A judge in the Boston Municipal Court recently allowed Attorney Goldenberg’s motion to dismiss the charges against her client because the clerk issued a criminal complaint without holding a show cause hearing. Her client was legally entitled to this hearing where he could oppose the issuance of the complaint.
In situations where a police department applies for a misdemeanor complaint against a person who is not under arrest, Mass. General Law chapter 218, section 35A requires that the accused have the opportunity to be heard in opposition to the issuance of the complaint. There are exceptions to this requirement: if there is believed to be an imminent threat of bodily injury, of the commission of a crime, or of flight from the Commonwealth by the person against whom such complaint is made, the complaint can issue without notice to the accused. Attorney Goldenberg demonstrated that her client did not fall under any of the exceptions to his right to a show cause hearing so the complaint was dismissed.
The police department can refile for a complaint, but the accused will be able to exercise his right to oppose the complaint being issued. Attorney Goldenberg will appear at the hearing with her client to advocate against the complaint issuing.