What can I do with a license?
It is the burden of the Commonwealth to prove beyond a reasonable doubt that you did not have license or authority to do something when you are charged with a crime. However, under G.L. c. 278 § 7 a person relying on a license to establish an authority to do something must provide that license.
Occasionally, when a defendant asserts a defense, the defense is license or authority. For example, a police officer acting in good faith may arrest a person because they are carrying or possessing a firearm. That officer is acting in good faith and doing what he or she believes is the right thing to do. And for one reason or another they were unable to determine that the person had a "license" to possess those firearms. Once the defendant presents a license at trial this ideally eliminates the need for a criminal prosecution. Or in the case of a trial, the defense attorney would present evidence of a "license" which would be a defense to the crime. There are strict obligations on behalf of a defendant who seeks a defense of license in court which you should discuss with your attorney.
Another, more common use of the license or authority defense is someone who is in possession of an illegal drug but they do not have evidence that it was lawfully proscribed. At trial, that person could have an affirmative defense of license or authority if the prescription was validly issued.
When will the court consider my license or authority?
The question of whether or not the defendant had license or authorityto do a certain action comes into question when evidence has been presented about whether the defendant had legal authority to do what he or she is charged with doing because he or she allegedly:
- Held a license to do a certain action
- Came within the exception to the statute which permits a certain action
- Has some other claim of appointment or authority to do a certain action
Who has the burden of proving that there was no license or authority?
The burden is on the Commonwealth to prove beyond a reasonable doubt that the defendant did:
- Hold a license to do a certain action
- Come within the exception to the statute which permits a certain action
- Have some other claim of appointment or authority to do a certain action
If the Commonwealth has proved all of the elements of the offense beyond a reasonable doubt, and has also proved beyond a reasonable doubt that the defendant did NOT:
- Hold a license to do a certain action
- Come within the exception to the statute which permits a certain action
- Have some other claim of appointment or authority to do a certain action
…then the jury will find the defendant GUILTY.
Likewise, if the Commonwealth has failed to prove any of the elements of the crime beyond a reasonable doubt, or if it has failed to prove that the defendant did NOT:
- Hold a license to do a certain action
- Come within the exception to the statute which permits a certain action
- Have some other claim of appointment or authority to do a certain action
…then the jury must find the defendant NOT GUILTY.
Is it ever on the defendant to prove license or authority?
YES, there are some limited circumstances in which the burden is on the defendant to prove whether or not the defendant had license or authority to do a certain action.
Such circumstances occur when the prohibition in question is general but the license is exceptional and therefore the absence of license, appointment or authority is not an element of the crime. In this scenario, there is no jury issue as to license, appointment, or authority unless the defendant introduces evidence of such. The burden is on the Commonwealth to prove the absence of license, appointment, or authority beyond a reasonable doubt.
Some examples of these exceptional circumstances include ALL of the following (ALL):
- Admission to practice as an attorney at law
- A physician’s authority to prescribe a controlled substance
- A license to carry a firearm
- License to practice medicine
- A license to sell liquor
Examples of circumstances not exceptional enough include:
Note that a defendant who DOES wish to rely on a defense based on license, claim of authority, or ownership is required to provide advanced notice of this defense to the Commonwealth and the court.
Will my jury still consider license or authority even if don't have proof of either?
No, in a case in which no evidence is presented suggesting the defendant may have had legal authority to do what he or she is charged with doing on the grounds that he or she allegedly:
- Held a license to do a certain action
- Came within the exception to the statute which permits a certain action
- Has some other claim of appointment or authority to do a certain action
…the jury MUST NOT consider the question of license or authority.
IF YOU OR A LOVED ONE HAVE A LEGAL QUESTION ABOUT LICENSE OR AUTHORITY, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.
CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.
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