On June 24, 2012 RM was driving home from a tavern in Lowell. He was on Thorndike Street and in front of him he noticed a State Police Road Block. RM entered the road block. The “greeter officer” noticed an odor of alcohol and asked RM if he had been drinking. RM responded yes and the “greeter officer” directed RM into the large parking lot the State Police were using to conduct the investigations. RM pulled in and was directed to a spot. He was asked to produce his license and registration. According to the Trooper RM just sat in the seat and did not respond. The Trooper asked again and this time RM got his license and registration and gave them to the officer. The Trooper asked RM to exit the vehicle which RM did. Two field sobriety tests were administered. The one legged stand and the 9 step heel to toe walk. (The HGN Test – horizontal gaze nystagmus test – was also administered but was not allowed into evidence at the trial. A portable breath test was administered in the field but this also was not allowed into evidence at the trial.) According to the police report RM failed the field sobriety tests and RM was arrested and charged with operating under the influence of liquor. RM was brought to the Concord Barracks where he elected to take a breathalyzer test. He blew a .07 which is in the gray area. RM retained Attorney Robert Lewin. At the pre-trial hearing Attorney Lewin got the DA’s Office to stipulate to the .07 and to stipulate that it would be admissible without the necessity of bringing in the breath test operator. On October 25, 2012 the case went to trial. On the advice of Attorney Lewin a jury was waived and the case was tried to the judge without a jury. The greeter officer and the arresting officer testified. RM and his wife testified. His wife testified that she was at home in bed when the phone rang at 2:45 AM. It was RM calling from the State Police Barracks. She testified that he was coherent and his speech was perfectly normal. She testified that she detected no signs of intoxication either in what he said or the way he said it. She also testified that he gave her specific driving directions on how to get from their home in Lowell to the State Police Barracks in Concord – a mighty task for someone who is allegedly under the influence. She was on the witness stand for about three minutes but her testimony was very helpful. RM testified. RM did a great job. His testimony was clear and concise; he was polite yet confident. The DA could not shake him on cross-examination (for which Attorney Lewin had thoroughly prepared him). At the close of his testimony both sides rested. Attorney Lewin made his closing and the DA made her closing argument. The Judge then said “I have considered all the testimony, I have taken into account the law and the burden of proof, and I find the Defendant not guilty.” RM is a truck driver and it was important for him to win. Several observations about the case: (1) The facts were good, especially the .07 breath test result; (2) RM and his wife were very well prepared. In meetings with Attorney Lewin both RM and his wife were put through a “mock” trial. They were put through both direct and cross examination. When they got on the witness stand in court they were ready; there were no surprises; and (3) The decision to try the case to the Judge alone without a jury was the right choice. Juries in Middlesex County can be difficult in DUI cases. Some months ago there was a series of stories in the Boston Globe about certain Judges who almost always say not guilty in DUI cases. Since that series in the Globe many Judges have been less ready to say not guilty in these cases. Nevertheless most Judges will still say not guilty if the evidence is not convincing beyond a reasonable doubt. This was one of those cases where Attorney Lewin felt the judge would say not guilty and the client agreed.
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