Every year, thousands of people are held without bail pursuant to M.G.L. c. 276 § 58A. 58A Hearings, are also known as Dangerousness Hearings, and can be used to hold a person without bail for up to 120 days in the District or Municipal Courts if they are charged with certain crimes.
While a number of crimes fit into this section, this blog post will focus solely on how Dangerousness Hearings can be used in DUI prosecutions.
Timing: The prosecutor can only move to hold someone without bail based on this statute at the arraignment date. If they miss their chance, they cannot try again.
Type of Charge: The prosecutor cannot use this statute in first or second offense OUI cases, but they can when a person is charged with a third offense, and often will use it for a fourth or greater offense. However, it is important to understand that in the passing of An Act Relative to Criminal Justice Reform in 2018, a change was made to the statute. Specifically, while this new law gave the prosecutors power to use the 58A statute to hold defendants who were charged with a third offense (prior to the act, it was only available if someone was charged with a fourth or subsequent offense), it also created the requirement that the person’s most recent conviction be within the last 10 years for the statute to apply. Unfortunately, this change has not been well published, and Attorney James G. DeGiacomo was seen people get held without bail wrongfully because their last conviction did not occur within 10 years. See: Commonwealth v. SM.
The First Hearing: If the prosecutor wants to hold someone based on this statute they must file a motion to do so, at the arraignment date. Immediately following the filing of the motion, there is a stage one hearing where the only questions before the judge are whether or not the charge qualifies under the state and whether or not there is probable cause to issue the new charge in the police report. If both those conditions are met, the judge MUST hold the defendant without bail for a period of three to seven business days.
The Dangerousness Hearing: After the three to seven day period the parties will return to court and have a hearing. This hearing is often like a miniature trial, however, most rules of evidence do not apply. After hearing the evidence, they court must decide two things:
- Is the Defendant a danger to society?
- Are there any conditions of release that can be afforded the Defendant that will assure the community’s safety?
Attorneys James G. DeGiacomo and Sergey Mikhlin have participated in over 50 of these hearings as both a prosecutor and a defense attorney. This experience has showed him one thing in particular: The Commonwealth can ALWAYS show that a person is a danger to society. Because of this, the second question is often the crux of the hearing. When determining conditions, the facts of the case and the defendant’s past record are very important, and can often be argued in a way to secure the defendant’s release with certain conditions.
Because of the high stakes with Dangerousness Hearings, it is important to have an experienced DUI Attorney by your side to ensure that you are being protected. If you have been charged with a OUI or DUI, contact Suffolk County DWI Lawyer James G. DeGiacomo today for a free case evaluation.