If you are a veteran or active duty service member facing criminal charges, it is in your best interest to consult with a lawyer who is knowledgeable in veterans legislation as soon as possible. You may be eligible to have your case diverted out of the criminal justice system or to receive special consideration within the system based on your status as a veteran. To learn more about the unique laws applicable to veterans and active duty service members, read on.

In 2012, the Massachusetts legislature passed into law the VALOR Act “to assist veterans and active duty service members of the United States armed forces as they resumed their civilian lives”. A section of the law confers authority upon judges in the district courts of Massachusetts as well as the municipal court of the city of Boston to divert to a program any person who is a veteran, on active service in the armed forces of the United States, or has a history of military service in the armed forces of the United States who is charged with a crime for which a term of imprisonment may be imposed, regardless of age. The statute applies only to veterans, active duty service members, and persons with military service who have not previously been convicted of a violation of law after having reached the age of 18, and who does not have any outstanding warrants or other criminal cases pending. The statute requires that the veteran or active duty service member have received a recommendation from a program that such person would benefit from participation in such program, before a judge may divert a criminal case out of the criminal justice system.

Under the law, a judge has authority to continue an arraignment for a period of 14 days to allow a person to be evaluated by the United States Department of Veterans Affairs, or another State or Federal agency with suitable knowledge and experience of veterans affairs, to provide the court with treatment options. After receiving the evaluation, a judge ultimately has discretion as to whether to accept the recommendation and order a defendant to complete the program following which the judge may dismiss the case, in some cases pre-arraignment, or to reject the recommendation and order the case to proceed to trial. See VALOR Act, St. 2012, c. 108, Commonwealth v. Morgan, 476 Mass. 768 (2017).

Passage of the VALOR Act was a positive development for veterans and active duty service members because it gave judges the power to dismiss charges against veterans and active duty service members even when prosecutors object. This power is an exception to the constitutional rule of “separation of powers” which says that the power to decide whether to prosecute a case is reserved to the executive branch of government, which branch includes the District Attorney’s Offices and Office of the Attorney General. When the Massachusetts legislature passed the VALOR Act, they carved out an exception to this rule on behalf of military defendants in recognition of their service to this nation. The VALOR Act gives power to judges to overrule prosecutors and order the dismissal of charges, in some cases pre-arraignment, against veterans and active duty service members when appropriate.

Prosecutors did not concede this power without a fight and the battle went all the way to the highest court in Massachusetts. The government argued that the VALOR Act did not grant power to judges to dismiss criminal charges when prosecutors were advocating for a case to go forward. Prosecutors argued that this is especially true in the context of Operating Under the Influence of Liquor or Drugs (OUI / DUI / DWI) cases, and they lost! On April 18, 2017, the Supreme Judicial Court of Massachusetts (SJC) handed down a pivotal decision in favor of veterans and active duty service members in the case of the Commonwealth v. Morgan, 476 Mass. 768 (2017). The SJC specifically addressed the question of whether a judge has authority to dismiss criminal charges (including OUI / DUI / DWI charges) under the VALOR Act when a District Attorney’s Office objects. The Court answered the question with a resounding “YES”, paving the path forward for veterans justice in Massachusetts. In issuing its decision, the Supreme Judicial Court highlighted the fact that the VALOR Act was enacted “in the aftermath of protracted American military engagements in Afghanistan and Iraq”, with an intent to recognize the unique challenges faced by veterans and active duty service members and to give them special consideration in recognition of their service.

If you are a veteran or active duty service member who has been arrested or facing criminal charges, you need a lawyer who has the specialized knowledge and experience to help you exercise the available options and navigate the complexities of the criminal justice system. If possible, you should contact an attorney before your first appearance in court because your attorney may be able to resolve your case prior to arraignment, which would prevent you from having a criminal record.

Attorney Bethany Rogers has successfully advocated on behalf of veterans and active duty service members for years, and she is ready to help you. Contact Attorney Rogers at 617-227-7200 for a free and confidential consultation.

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