The way the law is phrased, it seems that a conviction for the disturbing the peace charge is not required for the dangerous weapon charge to stand.
Is this true?
Correct. The intent of the statute is to prevent use of such weapons at the time of arrest. Your susbsequent disposition on the underlying offense would be irrelevant.
A quick overview of the statute:
First, the dangerous weapons laws in 269/10(b) apply to carrying ONLY on ones person on in their vehicle. It does not criminalize possession in a home, place of business, etc.
The law then breaks down into two categories, Per Se Dangerous Weapons and Non-Per Se Weapons Possessed During Arrest.
*
Per Se DW's are those specifically prohibited in the statute: stillettos, double edged knives, knives w/ automatic springs (switch blades), various martial arts weapons, etc.
However, if a person possesses a billy club or other dangerous weapon not necessarily listed while being arrested for 1) a breach of peace/disturbing the peace, or 2) an outstanding warrant for a non adjudicated crime, they can face the up to 5 year penalty, same as the per se offense.
Now, whether an ASP might be considered a billy club will have to be determined by case law; I would say it is not, but I wouldn't want to be the test case. Current case law says that in determining whether an item is indeed a dengerous weapon under this second category, police must consider 1) the nature, size, and shape of the item, and 2) the manner in which it was handled or controlled. Comm. v. O'Connor, 7 Allen
*583 (1863); also see Comm. v. Turner, 59
*Mass.App.Ct.
*825 (2003) where a subject could not be charged under this statute after an officer in Boston made a warrant arrest and discovered a simple non-spring loaded folding knife in his pocket, as the knife was not used in a manner capable of causing serious harm or threat of harm at the time of his arrest.
*
Thus, if an ASP is determined
*not to be a billy club, one would have to use it in a dangerous manner at the time of their arrest for warrant or breach of peace to trigger this felony.
FWIW, keep in mind the second category isn't something most cops routinely deal with or charge regularly, so you have to hope the cop arresting you is aware of all the case law and the factors required to charge.