the conduct violated (in this case) a 209A order that was in effect. Attorney Topazio pointed out to the Court that the Commonwealth, however, is relying on the same conduct previously the subject of his client’s convictions of violating the 209A order under dockets 1066CR0676 and 1066CR0687, and could not be tried on the aggravated offense because it violates the Double Jeopardy Clause. The court took the motion under advisement.Result: Case pending decision of court.

May 20, 2010
Somerville District Court
1010RO0168
Application for Restraining Order M.G.L. c. 209A
The defendant, who had been divorced for several years, received notice of an Abuse Prevention Order filed against him by his ex-wife, hired Attorney Topazio. Attorney Topazio obtained a copy of the supporting affidavit which supported the Temporary Restraining Order and learned that the complainant was placed in fear from phone calls attributed to the defendant. Attorney Topazio had his client compile six months of his phone records and verification of his whereabouts for the time in question, in anticipation of the Court hearing. At the hearing, Attorney Topazio was effective in persuading the court to rule that there was insufficient evidence in the plaintiff’s affidavit to support issuance of the permanent order.
Result: Restraining Order vacated.

October 15, 2009
Suffolk Superior Court
09-4269
Restraining Order (Non dating relationship nor household member)
The alleged victim (who is related to the defendant but did not live with her) alleged that the defendant and her fiancé came to his home and broke in and maliciously damaged his property, filed a complaint in Superior Court requesting a restraining order issue against the defendant. The defendant hired Attorney Topazio to represent her at the hearing for the permanent restraining order. In Massachusetts, most restraining orders sought for protection are governed by Massachusetts General Laws chapter 209A. Under G.L. c. 209A a “family or household member” who claims to have suffered abuse can apply to the appropriate District Court for a restraining order to protect her against the actions of an alleged abuser. If the alleged victim, as in this case, is neither a family member nor household member of the alleged abuser, the alleged victim must apply to the Superior Court for injunctive relief. Today after hearing Attorney Topazio persuaded the court not to issue the restraining order for one year as requested but rather to extend it two months so as to give the parties the opportunity to see if matters could cool down before the Christmas holiday, with the intent of dismissing that order, and the court agreed.
Result: Restraining Order extended two months to give parties opportunity to cool down.

October 09, 2009
Quincy District Court
200956RO0816
Restraining Order MGL c. 209A
The wife of the defendant recently filed for divorce and served the defendant with divorce papers, yet still lived with her husband. Prior to a hearing on temporary motions in the divorce case, the wife went to the Quincy District Court and obtained an ex parte temporary restraining order against her husband of 24 years. Ex parte means the wife appeared in court without giving notice to her husband when she obtained the temporary order. Prior to the hearing on the Permanent Order, the defendant hired Attorney Topazio. Today, after conducting a full hearing, Attorney Topazio, was successful through effective cross-examination in challenging the wife’s credibility and convinced the Court that the actions of the wife to file for a restraining order were most probably motivated by a desire to get leverage in the recently filed divorce case and not because she was in fear of her safety. Through cross examination Attorney Topazio elicited testimony that there was no history of abuse, prior restraining orders or police intervention between the parties. Today Attorney Topazio persuaded the Court not to issue the permanent 209A Order.
Result: Permanent 209A Order not granted.